Fertility Control: III. Legal and Regulatory Issues

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III. LEGAL AND REGULATORY ISSUES

The ability to control fertility depends on available technology, moral and religious acceptability, and legal permissibility or the threat of sanction. The major fertility-control mechanisms are contraception and sterilization and, when neither is used or the chosen method fails, abortion. The mechanical and physiological characteristics of each method determine the ease and comfort of individual use, the likelihood of success, and the potential for coercion.

In many cultures men view children as proof of virility and power. They see attempts by women to limit or terminate pregnancy as an attack on male authority and reproductive potential, which in many societies equals wealth. For many women a desire to limit pregnancy must often be pursued furtively, with fear of violence and retaliation. Biology and the threat to a woman's independence, health status, and well-being make the control of fertility primarily a woman's concern. A woman's ability to limit and control her fertility may be a necessary precondition for equality and personal economic status.

Because they affect relationships between the sexes, population growth, and a woman's status, contraception, sterilization, and abortion are and have been problematic for many societies. Secular societies committed to individual rights and liberties are less likely to intervene in reproductive decisions. But all societies to some degree attempt to influence individual reproductive choices.

History of Contraception Use and Control

GENERAL. Various societies have interceded for centuries in the free use of contraception, largely for moral and/or religious reasons. Classical Islam permitted the use of birth control and even early abortion (Fathalla et al.). Biblical Judaism, based on interpretations of the story of Onan in Genesis 38: 8–10, condemned coitus interruptus and the use of male condoms. Christianity gradually evolved a doctrine, based on biblical references, interpretations of natural law, and the writings of Saint Augustine (354–430), that prohibited use of all contraceptive devices (St. John-Stevas). Widespread, class-linked knowledge of contraceptive practices was effectively withheld from most of the population following the condemnation of birth control by philosopher and religious Thomas Aquinas (1224 [or 1225]–1274] in the mid-thirteenth century (Fathalla et al.). As religion formed part of the basis for modern secular law, control of fertility became a subject of legal attention and regulation.

Abortion, as a method of fertility control, has always been especially controversial. Despite its morally and legally complex past and its tendentious present, there is evidence today that abortion remains a favored method of birth control for many women, both as a preferred method of fertility control and as a backup to failed contraception. An estimated 46 million abortions are performed worldwide each year (Alan Guttmacher Institute). Unintended pregnancy is the leading cause of abortion. Approximately 150 million married women want to stop having children but are not using contraception (World Health Organization [WHO]). In the United States, where contraception is readily available, 49 percent of pregnancies are unintended (Henshaw). The United States Center for Disease Control (CDC) reported 884, 273 legal induced abortions in 1998, a ratio of 264 abortions per 1,000 live births.

While contraception and abortion address the prevention or termination of any specific pregnancy, sterilization terminates individual fecundity. With the development of modern, comparatively safe, and effective means of sterilization (vasectomy, or surgical excision of the duct carrying sperm from the testicles; and salpingectomy, or surgical removal of one or both fallopian tubes), individuals can choose, by means of one medical intervention, to detach sexual intercourse from reproductive consequences. If chosen by individuals, these simple and almost always irreversible interventions extend autonomy; if imposed by the state, they can become instruments of repression.

Whether contraception, sterilization, and abortion should be permitted, prohibited, or coerced by government has generated intense controversy in countries as different as the United States, Romania, India, Ireland, and China. In each country, legislators, judges, individuals, and special-interest lobbies have struggled to affect how citizens will think about their options for controlling fertility, how the individual decision-making process will be informed and supervised, how access to contraception, abortion, and sterilization will be ensured or precluded, and whether coercion will be encouraged, permitted, or prohibited (Weston; Thomas).

Both female and male condoms have been available for centuries. Roman women attempted to use goat bladders (Fathalla et al.), and some African women hollowed out okra pods (Robertson). A picture of a penile sheath is recorded as early as 1350 b.c.e., although male condoms did not come into general use in Europe until 1671 and became reliable only with the vulcanization of rubber in 1843 (Robertson). Monitoring and prohibiting use of birth-control devices such as condoms are difficult because of the inherently private nature of their use. Manufacture, distribution, sale, and advertising are more easily regulated and prohibited.

