ASSESSING THE VIABILITY OF A SUBSTANTIVE

DUE PROCESS RIGHT TO IN VITRO FERTILIZATION

On July 25, 1978, Louise Brown was born under what were then
viewed as extraordinary circumstances: as the world’s first “test-tube
baby,” she was the first child whose conception occurred in a labora-
tory dish rather than within her mother’s womb.1 In the years since
then, the practice of in vitro fertilization (IVF), the procedure by
which Ms. Brown was conceived, has grown precipitously to become
an established option for otherwise infertile couples.2 However, as the
use of IVF and other reproductive technologies continues to increase, a
number of fundamental policy questions emerge. On the one hand,
IVF is an answer to the prayers of many infertile women, providing
them with a unique chance to bear their own offspring. On the other
hand, the IVF procedure carries with it many potential health prob-
lems for prospective mothers and their children, along with the risk
that emotionally vulnerable infertile couples may be exploited by op-
portunistic IVF providers. Given these competing interests, many
have argued that the government should take a more active role in
regulating IVF, while others have argued that IVF regulation should
be left predominantly to the free market.
Though federal and state regulation of IVF has thus far been rela-
tively minimal,3 controversy continues to swirl around whether, and to
what extent, reproductive technology should be regulated. Last year,
President Bush’s Council on Bioethics released a report advocating for
increased restraints on IVF,4 and public debate surrounding regulation
in related areas such as cloning and stem cell research continues to

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1 See Carol Lawson, Celebrated Birth Aside, Teen-Ager Is Typical Now, N.Y. TIMES, Oct. 4,
1993, at A18.
2 See Mary Duenwald, After 25 Years, New Ideas in the Prenatal Test Tube, N.Y. TIMES, July
15, 2003, at F5 (“By today’s standards, Louise Brown’s conception seems rather conventional.”).
In 2002, clinics reported 115,392 total assisted reproductive technology (ART) cycles, which re-
sulted in 33,141 live-birth deliveries and 45,751 live babies. DIV. OF REPROD. HEALTH, CTRS.
FOR DISEASE CONTROL AND PREVENTION, 2002 ASSISTED REPRODUCTIVE TECHNOL-
OGY SUCCESS RATES: NATIONAL SUMMARY AND FERTILITY CLINIC REPORTS 13 (2004)
[hereinafter CDC REPORT], available at http://www.cdc.gov/reproductivehealth/ART02/PDF/
ART2002part1.pdf. Though the Centers for Disease Control and Prevention (CDC) uses “ART”
as a catch-all term for three different reproductive technologies, see id. at 1, IVF represents the
vast majority of ART cases, see id. at 71 (indicating that IVF represented over 99% of all ART
cycles performed in 2001 using fresh nondonor eggs or embryos).
3 See infra section I.B, pp. 2794–96.
4 See PRESIDENT’S COUNCIL ON BIOETHICS, REPRODUCTION AND RESPONSIBILITY:
THE REGULATION OF NEW BIOTECHNOLOGIES 205–24 (2004), available at http://www.bio-
ethics.gov/reports/reproductionandresponsibility/_pcbe_final_reproduction_and_responsibility.pdf.

2792
2005] IN VITRO FERTILIZATION 2793

rage unabated.5 Amidst these debates and proposals, one key thresh-
old question remains unanswered: to what extent can the government
regulate IVF as a constitutional matter? The Supreme Court has
never directly confronted the issue of whether access to IVF should be
considered a constitutionally protected fundamental right,6 and it is
clear that this issue must be examined before any meaningful conver-
sation regarding government regulation of IVF can be had.
This Note begins, in Part I, by discussing the IVF procedure and
current federal and state regulatory regimes governing it. Part II out-
lines the Supreme Court’s current substantive due process framework,
examining a number of fundamental rights potentially related to IVF
that the Court has recognized. Part III applies the Court’s substantive
due process framework to the asserted right to IVF, ultimately con-
cluding that the doctrinal analysis strongly militates in favor of the
Court’s recognition of a fundamental right to IVF — though the de-
terminacy of this result is obscured by the open-ended nature of the
Court’s substantive due process jurisprudence. Part IV concludes.

I. BACKGROUND

A. Description of IVF
In vitro fertilization refers to the procedure by which a woman’s
eggs are first extracted from her ovaries and then fertilized outside of
her body.7 The procedure is typically used in cases of infertility when
“a woman has blocked fallopian tubes or when the sperm and ovum
are unable to fuse in the reproductive tract.”8 At the outset of the pro-
cedure, the woman is typically administered hormones that induce su-
perovulation — the production of an abnormally high number of
eggs.9 These eggs are removed from the ovary and are then placed in
a petri dish; after a brief maturation period, they are combined with
sperm and fertilized.10 The embryos are then incubated for about two

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
5 See, e.g., Pam Belluck, Massachusetts Governor Opposes Stem Cell Work, N.Y. TIMES, Feb.
10, 2005, at A14; Laurie Goodstein & Denise Grady, Split on Clones of Embryos: Research vs. Re-
production, N.Y. TIMES, Feb. 13, 2004, at A22.
6 See John A. Robertson, Procreative Liberty in the Era of Genomics, 29 AM. J.L. & MED.
439, 453 (2003).
7 ROBERT BLANK & JANNA C. MERRICK, HUMAN REPRODUCTION, EMERGING
TECHNOLOGIES, AND CONFLICTING RIGHTS 87 (1995); Weldon E. Havins & James J. Dales-
sio, The Ever-Widening Gap Between the Science of Artificial Reproductive Technology and the
Laws Which Govern That Technology, 48 DEPAUL L. REV. 825, 833–34 (1999).
8 BLACK’S MEDICAL DICTIONARY 332 (40th ed. 2002) (emphasis omitted).
9 BLANK & MERRICK, supra note 7, at 87.
10 June Coleman, Comment, Playing God or Playing Scientist: A Constitutional Analysis of
State Laws Banning Embryological Procedures, 27 PAC. L.J. 1331, 1337 (1996).
2794 HARVARD LAW REVIEW [Vol. 118:2792

