{"status":"ok","message-type":"work","message-version":"1.0.0","message":{"indexed":{"date-parts":[[2026,7,30]],"date-time":"2026-07-30T01:48:03Z","timestamp":1785376083504,"version":"3.55.0"},"reference-count":52,"publisher":"Wiley","issue":"S3","license":[{"start":{"date-parts":[[2017,11,24]],"date-time":"2017-11-24T00:00:00Z","timestamp":1511481600000},"content-version":"vor","delay-in-days":0,"URL":"http:\/\/onlinelibrary.wiley.com\/termsAndConditions#vor"}],"content-domain":{"domain":["onlinelibrary.wiley.com"],"crossmark-restriction":true},"short-container-title":["Hastings Center Report"],"published-print":{"date-parts":[[2017,12]]},"abstract":"<jats:title>Abstract<\/jats:title><jats:p><jats:italic>The U.S. Supreme Court declared procreation to be a fundamental right in the early twentieth century in a case involving Oklahoma's Habitual Criminal Sterilization Act, an act that permitted unconsented sterilization of individuals convicted of certain crimes. The right that the Court articulated in that case is a negative right: it requires that the government not place unjustified roadblocks in the way of people seeking to procreate, but it does not require the government to take positive steps to help people procreate if they wish to. I argue that a positive legal right is morally necessary in the United States, given the profound significance of procreation, the current barriers to access to care, and the related issues of individual and societal justice. I assume at the outset that the right to procreate should be expansive enough to include a right to noncoital reproduction. The absence of a positive right to procreate reflects not just constitutional tradition but also a governmental and societal commitment to a longstanding set of reproductive hierarchies by which those who fall outside of the traditional framing of family too frequently find their procreative dreams hindered. Reconceiving procreative rights to include a positive right would create greater opportunities to argue and lobby for increased access to technologies that are out of reach for many.<\/jats:italic><\/jats:p>","DOI":"10.1002\/hast.790","type":"journal-article","created":{"date-parts":[[2017,12,1]],"date-time":"2017-12-01T12:18:26Z","timestamp":1512130706000},"update-policy":"https:\/\/doi.org\/10.1002\/crossmark_policy","source":"Crossref","is-referenced-by-count":8,"title":["Reproductive Rights without Resources or Recourse"],"prefix":"10.1002","volume":"47","author":[{"given":"Kimberly","family":"Mutcherson","sequence":"first","affiliation":[],"role":[{"vocabulary":"crossref","role":"author"}]}],"member":"311","published-online":{"date-parts":[[2017,11,24]]},"reference":[{"key":"e_1_2_7_1_1","unstructured":"Skinner v.Oklahoma 316U.S.535(1942)."},{"key":"e_1_2_7_2_1","first-page":"22","article-title":"Procreative Pluralism","volume":"30","author":"Mutcherson K. M.","year":"2015","journal-title":"Berkeley Journal of Gender, Law & Justice"},{"key":"e_1_2_7_3_1","unstructured":"\u201cReproductive hierarchies\u201d as used in this article refers to the many ways in which reproduction is a protected right for some but more of a regulated privilege for others."},{"key":"e_1_2_7_4_1","unstructured":"Constitution of the Republic of South Africa 1996."},{"key":"e_1_2_7_5_1","unstructured":"Patient Protection and Affordable Care Act 42 U.S.C. \u00a7 18001 et seq.2010."},{"key":"e_1_2_7_6_1","doi-asserted-by":"publisher","DOI":"10.1111\/japp.12124"},{"key":"e_1_2_7_6_2","first-page":"1639","article-title":"The Affordable Care Act, the Constitutional Meaning of Statutes, and the Emerging Doctrine of Positive Constitutional Rights","volume":"53","author":"Rubin E.","year":"2012","journal-title":"William and Mary Law Review"},{"key":"e_1_2_7_6_3","first-page":"80","article-title":"Small Places Close to Home: Toward a Health and Human Rights Strategy for the U.S.","volume":"15","author":"Tyler E. T.","year":"2013","journal-title":"Health and Human Rights"},{"key":"e_1_2_7_7_1","unstructured":"The issue of how the world of assisted reproduction reinforces the primacy of genetic ties in family formation is beyond the scope of this article. However the idea that a genetic connection is key to or necessary for creating bonds between family members or between parents and children flies in the face of the diverse array of loving and supportive family formations that exists all around us."