Despite the long history and the private nature of fertility control, various legal and theological systems have attempted prohibition. The early Christian (Roman Catholic and Protestant) argument against contraception, influential as the model for legal regulation, holds that God's purpose for sex is conservation of the species, which is frustrated when people have intercourse for nonprocreative purposes (St. John-Stevas). The Catholic Church first proscribed contraception in canon law in 1140 (St. John-Stevas). While not all religions have been as resistant to the idea of contraception as the Catholic Church, contraceptive use has traditionally been considered an appropriate area for moral guidance and proscription and not until the beginning of the twentieth century did significant numbers of Protestant theologians provide moral approval (Larson).

Religious regulation has been selective. Some forms of birth control were interdicted, while others were and have remained relatively unnoticed. In addition prolonged lactation, postpartum abstinence, delayed marriage, celibacy, and to some extent infanticide, are all techniques of fertility management that have been and continue to be used.

U.S. HISTORY. Puritan theology dominated the early American colonists. The Puritans considered sex-related matters part of the devil's province, to be shunned and ignored, and they tolerated little open discussion (Robertson). In the 1830s some popular literature on contraception, such as Robert Dale Owen's Moral Physiology, began to be generally available (Robertson, Reed). Not until 1873 did law begin regulating distribution of contraceptives in the United States. The Comstock Act ("An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use") equated contraception with obscenity and made it a federal offense to use the postal service for transporting obscene materials, defined to include contraceptive and abortion information and equipment. The act also banned importation and interstate transportation of such items (Sloan). After the act's passage, many states adopted their own regulations on the sale, advertising, and display of contraceptive devices.

Margaret Sanger, a nurse affected by her work in poor communities where morbidity (the incidence of disease) and mortality from abortion was high, was a vociferous advocate for birth control (Reed; People v. Sanger, 1918). She founded a monthly magazine, The Woman Rebel, for which she was arrested and indicted under the Comstock Act. She fled to Europe and returned in 1916 to establish the first American birth-control clinic in Brooklyn, a borough of New York City (Chessler). In 1918 she was convicted and sentenced to thirty days in the workhouse under New York State's Comstock law. Years later a physician in one of Margaret Sanger's clinics who had ordered a package of contraceptives through the mail was charged with violating the Tariff Act of 1930, a statute based on the Comstock Act that prohibited importation of "any article whatever for the prevention of conception or for causing unlawful abortion." On appeal the federal circuit court for the second circuit held that the act did not apply when the article imported was not intended for an immoral purpose. Judge Augustus Hand declared that the Tariff Act was part of a "continuous scheme to suppress immoral articles and obscene literature," and refused to find proper medical use of a contraceptive by a licensed physician to be immoral or obscene (U.S. v. One Package …, p. 739). Though the court did not invalidate the statute, its interpretation limited the sweeping definition of morality and obscenity that had previously held sway.

Statutes modeled after the Comstock Act continued to exist, however, until 1965, when the U.S. Supreme Court in the case of Griswold v. Connecticut invalidated a Connecticut statute prohibiting the use of contraceptives. The Court held, citing prior cases that had created a zone of privacy protecting certain personal behaviors, that these penumbral rights of "privacy and repose," based on several fundamental constitutional guarantees, protected the use of contraceptives by married persons (Griswold v. Connecticut, p. 481). Griswold was followed by Eisenstadt v. Baird (1972), extending this reasoning to nonmarried individuals. The statute that was invalidated in Eisenstadt prohibited single persons from obtaining contraceptives to prevent pregnancy, and permitted contraceptives only on a physician's prescription for the purpose of disease prevention. The statute was held to violate the equal protection clause of the Fourteenth Amendment:

[W]hatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.… If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. (Eisenstadt v. Baird, p. 452–453)

Minors gradually attained access to contraceptive advice and devices. In 1977, in the case of Carey v. Population Services International, the U.S. Supreme Court invalidated a New York State statute that had banned the sale or distribution of contraceptives to persons below the age of sixteen and had prohibited the advertising or display of contraceptives by any person, including a pharmacist. In 1983 the Supreme Court struck down a federal statute prohibiting unsolicited advertisements of contraceptives (Bolger v. Young Drug Products Corp.). In addition, under Title X of the Public Health Services Act and Title XIX of the Social Security Act, receipt of federal funds prohibits a requirement of parental consent for services and requires confidentiality. Efforts to require parental notification under these acts have been held unconstitutional (Jane Does 1 through 4 v. State of Utah Dept. of Health, Planned Parenthood Association of Utah v. Dandoy), and federally funded clinics provide a full range of advice and service for fertility control for adults and minors.

