Surrogacy and abortion represent two facets of procreative liberty, the right to reproduce and the right to avoid reproducing. Research on stigma associated with abortion and surrogacy illuminates how these very different experiences carry similar stigmatic harm. Why do certain decisions about reproduction engender social support, other decisions social disapproval? Restrictions on surrogacy and abortion derive from a common legal paradigm — state regulation on the pregnant body — that is rooted in traditional gender roles. Not all laws restricting abortion and surrogacy evince gender stereotyping. Abortion and surrogacy pose complex moral and social dilemmas. But research of stigma associated with abortion and surrogacy suggests that gender stereotypes play a role in the creation of stigma.

The role of stigma in limiting reproductive rights has long hovered in the air. Paula Abrams has sorted through the concept and shown how it operates in two major areas of procreative liberty — having a child through surrogacy and avoiding childbirth by abortion. Her paper is especially useful for showing how legal change initially dilutes stigma but may reinstall it with post-legalization regulation.

Abrams argues that both abortion and surrogacy are stigmatized because they deviate from traditional gender roles and social expectations about pregnancy and maternity. Past restrictions have rested on a common legal and cultural paradigm of the good mother: a woman who conceives, carries her child to term, and then rears the child. Indeed, as she later argues, evidence of stigma surrounding a practice is “relevant to determining whether laws regulating abortion or surrogacy are based on impermissible stereotyping.”

Selective reduction, also known as multifetal pregnancy reduction (MFPR), is the practice of terminating one or more fetuses to reduce a multiple pregnancy, e.g., from quadruplets to twins or a singleton. Selective reduction and abortion both involve the destruction of fetal life, but they are classified by different designations to underscore the notion that they are regarded as fundamentally different medical procedures: the two are performed using distinct techniques by different types of physicians, upon women under very different circumstances, in order to further dramatically different objectives. For these reasons, the two procedures appear to call for a distinct moral calculus, and they have traditionally evoked contradictory reactions from society — sympathetic responses towards selective reduction, which is perceived as a difficult but “responsible” choice vs. stigmatizing or even punitive approaches towards abortion, which is deemed an immoral action.

In her article, “Selective Reduction: ‘A Soft Cover for Hard Choices’ or Another Name for Abortion?,” Radhika Rao explores the dense thicket of contradictions and conflicts related to abortion and selective reduction. Selective reduction is one name for a procedure performed to terminate one or more fetuses in a multi-fetal pregnancy in order to increase the chances that the other fetuses and the pregnant woman will emerge from the pregnancy healthy. Though Rao, in keeping with some authorities, uses the terminology selective reduction in her piece, others prefer the term multi- fetal pregnancy reduction (MFPR) as more reflective of the procedure’s goals and practice. Competing monikers for the same procedure speaks to the importance of naming when discussing the termination of fetal life. It is also a sign of the array of legal, ethical, and medical conundrums surrounding practices that end or alter the course of a pregnancy.

A decade ago, Adrienne Asch asked: “Is it possible for the same society to espouse the goals of including people with disabilities as fully equal and participating members and simultaneously promoting the use of embryo selection and selective abortion to prevent the births of those who would live with disabilities?”1 She concluded that informed reproductive choice, including the use of pre-implantation genetic screening and selective abortion, could potentially coexist with respect for current and future people with disabilities, but that achieving such a balance would require substantial clinical and cultural changes in light of the social context in which decisions about disability-based selection are made.

In “Selection against Disability: Abortion, ART, and Access,” Alicia Ouellette probes a particularly vexing point of intersection between ART and abortion: how negative assumptions about the capacities of disabled persons and the value of life with disability infect both prospective parents’ prenatal decisions about what pregnancies to pursue and fertility doctors’ decisions about providing services to disabled adults. This commentary first briefly describes what I view as Ouellette’s key points and her article’s most valuable contributions. It then suggests further expanding the frame of reference for Ouellette’s discussion. Viewing decisions about who can reproduce and what children will be born as fundamentally decisions about family suggests ways of drawing on intersectional approaches and growing public acceptance of nontraditional families to promote acceptance of people with disabilities as valued family members — without limiting reproductive liberties.

