American Journal of Law & Medicine

Reproductive Choices and Informed Consent: Fetal Interests, Women's Identity, and Relational Autonomy

CONTENTS    I. INTRODUCTION  II. THE CONTEXT OF INFORMED CONSENT AND REPRODUCTIVE      CHOICES      A. The Narrow Doctrine of Informed Consent      B. The Complex Realm of Reproductive Choices         1. The Choice to Terminate a Pregnancy         2. The Choice to Undergo Fertility Treatments         3. Medical Treatment During Pregnancy         4. Conclusion III. THE UNIQUE NATURE OF REPRODUCTIVE CHOICES      A. The Lack of Alignment Among Doctor, State, and Patient         Due to Fetal Interests         1. The Choice to Terminate a Pregnancy            a. Bias and Reliance on Stereotypes            b. The Doctor as a Mouthpiece for State Interests         2. The Choice to Undergo Fertility Treatments         3. Medical Intervention During Pregnancy      B. Women's Identity Interests      C. Conclusion IV. TOWARDS A RELATIONAL MODEL OF INFORMED CONSENT      A. The Specter of the Woman Decision-Maker      B. Relational Autonomy         1. Between Individual Choice and Regulation         2. The Harms Relational Autonomy Seeks to Address      C. A Relational Informed Consent "Consultation"         1. Broader, More Balanced, and Deliberative         2. Guidelines for the Consultation         3. Internal Conflicts and Mental Health         4. Addressing Criticisms: Cost, Bias, and Formulaic            Recitation         5. Examples of Informed Consent Consultations            a. Frozen Embryos            b. The Labor Process            c. Abortion      D. Creating a Balance of Interests         1. Recognizing Dignitary Harms         2. More Balanced Reporting Requirements  V. CONCLUSION 

In this Article, I describe and examine the severe shortcomings in women's autonomy in the context of reproductive choices in the medical arena. The reproductive choices I explore are those choices that involve gestation." abortion, fertility treatments, and interventions during pregnancy. Due to state and medical interests" in the fetus, I describe how information conveyed to patients making reproductive choices is biased towards fetal interests, relies on female stereotypes, and is still conveyed with the objective authority of the medical profession. Moreover, reproductive choices implicate women's values and identity interests that reach beyond medical concerns, which are not part of the informed consent doctrine at all. The narrow, individualistic informed consent torts doctrine intended to protect patient autonomy does not do enough in this context to balance bias nor does it mandate discussion of important identity interests and values. Accordingly, I argue that when faced with reproductive choices, women are not provided the balanced and comprehensive information needed to promote their autonomy.

In response to the breakdown in patient autonomy I describe, instead of leaving women alone to make choices or regulating in order to protect them from their choices', a broader framework for supporting reproductive choices should be established. In light of the interdependence of woman and fetus, as well as the broader social context shaping these decisions, I argue that a more contextual, relational perspective of autonomy should be the goal of informed consent in the context of reproductive choices. I suggest a number of reforms that aim to optimize patient autonomy from a relational perspective. I suggest a broad, deliberative doctor-patient consultation and legal reforms that create more balance between the pull towards intervention and fetal protection on the one hand, and non-intervention and protection of women's personal identity interests on the other.

I. INTRODUCTION

Reproductive choices are everywhere. They are not only varied and multifarious, they are the center of significant attention. Modern reproduction involves an array of choices that is jaw-dropping--far from the biological imperative of long ago. (1) Legislators, lawyers, the media, and society in general are seemingly obsessed with when, why, and how reproduction occurs. Public debates range from the right to terminate a pregnancy, to the right to have children born by an assortment of donated eggs or wombs, to the rights of intended parents to store and dispose of frozen embryos. (2)

Reproductive decision making is also exceptionally personal and constitutive. Reproductive decisions involve protected individual liberty interests under the Fourteenth Amendment of the U.S. Constitution. (3) Courts have determined that reproduction is integral to the very core of human identity; reproductive choices are deemed protected rights belonging to the realm of individuality, privacy, and autonomy free from "unwarranted governmental intrusion." (4) While Supreme Court jurisprudence has announced this right to reproduce mainly in the context of contraception, abortion, and the right not to undergo sterilization, (5) scholars and lower courts have argued for the expansion of these rights to the realm of procreation and birth decision making as well. (6) The personal and constitutive nature of such choices is also reinforced by public policy, women's and couples' own accounts of the meaning of such choices, and the social ramifications of reproductive choices for identity and personhood. (7)