},{"key":"e_1_2_7_8_1","first-page":"243","volume-title":"Reproductive Rights and Wrongs: The Global Politics of Population Control","author":"Hartmann B.","year":"1995"},{"key":"e_1_2_7_9_1","unstructured":"Buck v. Bell 274 U.S. 200 207(1927)."},{"key":"e_1_2_7_10_1","doi-asserted-by":"publisher","DOI":"10.1017\/CBO9781139043298"},{"key":"e_1_2_7_11_1","unstructured":"T.Wiltz \u201cWelfare Caps: More Harm Than Good? \u201d The Pew Charitable Trusts July 13 2016 http:\/\/www.pewtrusts.org\/en\/research-and-analysis\/blogs\/stateline\/2016\/07\/13\/welfare-caps-more-harm-than-good."},{"key":"e_1_2_7_12_1","unstructured":"H.Schwarz \u201cFollowing Reports of Forced Sterilization of Female Prison Inmates California Passes Ban \u201dWashington Post September 26 2014."},{"key":"e_1_2_7_13_1","unstructured":"See State v. Oakley 537 U.S. 1064 (2002)."},{"key":"e_1_2_7_14_1","unstructured":"Conservatorship of Valerie N. 707 P.2d 760 786(1985)."},{"key":"e_1_2_7_15_1","unstructured":"The distinction between creating and ignoring barriers is not stark. For instance rather than assume that inadequate access to reproductive health care for young women in low\u2010income communities is a natural state one could explore the historical ways in which race class gender discrimination abusive medical practices and the like coalesce to contribute to existing health disparities. The same could be explored in the context of economic disparities so that the circumstance that certain types of fertility care are financially out of reach for some communities is not simply a bare fact but also a reality constructed by years of social inequality and lack of access to opportunity for those living in disenfranchised communities."},{"key":"e_1_2_7_16_1","unstructured":"\u201cInfertility FAQs \u201d Centers for Disease Control and Prevention athttps:\/\/www.cdc.gov\/reproductivehealth\/infertility\/."},{"key":"e_1_2_7_17_1","unstructured":"Intracytoplasmic sperm injection is a technique whereby a single sperm is injected directly into a single egg to fertilize that egg for use in IVF. The technique is generally used for couples where male\u2010factor infertility is present."},{"key":"e_1_2_7_18_1","unstructured":"Since 2001 New Jersey has required coverage of infertility services from insurance providers providing benefits including pregnancy\u2010related benefits to groups with fifty or more people (N.J. Stat. \u00a7 17:48E\u201035.22). Covered infertility services include IVF intracytoplasmic sperm injection and artificial insemination. The statute allows companies to limit benefits to people who have unsuccessfully tried all other \u201creasonable less expensive and medically appropriate treatments.\u201d The companies need cover only a total of four completed egg retrievals and can limit benefits to those who are forty\u2010five or younger. Finally the statute specifically incorporates a medical definition of infertility as \u201cthe disease or condition that results in the abnormal function of the reproductive system such that a person is not able to: impregnate another person; conceive after two years of unprotected intercourse if the female partner is under 35 years of age or one year of unprotected intercourse if the female partner is 35 years of age or older or one of the partners is considered medically sterile; or carry a pregnancy to live birth.\u201d"},{"key":"e_1_2_7_19_1","doi-asserted-by":"crossref","first-page":"12","DOI":"10.56021\/9780801852282","volume-title":"The Empty Cradle: Infertility in America from Colonial Times to the Present","author":"Marsh M.","year":"1996"},{"key":"e_1_2_7_20_1","unstructured":"I use the language of commerce here rather than the more typical language of donation simply for the purpose of accurately describing this exchange with no intent to pass negative judgment on either the buyer or seller in this scenario."