Colorado Supreme Court Hears Important Case Re Constitutional Issues on Dispute About Frozen Preembyros – My Take on Oral Argument

By I. Glenn Cohen

On Tuesday, January 9th, the Colorado Supreme Court heard oral argument in In Re Marriage of Rooks. (Kudos to them for live streaming and archiving!)

This is the latest of a series of cases involving disputes between ex husbands and ex wives (or in some cases unmarried former partners) regarding the disposition of cryopreserved pre-embryos. These cases, that have been percolating in a large number of states for what has now been 25 years (!) and have come out in a myriad of ways on a myriad of theories as Eli Adashi and I recently detailed in the Hastings Center Report.

One thing many of these cases have in common, though, is that the Courts have avoided reaching the fundamental federal Constitutional question I wrote about now 10 years ago in the Stanford Law Review: Does the party opposing the implantation of embryos upon dissolution of the marriage have a right not to procreate recognized by the federal Constitution? I have argued that we need to realize we are talking about possible rights (plural) not to procreate and in particular separate out:

The right to be a gestational parent The right not to be a gestational parent
The right to be a genetic parent The right not to be a genetic parent
The right to be legal parent The right not to be a legal parent.

This case demonstrates well why such a distinction is important.

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Limited Seats Still Available, Register Now! 12/12: Sixth Annual Health Law Year in P/Review

The Sixth Annual Health Law Year in P/Review symposium will feature leading experts discussing major developments during 2017 and what to watch out for in 2018. The discussion at this day-long event will cover hot topics in such areas as health policy under the new administration, regulatory issues in clinical research, law at the end-of-life, patient rights and advocacy, pharmaceutical policy, reproductive health, and public health law.

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Soliciting Surrogacy in the Hallowed Halls of Congress

By Judith Daar

Joining the ever growing circle of workplace misconduct targeting women’s bodies is the revelation that Representative Trent Franks (R-Ariz.) will resign his seat amid allegations that he solicited two female staffers to serve as gestational carriers and bear his children. In a characteristically defensive resignation letter, Franks bemoans the difficulties he and his wife experienced in forming their family, detailing their multiple miscarriages, failed attempts at adoption, and ultimately joy at the birth of twins with the help of a “wonderful and loving lady” who carried the couple’s children to birth. Wanting to grow their family when the twins reached three, the congressman admits that he “broached a topic that, unbeknownst to me until very recently, made certain individuals uncomfortable.” Those individuals were subordinate female employees who have the right to work in an environment where their boss cannot ask without warning, “Will you be my surrogate?”

Aside from the obvious addition to the constellation of misconduct premised on the assumption that the female body is fair game in service of male desires, this latest affront holds an irony that should not be lost on us, as well as lessons for the broader regulation of assisted reproductive technologies. As to irony, Arizona is one of a dozen states that outlaws surrogate parenting arrangements. The state’s family code provides, “No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.” This means that surrogacy agreements are unenforceable at law, but legal experts report that intended parents – like the Franks – are willing to take the risk and hope a court will recognize their legal parentage either before or after the children are born. While Rep. Franks did not reveal if his surrogacy contract was executed under Arizona law, odds are he and his wife sought judicial approval of their parental rights in the state he represents in Congress. Read More

Islam and the Beginning of Human Life

When does human life begin?

One of the more contentious bioethical and legal issues is about the beginning of human life. Nor is it difficult grasp why, for beyond political rhetoric it is a subject of considerable philosophical and legal debate and raises a number of questions which are profoundly difficult to answer. Biomedicine can roughly differentiate when life becomes viable, that is, at which point a fetus could survive as an infant if a mother gave birth prematurely; it can likewise recognize potential complications either in the development of the fetus or the health of the pregnant woman. Yet other questions are not as easy to answer, precisely because they tend to fall more in the spectrum of philosophy or personal belief: what constitutes a human being? What is a person? Is a potential life accorded the same rights as an actual life? For that matter, are there rights to begin with automatically, or are there criteria that must be met in order to procure rights? In short, questions that strike at the very core of who we are.

A number of these questions were debated by Muslim theologians and legal scholars in the pre-modern world when considering contexts of abortion or issues surrounding paternity. In the modern world, these questions have grown to include in vitro fertilization and surrogacy amongst others. Muslim scholars continue to grapple with these bioethical questions as the medical sciences grow more advanced and technology allows us to have ever more control over the basic aspects of reproduction, growth, and development. Per the question, When does human life begin? for example, Mohammed Ghaly analyses in an important article, “The Beginnings of Human Life: Islamic Bioethical Perspectives” some of the newer discussions and positions Muslim scholars have taken vis-à-vis contemporary bioethics and independent legal reasoning (ijtihad). Complementing this discussion is also a seminal article by Ayman Shabana, “Paternity Between Law and Biology: The Reconstruction of the Islamic Law of Paternity in the Wake of DNA Testing.” Shabana shows how classical rulings pertaining to paternity issues continue to hold higher authority, even despite the advent and availability of modern technology that would ostensibly challenge that authority. This is interesting for a number of reasons, not least of which is the possible change in perspective with regard to how religious authority is derived and its relationship to the medical sciences. Read More

REGISTER NOW (12/12)! Sixth Annual Health Law Year in P/Review

The Sixth Annual Health Law Year in P/Review symposium will feature leading experts discussing major developments during 2017 and what to watch out for in 2018. The discussion at this day-long event will cover hot topics in such areas as health policy under the new administration, regulatory issues in clinical research, law at the end-of-life, patient rights and advocacy, pharmaceutical policy, reproductive health, and public health law.

