Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms


The use and success of assisted reproductive technologies (ART) over the past decade has contributed perceptibly to family formation nationwide. Today, 3 of every 100 children born owe their existence to some form of assisted conception. Despite, or perhaps because of, its technical successes, a growing body of evidence suggests that barriers to ART are being constructed to prevent procreation among select populations. The article’s theme is one of harm, specifically the harm that befalls patients, physicians, offspring and society when fertility treatments are denied on the basis of personal characteristics, including race, marital status and sexual orientation. While ART is widely perceived as a free market good, the provision of reproductive services is increasingly subject to public and private barriers that target prospective parents whose procreative rights have been historically dismissed or undervalued. These barriers create limitations to treatment based on patient immutable characteristics and social structures, ultimately imposing undue burdens of the affected individual’s right to procreative liberty. The central portion of the paper analyzes the harms from ART denials to four distinct cohorts – patients, providers, offspring, and society - suggesting possible solutions to address or forestall the offending conduct. Harms to patients from treatment denials include forced childlessness as well as dignitary harms, the latter arising when the fundamental right to procreative decision-making is repressed. Harms to ART providers take the form of economic and reputational loss, amenable to repair only by adhering to established norms governing physician autonomy which balance patient and provider needs. Harms to offspring encompass damage to existing and never-born children, diminishing the life and potential existence of children conceived through technological means. Finally, harms to society are reminiscent of the damage inflicted by the American eugenics movement of the early 20th century. Today’s deprivation of reproductive opportunity is compared to the coercive sterilization tactics of yesteryear, reminding us that seemingly well-meaning expressions about the welfare of the human race may be a pretext for nefarious social engineering aspirations.


Health Law and Policy | Medical Jurisprudence

Date of this Version

February 2007