days before being transferred to the woman’s uterus;11 typically, two to

four of the fertilized eggs are transplanted at the same time in order to
increase the chances of success.12 If successful, pregnancy will occur
within six to nine days, when the embryos implant.13
Generally speaking, IVF is expensive, and its success rate is lim-
ited. A recent estimate places the cost of a single IVF cycle at $7000 to
$10,000.14 In its most recent annual report on assisted reproductive
technology (ART) success rates, which analyzed data from 2002, the
Centers for Disease Control and Prevention (CDC) reported 33,141
live-birth deliveries out of 115,392 cycles, which translates to roughly a
29% success rate.15 Thus, many patients would likely have to undergo
multiple cycles and bear a significant financial cost without any guar-
antee that they will achieve a successful pregnancy.16
B. Current IVF Regulation
More than twenty-five years after the first IVF birth, there is still
virtually no federal regulation covering in vitro fertilization.17 This
lack of regulation can largely be traced to the federal government’s re-
luctance to fund IVF research.18 In the absence of government sup-
port, the IVF industry has developed entirely within the private sector.
This reliance on private funds explains much of the current laissez-
faire state of IVF industry regulation, as private funding has allowed
IVF research to escape the oversight and monitoring that would have
accompanied federal funding.19
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
11 BLANK & MERRICK, supra note 7, at 87.
12 Coleman, supra note 10, at 1337 & n.34.
13 BLANK & MERRICK, supra note 7, at 87.
14 Mary Ann Davis Moriarty, Note and Comment, Addressing In Vitro Fertilization and the
Problem of Multiple Gestations, 18 ST. LOUIS U. PUB. L. REV. 503, 505 (1999) (citing James M.
Goldfarb et al., Cost Effectiveness of In Vitro Fertilization, 87 OBSTETRICS & GYNECOLOGY
18, 18 (1996)). This estimate excludes any additional expenses incurred through medical compli-
cations or the prospective mother’s loss of work time. Id. at 505–06.
15 CDC REPORT, supra note 2, at 13.
16 According to one estimate, “IVF costs approximately $10,000 per cycle, and it takes an av-
erage of four cycles to achieve a successful pregnancy.” Lars Noah, Assisted Reproductive Tech-
nologies and the Pitfalls of Unregulated Biomedical Innovation, 55 FLA. L. REV. 603, 616 (2003).
Of course, not all patients will achieve a successful pregnancy.
17 See Keith Alan Byers, Infertility and In Vitro Fertilization: A Growing Need for Consumer-
Oriented Regulation of the In Vitro Fertilization Industry, 18 J. LEGAL MED. 265, 289 (1997)
(“Although the first in vitro birth in the United States occurred more than 15 years ago, there is
virtually no federal regulation directly applicable to this field of medicine.”); Jennifer L. Rosato,
The Children of ART (Assisted Reproductive Technology): Should the Law Protect Them from
Harm?, 2004 UTAH L. REV. 57, 62 (“Federal regulation does not control ART in any meaningful
way . . . .”).
18 See Byers, supra note 17, at 291–93; Coleman, supra note 10, at 1338–39.
19 See Heather Boonstra, Human Embryo and Fetal Research: Medical Support and Political
Controversy, GUTTMACHER REP. ON PUB. POL’Y, Feb. 2001, at 3 (“IVF research . . . blossomed
in the private sector, although without the federal oversight or ethical review that is required
2005] IN VITRO FERTILIZATION 2795

The lone piece of congressional legislation aimed at regulating IVF

is the Fertility Clinic Success Rate and Certification Act of 1992,20
which requires ART programs to report to the CDC the “pregnancy
success rates achieved . . . through . . . assisted reproductive technol-
ogy.”21 This statute, however, has had little impact on the IVF indus-
try; at the outset, implementation of the statute was slowed by a lack
of congressional funding,22 and the statute itself “does not clearly set
forth what is prohibited and what consequences follow if a program
fails to comply.”23
State regulation of IVF varies considerably.24 For example, Louisi-
ana has established a set of minimum standards that fertility clinics
must meet in order to practice IVF.25 New Hampshire, in contrast,
has created a number of baseline requirements for prospective IVF pa-
tients and grants the state department of health and human services
the authority to adopt further requirements.26 In a similar vein, Vir-
ginia requires that prospective IVF patients sign a disclosure form that
includes “the rates of success for the particular procedure at the clinic
or hospital where the procedure is to be performed.”27 Pennsylvania
adds to the federal reporting requirements by requiring IVF clinics to
file quarterly disclosure reports, which are made available to the
public.28
Such provisions notwithstanding, state regulation, like federal regu-
lation, is limited. General regulations of ART such as the provisions
described above have proved to be “the exception rather than the
rule.”29 Thus, state and federal legislators have generally steered clear

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
when research is funded with public dollars.”), available at http://www.agi-usa.org/pubs/tgr/04/1/
gr040103.pdf.
20 Pub. L. No. 102-493, 106 Stat. 3146 (codified as amended at 42 U.S.C. §§ 263a-1 to -7
(2000)).
21 42 U.S.C. § 263a-1(a)(1).
22 See Byers, supra note 17, at 293–94; Havins & Dalessio, supra note 7, at 844 (stating that
“the program lacked implementation funding until 1996, when a mere $1,000,000 was allo-
cated . . . to the CDC”).
23 Rosato, supra note 17, at 63–64 (citing 42 U.S.C. §§ 263a-2 to -4). The primary penalty for
noncomplying clinics seems to be published identification in the CDC report as nonreporting. See
42 U.S.C. § 263a-5(1)(A). Though this shaming punishment may translate into exclusion from
certain professional organizations, further material consequences of this punishment are unclear,
since the IVF clinic can still provide infertility treatment. Rosato, supra note 17, at 64.
24 Rosato, supra note 17, at 64; see also Noah, supra note 16, at 615 & n.50.
25 See LA. REV. STAT. ANN. § 9:128 (West 2000).
26 See N.H. REV. STAT. ANN. § 168:B-13 (2001). The statute requires, inter alia, that the IVF
patient be twenty-one years of age or older, and that she receive counseling. Id.
27 VA. CODE ANN. § 54.1-2971.1 (Michie 2002).
28 See 18 PA. CONS. STAT. ANN. § 3213(e) (West 2000).
29 Rosato, supra note 17, at 66; see also Havins & Dalessio, supra note 7, at 846 (“Few states
have attempted general regulation of ART.”).
2796 HARVARD LAW REVIEW [Vol. 118:2792

of regulating the IVF industry, leaving self-regulation as the primary

means of policing the practices of IVF clinics.

