Legal Commentary

With all this talk of babies lately, the time seems optimal to describe my own article in progress, tentatively entitled "Common Misconceptions:  Closing the Gap Between Legal Constructions of Women in the Infertility and Abortion Contexts."  The idea for the article came to me as I was reading a law review article written in 2000 in which the author stated that infertile women, desperate to conceive, were basically prone to irrational decision making in opting to undergo fertility treatments, particularly in vitro fertilization, and thus may lack capacity for informed consent:

Hungry for information, these patients are well-educated regarding the mechanics of reproduction, their condition, and the newest technological innovations designed to supplement and support natural conception. Possession of a high level of technical information, however, does not necessarily yield an appreciation of the low likelihood of success promised by these innovations. The power of wishful thinking obscures rational deliberation. Infertile women will often opt for any treatment option presented, regardless of the physical, psychological, or financial price. This is true even where the chances for success are distinctly remote.

The author also asserted that "[p]atients beset by strong hopes and anxieties have difficulty absorbing medical information and rationally evaluating the risks and benefits of various treatment options."  

These and similar quotes prompted me to do a big of digging in clinical psychological and psychiatric literature.  This research revealed that only a small minority of women experience severe emotional distress from infertility, and that such distress is triggered most often by numerous cycles of unsuccessful treatment, not at the stage of informed consent.  Such characterizations of infertile women are particularly surprising in light of legal scholars' opposition to "woman-protective anti-abortion" (WPAA) discourse in abortion jurisprudence, most particularly Gonzales v. Carhart.  WPAA arguments posit that women cannot effectively consent to abortion because they cannot appreciate the  nature of the maternal bond and cannot rationally evaluate the risks and benefits of the abortion procedures; therefore informational disclosures, ultrasounds, and waiting periods are necessary in order to deter them from the irrational decision to obtain an abortion.  Scholars such as Reva Siegel have vehemently objected to these constructions of pregnant women as creatures who do not know their own minds and hearts, stating instead that the vast majority of women are responsible reproductive decision makers, and that recognizing decision making autonomy is a core element of honoring women's dignity.  Yet, instead of evolving similar constructions of infertile women as capable reproductive decision makers, we have instead a rather pathetic (and inaccurate) image of obsessed women consumed by desire for their own biological children.  In "Common Misconceptions," I contrast legal constructions of infertile women with those of women considering abortion, and argue that we desperately need to create new, more empowering constructions of infertile women. 

I am currently making a few revisions to this article, but will have a draft posted on SSRN later this week.