At the same time, outside the realm of spontaneous conception through sex, reproductive choices are not individualistic or private at all. Reproductive choices are made in hospitals, with doctor involvement, often with state funding and with legislative oversight. (8) Based primarily on its interests in the potential life of the fetus, as well as its interests in citizen health and societal values, the state is an active regulator in the field of reproductive choice, despite the protected nature of such choices. (9) The state's right to limit the choices of a pregnant woman for the sake of the unborn fetus is most legitimized in the context of the choice to abort, but these interests may extend to fertility and obstetrics as well. (10) As most reproductive choices involve medical support, doctors are also active partners with reproductive decision-makers in creating babies, sustaining fetuses, and terminating pregnancies. (11) Such medical support often involves protecting and prioritizing fetal interests--or the success of fetal creation in the context of fertility treatments-because doctors have interventionist medical biases, aim to advance their own scientific goals, and protect their own financial interests. (12)

With the state and the doctor potentially bearing down on the patient with their own interests in the fetus, how is the distinctly private and individualistic nature of reproductive choice protected? Coupled with protected liberty interests that are intended to head off coercive legislation by the state unless important governmental interests are at stake, (13) in the medical context, reproductive decision making is protected by the doctrine of informed consent. (14) In the wake of an uncertain and shifting constitutional framework for reproductive rights, examined at length by scholars and judges, (15) it is the much less-examined doctrine of informed consent that remains the constant protector of patient autonomy in the context of reproductive decision making. (16) Regardless of constitutional limits on state interference, the informed consent conversation will always be present and affect decision making regarding reproductive medical procedures.

The goal of informed consent is to support patient autonomy. The legal torts doctrine of informed consent demands that medical professionals convey information regarding health risks and medical alternatives to their patients and thereafter elicit consent to proposed medical procedures. (17) But, in addition to this narrow legal requirement, the state or doctor may infuse their own--not necessarily related or overlapping--interests in the fetus into the conveyance of this information. (18) The information that is provided is, therefore, too often biased due to concern for the fetus and based on overbroad assumptions about women and their interests in the fetuses they carry. (19) Although in reproductive choices autonomy and liberty are coveted, and identity interests and social pressures are particularly germane, these concepts are nonetheless completely missing in the legal doctrine of informed consent. (20) Yet, state and medical interests in the fetus are enveloped in medical authority. Thereby, the doctor and the state compromise the nature of the information conveyed to the patient by emphasizing the fetus's, or the potential fetus's, interests at the expense of the woman's interests, though she is the primary patient. The narrow legal doctrine of informed consent does nothing to recognize or counter such biases. It is therefore my argument that based on the uniquely intertwined relationship between women and fetuses during gestation, and the importance of reproduction to women's identity, the individualistic, narrow informed consent doctrine is unsuited to support women's autonomy in the context of reproductive choices.

Those who have previously examined or attempted to improve women's autonomy in reproductive decision making in the medical context have attacked from one of two directions. One approach is to emphasize the rights of the woman as an individual, irrespective of the fetus. (21) Such arguments criticize paternalistic control of reproductive choices by the state or doctors and seek freedom from such influences in order to resolve women's compromised autonomy. (22) This argument dominates feminist attacks on abortion legislation. The conveyance of information in the abortion context is criticized as paternalistically controlled by state legislation. (23) Some proponents of this view further argue that women's autonomy is undermined in the context of medical decision making because of discrimination and power differentials. (24)

Others attack reproductive choices as being too unregulated and urge an increase in legislation to improve the safety and health of gestating women. (25) Moreover, some express concern that women's choices in the reproductive realm are invalid because of social pressures in addition to state and doctor biases. (26) Proponents of this view are skeptical of individual choice and market forces as sufficient to protect women's health and autonomy. (27) Rather, they advocate a changed social order and legislation to alter current insufficiencies in reproductive autonomy. (28) These perspectives usually take form in the context of assisted reproductive technologies (ART) and, to a lesser extent, medical decisions during pregnancy, where the need for more regulation is urged. Such perspectives, however, can influence abortion legislation as well. (29) As I will discuss below in describing the rise of reproductive technologies in particular, some legislative control may be prudent both in the interests of society and to help shape autonomy. (30) My focus, however, is on facilitating women's choices within the context of some legislative limits.