II. THE SUPREME COURT’S

SUBSTANTIVE DUE PROCESS JURISPRUDENCE

A. The Current Doctrinal Framework

The Supreme Court, in a line of modern cases starting with Gris-
wold v. Connecticut,30 has reaffirmed the notion that the Due Process
Clauses31 “provide[] heightened protection against government inter-
ference with certain fundamental rights and liberty interests.”32 In
Griswold, the Court ruled that a state regulation prohibiting the use of
contraception violated an implicit “zone of privacy,” found within the
“penumbras” of the Bill of Rights, that surrounds “the sacred precincts
of marital bedrooms.”33 In subsequent cases, the Court has extended
this jurisprudence to identify a number of additional “fundamental
rights” that warrant heightened protection under the Due Process
Clauses, including a woman’s right to an abortion,34 the right to marry
free from “invidious racial discriminations,”35 and the “right of parents
to make decisions concerning the care, custody, and control of their
children.”36
While the Court has constructed an extensive substantive due
process jurisprudence, the specific bases on which the Court identifies
such fundamental rights remain unclear, and the Court’s rhetoric sur-
rounding its analysis has differed from case to case. For example, in
Planned Parenthood of Southeastern Pennsylvania v. Casey,37 the
Court described substantive due process rights as those “involving the
most intimate and personal choices a person may make in a lifetime,
choices central to personal dignity and autonomy”; thus, “the right to
define one’s own concept of existence, of meaning, of the universe, and
of the mystery of human life” was declared to be “central to the liberty
protected by the Fourteenth Amendment.”38 Later, however, in Wash-
ington v. Glucksberg,39 the Court seemed to reject Casey’s autonomy-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
30 381 U.S. 479 (1965).
31 U.S. CONST. amend. V; id. amend. XIV § 1.
32 Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
33 Griswold, 381 U.S. at 484–86.
34 See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992); Roe v.
Wade, 410 U.S. 113, 164–65 (1973).
35 Loving v. Virginia, 388 U.S. 1, 12 (1967).
36 Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion) (citing Stanley v. Illinois, 405
U.S. 645, 651 (1972)).
37 505 U.S. 833.
38 Id. at 851.
39 521 U.S. 702 (1997).
2005] IN VITRO FERTILIZATION 2797

based framework,40 establishing in its place an explicit two-pronged

test for identifying substantive due process rights. First, the Court
stated that “the Due Process Clause specially protects those fundamen-
tal rights and liberties which are, objectively, ‘deeply rooted in this
Nation’s history and tradition,’ and ‘implicit in the concept of ordered
liberty,’ such that ‘neither liberty nor justice would exist if they were
sacrificed.’”41 Second, the Court stated that substantive due process
protection requires “a ‘careful description’ of the asserted fundamental
liberty interest,” one that “direct[s] and restrain[s] [the Court’s] exposi-
tion of the Due Process Clause.”42
While Glucksberg represented the Court’s clearest exposition of a
method for identifying constitutionally protected fundamental rights,
the continued validity of the Glucksberg test has been thrown into
doubt by the Court’s recent decision in Lawrence v. Texas.43 In Law-
rence, the Court held that the State of Texas could not criminalize con-
sensual, private sexual conduct between homosexuals.44 The basis on
which the Court reached this conclusion, however, is unclear. The
Court never explicitly mentioned the standard of review by which it
invalidated the Texas statute, nor did it expressly state whether it was
conducting a fundamental rights inquiry.45 Yet when the Court’s
rhetoric46 and its frequent citations to paradigmatic fundamental

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40 See id. at 727–28 (“That many of the rights and liberties protected by the Due Process
Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all
important, intimate, and personal decisions are so protected, and Casey did not suggest other-
wise.” (citation omitted) (citing San Antonio Independent School District v. Rodriguez, 411 U.S.
1, 33–35 (1973))).
41 Id. at 720–21 (citations omitted) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503
(1977) (plurality opinion); and Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937)) (citing Snyder
v. Massachusetts, 291 U.S. 97, 105 (1934)). Though the language quoted here seems to require
that a fundamental right satisfy both the historical and the “ordered liberty” inquiries, the Court
later indicated that fundamental rights are “so deeply rooted in our history and traditions, or so
fundamental to our concept of constitutionally ordered liberty, that they are protected by the
Fourteenth Amendment.” Id. at 727 (emphasis added). It is thus unclear whether this prong pre-
sents two distinct inquiries or simply “a single test requiring both historical roots and centrality.”
PHILIP G. PETERS, JR., HOW SAFE IS SAFE ENOUGH? OBLIGATIONS TO THE CHILDREN OF
REPRODUCTIVE TECHNOLOGY 128 (2004).
42 Glucksberg, 521 U.S. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).
43 123 S. Ct. 2472 (2003).
44 Id. at 2484.
45 See id. at 2488 (Scalia, J., dissenting) (“[N]owhere does the Court’s opinion declare that ho-
mosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the
Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sod-
omy were a ‘fundamental right.’”); see also Cass R. Sunstein, What Did Lawrence Hold? Of
Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP. CT. REV. 27, 29–30 (outlining four pos-
sible ways to interpret “the Court’s remarkably opaque opinion”).
46 See, e.g., Lawrence, 123 S. Ct. at 2478 (“The liberty protected by the Constitution allows
homosexual persons the right to make this choice [to engage in intimate conduct].”).
2798 HARVARD LAW REVIEW [Vol. 118:2792

rights cases such as Griswold, Eisenstadt v. Baird,47 and Casey48 are

taken into account, it is apparent that the Lawrence Court imple-
mented some sort of fundamental rights analysis, as it applied a stan-
dard of review clearly stricter than traditional rational basis review.49
When viewed as a fundamental rights case, Lawrence further ob-
scures the Court’s already indeterminate substantive due process ju-
risprudence. While the Court delved into a historical inquiry similar
to that described in the first prong of the Glucksberg test, its analysis
did not seem to revolve around whether the rights involved were
“deeply rooted in this Nation’s history and tradition”; instead, the
Court recognized “an emerging awareness that liberty gives substantial
protection to adult persons in deciding how to conduct their private
lives in matters pertaining to sex,” which seems to imply a different
analysis altogether.50 Furthermore, the Court seemed to embrace the
autonomy-based inquiry of Casey51 — an inquiry that the Glucksberg
Court had implicitly rejected.
Lawrence also muddied the meaning of the second Glucksberg
prong, which calls for a “careful description” of the asserted funda-
mental right. The viability of claimed liberty interests rests largely on
how the Court chooses to define them. Glucksberg’s “careful descrip-
tion” test reflected the Court’s tendency, evinced in prior cases, toward
narrow definition of the right in question as a means of checking the
expansion of the Court’s substantive due process jurisprudence.52 By
defining the asserted rights narrowly, the Court made it extremely dif-
ficult for such rights to satisfy either the “deeply rooted” or “ordered
liberty” inquiries.53 For example, when Georgia’s antisodomy law was

