Social policies in the United States often favor families and encourage reproduction — but not for infertile persons. When the infertile want to have children, health care funding policy, legal rules, and popular sentiments generally are not very sympathetic. Infertile couples typically must rely on their own resources to procreate, without reimbursement by their health insurance, the law may erect barriers to assisted reproductive services, as with prohibitions against surrogate motherhood, and infertile couples may not find much concern for their plight from friends or even some family members.
Such discounting of the needs of the infertile is unjust and reflects a misunderstanding of the nature of infertility. Infertility is a disability — and a very serious one for some people — yet it is often misperceived as not a real handicap or even as enabling. Scholars writing on reproductive issues frequently valorize life without children. These societal sentiments are reflected in anti-discrimination law. The protections that persons with other disabilities enjoy do not extend to the infertile. Respect for the fundamental interest in reproduction justifies changes in social attitudes and reforms in the law to ensure fair treatment for the infertile.Orentlicher goes on to comment -
Public policy in the United States gives insufficient attention to the interests of infertile persons because infertility does not seem to be viewed as a serious enough problem.
Rather than viewing infertility as a significant disability and infertile persons as deserving assistance in their efforts to procreate, many Americans dismiss the idea that infertility is disabling. To be sure, as discussed below, the law will protect infertile people from some forms of discrimination. For example, if an employer refused to hire an infertile person, the Americans with Disabilities Act would make the employer’s refusal unlawful. But that is not the kind of discrimination that infertile persons face.
Rather, they face barriers to receiving medical treatment that will overcome their infertility, barriers that people with other medical problems do not face. And these barriers reflect a common view that being infertile is not really disabling.
There is much evidence for the view that people do not see infertility as really disabling in the way emphysema, heart disease, paraplegia, or blindness is seen as disabling, that fertile persons frequently dismiss the idea that infertility is a significant problem. Before discussing the evidence, I will explain why infertility is a disability. … “Disability” refers to the existence of substantial limitations on a person’s “major life activities.”
Major life activities include functions like seeing, hearing, walking, speaking, learning, and working. Commonly, disability is caused by an impairment, which is defined as a “physical or mental anomaly.” If a person has the impairment of paralyzed legs, then the person is disabled with respect to the major life activity of walking. A person with the impairment of advanced emphysema may be disabled with respect to the major life activities of walking or working. Infertile persons generally meet the definition of a disability because they have an impairment of their reproductive tracts that substantially limits the major life activity of procreation. Having children is an interest of fundamental importance to many people; for many people, it is the most important endeavor they undertake in their lives. Indeed, it would be odd to identify working at a job as a major life activity but not similarly recognize bearing and raising children as a major life activity. Because of the central role that reproduction plays in the lives of so many individuals, the Supreme Court has held both that procreation is a constitutionally-protected right and that reproduction is a major life activity.
To be sure, some would argue that infertility is an inevitable result of aging and therefore represents a natural state, not a disabling condition. But many infertile persons are of normal childbearing age and have lost their reproductive capacity through illness or injury. Moreover, many well-recognized disabilities, including osteoporosis, are a common result of ageing. If we are willing to provide hip replacements for seniors with reduced bone density to overcome their disabilities, we also should be willing to provide treatments to people with infertility to overcome that disability.
Infertility has psychological, as well as physical, implications — the emotional impact of infertility can be substantial, particularly for women. For people who want to reproduce, but cannot, the loss can be devastating …
Infertility is not seen as disabling Despite the disabling nature of infertility, it often is not seen as disabling. Studies of infertile couples by academic scholars are illustrative. For example, in her research on infertility, Elizabeth Britt found that “the infertile often feel as if the seriousness of their condition is trivialized.” Disclosure of infertility might elicit “jokes about the couple not knowing how to have sex or about the fun the couple must be having trying to conceive a child.” Other people “might suggest that infertility is a blessing in disguise” or that it is not as bad as other medical conditions since reproduction “supposedly is so optional.” Or they might say something like, “Oh well, so what so you don’t have to have a baby, so what, just adopt.”
Margarete Sandelowski found that infertility “is too often dismissed as an unfortunate physical impairment, but one perfectly compatible with good health and life.” An infertile woman might be reminded that there are far worse problems, and be told by relatives that, “‘At least you’ve got a nice husband and a nice house and plenty of food. . . . At least you don’t have cancer.’” Couples in her study of infertility “complained that infertility was not viewed as a ‘serious disease’ worthy of the resources people afflicted with other diseases can get.” Similarly, Arthur Greil found from his interviews with infertile couples that they criticized fertile people for “treating the plight of the infertile as if trivial and inconsequential.”
The infertile also were troubled that fertile individuals “acted as if . . . infertility were a small and relatively easy problem to solve.” As one woman reported, her friends might say, “‘Why don’t you go on a cruise?’ Or ‘Why don’t you just relax? And then you’ll get pregnant.’” According to Greil, infertile couples do not feel like they are viewed as inferior because of their infertility. Rather, the discrimination they feel arises out of a “failure of others to acknowledge the seriousness of infertility.” In one typical remark, an infertile person observed, “I think [fertile people] discriminate by making light of the problem.”
Discussion of IVF by legal and other scholars also indicates that infertility may not be seen as a real disability. In the constitutional context, law professors Carl Coleman and Radhika Rao have considered whether a ban on access to IVF or other infertility treatments would violate an infertile couple’s constitutional right to procreate. Both of them quickly dismiss the interests of infertile couples in constitutional protection and conclude that restrictions on access to infertility treatments would be constitutionally valid. In his analysis, Coleman observes that the Constitution cannot protect every interest that people assert as deeply important to them and gives the smoking of marijuana as an example of an asserted interest that should not be given constitutional protection.
The idea that the desire to have children and the desire to smoke marijuana are comparable is troubling. Or consider an argument against IVF that biology professor Ruth Hubbard articulated in the early days of assisted reproduction. In response to the view that women have a right to bear children, Hubbard wrote that it “had never occurred to [her] that every woman has a right to bear a baby any more than that every woman has a ‘right’ to a 34 inch bustline or a 24 inch waist.” Hubbard went on to acknowledge that many women genuinely suffer from their inability to have children but that the answer is not to provide IVF, which she viewed “to be a path to disaster, ”but to engage in “strong, deep, feminist, consciousness raising.”
Anthropology professor Eric Hirsch reported a similar perspective from a British woman who participated in his discussions of assisted reproduction. As Hirsch described it, the woman worried that “children just become the next thing in the long list of material possessions one is supposed to have.” Or as the woman put it, “it’s like you get a car, a dishwasher and then a dog and then you think what next.”
The view that infertile couples are selfish and materialistic is a common one. Some scholars are even harsher in their critiques of women who pursue assisted reproductive technologies. A number of feminist writers have rejected the possibility that an infertile woman’s desire to reproduce reflects a genuine expression of autonomy and instead attributed the desire to “nothing more than the result of the patriarchal mandate that she reproduce.” Not only do these scholars deny the authenticity of the infertile woman’s desire to procreate, they also portray her efforts to reproduce as harmful to other, poorer women — when the privileged woman under takes expensive assisted reproduction treatments, she depletes resources that could be used to meet basic health care needs of underprivileged women. Moreover, it is argued, infertile women are racist, eugenic, and selfish when they exhibit a preference for a white, biologically-related, infant over an orphaned, older, minority child — even though fertile couples exhibit the same preferences.