At Law: Grandma? No, I'm the Mother!

Abstract

Not for nothing is the caduceus, with its intertwined snakes, the symbol of medicine: the snake has mystical powers for good but it can also wound. Over the last thirty years medical science has helped to liberate women by offering them greater control over reproduction. But some recent developments have provoked a reaction that could restrict rather than enhance the choices available to women about this central and highly personal issue. Indeed, in January a bill passed the French Senate that would prohibit the use of reproductive options in certain cases. Of course, adverse reaction to women's having reproductive choices is nothing new. Some feminists have suggested, for example, that the continuing attempts to restrict abortion through legislation are as much as anything an expression of male rage at a loss of control not just over having children but over the lives of women. And even the landmark decision in Roe v. Wade held that it is "the attending physician, in consultation with his patient, [who] is free to determine . . . that in his medical judgment, the patient's pregnancy should be terminated."[1] Those who favor enhancing choices about reproduction have generally embraced the medical wizardry that allows them not only to avoid unwanted pregnancy and child-birth but to overcome infertility. Although they admit some distinctions between negative and positive rights, scholars like John Robertson have argued that the society should respect a constitutionally based "procreative liberty" that would protect people's choice either to avoid reproduction or to engage in it by a variety of means and with the help not only of physicians but of women who contract to undertake a pregnancy (surrogate mothers) and donors (or vendors) of eggs and sperm.[2] New reproductive techniques have been producing ethical dilemmas and demands for governmental control for decades. In the United States, a number of states have adopted laws (usually restrictive) regarding contract pregnancy, but the regulation of in vitro fertilization (IVF) has aimed at ensuring the quality of the facilities that offer reproductive services. Starting this fall, a new federal statute establishes a uniform reporting system for the clinics' success rates. Ironically, public shock and the first signs of restriction of individual choice to reproduce have arisen not from a medical failure but from perhaps the most startling instance of "success" to date. Over the past four years several physicians both here and abroad have been able to assist fifty to seventy-five women to become pregnant. The cause for alarm? The women are postmenopausal, the oldest being a sixty-two-year-old Italian who became pregnant using donated eggs, fertilized in vitro before transplantation. While the first results were reported several years ago, the subject only received widespread attention in December, when a fifty-nine-year-old British woman announced that she had given birth to twins with the help of Dr. Severino Antinori's fertility clinic in Italy. As with many biomedical developments, the first reaction (after amazement that anyone that age would want a newborn, much less two) was shock at the unnaturalness of the procedure. Defenders responded that medicine is centrally concerned with altering the natural course of events, from preventing infections to replacing failed organs. Moreover, while menopause at forty made sense biologically when the average life span was roughly that, it makes less sense today, when most women can expect to live about twice that long. Some people were offended at the idea that once again women were going to have more choices about becoming mothers, timing the decision to their own convenience, undeterred by the ticking of their "biological clocks." The physicians involved report, however, that most of their patients had tried to become pregnant using other methods for many years. Other critics argued that it was cruel for children to have parents who will have difficulties dealing with the rigors of midnight feedings and the other ordeals of having young children - or worse, might not live to see the children through their teenage years or college graduation. …