New Contraceptive Technologies

A revolution in birth control techniques has created new possibilities for individual choice and new dangers of coercive action by legislatures, bureaucrats, and judges. Additional dangers arise from inadequate new-product testing and from lack of information or misinformation about risks and benefits of use. Female condoms, levonorgestrel (Norplant), and Depo-Provera are increasingly available to women for contraception.

The female condom or vaginal pouch was approved by the U.S. Food and Drug Administration (FDA) in 1993. The device, developed and marketed by Wisconsin Pharmaceuticals, consists of a polyurethane sheath secured inside the vagina by a small metal ring and outside by a large metal ring. It is the only barrier contraceptive that is under the control of a woman, an increasingly important factor for women seeking to protect themselves from sexually transmitted diseases and human immunodeficiency virus (HIV) infection when their partners refuse or neglect to use condoms. The device was approved by the FDA despite concerns that it was not proved as effective as the male condom for prevention of pregnancy or prevention of transmission of infection.

Norplant, approved by the FDA in 1990, is a long-term implantable contraceptive comprised of six capsules that gradually release progestin, thereby providing effective contraception for five years. A two-capsule version provides protection for three years. Norplant, like other contraceptive devices, is morally neutral; it may enhance the range of individual choice or, because of its long-acting nature, lend itself to coercive action by others. It permits a woman to protect herself without conscious attention to contraception but makes her dependent on medical intervention for removal, a dependency many women resent.

Norplant suppresses ovulation, and changes the female physiology to discourage pregnancy. For women who choose this contraceptive technique, it offers 100 percent compliance and effectiveness without the need to attend to individual acts of intercourse or to daily medications. There are some side effects and contraindications for use, including the possibilities of weight gain, headaches, and a general feeling of malaise. Implantation and removal remain expensive in the United States, costing between $500 and $750 (Planned Parenthood).

The only way to stop the contraceptive effect of the device is to have it surgically removed. Removal is more complicated than insertion and more than one session may be required to remove all the capsules; removal may also be painful. Norplant provides either long-acting contraception or time-limited sterilization (Mertus and Heller; Arthur).

Norplant presents an easy potential for coercive use by judges and legislatures. Problematic uses include requiring Norplant as a condition of parole following a conviction for child abuse, and paying women on welfare for consenting to initial and continued placement of the contraceptive. The first is clearly coercive. The second is potentially coercive depending on the context of a woman's poverty. Various state legislatures have considered statutes that would pay women receiving welfare to use Norplant or mandate its use by women convicted of child neglect and drug use, or both (Mertus and Heller; American Medical Association Board of Trustees [AMA]).

Judicial or legislative imposition of Norplant may violate a woman's constitutionally protected rights to choose how to manage reproduction and to choose whether or not to consent to or refuse medical care (Cruzan v. Director, Missouri Department of Health). Any long-acting male contraceptive would implicate these same rights. In addition, because long-acting contraception amounts to temporary sterilization, it raises the specter of eugenics—policies that are often directed at people of color, the poor, the retarded, the mentally ill, and other persons designated by those in power as undesirable. Norplant offers effective contraception when chosen voluntarily by a woman informed of the risks and benefits, and a potential for tyranny when imposed by judges or legislatures.

Regulation of Contraceptive Technologies

In addition to enhancing individual choice and restricting abuse, regulation of new technologies must ensure access and quality control. The development of new technologies is regulated formally by the approval process of the FDA, and informally by compensation awards under tort law for harm caused by defective products.

The FDA regulates the development of new drugs and contraceptive devices under the Federal Food, Drug and Cosmetic Act of 1938. Under this law, a company interested in marketing new contraceptive drugs or devices must submit data, including results from various tests for safety, effectiveness, and dosage, as part of an extensive approval process. In addition to approving new drugs and devices, the FDA reviews labeling and assesses data in a postmarketing surveillance program. The FDA approval process has been criticized as expensive, time consuming, and a barrier to new techniques. It has also been praised for protecting consumers from the harm of untested substances.

The FDA approval process is not the sole factor dictating whether a reproductive technology reaches U.S. consumers, however. The American tort system is designed to compensate those injured, deter the marketing of dangerous and defective products, and resolve disputes between the injured person and the manufacturer.

