Developments in the
Law Affecting Women Law Day 1988 (Click Here to view entire document in PDF format) | |
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REPRODUCTIVE RIGHTS/REPRODUCTIVE TECHNOLOGIES
21st CENTURY PROBLEMS OF TODAY By Hope B. Engel
The topic I will address this Law Day is "Reproductive Rights/Reproductive Technologies—21st Century Problems of Today". I intend it as an overview—recognizing that vast breakthroughs in medical technology, in particular, reproductive technology, have created, and continue to create, complex legal—and ethical—issues. My discussion will be limited to three general categories: (1) Women's Privacy and Autonomy Rights Vis-a-Vis the State's Interest in the Unborn or, what some refer to as "Fetal Rights", (2) Abortion and the State's Regulation of Abortion, (3) Technology and Conception—which encompasses Artificial Insemination, Embryocrynology, In Vitro Fertilization and Surrogacy Arrangements. "[V]ast breakthroughs in medical technology, in particular, reproductive technology, have created, and continue to create, complex legal—and ethical—issues. * * * [T]hese issues [are] brewing in the lower courts of this State [and] have boiled over in the courts of other jurisdictions."These issues are controversial and much-debated, touching upon very personal, often-times, very emotional decisions. My purpose, being a limited one, is merely to bring out some of these issues—some of which are brewing in the lower courts of this State, many of which have boiled over in the courts of other jurisdictions. First, I will discuss women's privacy and autonomy rights and the State's interest in the unborn. In 1884, then-Massachusetts Supreme Court Justice Holmes held that a 4-5 month-old fetus, born prematurely allegedly due to defendant's negligent maintenance of its highway, could not recover on its own behalf through its administrator because "the unborn child was a part of the mother at the time of the injury, any damage to it * * * was recoverable by her." Almost 100 years later, in the landmark Roe v Wade decision, while recognizing a woman's constitutional right to an abortion and while rejecting the notion that the unborn fetus is a "person" under the Constitution, the U.S. Supreme Court nonetheless recognized the State's interest, in the latter stages of pregnancy, in protecting the human potential. The conflict is apparent, recognized by the commentators and increasingly by the courts, guarding the interest in the unborn while preserving the woman's constitutional privacy and autonomy rights. "The conflict is apparent, recognized by the commentators and increasingly by the courts, guarding the interest in the unborn while preserving the woman's constitutional privacy and autonomy rights."Particularly, the criminal and tort law areas are reacting to the increasing medical knowledge regarding prenatal care and prenatal development. Less than 100 years ago, most physicians believed that all congenital malformations (gross structural defects) were the result of heredity. Now, the medical community and, accordingly, the legal community, are concerned with terotogens—agents causing abnormal fetal development. In 1985, the San Diego District Attorney's office brought a criminal action against a mother for ignoring her doctor's advice and taking amphetamines during her pregnancy. While this case was ultimately dismissed, tort actions have been sustained in other jurisdictions pitting child against mother for injuries arising from the mother's alleged negligent prenatal care. For example, in Michigan, a mother was found liable to her son for her failure to take proper prenatal care—against advice, she took tetracycline during her pregnancy resulting in tooth discoloration in the child. Additionally, one New York family court has held that an unborn child is a "child" for purposes of Family Court Act § 1012(b) and in an article 10 proceeding, the court examined a woman's prenatal conduct to establish postnatal neglect. Under a similar child neglect statute, the Michigan Supreme Court agreed with the holding of this Family Court decision. In even more intrusive fashion, courts in other jurisdictions have forced pregnant women to undergo Caesarean, rather than vaginal, delivery, strenuously relying on the State's interest in the viable fetus. Mentally ill pregnant women, otherwise capable of caring for themselves outside an institution, have been civilly committed in the later stages of pregnancy to protect the unborn child. Numerous other issues arise given the fluid definition of "viability"—the crucial point recognized by the United States Supreme Court as a limit to a woman's right to an abortion. Now turning to the woman's right to an abortion—this right itself has been evolving. While the United States Supreme Court struck down a State statute requiring a husband's consent to his wife's abortion, the father's interest in the fetus and, thus, his interest in the abortion, is the subject of increasing concern, spawning, of course, lawsuits nationwide to better define that legal interest, if one exists at all. For example, in April, a husband filed suit in Nassau County seeking a divorce and damages, in part, on the grounds that his pregnant wife had an abortion without his knowledge. Similar lawsuits are pending in Indiana and Utah. Another area of interest in the field of abortion is in abortion funding. Given the lack of success in the Federal forum, there have been challenges in at least six states—(1) Massachusetts, (2) California, (3) New Jersey, (4) Connecticut, (5) Oregon and (6) Pennsylvania—relying on State constitutional grounds to require State health-care funding for non-therapeutic as well as therapeutic abortions. Additionally, as with other constitutional rights, other State courts and lower courts in this State have been called upon to regulate and balance the pregnant women's constitutional rights against the First Amendment rights of vocal anti-abortion activists. In a related issue, this Court in 1975 in Matter of Shulman v New York City Health and Hospitals Corp., in a 4-3 decision, upheld a New York City Health Code Provision (§ 204) requiring hospitals to report terminations of pregnancies, including