A regulatory moment for prenatal health care is here. An increasing amount of legislative attention has concentrated on the decisions pregnant women make after prenatal testing. The impetus for this legislation is a new non-invasive prenatal genetic test (NIPT). From the beginning of pregnancy, cell-free fetal DNA travels across the placental lining into the mother’s bloodstream, increasing in quantity as the pregnancy progresses. Laboratories can now analyze that DNA for chromosomal abnormalities and for fetal sex at 10 weeks of gestation. NIPT, which relies on a sample of the pregnant woman’s blood, is painless, occurs early in pregnancy, and is available for clinical and commercial use. In 2013, major health insurance plans began to cover NIPT for certain populations of women, such as women over 35 years old. And private companies have started marketing prenatal testing kits directly to consumers, who return a blood sample from the prospective mother to a company laboratory.

The abortion controversy has dominated the conversation about the relationship between reproductive information and reproductive decision-making, as Rachel Rebouché aptly demonstrates in her article in this collection entitled “Non-Invasive Testing, Non-Invasive Counseling.” Professor Rebouché focuses on the newest reproductive information technology, non-invasive prenatal testing (NIPT). She describes legislative efforts to restrict both the information that can be obtained from NIPT and the actions that can be taken as a result of that information: Tennessee’s prohibition of government-sponsored NIPT for incurable conditions; Arizona’s and Oklahoma’s extension of immunity to physicians who decline to disclose fetal anomalies; Virginia and Nebraska permitting genetic counselors to omit discussing abortion as an option; North Dakota’s ban on abortions for fetal anomalies detected through prenatal testing; requirements that physicians record their patients’ reasons for seeking abortions; prohibitions in nine states on abortions based on the gender of the fetus; as well as a federal bill, the Prenatal Non-Discrimination Act (PRENDA), that would make it illegal to abort a fetus on account of its sex or race.

In the past two decades, courts and scholars have grappled with the appropriateness of pre-abortion disclosures mandated by the state. Statutes requiring physicians to recite a specific script, often detailing potential psychological “risks” of choosing to terminate a pregnancy, have proliferated nationwide over the past decade. Opponents of such laws have sometimes characterized the requirement of a procedurespecific disclosure as unnecessary and unique to the abortion context. In recent years, however, state legislatures supportive of abortion rights have legislated procedure-specific mandatory disclosures in the context of assisted reproduction and other health care procedures with reproductive health impacts.

Transparency and disclosure in the health care realm occupy a vital link between the delivery of medical services and patient autonomy. In her article, “Disclosure Two Ways,” Erin Bernstein skillfully explores this link in the context of abortion and assisted conception services, keenly observing the rise in mandatory disclosure laws in both arenas. Her thesis, as I understand it, is that laws that require enhanced disclosure above traditional informed consent thresholds can be understood as neutral tools in the name of patient protection, even — or perhaps especially — when their effect is to persuade a patient to forego the requested treatment. She combats the critique that pre-abortion required disclosures are sui generis, arguing against their uniqueness by analyzing them alongside a swell of mandated disclosure laws in the assisted reproductive technologies (ART) context.

The language of “protection” has been a dominate frame in the political discourse of the contemporary women’s movement, especially as it relates to reproductive health. Since the 1960s, and coming of age in the Women’s Health Movement, activists and advocates have fought for the protection of women’s rights and health, and against gender-based discrimination and restrictions to reproductive health services, such as abortion and contraception. In the case of women’s reproductive rights, the use of the “protective” frame has been a resonant and effective mobilizing discourse for quite a while. This paper investigates the use of this frame, by ideological opponents, during a recent California legislative session.

Sujatha Jesudason and Tracy Weitz provide an empirical examination of the framing of public discourses related to assisted reproductive technology (ART) and abortion by examining two bills considered by the California legislature in “Eggs and Abortion: The Language of Protection in Legislation Regulating Abortion and Egg Donation in Debate over Two California Laws.” Jesudason and Weitz analyze the framing of two different legislative efforts: one allowing non-physician practitioners to perform non-surgical abortions and the other removing the prohibition on egg donor payment in the research setting. Jesudason and Weitz identified three different memes that were present in the discussion of these two bills: health care providers and scientists as inherently suspect, denial of women of agency through speaking about them as passive actors that things happen to, and the focus on potential harms and the need to protect women from harm. What was most compelling about their article is that they convincingly show how these themes were used as political tools by both anti-choice and pro-choice groups in California. Jesudason and Weitz note that “frames and language matter.”

A half century ago, American family lives did not differ markedly by class or region; children were born to married parents, shotgun marriages helped keep the nonmarital birth rate low, and women stayed home unless economics forced them into the workplace. In that era, the Utah Supreme Court cited New York cases in addressing non-marital cohabitation and family reforms that started in California swept much of the country in short order. While we know that our halcyon memories of those years cloak substantial conflict, we did sweep much of it under the rug; politicians, judges, religious leaders, and even family sit-coms in those years expressed remarkable agreement about family aspirations.