A person may recover damages for dangerous or defective products, including contraceptive devices, if either negligence or a strict liability is established. Negligence requires proof that the manufacturer was at fault. However, sometimes the fault of a large company is difficult to establish, and therefore the interests of justice dictate that a victim should be allowed to recover damages without proving specific fault. According to the strict products-liability principle, if a product is sold in a defective condition, and is unreasonably dangerous to the consumer, there is liability regardless of the care taken, that is, regardless of negligence in any individual case. Strict liability may make manufacturers apprehensive about putting new contraceptive products on the market.

This is the case especially since the litigation experience of the A. H. Robins Company, developer and marketer of the Dalkon Shield, an intrauterine contraceptive device. In a series of court cases in the early 1980s, this device was proved to cause pelvic inflammatory disease, infertility, birth defects, perforated uterus, and spontaneous abortion. In a series of jury verdicts throughout the United States, A. H. Robins was forced to pay compensatory damages and punitive damages because plaintiffs proved that the company had understood the dangers of the device, withheld this knowledge from prospective users, and misrepresented the nature and safety of the device (Mintz). Despite this experience, cases brought by women seeking recovery for harm from contraceptive devices have usually found the manufacturer liable only under theories of negligence—for example, negligent failure to comply with the duty of care, negligent failure to warn of risks, or fraudulent misrepresentation (Hilliard v.A. H. Robins Co., Tetuan v. A. H. Robins Co.). In fact, even those courts purporting to apply strict liability seem to be applying a theory of negligent failure to warn under the rhetoric of strict liability (Henderson and Twerski; Fox and Traynor).

How tort law is interpreted is in a state of flux. Some judges and juries appear to view manufacturers as deep pockets (Reilly) and to see tort law as a vehicle for providing social insurance for injury victims. Many critics of large jury awards argue that the size of jury awards often bears no relationship to actual economic loss or to pain and suffering, and that awards of punitive damages are arbitrary and unfair. Supporters of the present pattern of trial awards argue that claims of a law crisis in this area are exaggerated because of manufacturers's dislike for how the law determines their liability (Fox and Traynor). However as long as manufacturers fear they will have to pay large financial penalties to women who suffer the consequences of their new products, many may be reluctant to market new products, a trend that may limit women's access to new contraceptive technologies.

Postcontraception, the morning-after pill, is widely dispensed on college campuses after unprotected intercourse and in emergency rooms for rape victims; it promises to be another barrier to unwanted pregnancy. The process generally entails two treatments of oral contraceptives within seventy-two hours of intercourse and is thought to prevent pregnancy either by blocking fertilization or by blocking implantation of the fertilized egg. An antihormone (mifepristone) product called RU-486, discussed in the following section, has also shown promise as a morning-after pill.

Abortion

This article will not survey the legal history and the current status of abortion law and regulation. This discussion will be limited to RU-486 which, while functioning as an abortion inducer, is thought of by many users as similar to oral contraceptives.

RU-486 is a steroid analogue that, when used with prostaglandin (PG), is able to induce menses within eight weeks of the last menstrual period. It has been called a menstrual regulator in an attempt to distinguish it from contraceptives and abortion inducers, although to theologians the physiological function is clearly that of an abortion inducer. It was approved for use in France in 1988. Limited trials in the United States began in 1994. Shortly after its introduction in France, the manufacturer, Roussel Uclaf, attempted to halt distribution for fear of anti-abortion protests. The French government, a one-third owner of the company, ordered continued manufacture and distribution (Banwell and Paxman).

Whether RU-486/PG will become readily available will depend on each nation's interpretation of relevant abortion laws and regulations. If abortion "is defined to include techniques that operate before implantation is complete, RU-486/PG will be regulated by abortion law. If not, RU-486/PG might be considered similar to a contraceptive and could be made more widely available. This distinction is particularly important because abortion legislation generally imposes criminal penalties" (Banwell and Paxman, p. 1400).

While France considers RU-486/PG an abortion inducer, Germany, New Zealand, and Liberia use a definition of pregnancy in their abortion statutes providing that pregnancy begins only after complete implantation. In these countries, RU-486/PG and any other menses-inducing technique is regulated as a form of contraception. In countries with strict abortion laws in which pregnancy is defined as beginning with fertilization, even early use of RU-486/PG might be barred (Banwell and Paxman).

Many countries in Latin America and Africa have restrictive abortion statutes that require proof of pregnancy. Statutes that require proof of pregnancy will be difficult to use as a barrier to RU-486/PG. Other national statutes criminalize the intent to abort whether or not the woman is pregnant. In these countries, many of which are former French colonies, the widespread use of RU-486/PG is effectively precluded. In societies governed by Islamic law, where pregnancy may be terminated until quickening—when fetal movement is felt—RU-486/PG would likely be acceptable (Banwell and Paxman).

