2023 Theses Doctoral

Regulating Assisted Reproduction: Between Progress and Stagnation

Yakovi Gan Or, Nofar

This dissertation explores the increasingly complex legal challenges that the Israeli and American legal systems have faced with the development of assisted reproductive technologies (ART). It examines reproductive policies that prevail in both Israel and the U.S. that govern different utilizations of sperm, such as sperm donation, posthumous reproduction, and surrogacy, and the roles undertaken by—or assigned to—men in each reproductive context. Each chapter unpacks a set of questions arising at the intersection of such fundamental rights as autonomy, parenthood, bodily integrity, and equality in the ever-changing reproductive landscape. Together, they uncover how regulating reproduction shapes familial identities and institutions from legal and social standpoints while employing such critical theoretical lenses as feminism and masculinities.

Chapter one, Securing Posterity: The Right to Posthumous Grandparenthood and the Problem for Law develops the normative discourse regarding posthumous reproduction, focusing on bereaved parents' reproductive interests. Practiced since the late 1980s, posthumous reproduction—the retrieval and use of gametes of deceased persons to produce a child following the death of at least one genetic parent—raises moral, ethical, and legal questions over its desired regulation. Over the past decade, a novel application of this form of ART has emerged: Bereaved parents began presenting to hospitals and courts requests to use their deceased son's reproductive gametes to produce a genetically related grandchild. Unlike the rights and interests of other expected stakeholders—the deceased, his spouse, and the future child—grandparental interests have yet to be articulated and analyzed. This chapter shows how the bereavement process that follows the loss of an adult child provides a valuable social context to understand parents' motivations in pursuing this reproductive route. It then argues that posthumous grandparenthood’s ability to provide comfort and relief amidst grief may also explain their relative success among judges and legislators. Notwithstanding the prevailing normative stance that views parents as having no ethical claim over their children’s gametes. This compassionate use of law raises, in turn, broad questions I discuss in this chapter about the role of law, its prescriptive nature, and its ability to address the legal challenges posed by such newly formed and imagined families.

Chapter 2, Reproductive Dreams and Nightmares: Sperm Donation in the Age of At-Home Genetic Testing, explores a much less controversial use of ART: sperm donation. At its center is the widely covered story of Danielle Teuscher, who accidentally discovered the identity of her daughter’s anonymous sperm donor after using a 23andMe DNA test. Danielle’s attempt to reach out to the newfound family member was followed by a cease and desist letter from the sperm bank for violating their agreement. In addition, the sperm bank refused to give Danielle the four vials of sperm from the same donor, which she had reserved for future use, thus thwarting her reproductive plans to have genetic siblings for her daughter. Taking its cue from this case, this chapter shows how novel technological developments may challenge long-standing and well-established reproductive practices, illustrated by the fertility industry’s struggle to maintain gamete donor anonymity against the growing use of direct-to-consumer DNA tests. Using pre-embryo disposition disputes as a conceptual framework, it addresses the legal questions produced by this novel encounter between law and ART about the legal approach through which the dispute should be adjudicated, the nature of the rights at stake, and the harms imposed by forced or confounded procreation. It argues that in the social context of anonymous sperm donation, the contractual approach is a more appropriate—if insufficient—legal prism through which a dispute over the use of donated sperm should be resolved.

Chapter 3, Men, Fatherhood, and the Regulation of Assisted Reproduction in Israel, develops the discourse surrounding men and reproductive law by examining how the law factors men into the regulation of assisted reproduction. Taking the Israeli legal landscape as an illustrative case study, it analyses policies that govern gamete donation, posthumous reproduction, and surrogacy. This analysis shows how this body of law underestimates men’s desire to rear—not just to sire—children by valorizing genetic lineage and treating their procreative stakes primarily as financial. In other instances, men’s access to principal routes to biological kinship is contingent upon the presence of a caregiving mother or otherwise denied. To understand the meaning of these findings, this chapter employs the critical lens of masculinities theory. It argues that the doctrinal patterns found in ART law correspond with masculine ideals underlying traditional perceptions of familial roles. The result is a narrow, stereotypical understanding of fatherhood as a relationship divested of nurture and care reflected in this body of law. This chapter concludes by arguing that recognizing men and women as equal stakeholders in these reproductive contexts is necessary, if insufficient, step toward a more egalitarian ART regime.