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With the in vitro fertilization births of Louise Brown (England, 1978), Candice Reed (Australia, 1980), and Elizabeth Carr (America, 1981), many averred, as was later echoed by the courts, that "the in vitro fertilization genie is out of the bottle and you can't put it back" [Johnson v. Calvert, 5 Cal.4th 84 (Cal. 1993)]. Not only has this genie been out of the bottle for several decades now, it has failed as well to grant our wishes for satisfactory answers to many of the sociological, political, ethical and legal difficulties created by the use of these new assisted reproductive technologies (ART). Legal Conceptions: The Evolving Law and Policy of Assisted Reproductive Technologies is a unique and thoughtful venture by two pioneers in the field: Susan L. Crockin, J.D., who has analyzed court cases and legislation related to ART for over twenty years in her trailblazing column "Legally Speaking" for the American Society of Reproductive Medicine appearing in ASRM News, and Howard W. Jones, Jr., M.D., who, with his wife Dr. Georgeanna Jones, developed the technology that resulted in the birth of the first in vitro fertilization baby in the United States. Their unique collaboration delivers a thoughtful, interdisciplinary perspective on the relationship between ART and the law, past, present, and future.
Authors can face the same questions that educational instructors often do: are they there to teach others or to teach their individual fields? Although we learn much about the field of reproductive law, medicine, ethics, and policy, Susan Crockin and Howard Jones are not just writing to their in-house professional colleagues. They shape their work to the needs of their intended readers. Happily, they assume their readers will include patients, their families, and the general public, as well as physicians and other professionals who are drawn into ART cases, including lawyers, mental health professionals, and representatives of recruiting programs. Even with such a wide-ranging readership in mind, they are able to demonstrate for all, "[W]hat has gone right and, at times, terribly wrong with the families and professionals who have come before the courts" (p. 375).
Legal Conceptions is an engaging and informative look at the rapidly evolving areas in both medicine and law. The book's twelve chapters uncover an unbelievable wealth of ART topics and related legal and ethical cases. Each chapter is approachable by the interested reader, yet robust enough to offer important distinctions and insights for professionals engaged in the field.
To set the agenda for the reader, Legal Conceptions begins with an introduction that includes two brief physician's perspectives on "Making Reproductive History" and "The Emotional Aspects of Infertility" by Howard Jones. Of particular note is Dr. Jones's brief but remarkable account of the meeting he and his wife had in 1984 at the Vatican to discuss the moral status of in vitro fertilization. At the invitation of Dr. Carlos Chagos, then President of the Pontifical Academy of Sciences, the Joneses were part of a group of twelve scientists and moral theologians, selected by the Vatican, to make a recommendation to the Holy See on the "licitness" – agreement with Canon law - of the procedure. Despite general support from the Working Group (8 of 9 voting members) for declaring assisted reproductive technologies as ethically acceptable, "[i]n the end, that single dissenting vote became the Vatican's position….because IVF creates life outside the bonds of conjugal love, it is, indeed, illicit" (5). This brief episode reminds us, to paraphrase the famous mathematician and philosopher Alfred North Whitehead, that some of our most cherished ideas not only have a history but "adventures" as well.
The brief introduction is followed by a crisp "Law 101: A Selective Primer for the Nonlawyer" by Susan Crockin which clearly sets the legal context for the chapters that follow. The book also includes medical and legal timelines that chronicle the key cases and medical practices that are discussed in the ensuing chapters.
The book is organized into twelve chapters, which show clearly how the development and use of assisted reproductive technologies have not only revolutionized the medical care of infertility but also challenged traditional ethical and legal concepts and frameworks. Each of the chapters focuses on a particular issue surrounding the use of ART and includes a compendium of relevant legal cases as well as perspicuous medical and legal commentaries. The venture begins with a discussion of embryos (Chapter 1), raising the crucial question about the moral and legal status of the early fertilized egg; discusses access to ART treatment, including issues of insurance coverage and discrimination (Chapter 2); and then looks at several different professional liability issues (Chapter 3).
Since the use of ART occurs in situations which can involve up to six patients: two intended parents, two gamete donors, a married gestational carrier, and the potential child, the authors then move on to consider third party or collaborative reproductive issues. There are chapters on sperm donation and paternity (Chapter 4), egg donation and maternity (Chapter 5), traditional and gestational surrogacy arrangements (Chapter 6), issues of access and parentage in posthumous reproduction (Chapter 7), and same-sex parenting (Chapter 8).
Closing chapters deal with "reprogenetics," which involve cutting edge technologies such as preimplantation diagnosis (PGD) and genetics (Chapter 9) and ART and stem cell research (Chapter 10). Chapter 11 (ART-Related Adoption Litigation) extends the discussion of the many new forms of family building begun in Chapters 6 (Traditional and Gestational Surrogacy Arrangements) and Chapter 8 (Same-Sex Parenting and ART). It looks at more recent attempts to apply adoption laws and frameworks to ART families. Chapter 12 revisits issues involving the tension between the moral and legal status of the developing conceptus and looks at more recent conflicts "surrounding protecting fetuses without sacrificing the rights of the women who carry them" (370). A final Conclusion reaffirms the message of the authors that "looking back" at the revolutionary developments in reproductive technologies and law is not a mere exercise in ancient history but will help us significantly in "moving forward".
The format for each chapter is especially helpful. The chapter begins with a discussion of the salient medical issues by Howard Jones, which often helps to uncover and clarify misconceptions. For example, in Chapter 6, he makes a distinction between surrogate and gestational carriers that is often ignored by legal observers and courts. Following Dr. Jones's look at the issues from a medical perspective, Susan Crockin delineates the novel demands that these new medical technologies make on the law. Despite many inconsistent legal rulings, she is able to show how the law has evolved to handle many of these perplexing issues. For example, in discussing IVF embryos, she points out that despite the lack of agreement from a moral or ethical perspective, "[t]he courts heard and analyzed the scientific evidence, and a notable consensus emerged on what can and cannot be done with IVF embryos and by whom" (377-8). Each chapter concludes by tracking developing ART law through courts and legislation.
Legal Conceptions offers the reader a fascinating patchwork quilt of situations in reproductive medicine where the atypical seems to be the new normal and the legal responses are often inconsistent, varying from state to state. However, this book is no mere chronological collection of interesting cases in reproductive medicine and law. It is a thoughtful call for us to be proactive. It is an attempt "to both predict the future challenges ahead and recommend paths to meet them" (391).
© 2011 Lawrence D. Hultgren
Lawrence D. Hultgren, Virginia Weslyan University