In an interview with Georgetown Law Technology Review, Karla Torres, AR Human Rights Policy Counsel at the Center for Reproductive Rights, describes how assisted reproduction (AR) and assisted reproductive technologies (ARTs) fit broadly among intersecting social movements, and how rapidly progressing technologies impact the surrounding legal landscape.
AR refers to medical technologies used to produce a pregnancy for individuals who are struggling with fertility. ARTs are treatments where eggs and embryos are both handled.
In vitro fertilization, or IVF, is one major method of AR, and involves a combination of sperm and eggs in a lab to facilitate the production of an embryo or embryos. Those embryos can then be transferred into the uterus, where they may implant and lead to pregnancy. Another form of AR is artificial insemination, also known as intrauterine insemination, or IUI. IUI involves sperm being directly inserted into a person’s uterus in order to facilitate fertilization and thus pregnancy. A third form of AR, which Torres notes is often not thought of as involving ARTs but which often requires the use of IVF, is third-party reproduction, or surrogacy.
GLTR: How does AR fit into the greater reproductive justice and reproductive rights movements, alongside other issue areas such as abortion, contraception, and gender-based violence?
Torres: AR helps to better represent the full spectrum of reproductive decisions that every person has a right to make about if and when to have children. The spectrum includes issues of infertility, AR and ARTs, access to contraception, access to abortion, and maternal health. And like the rights to access to contraception, abortion, and the right to maternal healthcare, AR and ARTs which are designed to overcome infertility rest on the same fundamental human rights that we champion in all of our work—the rights to autonomy, health, and to equality and nondiscrimination.
AR is also a cross-movement issue. It transcends the reproductive rights movement and has serious implications for the reproductive health and justice and the disability rights and justice movements. It touches on fundamental social issues including who is “fit” to parent, by allowing non-traditional family-formation for both medically infertile people as well as socially infertile people, including same-sex couples, transgender individuals, and people with disabilities.
GLTR: Can you tell us about some representative cases or projects you are currently working on in your capacity as AR Human Rights Policy Counsel?
Torres: Sure. As we’ve been developing what our work on AR looks like, we’ve also identified opportunities to engage on AR issues in the U.S. So, we have provided technical assistance to partners and allies on issues including proposed state and federal AR-related legislation. For us this means bills that are related to access to IVF, surrogacy, and embryo custody and personhood.
One project that doesn’t fall neatly into those buckets, but that I think nonetheless touches on AR, is an effort I lead to have the Center submit a letter of support for a bill in California that would provide material compensation to surviving individuals who were involuntarily sterilized under California’s eugenics laws. The bill unfortunately didn’t pass, but it was important to highlight how that bill addressed AR generally and touched on many of the fundamental human rights that the Center champions in all of its work. Beyond that, it was an opportunity to showcase some cross-movement solidarity, because the issue really touched on more than reproductive rights, including disability rights and reproductive justice.
GLTR: What are some legal setbacks that you’ve experienced while doing this work?
Torres: The Center this year submitted a veto letter on Arizona Senate Bill 1393. The bill would amend Arizona law and require that, in a dissolution of marriage action that involves determining the disposition of IVF embryos, the court grant custody over them to the spouse who “intends to allow [them] to develop to birth.” In our veto letter, we argued that the bill unconstitutionally interfered with people’s rights to privacy and to be free from governmental intrusion about really fundamental decisions, including whether to procreate. It would do so by removing this decision-making authority that people inherently have, especially after they have made an informed decision about embryo disposition before even entering into IVF, for example, by signing a contract. It would also grant legal rights to embryos, which is in contravention to U.S. Supreme Court rulings and international human rights norms, which have both rejected fetal personhood.
And more broadly, we argued that it would have a chilling effect on people who are trying to build a family by deterring them from engaging in IVF knowing that, even though they have stated and made an informed decision about embryo custody in the case of dissolution, a court would just ignore that decision, and that they would in turn lose control over their genetic material. The bill unfortunately passed, making it the first legislation of its kind in the U.S. We are aware of fetal personhood efforts, and now we’re seeing this effort in the realm of embryos, and in those cases, we are better able to directly engage.
GLTR: Bringing it back technology—can you talk about how ARTs have progressed in recent years?
Torres: ARTs continue to develop at a very rapid pace. Egg freezing, for example, has become more stable and viable, and allows for more people to delay potential childbirth.
Uterus transplant technology is another up-and-coming ART and has significant implications for childbirth and notions of gender roles, for example. The first successful birth using a uterus transplant in the United States happened less than a year ago in Texas, and it represented only the ninth such birth in the world. The technology to do that has really progressed quite quickly, so it’s possible that we’ll see many more of those soon.
