Carl H. Coleman published the article, “Conceiving Harm: Disability Discrimination in Assisted Reproductive Technologies,” in the UCLA Law Review. The article discusses how commentators have stated that the Americans with Disabilities Act (ADA) should be applied to prohibit physicians from refusing to provide assisted reproductive technologies (ARTs) to individuals with disabilities only if the resulting child will suffer so much she would prefer not to exist. Coleman points out that the problem with this is that nearly any existence, even one filled with pain, is preferable to no existence at all. This would mean that under the proposed standard physicians would hardly ever be able to refuse disabled persons access to ARTs.
In response, Coleman proposes a new way of applying the ADA to physicians’ denials of ARTs to those with disabilities. Coleman suggests that “when patients' disabilities create significant risks to the future child, the question should be how the risks and benefits of the patient's requested treatment compare to those associated with other available reproductive and parenting options.” In this scenario, the decision would not come down to whether the potential child would rather not exist, but whether the suffering likely to be experienced by that child outweighs the parents’ desire for ARTs and should force those parents to consider other parenting options. These other options would include gamete donation to avoid passing on debilitating genetic disorders, surrogacy to prevent the potential problems experienced in pregnancy by those with uncontrolled diabetes or hypertension, and finally adoption.
This is a good and workable system for addressing many types of disabilities that may lead physicians to deny patients access to ARTs. For example, it certainly seems reasonable to avoid potential premature birth and the incident increased potential for fetal death brought on by uncontrolled hypertension or diabetes by forcing parents suffering from these conditions to consider adoption or surrogacy instead of other forms of ARTs.
However, Coleman’s framework for applying the ADA to physician denials of ARTs breaks down when it comes to other disabilities. For example, the article discusses how physicians have denied access to ARTs to those suffering from the most severe forms of mental illness. Neither gamete donation, surrogacy, or adoption can help individuals with such mental illnesses avoid the suffering their future child may experience. In those instances the child’s suffering would result from a poor home environment as opposed to any physical problem. The question then becomes: what is a physician supposed to do when there are no other parenting options that allow for the avoidance of suffering by the potential child in question? According to the balancing test Coleman suggests, one has to weigh the potential suffering of the child against other parenting options. If there are no other parenting options, it would seem that under Coleman’s test the physician would be compelled under the ADA not to deny ARTs to individuals suffering from mental illness. It is difficult to believe that Coleman would want to place physicians in the position of having to help individuals conceive when the physician feels any resulting child will have a significantly decreased quality of life due to the child’s home environment.
Comments
Post new comment