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Tagged: assisted reproduction

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Why is Reproductive Technology a Battleground in the Abortion Debate?

Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, 120px-Icsitending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today.

The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. Costa Rica, for example, banned IVF entirely for this reason in a law later struck down by the Inter-American Court of Human Rights. Although their connection may not be immediately obvious, then, abortion and assisted reproduction have a history of intertwinement in the policymaking arena.

An important question remains, though, about what is achievable in bringing anti-abortion sentiments to bear on issues in assisted reproduction. On the surface, there appears to be no clear connection between terminating a pregnancy and pursuing one. Of course, abortion and assisted reproduction are both techniques for managing reproductive life, and it is true that, in some applications, assisted reproduction may result in embryo loss. Hence, calls to regulate embryo disposition (called “adoption” in this context) and embryonic stem cell research make a certain amount of sense. But the claim that embryos have a moral status is not a good explanation for why other areas of assisted reproduction have become attractive battlegrounds for pursuing an anti-abortion agenda: egg donation, sex selection, and intentional parenthood.

It is obvious why the movement decries sex-selective embryo discarding or sex-selective abortion. Less clear is the reason for the movement’s opposition to pre-conception sex-selective techniques. Furthermore, anti-abortion advocates have claimed, respectively, that egg donation harms women and that intentional parenthood in the absence of a genetic connection harms children. Neither of these positions has much to do with abortion. If it is safe to assume that the stances assumed by the anti-abortion movement against assisted reproduction have more to do with banning abortion than with regulating reproduction, it is important for us to inquire into why the movement believes its resources are well spent in this area and what the implications of its activities might be for law and policy.

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Regulating Assisted Reproduction

06fertilizadoAnxiety arises from technological advances in the life sciences, and there is often uncertainty about what societal response is appropriate. Are we more likely to condone euthanasia as technology for prolonging life improves? Should we support the cloning of human embryos for research purposes even if we reject reproductive cloning? It is a common sentiment that legal regulation is a useful tool for fashioning rules about scientific activities and medical interventions. But in legal circles, we are not shy about questioning the limits of our discipline. The bulk of the literature examining law’s limitations explains that these limitations are most salient in times of crisis or upheaval, e.g., war, terrorism, or epidemic disease. All of these are phenomena with a significant public dimension. Although less theorized, law’s limitations are also evident in the more quotidian realms of human experience that have a significant private dimension—sexuality, substance abuse, prejudice, just to name a few. Fantasies of thought control aside, some scholars have theorized that law is uniquely unsuited to channelling attitudinal and libidinal expression, e.g., prostitution, and invidious discrimination. We know from vast experience that attempts to regulate these activities out of existence only drive them further underground, often with troubling consequences.

In the context of biotechnology, assisted reproduction is perhaps the area that inspires the widest range of voices calling for regulation and thus provides the most suitable subject matter for an exploration of the limits of the law in the regulation of technological advancement in the life sciences. Unlike the clashing interests of doctors and their patients or scientists and their research subjects, the creation of children through technological means triggers a wider range of responses by social groups and the political actors who serve them than do other applications of biotechnology. This may explain the wide range of regulatory responses to assisted reproduction around the world, from the “hands-off” approach of the United States to the prohibitive approach of countries in Europe, Asia and South America. What makes regulating reproductive technology difficult is that it exists somewhere between the extremes of public and private. On the one hand, it is dramatic and transformative in a public way, demanding the expenditure of public health and judicial resources; on the other hand, it transforms within a realm considered deeply private—the creation of families. The resulting tension is one that counsels some form of response but that simultaneously shies from intruding in a realm deemed sacrosanct—the choice whether to have a child. Thus, the question is not whether to regulate reproductive technology, but how.