In this Article, I take a broader and more nuanced approach to protecting reproductive autonomy. My approach is broader because I link reproductive decision making in the context of abortion with reproductive choices regarding fertility and during pregnancy and labor. Although these different choices have much to distinguish them, I will demonstrate the importance in analyzing them together for what they have in common and what makes such choices particularly complex: (1) the uniqueness of fetal-maternal interconnectedness in gestation, (2) the distinct asymmetry of interests between the female patient and the doctor and/or state due to fetal and potential fetal interests, and (3) the unique identity-forming nature of these choices. (31) Linking these choices facilitates consideration of the common effects of these fundamental similarities, allowing a holistic consideration of reproductive choices that is otherwise lacking. As Jeanne Suk argues, positions in the context of some reproductive choices can have effects on perceptions of women's choices in other contexts. (32) Seeking regulation in the context of ART can influence thinking in the context of abortion and vice versa. (33) Protectionism in the context of ART can lead to protective legislation in the context of abortion, and the same is the case for liberal, individualist perspectives. (34) It is the goal of this Article to consider what these reproductive choices have in common and how they all need to be supported to promote the goal of autonomy.

My approach also breaks down the polarity of liberal approaches to autonomy based on individualism and approaches to achieving autonomy that seek to protect women because of the compromised context in which they are made. On the one hand, leaving women alone does not do enough to support autonomy. On the other hand, regulating and restricting those choices can go too far in undermining autonomy. Instead, I argue that women's autonomy should be facilitated through recognition of the complexity and uniqueness of reproductive choices. The particularly ripe context presented by reproductive choices for bias, reliance on stereotypes, and authoritative use of doctors as a medium to transmit state interests within the informed consent process must be recognized and addressed. The narrow legal doctrine of informed consent and the individualistic notion of autonomy at its core do not contend with such inadequacies. The goal of relational autonomy should be used to transform the informed consent process into a more balanced and comprehensive consultation that better supports women's autonomy in the context of reproductive choices.

This Article is divided into three parts. In Part II, I provide the context for my argument by describing the uneasy juxtaposition of the narrow legal doctrine of medical informed consent and the complex realm of reproductive choices. First, I describe the doctrine of informed consent as it is currently applied. Then, I describe the context of reproductive decision making and point to the problematic status quo in the medical realm for abortion, fertility treatments, and decisions regarding intervention in labor and birth. In abortion, the process of conveying information to patients before they make reproductive choices has been completely overrun by state and political interests and is not focused on the goal of women's autonomy. In ART and pregnancy contexts, medical and state interests in the fetus have led to an increasing amount of unmoderated intervention and medicalization.

In Part III, I explore how patient decision making is particularly compromised in the context of each of the three categories of reproductive choices. The distinct complexity is caused by the nature of gestation, in which the interests of two beings are uniquely intertwined. This complexity presents in two ways. First, due to the interests of the state and doctor in the fetus or potential fetus, the primacy of the gestating woman in the informed consent process is undermined. (35) Whereas in typical medical choices minimizing pain and optimizing the health of the patient are the primary concerns, in reproductive choices the interests and concerns have a layered complexity and tension because of doctor and state concern for the fetus. (36) The narrow, individualistic legal tort doctrine of informed consent does not do enough to balance the potential for bias or recognize the potential for competing maternal-fetal interests in the conveyance of information. Second, particularly strong female-identity interests in reproductive choices make the discussion of purely medical alternatives an incomplete platform for ensuring women's autonomy. In light of these concerns, I argue that in the context of reproductive choices, the narrow, individualistic framework in place for informed consent in the medical context results in a problematically flawed process, insufficient for achieving its fundamental goal of autonomy.

In Part IV, I present an alternative framework to transform the informed consent doctrine so that it better supports women's autonomy in reproductive choices. I argue that particularly in the context of reproductive choices--where two beings are integrally intertwined, where misaligned interests are involved, and where identity interests are of primary concern--a relational framework for informed consent should be instituted. In the first subpart, I explain why particularizing reproductive choices does not lead to discrimination against women but rather supports women's interests. In the second subpart, I describe the meaning of relational autonomy. Using an analogy to Robin West's recent analysis of consent in the context of rape, (37) I then explore the harms caused by the use of the current doctrine of informed consent in the context of reproductive choices and argue that such harms are precisely those that can be addressed through a more relational approach to autonomy.