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47 405 U.S. 438 (1972).
48 See, e.g., Lawrence, 123 S. Ct. at 2476–77, 2481–82.
49 See Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak
Its Name, 117 HARV. L. REV. 1893, 1916–17 (2004); Note, Last Resorts and Fundamental Rights:
The Substantive Due Process Implications of Prohibitions on Medical Marijuana, 118 HARV. L.
REV. 1985, 1999–2001 (2005).
50 Lawrence, 123 S. Ct. at 2480. The Court further downplayed the necessity of deep historical
“rooting” for the right by stating that “[h]istory and tradition are the starting point but not in all
cases the ending point of the substantive due process inquiry.” Id. (quoting County of Sacramento
v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring)) (internal quotation marks omitted).
51 See id. at 2481–82.
52 See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (“As a general matter,
the Court has always been reluctant to expand the concept of substantive due process because
guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.”
(citing Regents of the University of Michigan v. Ewing, 474 U.S. 214, 225–26 (1985))); Bowers v.
Hardwick, 478 U.S. 186, 194 (1986) (“Nor are we inclined to take a more expansive view of our
authority to discover new fundamental rights imbedded in the Due Process Clause.”).
53 See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 127 (1989) (plurality opinion) (rejecting a
biological father’s claim of a parenting right by narrowly construing the asserted right as that of
“the natural father of a child conceived within, and born into, an extant marital union that wishes
to embrace the child”). Two Justices in Michael H. went so far as to argue that the substantive
2005] IN VITRO FERTILIZATION 2799

challenged in Bowers v. Hardwick,54 the Court framed the right in

question as the “right [of] homosexuals to engage in acts of consensual
sodomy,”55 thereby narrowly construing the right involved as basically
parallel to the act forbidden by the law. By doing so, the Court fore-
ordained the result of both the historical and “ordered liberty” inquir-
ies. Given that proscriptions against homosexual sodomy had been en-
trenched in many states for much of the nation’s history, finding a
historically recognized right to consensual sodomy was essentially im-
possible.56 It was similarly difficult to argue that a right to consensual
sodomy was “implicit in the concept of ordered liberty” unless one was
prepared to repudiate the historically entrenched view that ordered
liberty was in fact compatible with antisodomy statutes.57
However, when the Court in Lawrence subsequently overruled
Bowers, it departed from its established tendency to construe asserted
rights narrowly. The Lawrence Court recast the narrowly framed
Bowers right in more expansive terms, framing it as a general right to
private sexual intimacy.58 In doing so, the Court infused the right with
the flexibility necessary to meet the historical and “ordered liberty”
tests. The continuing relevance of the Glucksberg “careful description”
requirement is therefore unclear. By rejecting Bowers, Lawrence may
have undermined the Court’s strong narrowing norm for defining as-
serted rights, thereby opening the door for fundamental rights to be
framed at higher levels of generality.
Thus, in spite of the rough roadmap constructed by its case law, the
Court’s fundamental rights framework remains somewhat indetermi-
nate. Even after Lawrence, the Glucksberg inquiries still seem to fac-
tor prominently into the analysis. However, Lawrence appears to revi-
talize Casey’s autonomy-based inquiry, and also establishes that the
asserted right can be defined at a certain level of generality — though
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
due process analysis must “refer to the most specific level at which a relevant tradition protecting,
or denying protection to, the asserted right can be identified.” Id. at 127–28 n.6 (emphasis added).
54 478 U.S. 186.
55 Id. at 192.
56 See id. at 192–94.
57 See id. The Bowers Court stated: “[T]o claim that a right to engage in such conduct is
‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’
is, at best, facetious.” Id. at 194.
58 Lawrence v. Texas, 123 S. Ct. 2472, 2478 (2003). The Court stated:
The laws involved in Bowers and here are, to be sure, statutes that purport to do no
more than prohibit a particular sexual act. Their penalties and purposes, though, have
more far-reaching consequences, touching upon the most private human conduct, sexual
behavior, and in the most private of places, the home. . . .
. . . When sexuality finds overt expression in intimate conduct with another person,
the conduct can be but one element in a personal bond that is more enduring. The lib-
erty protected by the Constitution allows homosexual persons the right to make this
choice.
Id.
2800 HARVARD LAW REVIEW [Vol. 118:2792

Glucksberg’s “careful description” requirement likely survives as a

means of limiting how generally an asserted fundamental right may be
framed.
B. Constitutionally Recognized Fundamental Rights
Though the Supreme Court has not addressed whether a funda-
mental right of access to IVF exists, it has identified a number of sub-
stantive due process rights that are potentially related to such a right.
Most directly relevant are the rights to procreation, contraception, and
abortion.
1. The Right to Procreation. — The Court first recognized a fun-
damental right to procreation in Skinner v. Oklahoma,59 when it struck
down an Oklahoma statute that permitted the sterilization of certain
convicted felons. Although the Court formally based its decision on
the statute’s violation of the Equal Protection Clause, the decision’s
language indicated the Court’s recognition of procreation as a pro-
tected fundamental right.60 This reading of Skinner as creating a sub-
stantive due process right to procreation is confirmed by the many
subsequent cases in which the Court has cited Skinner for this propo-
sition and has grouped Skinner with other cases identifying fundamen-
tal rights.61
The exact scope of the procreative right identified in Skinner, how-
ever, is ambiguous, leaving its direct relevance to IVF regulation in
question. On the one hand, Skinner could be read as establishing a
broad, generalized right to procreative freedom that would include a
fundamental freedom to choose to reproduce. Under this reading, it
would be difficult to construe this broad right to procreative freedom
as excluding the freedom of the otherwise infertile to reproduce via
IVF. On the other hand, the law struck down in Skinner was specifi-
cally one that sought to destroy a person’s ability to procreate. Skin-
ner could thus be read as establishing only a negative right against
forced destruction of one’s procreative capacities, as the Court never
explicitly asserted a broader fundamental right to procreate. The
Court could reasonably read Skinner broadly and infer an expansive
right to procreative freedom — one that would cover an asserted right

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59 316 U.S. 535 (1942).
60 See id. at 541. The Court stated: “Marriage and procreation are fundamental to the very
existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreach-
ing and devastating effects. . . . Any experiment which the State conducts is to [the prisoner’s] ir-
reparable injury. He is forever deprived of a basic liberty.” Id.
61 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Carey v. Population Servs.
Int’l, 431 U.S. 678, 684–85 (1977); Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plu-
rality opinion); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974).
2005] IN VITRO FERTILIZATION 2801

of access to IVF — or read it narrowly and decline to expand the fun-

damental right to procreation beyond Skinner’s specific facts.62
2. The Rights to Contraception and Abortion. — Hand-in-hand
with its identification of a fundamental right to procreation, the Court
has recognized a fundamental right not to procreate by affording pri-
vate decisions regarding contraception and abortion the substantive
protection of the Due Process Clauses. In Griswold, the Court struck
down a Connecticut law that prohibited the use of any device for con-
traceptive purposes, finding that the prohibition unconstitutionally in-
fringed upon a fundamental right to marital privacy.63 Later, in
Eisenstadt, the Court more explicitly identified a fundamental right to
use contraception, stating: “If the right of privacy means anything, it is
the right of the individual, married or single, to be free from unwar-
ranted governmental intrusion into matters so fundamentally affecting
a person as the decision whether to bear or beget a child.”64
The Court has also recognized a fundamental right to abortion. In
Roe v. Wade,65 the Court held that “the right of personal privacy in-
cludes the abortion decision,” though it noted that this right was “not
unqualified.”66 Later, in Casey, the Court implemented a new stan-
dard for delineating the boundaries of the abortion right, stating that
“[o]nly where state regulation imposes an undue burden on a woman’s
ability to [have an abortion] does the power of the State reach into the
heart of the liberty protected by the Due Process Clause.”67
As with the right to procreation in Skinner, the direct relevance of
these recognized fundamental rights to contraception and abortion to
an asserted right to IVF is unclear. Read broadly, the Court’s contra-
ception and abortion jurisprudence could be viewed as establishing an
expansive fundamental right to make one’s own procreative choices;
just as the fertile possess the freedom to choose whether to procreate
naturally, the infertile ought to have the similar freedom to choose
whether to procreate via IVF. However, these same precedents may
also be read narrowly as establishing only a fundamental right to
choose not to commence or continue an unwanted natural pregnancy,

