Assisted Reproductive Technology and the . Double Bind: The Illusory Choice of Motherhood

Michele Goodwin, Wicklander Professor of Legal Ethics ánd Health Law Institute Director, DePaul University College of Law. Oilder Lehnnan Postodoctoral Fellow, Yale University; LLM, University of Wisconsin; ID, Boston College. I would like to thank Professors Dorothy Roberts, AlIgela Onwuachi-WiIIig, Camille Nelson, and Michele Alexandre, for sharing cornments about this research project. 1 aro grateful for the research opportunity at Boalt Hall where 1 was a research fellow at the Center for Law & Society. I would also like to thank my very talented research assistants, Kimberly Hom, John Roberts and Ana Romero-Bosch, for their excellent research support. I would also like to acknowledge the tremendous contribution of Judy Daar to the discussion on assisted reproductive technology. Judy is truly one of the leading lights in this field. I am also grateful for the research support from Olen Weissenberger, Dean of the College of Law and the great technical assistance provided by our outstanding librarians. This artiele is the first part of a larger project on assisted reproductive technologies. The subsequent article(s) feature discussions about race, crime, and policing reproduction. Many thanks to Mark StroÍner, who was a pleasure to work with.

With the results that we've had, ltruly wouldn 't wish this on my worst enemy. It's very hard and it's a lot ofwork and it's very stressful. But it 's my life. 1 Double bind:(n). A situation in which a person is confronted with two irreconcilable demands or a choice between 'two undesirable courses ofaction.2 "And this, " said the Director opening the door, "is the Fertilizing Room. "3

I. Introduction

My critique in this article is a criticism of social practice that ignores pregnancy and motherhood discrimination and the unique career. challenges of younger women. This article argues that assisted reproductive technology (ART) is mistakenly regarded as equitable accornmodation for women and their families who wish to .delay pregnancies inorder to avoid discrimination. Pregnancy and motherhood discrimination, largue, are "soft," butreal discrimination that create "double binds" for women who believe they must choose between the pursuit ofa career and early motherhood. For these young women, they understand or are advised by older women to delay pregnancy to increase their chances of·"fair" opportunity at law firms, businesses, or university posts. This article describes this type of discrimination as "soft" because it exists without an actual act committed against a woman, the perception of discrimination is subjective, and therefore might be difficult to prove in traditional modes of adjudication. Yet, studies confirm that young womeri increasingly delay pregnancies, often against their preference, in order to avoid employrnent discrimination or the "pink collar" glass ceiling.

Existing public policy ignores· this type of invidious discrimination and even accornmodates it by promoting assisted reproductive technology as the solution to early career challenges. Yet reliance on ART to resolve this larger public policy issue detracts from addressing pregnancy and motherhood discrimination in the workplace and levies the burden on women to use bioíechnology to resolve inequitabl~ treatment in employrnent settings. In this context public policy refuses to hold law firms, corporations, and universities accountable for soft discrimination. Further, as demonstrated in this article, ART treatments pose very serious health risks to mothers and fetuses, and thus are not real options, but illusory choices ofmotherhood and career advancement. Recent studies indicate higher incidences of low birth weight, cerebral palsy, blindness, hearing impairment, and cognitive deIays among children bom through ART. Thus, if women truly possessed the right to choose motherhood without fear of discrimination, sorne might mother earlier when it is biologically safer to do so.

The regulatory approach to ART has been dominated by a narrow reliance on self-reporting from commercial fertility clinics. The only existing federal inquiry is whether a successful pregnancy resulted from ART treatments, which inevitably overlooks growing medical and legal concem about ART safety, health risks to fetuses and subsequent children, high costs, conflicts of interests between doctors who have financial interests in fertility treatments and their patients.

Since the introduction of reproductive technology as a "market choice" for infertile couples in the 1980s, reproduction and family have taken on new medical, legal, and social meanings and constructions.4 Biotechnology outpaces regulatory response and oversight, leaving the creation of family in the private sphere where many agree it belongs. Despite its advantages, the private sphere of reproductive biotechnology is not without its pitfalls and, problems. Reproductive...

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