Disabling Dreams of Parenthood: The Fertility Industry, Anti-Discrimination and Parents with Disabilities

Abstract

Recognizing the complicated relationship between potential patients and fertility doctors, this Article seeks to provide some clarity and guidance to those facing the daunting task of accepting or rejecting patients on the basis of their disability status. Part I describes the various ways that physicians providing fertility services decide to accept or reject patients, and highlights how certain characteristics, such as disability, can lead to discrimination. Part II explains why it is appropriate to evaluate discrimination in the fertility context as impacting an interest in procreation, rather than an interest in parenting one’s biological children or in seeking to adopt children. Part III evaluates the potential difficulties that a disabled person might face when attempting to prove unlawful discrimination under the Americans with Disabilities Act (ADA). Using the examples of an HIV-positive woman and a quadriplegic woman, the Section hypothesizes how such litigants would prove the applicability of the statute and explains why the ADA should be interpreted in a way that protects people with these substantial disabilities from being denied access to treatment by fertility doctors. Finally, Part IV mines the theoretical complications of risks that could warrant denying access to fertility care to women living with HIV or quadriplegia. This Section describes the difference between direct and indirect risks to the patient or the fetus and argues that indirect risk, summarized as the risk of bad parenting, is most often too amorphous to satisfy the ADA inquiry or ethical standards.