Did you know that if the U.S. Supreme Court reverses Roe v. Wade, Louisiana, Mississippi, and North and South Dakota have trigger laws ready to make abortion a criminal act?  Did you know that seven other state legislatures are committed to acting to the extent that such a reversal might allow?

But how might that happen? Simple. First, a Republican President could appoint a conservative judge to the Supreme Court. Second, a local abortion clinic is prosecuted. Third, the case is appealed to the Supreme Court, which then overturns Roe by a 5-4 vote. Making it even more interesting, the Court could rule that the fetus is a person, thus paving the way to a national antiabortion law. (Hirshman, Washington Post, 9/28).

But that is not the end of the story. Did you know that all of the statute and case law which support reproductive technology relies upon Roe. So, if Roe goes, all of those statutes and cases are at risk.

Don't you think that prohibiting the infertile public from seeking medical help to conceive would be the real criminal act?

The India Supreme Court has set the stage for providing Assisted Reproductive Technology parents some predictability with the legal process of parentage.

On July 25, Manji was born. She was a Gestational Surrogacy baby from the sperm of a Japanese husband and an anonymous donor egg. Since birth, she has been in a legal limbo because the Intended Parents divorced during pregnancy. While Intended Father wanted to keep the baby, his ex-wife did not.

The Father applied to adopt the child, but Indian laws do not permit single men adopt baby girls. Further, Manji could also not be taken out of India because the legal system did not provide guidance to determine her nationality and the Japan would not issue a visa without proper documentation. Thus, she has been captive, in a hospital without her parents, since birth.

The Supreme Court ruled that commercial surrogacy was legal. That being said, Manji's Father can now petition Indian authorities to rule that he is Manji's biological father. As Father, he can forgo an adoption and documents can be issued which would allow his child to enter Japan.

This case galvanized the Indian Parliament to set out surrogacy laws to protect a US$445 million industry that has become a 'hub for fertility tourism'. The draft surrogacy Bill, called Assisted Reproductive Technology (Regulation) Bill 2008, is expected to be tabled at the next parliamentary sitting, and should help India's growing assisted fertility market.

First, the proposed Bill makes clear that a surrogacy child is the 'legitimate child' of the Intended Parents relying on assisted reproduction even if they become separated or divorced. Further, the child's birth certificate will bear the names of the genetic parents.

Second, it requires foreigners to register their intentions with their Embassy and provide proof that they will be able to take the child back to their country. They must also appoint a local guardian to be legally responsible for the surrogate until the child is born.

The Bill also mandates that Intended Parents shall execute a legally enforceable surrogacy agreement where they agree to pay the Surrogate's medical expenses, compensation and medical insurance. Surrogates and egg donors will be supplied by Sperm Donor Agencies.

Most legal authorities would agree that the surrogacy bill is a major step in the right direction. They also maintain that Intended Parents must look at more than the out of pocket costs to decide if or when fertility tourism is appropriate for their situation. 

Is cost the most important thing to you?

A woman in a committed relationship was denied infertility treatment by her Southern California healthcare providers because she is a lesbian.

The doctors' claim that they should be exempt from California's anti-discrimination statute because they have religious objections to serving lesbian patients was rejected at the trial level. The Court of Appeal reversed, stating that the doctors must be given an opportunity to demonstrate that their refusal was not based on her sexual orientation. That decision was appealed to the California Supreme Court.

In a unanimous opinion, the California Supreme Court reversed the Court of Appeal, and upheld the trial court's original decision. The Supreme Court held that non-discrimination laws regulate discriminatory conduct, not speech or beliefs, and that medical providers cannot assert religious objections to deny medical services to specific patients.

What is interesting is that the medical practice at the center of this hurricane has more than one doctor. The so-called "get out of jail card" for the practice is that the objecting physician can transfer the case to another practitioner in that office.  But is that the end of the story?

What happens if the non-objecting practitioners are employees of that practice and their employment contract contains a morals clause. California Law requires treating the patient, but they will probably lose their job. Alternatively, what if this was a solo practice where there are no other practitioners to turn the case over to.

How would these new issues be addressed by a discrimination analysis? The plain answer is that we don't know.