},{"key":"e_1_2_7_21_1","unstructured":"N.J. Stat. \u00a7 17:48E\u201035.22."},{"key":"e_1_2_7_22_1","volume-title":"Pandora's Baby: How the First Test Tube Babies Sparked the Reproductive Revolution","author":"Henig R. M.","year":"2006"},{"key":"e_1_2_7_23_1","doi-asserted-by":"publisher","DOI":"10.1215\/9780822390220"},{"key":"e_1_2_7_23_2","volume-title":"The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception","author":"Spar D. L.","year":"2006"},{"key":"e_1_2_7_23_3","volume-title":"Everything Conceivable How Assisted Reproduction Is Changing Our World","author":"Mundy L.","year":"2007"},{"key":"e_1_2_7_24_1","unstructured":"Included in this category are individuals who seek technology to assist in avoiding the birth of children with particular life\u2010affecting anomalies."},{"key":"e_1_2_7_25_1","unstructured":"A health disparity is \u201ca particular type of health difference that is closely linked with social economic and\/or environmental disadvantage. Health disparities adversely affect groups of people who have systematically experienced greater obstacles to health based on their racial or ethnic group; religion; socioeconomic status; gender; age; mental health; cognitive sensory or physical disability; sexual orientation or gender identity; geographic location; or other characteristics historically linked to discrimination or exclusion\u201d (U.S. Department of Health and Human Services The Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for 2020 Phase I Report: Recommendations for the Framework and Format of Healthy People 2020 section IV \u201cAdvisory Committee Findings and Recommendations \u201d athttp:\/\/www.healthypeople.gov\/sites\/default\/files\/PhaseI_0.pdf."},{"key":"e_1_2_7_26_1","doi-asserted-by":"publisher","DOI":"10.1016\/j.fertnstert.2015.07.1139"},{"key":"e_1_2_7_27_1","unstructured":"\u201cSemen Units and Shipping Fee Schedule \u201d Xytex athttps:\/\/www.xytex.com\/sperm-donor-bank-patient\/sperm-donor-bank-patient-fees.cfm."},{"key":"e_1_2_7_28_1","unstructured":"See \u201cCompensation \u201d Growing Generations available athttps:\/\/www.growinggenerations.com\/egg-donor-program\/egg-donors\/egg-donor-pay\/."},{"key":"e_1_2_7_29_1","unstructured":"On the website of a surrogacy agency that has helped to bring more than one thousand children into the world the cost for a single surrogacy is calculated to be $152 290 which covers surrogate insurance surrogate benefits medical expenses legal services egg\u2010donor expenses the agency fee and psychological support (\u201cCost of Hiring a Surrogate \u201d Growing Generations https:\/\/www.growinggenerations.com\/surrogacy-program\/intended-parents\/surrogacy-cost\/)."},{"key":"e_1_2_7_30_1","unstructured":"Ethics Committee of the American Society for Reproductive Medicine \u201cDisparities in Access to Effective Treatment for Infertility in the United States \u201d 1105."},{"key":"e_1_2_7_31_1","unstructured":"Ibid. 1106."},{"key":"e_1_2_7_32_1","unstructured":"National Conference of State Legislatures \u201cState Laws Related to Insurance Coverage for Infertility Treatment \u201d June 1 2014 http:\/\/www.ncsl.org\/research\/health\/insurance-coverage-for-infertility-laws.aspx."},{"key":"e_1_2_7_33_1","unstructured":"M.Jula \u201c4 Lesbians Sue Over New Jersey Rules on Fertility Treatment \u201dNew York Times August 6 2016. In May 2017 New Jersey changed its law to expand the infertility insurance mandate to include LGBT people but only for public employees."},{"key":"e_1_2_7_34_1","unstructured":"After three unsuccessful cycles of artificial insemination at a cost of $6 000 and $11 000 spent on IVF resulting in an ectopic pregnancy one plaintiff was able to appeal her insurance company's denial of coverage successfully."