Genetic screening and diagnosis technologies have also become available when using IVF, both of which have implications for the disability rights and justice movements in particular. Gene editing tools that would affect heritable traits also raise concerns for those communities—and raises general concerns of eugenics.
GLTR: How have these technological advances given rise to new legal issues?
Torres: So, as we’ve identified, the technology advances quickly. The legal system often moves a lot more slowly and incrementally. This leads to gaps in regulation of an industry that’s evolving daily.
One example is that the majority of states in the U.S. have no statutory regulation of surrogacy. Judges are often left to interpret surrogacy contracts using contract law or family law, which are unable to contend with some of the issues that arise with surrogacy, including the formulation of these non-traditional families that were built using assisted reproduction. The most famous example, I think, of new legal issues that were catalyzed by AR is In re Baby M., a 1988 New Jersey case. It’s a case in which a genetic surrogate (a surrogate who uses their own eggs to create an embryo and therefore has a genetic connection to the child that is born of a surrogacy arrangement) entered into a commercial surrogacy contract with intended parents. When the genetic surrogate gave birth to the child, she decided that she actually wanted to keep it, and the intended parents sued for custody. The case made its way to the New Jersey Supreme Court, which was the first court to deal with surrogacy in the U.S. In its ruling, it actually invalidated the surrogacy contract as against public policy and found that compensation was “illegal, perhaps criminal, and potentially degrading to women.”
AR, and surrogacy in particular, raised these ethical issues in the U.S. and globally, regarding potential exploitation of people acting as surrogates given the power imbalances between surrogates and the intended parents, or the surrogacy agencies and brokers, if they are involved. This is often the case when intended parents who have the means engage surrogates in countries where surrogacy isn’t prohibited, which is usually in countries where there is poor regulation of surrogacy and therefore poor protections for surrogates, as in the case of transnational surrogacy arrangements.
And those arrangements also give rise to legal issues around the legal parentage of intended parents, which is established in the country where the child is born but may not be recognized in the country where the intended parents live because surrogacy is prohibited in that country. It can also lead to issues of statelessness, which affects the rights of the child born of a surrogacy agreement.
GLTR: Is there a typical parent or patient in AR or who typically has access to ARTs? Can you speak to economic or other barriers to what these technologies offer?
Torres: A lot of these technologies are prohibitively expensive for a broad swath of people. In the U.S., the expensive cost of these technologies coupled with the lack of insurance coverage makes it so that a lot of people can’t access ARTs, particularly low-income people in the U.S. This means that they are cut off from these technologies and therefore do not have the same access to these new forms of family formation.
What we’ve seen in looking at infertility and access to IVF is that people of color, who are disproportionately low-income, have high rates of infertility. These same communities have limited access to ARTs. When we are looking at AR in the U.S., we’re using a human rights framework, because it affords us the most comprehensive framework to study this issue, but we’re also applying an economic, racial, and disability justice lens to it because this work has the capacity to impact already marginalized folks including low-income people, LGBTQ populations, and people with disabilities.
GLTR: How have courts and legislatures reacted to these ART advancements and legal issues? To what degree do U.S. jurisdictions diverge on these issues from one another?
Torres: The courts and legislatures have responded quite differently across the country to questions of AR and AR regulation. For example, today, 17 states legalize and regulate some form of surrogacy while four states prohibit it in all of its forms, and two states, Michigan and New York, criminalize it. Some states have no legislation on surrogacy and so they rely on caselaw and precedent, which often isn’t able to contend with this new form of family formation. This creates a patchwork approach to surrogacy, at least in the U.S. But, in the last legislative session, 14 states introduced legislation that would either regulate some sort of surrogacy or called for studies into surrogacy practices in their states.
Of these states, Washington earlier this year passed a bill that legalizes and regulates both genetic and gestational surrogacy. Genetic surrogacy is a form of surrogacy that is discussed in the Baby M. case, where there’s a genetic connection between the surrogate and the child born of the agreement. Gestational surrogacy is where there is no genetic link, and where IVF is used. Washington will also allow compensation for both forms of surrogacy and sets minimum requirements for what should be in surrogacy contracts, and targets surrogacy brokers and agents for regulation, which is the first time we’ve seen this type of third-party regulation in the country.
In the same legislative session, New Jersey, which is the state in which Baby M. was decided, enacted a bill to legalize gestational surrogacy for compensation.
