The Bioethics of Prospective Parenthood: In Pursuit of the Proper Standard for Gatekeeping in Infertility Clinics

Abstract

This article offers clinicians a legal perspective on how to decide which of their patients should receive medical assistance to reproduce. Part I discusses how infertility clinics in the United States and Europe screen their patients with the use of a child welfare standard that encompasses concerns ranging from whether the applicants possess minimal parenting competency to whether it would be in the best interests of the child that the applicants become parents. This Part notes that although there has been extensive scholarly treatment of procreative liberty, discrimination in the provision of medical services, and physicians' prerogative to refuse treatment, clinical gatekeeping on the whole is a topic that the legal academy has neglected. Part II examines doctrines from constitutional law, family law, and trust law in an attempt to locate legal support for clinical screening practices. This Part first locates assisted reproduction along a regulatory continuum ranging from unassisted reproduction on the one extreme to adoption on the other and finds justification, despite the Constitution's solicitude for procreative liberty, for a certain level of governmental oversight of access to infertility treatment. With this justification as a background, Part II challenges the best-interests-of-the-child standard from family law as an appropriate standard for clinical screening, since that standard contemplates an identifiable, living child, not one that has yet to be conceived. The parental-fitness standard may apply however, since infertility clinics may properly express a legal and ethical interest in preventing harm to others by not serving those who possess below a minimal competency to parent. The doctrine of virtual representation from trust law supports this view in its tendency to presume that potential parents will act in the best interests of their prospective children in the absence of strong evidence to the contrary. Part III's recommendations assert that, although the best-interests-of-the-child standard has no place in the clinical screening of applicants for assisted reproduction, clinics should be permitted, if they choose, to perform fitness screening on their applicants.

Keywords: reproductive medicine, gatekeeping, procreative liberty, parental fitness, best interests of the child, virtual representation