Book and Media Reviews

Abstract

PROCREATION BEGETS LITIGATION: IT IS AN OLD STORY.STILL,THE authors of this book, Susan Crockin and Howard Jones, point to assisted reproduction as a fertile field for new and interesting legal questions. The approach they have chosen to those questions—obtainingcasereportswrittencontemporaneously withthedevelopmentsdescribedandorganizingthembytopic and then chronologically—has its advantages and disadvantages. On one hand, this approach delivers on the promise of the subtitle, giving the reader a sense of the evolution of law and policy over time and within and across jurisdictions. On the other hand, the reader misses the power of an overarching narrative weaving together cases and conceptual analysis, althoughtheauthorshave tried tocompensatewithmedical and legalcommentaries foreachtopicareaandastrongconclusion. The coverage of topics is comprehensive: embryos (includingquestionsof statusanddisposition), access tocare (includinglitigationoverthecharacterizationofinfertility),professional liability issues,various formsofcollaborativereproduction(including a large number of cases addressing same-sex parenting and posthumous reproduction), developing technologies (the intersection of assisted reproduction and genetics as well as cases related to embryonic stem cell research), and salient adoption and abortion litigation. However, not all topics are coveredcomprehensively.Theauthors’ overall strategyplaces the greatest emphasis on areas of law in which judges rather than legislators have been the key players. The conclusion, especially a lengthy essay by Crockin, provides a synthesis and suggests resolutions to certain ongoing debates. Crockin highlights areas in which consensus has developed over time, such as widespread adoption of an intermediate “special respect” position vis-a-vis embryos created during in vitro fertilization (IVF). She likewise attends to areas in which she believes more progress is possible, such as the careful drafting, completion, and implementation of comprehensive directives for the disposition of embryos left over following IVF. It is worth noting that Crockin and Jones are eminent in the world of reproductive law and medicine. This is truly an insider account, with the strengths and weaknesses usually associated with being on the inside: complete mastery of the material and interesting “behind the scenes” insights into major developments but also an occasional lack of critical distance. An illustration would be the treatment of gestational surrogates (also termed gestational carriers)—women who, following an agreement with an intended parent or parents, become pregnant via IVF involving embryos to which they have not contributed genetically. Crockin suggests that once judges grasp the medical distinction between gestational and traditional surrogates, they will translate that knowledge into legal rulings that treat gestational surrogates as nonmothers. Decisions along these lines are obviously in line with the interests of individuals seeking assistance with reproduction and the fertility industry. Such decisions also can be defended in ethical and policy terms. Still, I take issue with the implication that treating gestational surrogates as mothers is a consequence of medical naivete. In its 1998 report on assisted reproductive technologies, the New York State Task Force on Life and the Law concluded that gestational surrogates should be treated as mothers. On this issue, a full consideration of the arguments pro and con might have been beneficial. I would not expect the authors, in this type of book, to engage more radical critiques of assisted reproductive technologies and associated legal structures. The target audience for Legal Conceptions: The Evolving Law and Policy of Assisted Reproductive Technologies is professionals involved in assisted reproductive technologies. Although the focus is on law, the writing is clear and accessible, and background information is supplied for nonlawyers. For most readers, this will not be a book to read cover-to-cover; I suggest reading the commentaries and conclusions and then sampling the case reports according to interest or jurisdiction. The book is not intended as a substitute for legal advice that reflects the most up-to-date case and other developments in the relevant jurisdiction, and it should not be treated as such.