June Carbone · September 2008
76 GEO. WASH. L. REV. 1383 (2008)
Marsha Garrison and Michele Goodwin have each written clever, edgy, and insightful articles on the oversight of new reproductive technologies. Both of them frame the issues around the regulation of reproduction, not assisted reproduction. “Assisted reproduction” might mean doctors, clinics, or patients. “Reproduction” clearly means mothers. Both are correct in this recognition: the regulation of assisted reproduction necessarily implicates our approach to motherhood.
Garrison starts with the intrinsic conflicts of interest between mothers and children in medical decisionmaking and argues for the “equivalence of future and current children.” She observes that parental decisions may be particularly suspect in the context of the treatments elected in pursuit of a much sought-after pregnancy. The infertile may ignore risks to “future children,” if the alternative is no children at all. Garrison accordingly answers with a resounding “yes” to oversight that would restrict reproductive choice, believing it would reduce the number of children who burden the community with avoidable birth defects.
Goodwin is more ambivalent. She starts her article not in the pristine surroundings of a fertility lab, but with the first woman to be prosecuted and convicted for giving birth to a stillborn baby. She queries whether a “communitarian” approach that regulates reproduction in the name of collective well-being will inevitably sacrifice the interests of poor, African American women to majoritarian norms. She tellingly juxtaposes the prosecution of drug-addicted pregnant women for harm to their fetuses, whose conceptions may not have been planned or entirely voluntary, with the very deliberate (and uncriminalized) choices of middle-class women to ingest fertility enhancing chemicals, implant multiple embryos, undergo prenatal testing, and otherwise engage in elective medical practices known to increase the likelihood of birth defects. She seems to doubt that any system of regulation can be applied with equal respect for all women, and therefore doubts whether she can respect any system at all.
This Article suggests that the intersection of Garrison and Goodwin’s articles raises profound issues about the purpose and practicality of regulating reproduction. Historically, reproduction has been highly regulated, whether through official sanctions (e.g., laws channeling reproduction into marriage by criminalizing fornication and adultery) or through less formal norms. These regulations, both formal and informal, established expectations about the circumstances in which highly dependent new mothers could expect support in caring for their children.
This Article examines the prospect for regulation “we can still respect in the morning” in the context of these class-, race-, and regional-based differences that exist in reproduction experiences. First, the Article describes Garrison and Goodwin’s respective approaches to the role of regulation. The rise of the administrative state—and pervasive regulation of private life—came with the expectation that expertise could be separated from politics. Today, with that illusion in tatters, the issue becomes the role of regulation in setting appropriate norms that are accepted by the public rather than imposed from above.
Second, the Article discusses the prospects for agreed upon norms in the context of diverging expectations about reproduction. It demonstrates that age is an increasing marker of different understandings about family formation. For the middle-class women who have taken advantage of the greater opportunities made possible by the information economy, the average age of marriage and childbearing has moved from the early-twenties to the late-twenties, and with the shift has increasingly come intact, two-income families with considerably more resources than other parts of society.
Third, the Article explores the relationship between regulatory perspectives and race- and class-based differences in fertility. Statistics show, for example, that African Americans have higher fertility rates at every age until twenty-five, and have lower fertility rates at every age thereafter. In addition, almost half of African American pregnancies end in abortion, and two-thirds are unplanned. Moreover, while the profile of involuntary infertility has not been clearly mapped, preliminary studies indicate that African Americans suffer from greater infertility at younger ages, at least in part because of lesser access to medical care and higher rates of untreated sexually transmitted diseases.
The Article finishes with a discussion of whether regulation of any kind is possible in this context. In doing so, it distinguishes between externally imposed sanctions such as the criminal law, and norm-shifting measures such as voluntary professional guidelines. A combination of autonomy and subsidy ultimately may prompt greater acceptance of responsible practices than prohibitions. The shared goal should be principles that enjoy consensus and respect in the light of day.