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TODAY, 11/27 at 5 PM: Health Law Workshop with Vardit Ravitsky

November 27, 2017 5-7 PM
Hauser Hall, Room 104
Harvard Law School, 1575 Massachusetts Ave., Cambridge, MA

Presentation: “The Shifting Landscape of Prenatal Testing: Between Reproductive Autonomy and Public Health”

This paper is not available for download. To request a copy in preparation for the workshop, please contact Jennifer Minnich at jminnich@law.harvard.edu.

Vardit Ravitsky is an Associate Professor in Bioethics Programs in the Department of Social and Preventive Medicine at the University of Montreal School of Public Health, where she researches reproductive technologies, genetics, prenatal testing, research ethics, and health policy. She is the lead researcher on the Pegasus project, exploring ethical, legal, and social implications related to the implementation of non-invasive prenatal testing in Canada.

REGISTER NOW (12/12)! Sixth Annual Health Law Year in P/Review

The Sixth Annual Health Law Year in P/Review symposium will feature leading experts discussing major developments during 2017 and what to watch out for in 2018. The discussion at this day-long event will cover hot topics in such areas as health policy under the new administration, regulatory issues in clinical research, law at the end-of-life, patient rights and advocacy, pharmaceutical policy, reproductive health, and public health law.

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REGISTER NOW (12/12)! Sixth Annual Health Law Year in P/Review

The Sixth Annual Health Law Year in P/Review symposium will feature leading experts discussing major developments during 2017 and what to watch out for in 2018. The discussion at this day-long event will cover hot topics in such areas as health policy under the new administration, regulatory issues in clinical research, law at the end-of-life, patient rights and advocacy, pharmaceutical policy, reproductive health, and public health law.

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Book Launch: Law, Religion, and Health in the United States

Book Launch: Law, Religion, and Health in the United States
September 27, 2017 12:00 PM
Wasserstein Hall, Milstein West A (2019)
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

In July 2017, Cambridge University Press will publish Law, Religion, and Health in the United States, co-edited by outgoing Petrie-Flom Center Executive Director Holly Fernandez Lynch, Faculty Director I. Glenn Cohen, and Elizabeth Sepper, Professor of Law at Washington University School of Law. This edited volume stems from the Center’s 2015 annual conference, which brought together leading experts to identify the various ways in which law intersects with religion and health care in the United States, examine the role of law in creating or mediating conflict between religion and health care, and explore potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

About the book: While the law can create conflict between religion and health, it can also facilitate religious accommodation and protection of conscience. Finding this balance is critical to addressing the most pressing questions at the intersection of law, religion, and health in the United States: should physicians be required to disclose their religious beliefs to patients? How should we think about institutional conscience in the health care setting? How should health care providers deal with families with religious objections to withdrawing treatment? In this timely book, experts from a variety of perspectives and disciplines offer insight on these and other pressing questions, describing what the public discourse gets right and wrong, how policymakers might respond, and what potential conflicts may arise in the future. It should be read by academics, policymakers, and anyone else – patient or physician, secular or devout – interested in how US law interacts with health care and religion.

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TODAY, 9/18 at 5 PM: Health Law Workshop with Jody Madeira

September 18, 2017, 5-7 PM
Hauser Hall, Room 104

Harvard Law School, 1575 Massachusetts Ave., Cambridge, MA

Download the Presentation: “Terminating the Paper Trail: Evaluating the Efficacy of a Multimedia Informed Consent Application in Reproductive Medicine”

For context, please also read: “Is Informed Consent in Reproductive Medicine in Critical Condition?”

Jody L. Madeira is Professor of Law and Louis F. Niezer Faculty Fellow at the Indiana University Maurer School of Law. Her scholarly interests primarily involve the intersection of law and emotion in criminal and family law. Madeira’s new book, Killing McVeigh: The Death Penalty and the Myth of Closure, applies collective memory to criminal prosecution and sentencing, exploring the ways in which victims’ families and survivors came to comprehend and cope with the Oklahoma City bombing through membership in community groups as well as through attendance and participation in Timothy McVeigh’s prosecution and execution. She is also actively involved in empirical research projects assessing patient decision making and informed consent in assisted reproductive technology (ART).

Additionally, Madeira investigates the effects of legal proceedings, verdicts, and sentences upon victims’ families; the role of empathy in personal injury litigation; and the impact of recent developments in capital victims’ services upon the relationship between victims’ families and the criminal justice system.

Madeira earned her JD magna cum laude from the University of Pennsylvania School of Law, where she was elected to the Order of the Coif and served as Senior Articles Editor for the University of Pennsylvania Journal of Constitutional Law. She clerked for the Hon. Richard D. Cudahy at the U.S. Court of Appeals for the Seventh Circuit. She then came to Harvard as a Climenko Fellow and Lecturer in Law, where she taught legal research and writing as well as a seminar on the cultural life of capital punishment. Madeira also recently served as a Research Associate at the Capital Punishment Research Initiative at the School of Criminal Justice, University at Albany, State University of New York.