The urgent and painful costs of motherhood became strikingly clear, during the spring and summer months of 2014 when Shanesha Taylor, a homeless mother, was arrested for leaving her two children in a parked car, while at a job interview for a Scottsdale, Arizona insurance agency. The single, homeless mother perceived herself as having limited if not desperate options in trying to uplift her family. A new job would have provided more opportunities for her children. Advocates pointed out that she had left the car fan on, windows cracked open, and that it was 71 degrees outside — even though they acknowledged that leaving children alone in cars can be dangerous. Taylor was promptly arrested after completing the interview. A Washington Post reporter remarked that her “mugshot image was a painfully heartbreaking one: a mother, struggling not to cry, tears running down her cheeks.” Months after her arrest, she was finally granted limited visitation with her children. Arizona prosecutors refuse to drop the charges.

Thorny and difficult questions permeate the issue of commodification of assisted reproductive technologies (ART) and abortion. Are ART and abortion services or medical treatment? Are those who seek them patients or consumers? How should we understand the complex relationship between money, markets, choice, and the care relationship?

This paper rejects the dichotomy between patient and consumer roles and focuses instead on how attributes of each are meaningful to those seeking health care. Arguing that health care is already commodified, it suggests that both medicine and the market offer strategies for handling commodification. The important questions are how we understand these attributes and their role in care relationships, and which attributes we should encourage. The medical profession and patient role have long accommodated commodification, using fiduciary roles, flat fees and opaque pricing to distance payment and pricing from care provision.

Like all her work, Jody Madeira’s “Conceiving of Products and the Products of Conception: Reflections on Commodification, Consumption, ART, and Abortion,” is a rich, nuanced discussion that mixes various conceptual vocabularies (Marxist, semiotics, legal) into a complex dish. If her work is like the best of French cooking, my comment, I fear, will be more like fast food. In the short space I have, I want to pick off a few items of common interest and discussion and reconfigure them.

In 1954, American women experienced an unwanted pregnancy as presenting a difficult choice between bearing an unwanted child and risking an illegal abortion. Yet obstetrician/gynecologist Alan Guttmacher described abortion as “the doctor’s dilemma.” Guttmacher and his medical colleagues experienced a dilemma when their professional judgment that pregnancy termination was warranted clashed with the laws criminalizing most abortions. In that situation, the law constrained their ability to make a decision they felt to be in the best interest of a patient. To doctors, such paternalist decision-making was a bedrock principle of 20th-century medicine. Doctors had an obligation to provide, or deny, treatment to patients for their own good. This duty arose from medical expertise and separated the medical profession from lesser medical practitioners.

Kara Swanson has painted a textured portrait of Alan Guttmacher, showing the tension between his embrace of medical paternalism and simultaneous rejection of the legal paternalism that regulated women’s access to abortion before Roe v. Wade. Swanson explains Guttmacher’s route, navigating the troubled waters between “what was medically indicated and what was legally permissible” in the realm of reproductive medicine, the path that Guttmacher identified as the “doctor’s dilemma.” She takes us from his 1930s practice, creatively assisting in his patient’s use of reproductive technologies such as artificial insemination, to the era post Roe v. Wade, after which he seems to have come to terms with a fuller commitment to autonomous reproductive choices. We learn that Guttmacher’s early career provided opportunities to exercise some of his prerogatives as a doctor in the absence of clear legal constraints. By the end of his life, the Supreme Court came close to having endorsed his preference, as Swanson notes, “privileging the doctor/patient relationship and medical expertise.”

Today, multiple legal theories of parenthood interact to encompass all sorts of families. Adults and children bound through adoption, step-parenting, and assisted reproductive technologies (ART) demand familial recognition through some combination of biology, functionality, technology, and intent.

In the context of children born through ART, many scholars have proposed a more robust use of intent as a rule for identifying legal parents. When used to identify parents, intent asks who planned to become the parent of a child, and is often helpful when multiple adults simultaneously agreed to bring a child into the world. For example, in the case of surrogacy, as many as five adults — two intended parents, a gestational surrogate, and both a sperm and egg donor — could all contribute to bringing a single child into the world. Not only does intent provide a practical answer to such modern parentage dilemmas, but it recognizes the often-minimized emotional investment of men who wish to be fathers.