I would say that another area of interest lies at the intersection of tort law and personhood efforts. Today, cryopreservation allows for the indefinite freezing of embryos and gametes. This year we have seen questions about what happens when there’s a malfunction at a cryopreservation facility and those gametes or embryos are lost. That actually happened in Ohio and California – very strangely, on the same day there was a malfunction at two cryopreservation facilities. And while most plaintiffs filed suit against the storage facilities under theories of negligence, a few couples in Ohio sued under a wrongful death theory, asking the court for a declaratory judgement that the embryos are in fact persons. The court dismissed that motion ruling that there was no support in Ohio law for finding that embryos are people and instead that a non-viable fetus is not a distinct human entity. But in those areas of law, AR really catalyzes new and novel legal questions.
GLTR: You’ve previously worked on sexual and reproductive health and rights issues in India. How does the U.S. legal landscape generally compare?
Torres: India for many years has been seen as a destination for assisted reproduction and ARTs. Up until very recently, it allowed for foreign nationals to come to India to engage in commercial surrogacy there. In contrast to the U.S., India has for some years worked on country-wide regulation around AR and ARTs, specifically with regards to surrogacy. In recent years, India has clamped down on surrogacy, at least commercial surrogacy. Thus, intended parents who live in countries where surrogacy is prohibited are looking to other jurisdictions – countries in the global south and the U.S., including California, which is a popular jurisdiction, to enter into a surrogacy arrangement.
GLTR: What technical and scientific advances do you see on the horizon for assisted reproduction?
Torres: I think uterus transplants will likely become a more viable method of family formation, including potentially for a broader population than it was perhaps intended to serve. By that I mean transgender patients. I think that might be especially true with fertility preservation becoming or beginning to become more available to folks before they transition, that it might be an option in the decades to come.
I also anticipate newer and more accurate technologies around genetic screening and diagnosis of embryos for chromosomal “abnormalities,” as well as, I hope, a better understanding of how so-called “mosaic embryos” develop once they’re implanted into the uterus. I think that those two areas, as well as genetic editing technologies, will continue to evolve even as they raise really fundamental and problematic questions.
GLTR: Tell us about the direction in which you think the legal landscape surrounding AR in the U.S. is headed. What do you think will be the lasting impacts of the current political climate and recent events such as Justice Kavanaugh’s confirmation on these issues?
Torres: AR, as I mentioned, is becoming more and more visible every day, and just in this last legislative session we saw 14 states introduce some sort of legislation around surrogacy. We also saw 17 states and Puerto Rico introduce legislation regarding insurance coverage for infertility, so the trend, or as much of a trend as we can glean from looking at one legislative session, seems to lean towards expanding options for family formation. And while this trend may be intended to benefit cisgender, heterosexual couples struggling with infertility, it also opens the door for single folks, LGBTQ communities, and people with disabilities to form a family if they choose to do so, which is great.
At the same time, however, we saw six states introduce legislation to grant personhood and constitutional rights to embryos. We see the same efforts in the fetal context, and we argue and believe that such efforts have direct and serious implications for folks who are thinking of using IVF as a means of family formation, in addition to the implications such efforts have on access to contraception and abortion in the U.S. and on the criminalization of pregnant people. So, we see some progress while we continue to see some familiar challenges.
Conservative courts could lead to a clamp-down on these ARTs in the U.S., which would close off a very real and, in many cases, an already available means of non-traditional family formation. In a post-Obergefell context, that would be particularly impactful for the LGBTQ community. I also think that in a conservative political climate, that for example, allows for religious refusals, there is the potential to discriminate against a broad range of folks by allowing providers to act as gatekeepers who determine who is “fit” to parent, or how people are able to form a family and even what kind of family they’re able to form. This relates back to those fundamental social justice issues that I mentioned earlier.
This is an exciting and challenging area of law and policy and I’m privileged to be leading the Center’s work in the U.S. Using a human rights framework that also considers race, economics, and disability justice to explore this issue, is critical and allows us to identify how folks of all backgrounds are impacted by AR in the U.S.
Karla Torres serves as AR Human Rights Policy Counsel at the Center for Reproductive Rights and is responsible for developing and leading the Center’s work on Assisted Reproduction in the U.S., including IVF access, surrogacy, and embryo personhood and custody. Previously, Torres served as a program officer at Equality Now where she worked to expose human rights violations against women and girls in the Americas and to promote legal frameworks to protect against them. Earlier, Torres was the Assistant Director of the Reproductive Rights Initiative at the New Delhi-based Human Rights Law Network where she managed a national advocacy project aimed at ensuring the reproductive and sexual health rights of children, adolescents, and women in India. Karla received her JD from American University’s Washington College of Law and an M.A. in International Politics from American’s School of International Service.