01 Jun 2015 Advocates, Opponents of ART Vie for Hearts and Minds

In statehouses throughout the United States, in courtrooms and international policy-making bodies, and in global organizations such as the United Nation’s Conference on Women, an orchestrated movement of social conservatives is waging a campaign to pass laws and enact policies banning various forms of assisted reproductive technology.

Earlier this year, Jennifer Lahl, president and founder of the Center for Bioethics and Culture (CBC), addressed delegates to the United Nations Commission on the Status of Women, in conjunction with a screening of Lahl’s anti-ART film series. Lahl, a former pediatric nurse and documentary filmmaker, has produced three films deeply critical of egg and sperm donation, in vitro fertilization and surrogacy, and she has become a leading voice in this movement. Recently, Lahl’s organization, the Center for Bioethics and Culture, wrote a letter to the Hague Conference on Private International Law recommending that surrogacy, as well as egg donation, be banned altogether, calling them an “extreme form of exploitation of women” and “indistinguishable from the buying and selling of children.”

Lahl’s organization is but one of many organized in opposition to ART. Alana S. Newman was conceived via ART and is founder of The Anonymous Us Project, which offers an online forum for people to tell their stories about their experiences with ART. Newman’s position is that secrecy and protection of the identities of donors is detrimental to the wellbeing of children born via ART and that children are damaged by being denied access to gestational carriers and biological parents.

Kathleen Sloan is a former program coordinator for the Council for Responsible Genetics, a non-profit organization founded 25 years ago that historically played a watchdog role in the areas of behavioral genetics and genetically modified foods. Most recently, the organization has taken a critical position toward mitochondrial DNA replacement therapy, which Sloan calls “3-person IVF,” which prevents women with mitochondrial disease from passing the genetic disorder on to their children conceived via ART. Sloan has testified in several states in support of laws banning surrogacy, using her position as a National Organization for Women (NOW) board member to imply she represents that organization’s point of view. In fact, she has infuriated members of state and local NOW chapters, many of whom passionately support surrogacy and ART.

Another high-profile voice in the movement to condemn ART is Harold J. Cassidy, the attorney in the notorious 1986 Baby M case, in which surrogate Mary Beth Whitehead, after giving birth to a daughter on behalf of an infertile couple, refused to give the child up. Since then, Cassidy has built a career on representing surrogates who change their minds as well as women who claim to have been harmed by abortion providers.

A closer look at these activists and organizations indicates all follow the same basic script: their websites are full of terminology such as “natural law and moral order,” “rented wombs,” “the shape of the human future,” “human trafficking” and “baby selling.” Their language dehumanizes the practice of assisted reproductive technologies and the families created via ART, ringing eerily similar to the recent headline-making statements of luxury designers Dolce and Gabbana. For those of us working to educate decision makers and the public about the benefits of ART and to expand legal protections for intended parents and ART families, state by state, nation by nation, it is frustrating and disappointing to watch others work to dismantle the progress toward procreative freedom achieved through technological advances and evolving societal acceptance.

By framing their anti-ART position as opposition to the exploitation of women, social conservatives have found a more politically palatable substitute for abortion as a political wedge issue. Many of the same players who oppose surrogacy, egg and sperm donation, and IVF also are opposed to women’s right to choose.

ART opponents also decry its use by same-sex couples to create families. As state after state has toppled to federal court rulings legalizing same-sex marriage, the anti-ART movement has grown more strident in opposition to prevent gay men from “buying babies” via ART.

This is not to deny that exploitation of surrogates and other bad outcomes do occur in a small number of cases, most often in countries where there are very high rates of poverty, substandard health care, and lack of consistent legislative or regulatory oversight. Although the number of good outcomes undoubtedly exceeds the bad outcomes, international media is quick to jump on and sensationalize the worst cases—unfortunately conveying the impression that abuse and exploitation are rampant.

In India, Thailand, Mexico and elsewhere, poverty and cultural factors increase the risk that economically-disadvantaged women might be financially coerced into participating in surrogacy or egg donation. In India, for example, deeply-ingrained cultural beliefs and a rigid caste system place some women at a social and economic disadvantage.

In the United States, although rare instances of financial coercion of women no doubt have occurred, the culture and legal environment are quite different—and indeed, in many ways, unique in the world. Here legal precedent infers a constitutional “right” to procreate, which increasingly has led to employee benefits and health insurance that cover treatment for infertility, including ART. U.S. law also views the status of the birth mother or surrogate differently from most of the world, including other Western nations, and a woman’s right to an abortion is protected under federal law, unlike most of the world. U.S. cultural ideals and legal precedent tend to protect the rights of the individual rather than favor government intervention in health care or procreation.

Of course it is essential to prevent the exploitation of poor or emotionally vulnerable women. In our fertility law practice we go above and beyond to counsel intended parents and surrogates to make sure all parties are aware of their rights and responsibilities and to make sure the child or children are legally protected and secure. In the United States, fertility physicians, attorneys and mental healthcare professionals operate under the highest standards of care and stringent ethical guidelines. Surrogates and egg donors are carefully screened to ensure they are participating willingly and not from financial desperation and that they are emotionally and physically prepared for their roles. Non-profit organizations such as the Path To Parenthood (formerly the American Fertility Association) and the American Society of Reproductive Medicine and academic researchers continue to conduct studies to identify best practices and in-depth analyses of the social risks of ART, resulting in a widely adopted “safer path” for surrogates and donors.

For all those reasons, ART has gained widespread cultural acceptance in the U.S., arguably to an extent unique in the world. At the same time, we must not deny the reality that abuses and malfeasance do occur.

But the answer is not to ban IVF, surrogacy, egg and sperm donation and other ART methods. In fact, the most sensationalized, highly publicized cases of ART gone wrong have resulted from lack of regulation of ART, in parts of the world where the legal system simply does not address the issue at all.

As an attorney who practices solely in fertility law, and as a gay dad, with my husband, of twin boys born via egg donation and surrogacy, I am struck by the ART opponents’ refusal to acknowledge the many infertile couples and loving single parents or same-sex couples who, without this miraculous technology, would never know the joy of parenting. There are no “accidental” pregnancies with ART; children born through this technology are deeply loved and wanted.

Advocates of banning ART make skillful use of our modern 24-7 news cycle, seizing on the worst, most salacious cases and portraying that handful of tragic outcomes as the norm. In this war of words, the numbers are firmly on the side of proponents of ART. Even in the parts of the world generating the most sensational headlines the happy endings far outnumber the tragedies.

As modern medical technology continues to offer new and more effective ways to treat infertility and make parenthood a reality for more and more people, our goal is for local, national and international laws and public policies to keep pace. Those who are working to prevent technological advances and turn public opinion against ART are loud and well organized. But in the end we believe the voices of loving families, parents and kids who have benefited from ART, and surrogates and donors who give the gift of parenthood to others, will win this battle for hearts and minds.