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
62 PETERS, supra note 41, at 161–62.
63 Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965).
64 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis omitted). Though neither Eisen-
stadt nor Griswold was formally decided under a substantive due process framework, see 405 U.S.
at 443; 381 U.S. at 484–86, the Court in subsequent cases has clearly construed them as recogniz-
ing a fundamental right to use contraception. See, e.g., Glucksberg, 521 U.S. at 720.
65 410 U.S. 113 (1973).
66 Id. at 154. The Roe Court delineated the right’s precise boundaries as a function of the
various stages of fetal development. See id. at 164–65.
67 505 U.S. 833, 874 (1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.) (emphasis
added).
2802 HARVARD LAW REVIEW [Vol. 118:2792

rather than an all-encompassing right of access to procreation in

general.

III. THE CONSTITUTIONAL ANALYSIS

This Part proceeds in three sections. Section A examines how the
Court’s formal doctrinal framework might apply to an asserted right to
IVF. Section B discusses the lack of clarity surrounding the applicable
standard of review in substantive due process cases and argues that in-
termediate scrutiny would most likely be applied in the Court’s IVF
analysis. Section C surveys the basic state and private interests that
the Court would examine in applying intermediate scrutiny and makes
a number of broad predictions as to what types of IVF regulations will
likely be viewed as constitutionally permissible.
A. Applying the Court’s Doctrinal Framework to IVF
Though the Court’s substantive due process cases create a doctrinal
framework that is often inconsistent and indeterminate, these cases —
when distilled down to their essential elements — appear to revolve
around three distinct inquiries. Each of these inquiries represents a
critical analytical pivot point upon which the Court may ultimately
rest its decision: First, how does the Court define the right in question?
Second, under the Glucksberg test, is the right construed as “deeply
rooted in this Nation’s history and tradition” and “implicit in the con-
cept of ordered liberty?”68 And third, under the Casey test, is the right
framed as one that “involve[s] the most intimate and personal choices
a person may make in a lifetime, choices central to personal dignity
and autonomy?”69 This section addresses each of these inquiries in
turn.
1. Defining the Right. — As stated above, the Glucksberg test re-
quires a “careful description” of the asserted liberty interest,70 a re-
quirement that traditionally translated into a very narrow framing of
the right in question. Obviously, the narrowest possible framing of an
asserted right is to define it as identical to the act — in this case, as a
fundamental right to use IVF as a means of bearing children. Such
narrow framing would essentially preordain failure under the Glucks-
berg criteria, given that IVF, as a recent technological development,
could hardly be said to be “deeply rooted in this Nation’s history or

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
68 Glucksberg, 521 U.S. at 721 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503
(1977) (plurality opinion); and Palko v. Connecticut, 302 U.S. 319, 325 (1937)) (internal quotation
marks omitted) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
69 Casey, 505 U.S. at 851.
70 Glucksberg, 521 U.S. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)) (internal quo-
tation marks omitted).
2005] IN VITRO FERTILIZATION 2803

traditions” or “implicit in the concept of ordered liberty.” Narrow

framing would also make recognition of the right more difficult under
Casey’s autonomy-based framework, as it would be easier for the
Court to construe a general right to reproductive freedom — as op-
posed to a specific right to IVF — as touching upon a person’s central
autonomy interests.71
Lawrence, however, suggests that the current Court may avoid a
very narrow rendering of the right to IVF72 and instead cast it with
some degree of generality, which would make recognition of a funda-
mental right to IVF more likely. Yet, as a purely doctrinal matter, it is
difficult to make generalized predictions as to how the Court might
choose to frame an asserted right to IVF. While Lawrence may be in-
dicative of an emerging trend toward broader framing of asserted fun-
damental rights, it is equally persuasive to view the case’s broad fram-
ing of the right in question as uniquely tied to the burgeoning social
and cultural acceptance of gay rights and sexual freedom.73 Thus, it is
difficult to claim that the Court would be formally constrained by
precedent to construe an asserted right to IVF either broadly or
narrowly.
2. The Glucksberg Framework and the Question of Analogical Fit.
— Given its chosen framing of the right to IVF, the Court may under-
take the substantive due process analysis outlined in Glucksberg —
that is, whether the asserted right is “deeply rooted in this Nation’s
history or traditions” and/or “implicit in the concept of ordered liberty.”
This inquiry will turn on the breadth of the Court’s analogical reason-
ing. If the right to IVF is framed in a fashion that fits it within the
confines of one or more previously recognized fundamental rights, the
Court will likely identify some degree of substantive due process pro-
tection. In other words, if the asserted right is framed to be analogi-
cally coextensive with, for example, the fundamental rights to procrea-
tion and contraception, then the Court will have essentially decided
the matter, as the relevant “deeply rooted” and “ordered liberty” analy-
ses would simply mirror the Court’s previous analyses regarding the

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
71 Narrow framing of the asserted right to IVF would provide the Court with greater latitude
to recognize alternatives to IVF — such as adoption — as sufficient to satisfy any autonomy in-
terests that are implicated, whereas the Court would have less room to maneuver if the right were
framed broadly.
72 See supra pp. 2799–2800.
73 See Robert C. Post, The Supreme Court, 2002 Term—Foreword: Fashioning the Legal Con-
stitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 106 (2003) (stating that “[Justice] Scalia
is no doubt correct to read Lawrence as informed by the changing views of sexual orientation
within elite culture”); Cass R. Sunstein, Keynote Address: Liberty After Lawrence, 65 OHIO ST.
L.J. 1059, 1079 (2004) (“[I]t is clear that Lawrence was made possible only by changes in public
values. The Court’s members live in society, and they are inevitably affected by what society
thinks — a fact to which Lawrence itself attests.”).
2804 HARVARD LAW REVIEW [Vol. 118:2792

