This post is republished for the 2019 Law and Society Association conference in Washington, D.C. (May 30 – June 2). This post was originally published for the 2018 Law and Society Association Conference in Toronto (June 7-10). Check for other posts from the conference. #LSA2018 #LSACA18 #LSADC19 


By Jody Lyneé Madeira, author of Taking Baby Steps: How Patients and Fertility Clinics Collaborate in Conception

In our current world, it might often feel difficult to engage with people from whom we are different. We are different from others around us in so many way, in immutable and mutable ways—sex, gender, racial and ethnic heritage, political beliefs, religious convictions, personalities, and so on. It can be difficult to find things that we have in common. It’s easy to feel more and more overwhelmed by, and frustrated with, these differences—and popular rhetoric encourages individuals to treat those different from themselves as strange, uncomfortable, “other”, and even to regulate them in new ways.

The Social and Personal Sides of Reproductive Rights

Reproductive rights are an especially contentious area for law, policy, and social discourse because of strong and diverse views about when life begins, the implications of fetal life, and technologies used to create and end pregnancy. Individuals who have never confronted difficult reproductive choices (such as inability to get pregnant, unwanted pregnancy, unhealthy pregnancy) might find it difficult or impossible to empathize with women and couples facing these situations—and they may judge these people for making different decisions than what they feel they would make. Arizona, for example, recently enacted a law allowing courts adjudicating divorcing couples’ claims over surplus embryos to grant the embryos to the parent who is most likely to allow them to develop until birth.

Forty years after the birth of Louise Brown, the first child conceived through in vitro fertilization (IVF), IVF and assisted reproductive technology (ART) continue to be controversial, in part due to a lack of regulation and these technologies’ ethical implications. Some have claimed that it is difficult for women and couples to give informed consent to undergo ART procedures due to intense emotions, strong desire to build families, the technological complexity of these treatments, and the difficulty of making decisions about unknown future circumstances (like what to do with surplus frozen embryos that don’t yet exist).

Taking Baby Steps

In my new book, Taking Baby Steps: How Patients and Fertility Clinics Collaborate in Conception, I explain why we should respond to such uncertainty by continuing to trust women and couples and embracing policies that reflect and reinforce this trust. For this book, I interviewed 130 women and men and 83 reproductive medical professionals about their experiences with undergoing and treating infertility, and how—and whether—emotions and relations helped or hindered care relationships. The stories that I recorded and studied prompted me to reflect deeply about issues such as trust, autonomy, communication, and power. I was continuously struck by how women and men embraced the role of patient in an active fashion, demanding that care providers demonstrate excellence in relationships and communication as well as knowledge and competence.

It’s not that we shouldn’t or needn’t be concerned about unscrupulous physicians, overly vulnerable patients, and ethically suspect technologies and corporations—such potentials always warrant consideration, condemnation, and action. Rather, such trust reflects a broad, strong commitment to trusting those who make reproductive decisions of any kind—from IVF to abortion to adoption. Thus, when we find ourselves at an intellectual crossroads where we must evaluate reproductive issues and technologies, and are confronted with diverse and contradictory paths, we should investigate and consider the experiences of individuals who have already navigated those choices, mapping their outcomes as part of our analysis. This helps to ensure that these experiences inform any policies or regulations that may be necessary. Informed consent reforms would be welcome, and valuable. But without trust, such practices are but empty gestures.

Read more from Jody about on consent and control of reproductive medicine. And see Jody at her LSA session on Thursday, 6/7 at 9:00am during her Author Meets Reader session.