Sterilization

Sterilization is a particularly useful technique for men and women who are certain that they have fulfilled their reproductive agenda. For these individuals sterilization provides an uncomplicated and generally certain method of limiting fertility. Whereas sterilization done competently is 100 percent effective, cases have claimed damages for children conceived as the result of incomplete sterilizations.

The key legal issues in sterilization involve the need to ensure that the choice is made by a competent adult who has chosen voluntarily; the need to decide for some persons, almost always women, who are clearly incapable of deciding for themselves; and the need to prevent notions of eugenics from dictating sterilization policy and practice. Sterilization, because it requires only one medical intervention, has been particularly susceptible to government abuse.

Women or men who choose sterilization must be counseled about the risks and benefits of the intervention itself and about the very slim chances for reversal if permanent infertility is no longer desired. Some localities have regulations requiring a waiting period between a request for sterilization and the actual procedure. Others preclude caregivers from soliciting consent for sterilization from women during the birthing process. Both restrictions offer protection against coercion, especially for low-income women and women of color who have been historically at risk for nonconsensual sterilization.

Sterilization has been used by physicians and by state and federal governments since the turn of the century (Mertus and Heller), in order to limit the reproduction of low-income women and women of color. It has also been used as a method of eugenics "to weed out traits or characteristics that are held to be undesirable. Further, sterilization was simultaneously discouraged among affluent white women" (Mertus and Heller, p. 377).

The history of involuntary sterilization of incompetent and developmentally disabled individuals in the first half of the twentieth century is a history of "wholesale violations of constitutional rights carried out with the approval of the highest judicial tribunals." Eugenic sterilization—the attempt to rid the collective gene pool of hereditary mental and physical defects—was the result of the "enthusiastic application of Mendelian genetics" to population policy (In re Conservatorship of Valerie N., p. 148).

In the early-twentieth century, thousands of young women and men were sterilized as the result of decisions by the directors of mental institutions or prisons in which they were housed, or by decisions of their conservators or guardians. The impulse to control the reproductive capacity of these people was fueled by the dual fears that children would perpetuate their parents's mental or physical deformity and would be a drain on state coffers. But there is another basis, never articulated as such in legislation or by the courts, and that is a general revulsion at the concept of mentally defective persons acting sexually. Indeed a 1913 California statute granted authority to asexualize committed mental patients and developmentally disabled persons prior to their release from state institutions (In re Conservatorship of Valerie N.). Sexuality, as well as reproductive capacity, was at issue.

By the second decade of the twentieth century, twenty-two states had eugenic sterilization statutes. Between 1907 and 1921, 3,233 sterilizations were performed, of which California was responsible for 2,558. By 1927 California had performed over 5,000 sterilizations, four times as many as had been performed by any national government worldwide. By 1960 approximately 60,000 persons had been subjected to compulsory sterilization in the United States, with nearly 20,000 in California (Mertus and Heller).

In 1927 the U.S. Supreme Court upheld a Virginia statute permitting the sterilization of the mental defectives (Buck v. Bell). The Court based its decision on two lines of reasoning: that if rendered unable to procreate, the person might more easily become self-supporting; and that society can choose to protect itself from further dissemination of defective genes. Justice Oliver Wendell Holmes wrote, "The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.… Three generations of imbeciles are enough" (Buck v. Bell, p. 207).

Buck v. Bell, though never overruled, has been severely limited by later decisions. In 1942 the U.S. Supreme Court invalidated the Oklahoma Habitual Criminal Sterilization Act, which ordered the sterilization of anyone convicted of three crimes involving moral turpitude; however, the contested law excepted certain white-collar crimes. In Skinner v. Oklahoma (1942), declaring the Sterilization Act unconstitutional on equal-protection grounds, the Court ruled that procreation is a basic civil right that can be abridged only by showing compelling state interest. The Court referred to the right to marriage and procreation as a basic liberty and as one of the basic civil rights. The Court's reluctance to approve the Oklahoma statute appears to reflect apprehension that sterilization could be used oppressively.