Finally, having pointed out the shortcomings of the current model, in the third and fourth subparts, I attempt the practical work of describing this relational vision of informed consent for reproductive choices. I make two sets of suggestions. In the third subpart, I suggest that the model of informed consent move from the basic provision of information to a more dynamic, deliberative consultation. I describe the principles of this consultation, provide examples in the three contexts of reproductive choices addressed in this Article, and address criticisms that such consultations would be too costly, biased, or ineffective. In the fourth subpart, I propose a legal shift to a more concerted balancing of interests in the realm of torts. I argue that by allowing litigation based on harm to dignitary interests in informed consent, and by mandating the distribution of information not just on fertility success rates or malpractice rates but on a more complete set of data about rates of intervention and patient satisfaction, the law can support the more robust relational autonomy for which I advocate. These suggestions are intended to provoke thought about how to improve informed consent through relational autonomy but are not intended to be comprehensive. Indeed, a holistic acceptance of the goals of relational autonomy includes policy and regulations that broadly impact the doctor-patient dynamic and the social context in which reproductive choices are made.

II. THE CONTEXT OF INFORMED CONSENT AND REPRODUCTIVE CHOICES

A. THE NARROW DOCTRINE OF INFORMED CONSENT

The notion of informed consent, although subject to significant criticism, (38) has revolutionized the medical field. (39) The need to relay appropriate information and then obtain consent from the patient has become the standard for reform of old-world protectionist and paternalistic medicine and the standard for aspiration in improving patients' rights. (40) Although not perfectly implemented, patients' rights, bed-side manner, the need to inform patients of medical alternatives, and the need to obtain patient consent are now common considerations in medical schools, hospitals, clinics, and private practice. (41)

As originally conceived, under the doctrine of informed consent, any doctor who performed a surgery or medical procedure without obtaining proper consent committed a battery or assault. (42) The tort of informed consent has since become a tort sounding in negligence as opposed to battery--not focused on physical touching without any consent, but physical touching without proper consent based on insufficient information. (43) Patients must not only consent to a medical procedure, they have a right to sufficient information to be able to make an informed decision about that procedure. (44) Patients are given the right to refuse treatment proposed by the doctor as well as the right to be informed enough to make rational decisions with the help of the doctor. (45) A doctor is negligent if he does not provide a reasonable amount of information to his patient about the risks, alternatives, and potential side effects of a certain course of treatment and gain her consent thereto. (46) A slight majority of courts have stated that a reasonable amount of information is what reasonable professionals would disclose, although a solid and growing minority demands the provision of information that a reasonable patient would want to know before making a medical decision. (47) There are also minority and majority positions regarding whether causation must be proven for a reasonable patient or that particular patient. (48) The vast majority of courts require proof of physical injury to recover damages, (49) but some courts, in limited circumstances in which the action of the doctors comes closer to battery, have allowed recovery for infringements on dignity alone. (50)

The legal doctrine of informed consent was born of a belief in the fundamental importance of human autonomy: that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body...." (51) Informed consent, reflecting the legal shift in healthcare and society more generally in the second half of the 20th century, focuses on individualism. (52) In Salgo v. Leland Stanford, the court comments "[t]hat each patient presents a separate problem, that the patient's mental and emotional condition is important ... to [determining] an informed consent." (53) The doctrine's avowed purpose is to protect the patient's right to his own autonomous "thoroughgoing self-determination." (54) This shift from the focus on medical beneficence in prior medical practice and the Hippocratic Oath, which is silent on the duty of physicians to inform, results from the liberal tradition emphasizing the individualistic right of autonomy and self-determination. (55) The doctrine of informed consent is intended to ensure that patients are not just the objects of medical practice but also free and willing participants. (56) Under the doctrine of informed consent, patients have a right to be left alone to make up their own minds about medical procedures free from doctor coercion.

As the law currently stands, the obligation on the doctor is to provide standard information to all patients with the same condition and not to personalize the information by digging deeper into a patient's personal goals, values, and interests. (57) Although the doctrine aims to treat patients as individuals and not as objects, it is essentially a one-size-fits-all endeavor. (58) There is a requirement that the doctor provide certain information; there is no requirement of discourse with the patient to find out more about the patient's values and preferences. (59) In reality, the doctor views the patient as an individual medical problem, not as a truly individual person with a set of situational and contextual realities. (60) Accordingly, the doctor's obligations relate only to providing information about medical conditions, treatments, alternatives, and risks based on the medical condition. (61) Typically, such information covers only the patient's healthcare alternatives and the side effects of any medical treatments and not dignitary or emotional needs. (62) It is a process of providing and conveying information, and revealing medical knowledge. Limited cases have required doctors to provide information regarding plans for the use of blood or tissues extracted, and the provision of information pertaining to the doctor's own medical capabilities or practices. (63) For the most part, however, the doctrine of informed consent is a narrow medical doctrine intended to ensure that a patient understands and therefore can give consent to undergoing medical procedures.

