Academic journal article The Journal of Gender, Race and Justice

Dimensions of Equality in Regulating Assisted Reproductive Technologies

Academic journal article The Journal of Gender, Race and Justice

Dimensions of Equality in Regulating Assisted Reproductive Technologies

Article excerpt


Although concerns about individual liberty and the nature and extent of reproductive freedom have tended to dominate discussions regarding the proliferation of and access to reproductive technologies, questions about the implications of assisted reproductive technologies (ARTs) for equality have also arisen. Indeed, someone attuned to listening for equality concerns realizes that these questions crop up quite frequently in discussions regarding assisted reproduction.

Moreover, the bases for potential inequality are quite diverse; in some instances the development of ARTs is touted as ameliorating existing inequalities, while in others it is suspected of exacerbating those inequalities. For example, the website of a purveyor of egg-freezing services suggests that technology has the potential to equalize women's position vis-à-vis men's in the reproductive project-at least in part-by muffling the ticking of women's so-called biological clock.1 By contrast, critics of surrogacy, or pregnancy contracts, in the 1980s and 1990s often warned that acceptance of the practice of surrogacy could worsen gender and social inequality by contributing to the development of a "breeder class" of poor women whose reproductive capacity would be coercively appropriated by wealthier couples seeking to acquire children.2 From yet another perspective, the development of ARTs has been described as creating an opportunity for the equal legal treatment of persons seeking to create a family, whether they do so simply by engaging in sexual intercourse or by the use of ARTs.3

Despite the high number of invocations of equality in the literature regarding ARTs, to date little effort has been made to comprehensively examine the implications of ARTs for equality. While this short Article does not seek to accomplish such a comprehensive examination, it has the more modest aim of fostering future discussion. The Article thus seeks to highlight the variety of equality issues that ARTs4 present and to develop a framework for classifying different types of equality issues. Specifically, I suggest that three different types of equality concerns exist relevant to discussions about regulating ARTs: equality of access to ARTs (and thus parenthood), equal treatment in the resolution of disputes arising from the use of ARTs, and equality issues raised by trait-selection practices. My point herein is neither to condemn nor to rationalize the inequalities that close examination may reveal. This Article instead issues a challenge to scholars in the field to undertake a broader, more thorough consideration of the implications for equality that the development of, and regulation or non-regulation of, ARTs present.


A variety of circumstances can function to impede or deny access to ARTs for some individuals seeking to have children. Denials may result from providers' decisions about whom they will serve, from legal rules establishing the availability of ARTs and the legal treatment of participants in ARTs, or from disparities in insurance coverage or financial wherewithal. An assortment of questions posed by inequalities in access to ARTs have already received some attention by scholars and policy makers. Part II, however, seeks to highlight some of the issues raised by access inequalities.

A. Access Inequality Based on Participant Status

A number of personal characteristics may affect the likelihood that individuals seeking to use reproductive technologies will successfully find a medical provider willing to provide services to them. Not surprisingly, some of these characteristics, such as sexual orientation or disability, are traits that may be likely to lead to social or economic disadvantage more generally. Others, such as marital status or procreative capacity, by contrast, may produce inequality particular to the context of seeking technological assistance in reproducing.

A recent study suggests the role that provider screening may play in creating inequities in access to ARTs. …

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