The second half of the twentieth century has witnessed a revulsion against nonconsensual sterilization, based on the revelations of Nazi abuses and the emergence of various rights movements in the United States—civil, women's, welfare, mentally ill, the disabled, and prisoners. Sociological and medical research regarding the nature of mental illness and developmental disability also enlightened the public regarding the ability of developmentally disabled and mentally ill persons to lead constructive, competent, loving lives as partners and parents.

Beginning in the 1950s, numerous states repealed legislation permitting eugenic sterilization for institutionalized persons or limited the powers of conservators and guardians to procure individual sterilization. Yet in many states these statutes are still law. This has led to the ironic position, in many states, that no one can consent for the incapable, thus denying them access to sterilization even when sterilization is the only or arguably the best contraceptive solution—and even when it is required to protect health or life itself.

Arguments regarding sterilization for incompetent persons pit advocates of reproductive choice for the disabled against those who argue that the right to bear or beget a child includes the right to choose reproduction, contraception, or sterilization. Federal (Hathaway v. Worcester City Hospital, Ruby v. Massey) and state courts (In re Moe; In re Grady; In re A. W.) have generally held that developmentally disabled persons have fundamental privacy and liberty interests in making decisions about procreation and that these interests require sterilization to be an option for fertility control. Some state courts, however, have refused to authorize sterilization of an incompetent person unless the state legislature has specifically authorized the decision and specified a process (Hudson v. Hudson, In re Eberhardy). The U.S. Supreme Court has yet to examine the issue, but prior cases would seem to support a right of access to sterilization for incompetent persons.

Cases claiming rights of protection from sterilization most often involve consent for severely disabled young women for whom menstruation and pregnancy would be painful, provoking, upsetting, or possibly life-threatening (for example, one woman for whom the sight of her own blood caused a pattern of severe self-mutilation [In re P. S.]). In most states, courts appoint an independent guardian to protect the interests of the person and then base their decision on the standard of best interest (In re P.S., In re Hayes) or substituted judgment (In re Moe, In re Grady).

The dangers of forced sterilizations are apparent outside the realm of prisoners, developmentally disabled, and incompetent individuals, largely where issues of race and class are present. The indigent, who are often persons of color, have been particularly subject to sterilization abuses by public officials and collaborating physicians. Numerous cases have been documented of coerced sterilization of Native Americans (Kelly), Latinos (particularly those who spoke little or no English), and African Americans (Relf v. Weinberger, 1977). In response to one egregious incident (Relf v. Weinberger), the district court examined the practice of physicians at federally funded clinics who were using sterilization to limit the reproduction of African-American teenagers. The court invalidated federal regulations that permitted involuntary, coerced sterilization, including sterilization of minors or persons incapable of providing consent. The court further held that such sterilizations could not be funded under the Social Security Act or the Public Health Service Act. The court found that minors and other incompetents had undergone federally funded sterilization and that an indefinite number of poor people had been improperly coerced into accepting sterilization operations under the threat that various federally supported welfare benefits would be withdrawn unless they submitted.

Local statutes and federal regulations have further limited the use of sterilization. In New York City, for example, statutes passed in 1985 require completion of a complicated informed-consent process and a thirty-day waiting period before sterilization is permitted (New York City Charter and Administrative Code §17–401 et seq.). Federal regulations also prescribe special informed consent procedures and waiting periods for federally funded sterilizations (Code of Federal Regulations 1993b, 1993c).

Much current law attempts to protect vulnerable women and limit potential abuse by emphasizing voluntary, informed consent and limiting sterilizations to which individual, capable consent is not given. Even where there is no specific legislation to that effect, compulsory sterilization has become rare; those states that have retained compulsory sterilization statutes on the books have, for the most part, let them slip into disuse (Haavik and Menninger).

Discussion of eugenics as appropriate public policy for the protection of future generations has largely been discredited because of the Nazis's horrendous abuse of the concept, because of scientific and societal disaffection with eugenic theories, and because of increasing respect for those with developmental and other disabilities. Nonetheless eugenics is not yet dead. Increasing knowledge about genetics and new reproductive technologies such as in vitro fertilization, artificial insemination, and surrogate motherhood, may allow people to selectively create babies of higher quality, and may renew the specter of eugenics, albeit in a new light (Neuhaus).

An ethical policy controlling reproduction must offer a range of contraceptive services to women and men and simultaneously protect adults with reproductive potential from state coercion. New technologies offer increased protection from unwanted pregnancy and increased potential for overriding individual preferences.

nancy neveloff dubler

amanda white (1995)

revised by nathaniel stewart

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