Informed consent also has a parallel meaning in bioethics, which frames the informed consent process between patient and doctor as well. It focuses on four elements: (1) competency to make a decision; (2) consenting to a given option; (3) the provision of adequate information; and (4) freedom from explicit coercion such that the decision is voluntary. (64) Informed consent in medical decision making is based on individualistic autonomy through freedom from paternalism and coercion. (65) The informed consent process is intended to ensure that a patient is left alone to make a decision based on a set of medical facts free from direct coercion. The ethical notion of informed consent does not require inquiry into a patient's particular circumstances and contextual pressures. Informed consent concentrates on "the preferences of particular patients.... It asks health care providers to ensure that individual patients have the information they need to make rational decisions about their health care, yet it does not ask necessary questions about the circumstances in which such decisions are made." (66) The ethical endeavor is thus one of providing basic information, ensuring competency and freedom from explicit coercion, and obtaining consents As conceived and applied as an ethical medical doctrine, informed consent does not seriously facilitate the exploration of the circumstances in which such consent is obtained or the broader concerns of the patient giving that consent. (68)

In sum, informed consent is a doctrine born of a liberal, individualized notion of autonomy, focused on allowing individual patients to make up their own minds about medical treatment free from coercion. Moreover, it is a narrow doctrine, requiring that doctors provide information regarding standard medical risks and alternatives to patients without inquiring any deeper into a patient's values, interests, and circumstances.

B. THE COMPLEX REALM OF REPRODUCTIVE CHOICES

In contrast to the narrow doctrine of informed consent, the realm of reproductive choices has expanded and become more complex at an alarming rate. Reproductive technologies have created an explosion of reproductive options, particularly in the context of reproductive endocrinology. (69) What began with "test-tube babies" has expanded to a host of ART options that push the realm of believability, including extended multi-year courses of fertility treatments, tanks full of frozen embryos, post-menopausal pregnancies, octuplets conceived by implanting numerous embryos into one woman's uterus, babies "conceived" by two men with the use of an egg donor from another country and a surrogate from a third, and babies created without any biological connection at all to the intended mother or father. (70) In obstetrics, technological advances have enabled interventions from increased genetic and ultrasound screening at multiple stages, to elective Caesarean sections ("C-sections"), (71) while opposing forces have maintained the need to protect the choice to use midwifery services and engage in home births. (72) Moreover, reproductive choices are at the center of political, social, and ethical disputes. Debates surrounding the right to choose to abort take center stage in legislative, jurisprudential, and political arenas in a relentless and ever-developing discussion of the proper parameters of a woman's choice to terminate a pregnancy. (73)

To clarify which choices I am referring to as "reproductive choices," every reproductive choice I discuss involves a woman's body--so far, we are still unable to produce babies in incubators. The complexity in the reproductive choices that I explore in this Article surrounds the woman's body and her ability to gestate. (74) Moreover, since the medical doctrine of informed consent is at issue, these are choices that involve medical intervention. For instance, the choice to create a family through sexual intercourse is not part of this inquiry. Similarly, a decision to engage a surrogate mother is a reproductive choice; but, it is not a medical choice and thus does not implicate informed consent. While the choice to become an egg donor or a surrogate is reproductive and involves informed consent for the medical treatments involved, it is not a choice to procreate for oneself and therefore is also not subject to this analysis. A choice to become a reproductive donor involves a whole set of different interests and inquiries, including issues of commodification and exploitation, which are beyond the scope of this Article. (75)

There are three categories of reproductive choices that I consider in this Article: (1) the choice to terminate a pregnancy; (2) the choice to reproduce with the help of a doctor using fertility treatments; and (3) the choice to undergo medical intervention during pregnancy and labor. (76) In this Part, I will describe the parameters of each of these three choices, the legislative and constitutional framework for such choices, and the current hot button, controversial issues that have arisen in these three areas. Although it is my aim to create a framework for considering this broad array of reproductive choices, the distinct contexts in which these choices operate and the unique complexities of each will be delineated and serve as contextual background for my arguments.