patients' names, against attacks that this regulation violated the woman's qualified right to an abortion by interfering with her abortion decision. As Supreme Court Justice O'Connor recently predicated, the Roe v Wade decision is on a "collision course" with itself. One thing is certain about the future of the law involving abortion—uncertainty. Uncertainty plays a major role in the last area I will be discussing—reproductive technologies. Reproductive technology, as the state of medical science exists today, encompasses two fundamental procedures. First, in vitro fertilization—which involves the union of sperm and egg outside the body. Generally, after a certain number of cellular divisions, the embryo is then transferred to a woman's uterus. In the rarer instance, the embryo is frozen (cryogenics), to be implanted at a later time. The second procedure involves artificial insemination whereby a fertile female is impregnated with semen. A related "procedure", which I will discuss later, "surrogate parenting" can be accomplished using either, or both, of these technologies. Some experts estimate that 15-20% of all married couples today of childbearing age are unable to have children through traditional means—either because of male impotency, female sterility or female health problems with carrying a fetus to term. Accordingly, issues involving access to new reproductive technologies abound—involving overshadowing ethical concerns with genetic engineering and selective abortions. Traditional family law concepts previously never hotly debated legal (versus factual) issues—such as who is the "father" and who is the "mother" arise. For example, artificial insemination donors have been recognized in some states as "fathers" and have been granted visitation rights to the child. Other states, through legislation, have sought to define who are the parents of a child produced by artificial insemination—some provide that the husband of the wife undergoing artificial insemination, regardless of the sperm donor, is deemed the lawful father. Even without such legislation, other states have imposed support obligations on such a husband where the donated sperm was not his own—relying on "traditional" estoppel notions or the common law notion that a child born within a marriage is presumed to be the husband's child. Another major area of legal, philosophical and medical debate is the subject of surrogate parenting. Referred to as heresy by some, surrogacy has its roots as far back as the Bible; in Genesis 16.3, Sarah told her husband Abraham "The Lord has kept me from bearing. Consort with my maid; perhaps I shall have a son through her." By now, everyone is familiar with the New Jersey Supreme Court's decision in the Baby M. case, declaring surrogacy arrangements contrary to that state's public policy, perhaps illegal, and refusing specific performance of the surrogacy contract—focusing instead on the "traditional" custody inquiry into the child's best interests. Of course, the New Jersey court acted without legislative direction; as often happens, the medical technology evolves, before the Legislature can react. Indeed, in the New York State Legislature, three bills relating to surrogacy arrangements are pending. These bills parallel three approaches taken by the commentators. First, surrogacy contracts are void, contrary to public policy, illegal and unenforceable. Second, surrogacy agreements are valid and enforceable only for sums paid to the surrogate reflecting actual costs for prenatal care and childbirth. To the extent other fees are generated, they are illegal and are equivalent to unlawful baby-selling. The third bill involves a complex regulatory scheme, including court approval of all surrogacy agreements before the surrogate pregnancy. Of course, the courts of this State will have to interpret this legislation, if passed, against, foreseeable constitutional challenges. Until that time, the courts will have to decide cases as they arise, without legislative guidance. For example, the validity of a surrogacy contract could be brought in the form of a declaratory judgment action. In this regard, one high State court avoided the issue of the validity of a surrogacy contract, holding that the attorney who drew up the contract had no standing to bring the declaratory judgment action. All of the areas which I have discussed, women's privacy and autonomy rights, the state's and, perhaps, the father's rights in the unborn and other issues involving procreative or abortion decisions are affected by changing medical technologies. In the area of human reproduction, in general, the courts continue to grow more responsive to this raging debate. In sum, we have focused on issues affecting women in the law—the application of the equal protection clause to gender-based classifications, issues involving the workplace, the family unit, the breakdown of the family unit, domestic violence, pornography and reproductive choices. To think of these issues as solely women's issues, however, is to misapprehend their nature. They are affected by and reactions to society in general. These issues stir great legal debate which, at a basic level, reflect a debate which rages in the feminist community. The basic tension exists in interpreting the mandate of providing "Equal Protection" of the laws: whether equal treatment requires an equal distribution of society's assets and liabilities—rights and duties—or whether in order to treat women equally, biological differences and historical disadvantages must be accounted for. Of course, this dilemma need not and cannot be answered here today. This is, however, an important start—to recognize and consider the dilemma on this Law Day. Before concluding this presentation, Marge, Suzanne, Eleanor, Barbara and I want to thank you all for allowing us to share our celebration of Law Day with you. Especially, we want to thank Judge Kaye for her inspiration and her direction. Don, for your encouragement and patience; and Marge, as always, we thank you for your guidance and wisdom. [REPRODUCTIVE RIGHTS continued on next page]
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 The Historical Society of the Courts of the State of New York | |