},{"key":"e_1_2_7_35_1","doi-asserted-by":"publisher","DOI":"10.1016\/j.fertnstert.2005.11.038"},{"issue":"2006","key":"e_1_2_7_35_2","first-page":"876","article-title":"Socioeconomic and Racial Disparities among Infertility Patients Seeking Care","volume":"85","author":"Jain T.","journal-title":"Fertility and Sterility"},{"key":"e_1_2_7_36_1","doi-asserted-by":"publisher","DOI":"10.1016\/j.fertnstert.2005.11.039"},{"key":"e_1_2_7_37_1","unstructured":"Ibid. 856."},{"key":"e_1_2_7_38_1","unstructured":"I use the term \u201covert governmental assistance\u201d to signal that there are many ways in which those who parent indirectly benefit from being parents including through tax credits that are largely considered appropriate and fair while other types of assistance such as welfare benefits are condemned as unfair entitlements."},{"key":"e_1_2_7_39_1","unstructured":"I use the term \u201cconservative\u201d here not as a political designation but to signal that law is often slow to change and its foundations especially in the realm of family typically assume a model of one man one woman and children who are genetically related to both parents."},{"key":"e_1_2_7_40_1","unstructured":"SeeG.Stanton \u201cSame\u2010Sex Parenting: Social Science Proves Gender Does Matter \u201d Focus on the Family 2014 https:\/\/www.focusonthefamily.com\/socialissues\/citizen-magazine\/same-sex-parenting-social-science-proves-gender-does-matter."},{"key":"e_1_2_7_41_1","doi-asserted-by":"publisher","DOI":"10.1016\/j.fertnstert.2013.08.042"},{"key":"e_1_2_7_42_1","unstructured":"Ibid."},{"key":"e_1_2_7_43_1","unstructured":"Only five states have no public accommodation law for individuals without disabilities. National Conference of State Legislatures State Public Accommodation Laws athttp:\/\/www.ncsl.org\/research\/civil-and-criminal-justice\/state-public-accommodation-laws.aspx#1. All the jurisdictions that have inclusive public accommodation laws cover race gender ancestry and religion in their laws. Eighteen jurisdictions include marital status twenty\u2010two add sexual orientation and nineteen include gender identity."},{"key":"e_1_2_7_44_1","unstructured":"Affordable Care Act \u00a7 1557 (2010)."},{"key":"e_1_2_7_45_1","unstructured":"For an exception that proves the rule see Benitez v. North Coast Women's Care Medical Group Inc. et\u00a0al. 106 Cal.App.4th 978 (2003)."},{"key":"e_1_2_7_46_1","unstructured":"What We Know Project \u201cWhat Does the Scholarly Research Say about the Wellbeing of Children with Gay or Lesbian Parents? \u201dhttp:\/\/whatweknow.law.columbia.edu\/topics\/lgbt-equality\/what-does-the-scholarly-research-say-about-the-wellbeing-of-children-with-gay-or-lesbian-parents\/."},{"key":"e_1_2_7_47_1","first-page":"137","volume-title":"The Way We Really Are: Coming to Terms with America's Changing Families","author":"Coontz S.","year":"1997"}],"container-title":["Hastings Center Report"],"original-title":[],"language":"en","link":[{"URL":"https:\/\/api.wiley.com\/onlinelibrary\/tdm\/v1\/articles\/10.1002%2Fhast.790","content-type":"application\/pdf","content-version":"vor","intended-application":"text-mining"},{"URL":"https:\/\/onlinelibrary.wiley.com\/doi\/pdf\/10.1002\/hast.790","content-type":"unspecified","content-version":"vor","intended-application":"similarity-checking"}],"deposited":{"date-parts":[[2023,9,29]],"date-time":"2023-09-29T13:21:56Z","timestamp":1695993716000},"score":1,"resource":{"primary":{"URL":"https:\/\/onlinelibrary.wiley.com\/doi\/10.1002\/hast.790"}},"subtitle":[],"short-title":[],"issued":{"date-parts":[[2017,11,24]]},"references-count":52,"journal-issue":{"issue":"S3","published-print":{"date-parts":[[2017,12]]}},"alternative-id":["10.1002\/hast.790"],"URL":"https:\/\/doi.org\/10.1002\/hast.790","archive":["Portico"],"relation":{},"ISSN":["0093-0334","1552-146X"],"issn-type":[{"value":"0093-0334","type":"print"},{"value":"1552-146X","type":"electronic"}],"subject":[],"published":{"date-parts":[[2017,11,24]]},"assertion":[{"value":"2017-11-24","order":2,"name":"published","label":"Published","group":{"name":"publication_history","label":"Publication History"}}]}}