1. The Choice to Terminate a Pregnancy

The choice to terminate a pregnancy is an individual liberty interest protected from state prohibitions by the right to privacy under Roe v. Wade. (77) Under the holding of Roe, the right to abort is a fundamental right and thus states cannot restrict access to abortion unless there is a "compelling state interest." (78) Yet, even when the right was first announced it was limited by valid state interests. (79) According to Roe, the state's interest in the health of the fetus permits it to prohibit abortion in the third trimester, defined as the point of viability; in the interests of the woman's health, the state can legislate the parameters of abortion beginning in the second trimester. (80)

States have since been allowed to legislate beyond the limits set by Roe. In Planned Parenthood of Southeastern Pennsylvania v. Casey, based on the state's interest in the fetus, as well as in maternal health, the state is permitted from the onset of pregnancy to dictate which procedures must be undergone and which information must be conveyed before a doctor can perform an abortion, as long as such legislation does not create an "undue burden" on the right to abort. (81) Casey upheld a mandatory twenty-four hour waiting period before a doctor can perform an abortion requested by a patient. (82) Casey also found that during the waiting period, the woman can be given information intended to dissuade her from aborting as long as the information is "truthful, non-misleading information." (83) Mandatory spousal notification, on the other hand, was found to be too burdensome. (84)

By mandating the provision of certain information intended to make a woman question her choice to abort, states have been allowed to shape the conveyance of information to patients by doctors before that choice is made. (85) Casey allows "informed consent" laws that vindicate the state's interest in potential life even if the information given is biased, representing the particular beliefs and ideological perspectives of the state. (86) The information that is deemed permissible in Casey is "the nature of the procedure, the health risks of the abortion and of childbirth, the probable gestational age of the unborn child," and the availability of printed materials published by the state describing the fetus and "providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion." (87) Such information clearly conveys the state's interest in dissuading a woman from aborting a fetus, and this clear ideological message is explicitly permitted by Casey. (88)

Many states have taken Casey's lead in adopting "informed consent legislation" that shapes the information conveyed by a doctor to a patient before an abortion is performed. (89) More recent legislation in some states has mandated that women view ultrasounds of the fetus before undergoing an abortion. (90) Furthermore, in Gonzalez v. Carhart, the Supreme Court allowed the federal government and, by extension states, to ban a particular kind of abortion procedure, partial-birth abortion, even if the doctor believes using such a procedure to be in the best interest of the woman due to medical concerns. (91)

With the state compelling and directing the conveyance of particular information to the patient, the informed consent process clearly transcends what is required under the narrow legal doctrine of informed consent. (92) This allows for a very impressionable and biased relaying of information coerced upon the doctor and patient by the state. It also creates instability and controversy. For instance, some courts have held that a woman can be told that calling the fetus a "human being" is truthful and not misleading, (93) while others have said the opposite. (94) The informed consent legislation transforms the informed consent process (95) from a platform for promoting autonomy into a forum for political strife. (96)

In response to pro-life influence on the informed consent process, pro-choice activists are focused on freeing women from coercive, protectionist, and one-sided interference from the state. They oppose any intrusion into the individualistic privacy of the patient as discriminatory and problematic. (97) The focus on individuality and privacy for the deciding woman aims at allowing her to make the decision to abort without pressure from the state, but does not focus affirmatively on what information the patient needs to support her decision. (98) Hence, the discourse surrounding what information to give a patient prior to an abortion is no longer about facilitating and informing patient choice and maximizing autonomy. (99) Rather, it is an arena for highly charged political debate, despite the fact that it is still cloaked in informed consent language and justified by the need to provide information. (100) The focus on women and their needs has been surrendered in pursuit of political aims. The law and discourse surrounding abortion decision making should refocus on making sure that the informed consent process provides women with the information they need to make difficult and complex reproductive choices.

2. The Choice to Undergo Fertility Treatments

Although most reproductive rights are developed in the context of abortion and contraception, there is language and some precedent to suggest a constitutional right to procreate as well. (101) A number of scholars have argued that constitutional precedents regarding reproductive freedoms should include the right to reproduce using ART. (102) But, even if coital reproduction and non-coital reproduction do not mandate the same level of constitutional protection, because ART entails a more complicated set of rights and state interests than spontaneous sexual reproduction, (103) limiting ART does arguably implicate some constitutional and privacy concerns. …

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