Academic journal article Harvard Law Review

Assessing the Viability of a Substantive Due Process Right to in Vitro Fertilization

Academic journal article Harvard Law Review

Assessing the Viability of a Substantive Due Process Right to in Vitro Fertilization

Article excerpt

On July 25, 1978, Louise Brown was born under what were then viewed as extraordinary circumstances: as the world's first "test-tube baby," she was the first child whose conception occurred in a laboratory dish rather than within her mother's womb. (1) In the years since then, the practice of in vitro fertilization (IVF), the procedure by which Ms. Brown was conceived, has grown precipitously to become an established option for otherwise infertile couples. (2) However, as the use of IVF and other reproductive technologies continues to increase, a number of fundamental policy questions emerge. On the one hand, IVF is an answer to the prayers of many infertile women, providing them with a unique chance to bear their own offspring. On the other hand, the IVF procedure carries with it many potential health problems for prospective mothers and their children, along with the risk that emotionally vulnerable infertile couples may be exploited by opportunistic IVF providers. Given these competing interests, many have argued that the government should take a more active role in regulating IVF, while others have argued that IVF regulation should be left predominantly to the free market.

Though federal and state regulation of IVF has thus far been relatively minimal, (3) controversy continues to swirl around whether, and to what extent, reproductive technology should be regulated. Last year, President Bush's Council on Bioethics released a report advocating for increased restraints on IVF, (4) and public debate surrounding regulation in related areas such as cloning and stem cell research continues to rage unabated. (5) Amidst these debates and proposals, one key threshold question remains unanswered: to what extent can the government regulate IVF as a constitutional matter? The Supreme Court has never directly confronted the issue of whether access to IVF should be considered a constitutionally protected fundamental right, (6) and it is clear that this issue must be examined before any meaningful conversation regarding government regulation of IVF can be had.

This Note begins, in Part I, by discussing the IVF procedure and current federal and state regulatory regimes governing it. Part II outlines the Supreme Court's current substantive due process framework, examining a number of fundamental rights potentially related to IVF that the Court has recognized. Part III applies the Court's substantive due process framework to the asserted right to IVF, ultimately concluding that the doctrinal analysis strongly militates in favor of the Court's recognition of a fundamental right to IVF--though the determinacy of this result is obscured by the open-ended nature of the Court's substantive due process jurisprudence. Part IV concludes.


A. Description of IVF

In vitro fertilization refers to the procedure by which a woman's eggs are first extracted from her ovaries and then fertilized outside of her body. (7) The procedure is typically used in cases of infertility when "a woman has blocked fallopian tubes or when the sperm and ovum are unable to fuse in the reproductive tract." (8) At the outset of the procedure, the woman is typically administered hormones that induce superovulation--the production of an abnormally high number of eggs. (9) These eggs are removed from the ovary and are then placed in a petri dish; after a brief maturation period, they are combined with sperm and fertilized. (10) The embryos are then incubated for about two days before being transferred to the woman's uterus; (11) typically, two to four of the fertilized eggs are transplanted at the same time in order to increase the chances of success. (12) If successful, pregnancy will occur within six to nine days, when the embryos implant. (13)

Generally speaking, IVF is expensive, and its success rate is limited. A recent estimate places the cost of a single IVF cycle at $7000 to $10,000. (14) In its most recent annual report on assisted reproductive technology (ART) success rates, which analyzed data from 2002, the Centers for Disease Control and Prevention (CDC) reported 33,141 live-birth deliveries out of 115,392 cycles, which translates to roughly a 29% success rate. …

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