analogous fundamental rights. On the other hand, if even a broad

framing of the IVF right is deemed to be analogically distinct from the
Court’s prior fundamental rights jurisprudence, then the asserted right
to IVF would likely fail the Court’s traditional substantive due process
inquiries, as it is highly unlikely that such a novel right would be con-
sidered “deeply rooted” in history or essential to “ordered liberty.”
An asserted right to IVF appears closely related to recognized fun-
damental rights such as the right to procreation, the right to contracep-
tion, and the right to abortion. However, whether it fits closely
enough with these analogous rights to receive similar constitutional
protection is an open question. In the absence of any concrete indica-
tion as to how tight the analogical connection must be, the most that
can be said is that broad constructions of both the right to IVF and
the Court’s fundamental rights precedents would render the finding of
the requisite connection more likely.
While it is impossible to predict with certainty how broadly the
Court would apply its analogical reasoning to an asserted fundamental
right to IVF, the expansive rhetoric underlying the Court’s prior fun-
damental rights decisions seems to indicate that the Court will recog-
nize at least some substantive due process protection for access to IVF.
Though Skinner formally recognized a fundamental right only against
state-mandated sterilization, the Court in many subsequent cases has
described Skinner as recognizing a more generalized right to procrea-
tive freedom.74 This generalization of the procreative right was fur-
ther echoed by the Eisenstadt Court, which framed the fundamental
right to contraception within a broader right of procreative choice.75
Thus, the Court’s rhetoric seems to militate in favor of an expansive,
generalized right to procreative choice, one that would include the
right of infertile couples to use reproductive technologies.
3. Autonomy Rights and the Casey Framework. — Alternatively,
the Court may choose to rest its decision on the “autonomy rights”
model outlined in Casey. In Casey, the Court stated that constitutional
protection must be accorded to “matters[] involving the most intimate
and personal choices a person may make in a lifetime, choices central

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
74 See, e.g., Glucksberg, 521 U.S. at 720 (describing Skinner as recognizing a right “to have
children”); Carey v. Population Servs. Int’l, 431 U.S. 678, 684–85 (1977) (“[A]mong the decisions
that an individual may make without unjustified government interference are personal decisions
relating to . . . procreation . . . .” (quoting Roe v. Wade, 410 U.S. 113, 152 (1973) (internal quota-
tion mark omitted) (citing Skinner v. Oklahoma, 316 U.S. 535, 541–42 (1942)))); see also PETERS,
supra note 41, at 167.
75 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (describing a generalized “right of the individ-
ual, married or single, to be free from unwarranted governmental intrusion into matters so fun-
damentally affecting a person as the decision whether to bear or beget a child” (emphasis omit-
ted)).
2005] IN VITRO FERTILIZATION 2805

to personal dignity and autonomy.”76 Under this framework, an as-

serted right of access to IVF — even if construed narrowly — would
likely be recognized by the Court as fundamental.77 It is difficult to
imagine a decision more “intimate and personal” than the decision
whether to bear a child, be it via natural means or reproductive tech-
nology. Furthermore, the mere fact that so many infertile couples des-
perately seek reproductive technology — in spite of the heavy physical,
emotional, and financial costs involved — speaks to the centrality of
procreation as a source of spiritual fulfillment for many people.78
One might argue that options such as adoption serve as substitutes
sufficient to rebut a narrowly framed right to IVF; however, this ar-
gument ignores the fact that many infertile couples view natural pro-
creation and childbearing as an interest that is inherently distinct from
that of raising an adopted child.79 Accordingly, reproductive technol-
ogy such as IVF often represents the only means by which an infertile
couple can make the fundamental and life-defining decision whether to
bear natural children. Taking this choice away from infertile couples,
absent a strong state interest, would thus seem to violate the core “dig-
nity and autonomy” interest that the Casey Court deemed to lie at the
center of the Court’s substantive due process jurisprudence.80 Casey’s
autonomy-based inquiry therefore seems to militate strongly in favor of
recognizing a fundamental right to IVF.
4. Summary. — When all of these factors are viewed together, a
fairly strong doctrinal case can be made for recognizing access to IVF
as a protected fundamental right. Though none of the Court’s prior
cases has explicitly enunciated a broad right to positive reproductive
freedom, its rhetoric in cases like Eisenstadt and Casey, along with its
broad reading of Skinner, seems to indicate its acceptance of an ex-
pansive right to reproductive decisionmaking. The right to IVF would
thus likely be framed, in general terms, as part and parcel of this ex-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
76 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).
77 However, as stated above, narrow framing of the issue would likely make the decision a
more difficult one. See supra note 71.
78 See PETERS, supra note 41, at 167. Thus, for many, the decision whether to have a child
lies at the very core of “the right to define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life” — a right that the Casey Court deemed to lie “[a]t
the heart of liberty.” Casey, 505 U.S. at 851.
79 See ELIZABETH BARTHOLET, FAMILY BONDS: ADOPTION, INFERTILITY, AND THE
NEW WORLD OF CHILD PRODUCTION 24 (2d ed. 1999) (“We are all conditioned from early
childhood to equate personhood with procreation and procreation with parenting. The fertile al-
most never consider adoption, and the infertile are unlikely to consider it until they have reached
the end of a long medical road designed to produce a biological child.”). Professor Bartholet,
however, criticizes this strong social bias toward biological parenting. See id. at 35–36.
80 See PETERS, supra note 41, at 169 (“Although the government did not cause [infertile cou-
ples’] underlying medical problem, a law denying them access to an effective treatment is as much
a ‘but for’ cause of that couple’s childlessness as the underlying physical pathology.”).
2806 HARVARD LAW REVIEW [Vol. 118:2792

pansive right. This generalized right, in turn, would satisfy Glucks-

berg’s “history and tradition” and “ordered liberty” criteria, given the
vast amount of precedent and rhetoric supporting the Court’s recogni-
tion of fundamental rights in this area. Furthermore, the right to IVF
fits snugly into the “dignity and autonomy” framework established by
the Court in Casey and later confirmed in Lawrence.
All this being said, however, it is worth emphasizing the high de-
gree of discretion and flexibility inherent in the Court’s formal sub-
stantive due process framework. Except in the most clear-cut cases,
the Court’s fundamental rights jurisprudence is far too open-ended
and ambiguous to dictate a specific doctrinal result. Thus, a seemingly
clear and consistent doctrinal case in support of a fundamental right to
IVF may be insufficient, in and of itself, to compel the Court to recog-
nize such an asserted right if the prevailing social, cultural, and politi-
cal conditions weigh strongly against the recognition of that right.81
B. The Standard of Review
Traditionally, the Supreme Court has maintained that a strict scru-
tiny standard of review is triggered when the government seeks to
regulate a fundamental right82 — in other words, a regulation found to
burden a constitutionally protected fundamental right will only be up-
held if it is “narrowly tailored to serve a compelling state interest.”83
In practice, challenged regulations almost never survive strict scrutiny
review.84 Thus, assuming that the Court recognizes access to IVF as a
fundamental right, most state regulation of IVF would likely fail under
this traditional conception of the applicable standard of review.
However, a strong argument can be made that in spite of its rheto-
ric to the contrary, the Court in fact tends to apply an intermediate
scrutiny standard of review — one that falls somewhere between ra-
tional basis review and strict scrutiny — when deciding fundamental

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
81 See Post, supra note 73, at 8 (noting that “constitutional law and culture are locked in a dia-
lectical relationship, so that constitutional law both arises from and in turn regulates culture”).
Such social, cultural, and political factors may be relevant in applying the Lawrence Court’s
“emerging awareness” version of the historical inquiry. See supra note 50 and accompanying text.
82 See, e.g., Reno v. Flores, 507 U.S. 292, 301–02 (1993); Carey v. Population Servs. Int’l, 431
U.S. 678, 686 (1977).
83 Flores, 507 U.S. at 302.
84 As Professor Erwin Chemerinsky has noted, “[t]he level of scrutiny used is very likely to
determine the outcome. If rational basis review is applied, the law is likely to be upheld. If strict
scrutiny is used, the law is likely to be struck down.” ERWIN CHEMERINSKY, CONSTITU-
TIONAL LAW: PRINCIPLES AND POLICIES 417 (1997).
2005] IN VITRO FERTILIZATION 2807

rights cases.85 For example, in Zablocki v. Redhail,86 the Court used

language that implied an intermediate level of review, stating: “When a
statutory classification significantly interferes with the exercise of a
fundamental right, it cannot be upheld unless it is supported by suffi-
ciently important state interests and is closely tailored to effectuate
only those interests.”87 The Court’s embrace of intermediate scrutiny
extends beyond mere rhetoric; as Professor David Meyer notes, the
Court’s decisions in both Zablocki and Moore v. City of East Cleve-
land88 seemed to deviate from the traditional strict scrutiny framework
as a functional matter as well.89 Casey represents an even clearer ex-
ample of such functional deviation. Although Casey formally upheld
the strict scrutiny framework underlying abortion regulation that was
established by Roe,90 it qualified the analysis by stating that state
abortion regulations will be struck down only when they impose an
“undue burden” on a woman’s ability to choose to have an abortion.91
By introducing this “undue burden” requirement into strict scrutiny,
the Court functionally replaced the strict scrutiny standard with a less
stringent standard of review.
The Court has done little in subsequent cases to reassert the appli-
cability of strict scrutiny review in fundamental rights cases. Although
in both Glucksberg and Reno v. Flores92 the Court recited the tradi-
tional strict scrutiny language when discussing its substantive due
process jurisprudence, these statements were mere dicta, as the Court
did not recognize a fundamental right in either case.93 Elsewhere, in
Lawrence and Troxel v. Granville,94 the Court struck down laws regu-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
85 In the equal protection realm, the Court has established intermediate scrutiny as the stan-
dard of review for laws creating distinctions based on gender, see, e.g., United States v. Virginia,
518 U.S. 515, 531 (1996), or parentage, see Clark v. Jeter, 486 U.S. 456, 461 (1988). As Professor
David Meyer has argued, the entire corpus of the Court’s family privacy jurisprudence seems to
reflect the Court’s adoption of an inquiry less stringent than traditional strict scrutiny. See
David D. Meyer, The Paradox of Family Privacy, 53 VAND. L. REV. 527, 536–48 (2000).
86 434 U.S. 374 (1978).
87 Id. at 388 (emphases added); see also Moore v. City of East Cleveland, 431 U.S. 494, 499
(1977) (plurality opinion) (“[W]hen the government intrudes on choices concerning family living
arrangements, this Court must examine carefully the importance of the governmental interests
advanced and the extent to which they are served by the challenged regulation.”).
88 431 U.S. 494 (plurality opinion).
89 Meyer, supra note 85, at 541–44.
90 See Roe v. Wade, 410 U.S. 113, 155 (1973) (“Where certain ‘fundamental rights’ are in-
volved, the Court has held that regulation limiting these rights may be justified only by a ‘com-
pelling state interest,’ and that legislative enactments must be narrowly drawn to express only the
legitimate state interests at stake.” (citations omitted)).
91 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874 (1992) (joint opinion of
O’Connor, Kennedy, and Souter, JJ.).
92 507 U.S. 292 (1993).
93 See Washington v. Glucksberg, 521 U.S. 702, 705–06, 721 (1997); Flores, 507 U.S. at 301–03.
94 530 U.S. 57 (2000).
2808 HARVARD LAW REVIEW [Vol. 118:2792

lating fundamental rights without explicitly applying strict scrutiny.95

Thus, little in the Court’s recent fundamental rights jurisprudence in-
dicates strong adherence to the strict scrutiny standard of review; in-
stead, the Court often seems to discuss the traditional fundamental
rights framework but “in fact apply[] a more flexible standard of
review.”96
The Court’s precedents thus seem to indicate that state regulation
of a fundamental right to IVF would be reviewed under intermediate
rather than strict scrutiny. In equal protection cases, intermediate
scrutiny typically translates to the requirement that a regulation be
“substantially related to an important governmental objective.”97
Though descriptively vague, intermediate scrutiny becomes clearer
when viewed conceptually in conjunction with the two alternative
standards of review. If either rational basis review or strict scrutiny is
applied, then the outcome of the case is virtually preordained.98 In-
termediate scrutiny falls between these two extremes: rather than as-
suming a strong initial advantage for either side, it establishes a level
playing field upon which conflicting state and private interests do bat-
tle. It is thus tantamount to a basic balancing test wherein a court
measures the asserted state interests against the asserted private inter-
ests. Under this standard of review, the Court possesses a great deal of
freedom, as it is free to balance the private and state interests involved
with no clear rules detailing its approach. The likely implementation
of intermediate scrutiny thus adds to the already significant discretion
the Court possesses in making substantive due process decisions.99
C. Balancing the State and Private Interests
Given the Court’s likely application of a flexible intermediate scru-
tiny standard of review to a fundamental right of access to IVF, the
specific range of permissible regulation is difficult to predict. Never-
theless, a close examination of the general private and state interests at
stake may shed some light on how the Court will choose to balance
those interests.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
95 In both cases, the Court’s avoidance of such analysis was criticized in separate opinions.
See Lawrence v. Texas, 123 S. Ct. 2472, 2488 (2003) (Scalia, J., dissenting) (stating that the major-
ity failed to “subject the Texas law to the standard of review that would be appropriate (strict
scrutiny) if homosexual sodomy were a ‘fundamental right’” (emphasis omitted)); Troxel, 530 U.S.
at 80 (Thomas, J., concurring in the judgment) (“The opinions of the plurality, Justice Kennedy,
and Justice Souter recognize such a [fundamental] right, but curiously none of them articulates
the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental
rights.”).
96 Meyer, supra note 85, at 529.
97 Clark v. Jeter, 486 U.S. 456, 461 (1988).
98 See supra note 84.
99 See supra p. 2806.
2005] IN VITRO FERTILIZATION 2809

The fact that the doctrinal analysis militates in favor of recognizing

a fundamental right to IVF indicates the existence of a very strong
private interest in the balancing calculus. For many people, deciding
whether or not to have children — like deciding whether to have an
abortion or use contraceptives — is an integral part of their personal
and social identities; many couples view having biological children as a
rite of passage “symbolic of [their] transformation into adulthood,”
something that defines them as being normal, mature members of soci-
ety.100 Thus, to take away or unreasonably restrict the one option that
would allow infertile couples to make such a fundamental life decision
would smack of unacceptable state paternalism, as the freedom to de-
cide whether or not to have a child lies at the very center of what the
Casey Court called “the right to define one’s own concept of existence,
of meaning, of the universe, and of the mystery of human life.”101
Although the background private right involved in the balancing
calculus is very strong, given that intermediate scrutiny rather than
strict scrutiny will likely apply, this strong private interest will not
necessarily trump all attempted state regulation. The operative ques-
tion, rather, is whether the asserted state interests may be viewed as
sufficiently important to justify regulation of the fundamental right to
IVF. Three of the state interests most likely to be asserted as bases for
IVF regulation are preserving the public health, achieving consumer
protection, and social or moral preference.
The state’s interest in preserving public health is one of the strong-
est justifications for regulation of IVF. Because the IVF procedure
typically involves the transfer of multiple embryos to the uterus to
maximize the chances of a successful pregnancy,102 it is far more likely
to result in multiple pregnancies than natural conception.103 As a gen-
eral matter, multiple pregnancies present a large number of potential
health problems for the fetus or newborn, and infant mortality rates
are much higher in cases of multiple pregnancies.104 Furthermore,
children of multiple pregnancies are more likely to be born prema-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
100 Byers, supra note 17, at 270.
101 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).
102 See supra p. 2794.
103 See Moriarty, supra note 14, at 507. Multiple-infant births represented 35% of all live births
resulting from ART-induced pregnancies using fresh nondonor eggs or embryos. See CDC
REPORT, supra note 2, at 19.
104 A 1980s study found that “twins were five times more likely, and infants from triplet or
higher-order pregnancies fourteen times more likely, to die before their first birthday.” N.Y.
STATE TASK FORCE ON LIFE & THE LAW, ASSISTED REPRODUCTIVE TECHNOLOGIES 73
(1998) [hereinafter N.Y. TASK FORCE] (citing Sandra E. Jewell & Ray Yip, Increasing Trends in
Plural Births in the United States, 85 OBSTETRICS & GYNECOLOGY 229, 232 (1995)).
2810 HARVARD LAW REVIEW [Vol. 118:2792

turely,105 which can lead to the many health problems associated with
low birth weight, including blindness, brain damage, and respiratory
problems.106
Multiple pregnancies can also lead to numerous potential health
problems for mothers. During a multiple gestation, women are more
susceptible to pregnancy-related diseases such as anemia, pre-
eclampsia, and high blood pressure, while preexisting medical condi-
tions are more likely to be exacerbated.107 Furthermore, “particularly
for older women undergoing IVF, multiple pregnancies might produce
an unbearable overload for the cardiovascular and renal functions,
among other body systems.”108
Therefore, given the numerous health risks that surround IVF-
produced pregnancies, courts are likely to recognize a strong public
health interest vis-à-vis state regulation of IVF. The Court has tradi-
tionally accorded great deference to state regulations based on public
health concerns,109 and — especially under an intermediate scrutiny
framework — there is no apparent reason why it would not do the
same in the context of IVF regulation. One could thus safely surmise
that reasonable state regulations of IVF clearly targeted toward pro-
tecting the health of mothers or newborns would likely be upheld.
Another strong state interest in regulating IVF is protecting the in-
fertile from exploitation. Infertility is often a source of tremendous
emotional and psychological pain.110 Thus, in the words of one com-
mentator, “there is little doubt that many infertile couples could be
vulnerable and subject to exploitation by third parties offering to assist

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
105 BLANK & MERRICK, supra note 7, at 91. Interestingly, there is evidence that the ART
process itself — apart from the increase in multiple births — correlates with a higher rate of pre-
maturity and low birth weight. See N.Y. TASK FORCE, supra note 104, at 73.
106 N.Y. TASK FORCE, supra note 104, at 73–74. As a result, “[s]urvivors of multiple gestations
are more likely to require neonatal intensive care and to suffer permanent consequences from
their prematurity.” Id.
107 Id. at 70. Multiple gestations also increase the risk of complications such as rupture of the
uterus, placental abruption, and placenta previa, and are more likely to require a Cesarean de-
livery. Id.
108 BLANK & MERRICK, supra note 7, at 91–92.
109 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 30 (1905) (upholding Massachusetts’s
smallpox vaccination law, stating that “[i]t is no part of the function of a court or a jury to deter-
mine which one of two modes [is] likely to be the most effective for the protection of the public
against disease” and that the legislature “could not properly abdicate its function to guard the
public health and safety”).
110 See N.Y. TASK FORCE, supra note 104, at 117 (“For many people, infertility comes as ‘a
total shock,’ casting doubt on cherished expectations and making a mockery of careful family
planning and assumptions of control over the reproductive process.”). Infertile women have been
found to experience strong feelings of inadequacy, depression, shame, or anger, and in one study of
couples undergoing IVF, “half of the women and 15 percent of the men described infertility as the
most upsetting experience of their lives.” Id.
2005] IN VITRO FERTILIZATION 2811

them in their quest for a child.”111 Infertile couples are often willing to
go to great lengths in order to produce a child biologically, including
paying up to $10,000 for an IVF cycle that may produce nothing, tak-
ing hormone shots that may pose unknown future risks, and investing
significant amounts of time, energy, and pain in an endeavor that may
never succeed.112 They are thus easy prey for the largely self-regulated
IVF providers who have strong financial incentives to attract as many
clients as possible.113
Although most IVF providers are unlikely to carry out their prac-
tices in a clearly exploitative manner, their overarching financial incen-
tive may reveal itself in subtle ways. For example, some doctors may
start fertility treatment at an extremely early stage — even before a
woman’s infertility can be confirmed.114 Alternatively, doctors may
transfer excessively high numbers of embryos in order to inflate the
clinic’s success rate figures without heeding the risks to patient
health.115 The potential for subtle exploitation thrives whenever doc-
tors’ profit maximization goals interact with the emotionally vulner-
able state of infertile couples.116 Thus, given the high likelihood of
abuse and exploitation in the IVF marketplace, courts should accord a
large degree of deference to state regulations adopted for the clear
purpose of protecting the infertile from exploitation.
A final interest that the state may assert in establishing regulations
on IVF is that of moral or social preference. Some regulation of IVF
may simply reflect prevailing social attitudes — that is, society may
simply disfavor the idea of unfettered access to IVF. This social pref-
erence may be rooted in religious objections; for example, the Roman
Catholic Church has declared its moral opposition to IVF, stating that
the procedure “deprives human procreation of the dignity which is
proper and connatural to it.”117 However, the preference may also be

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
111 Byers, supra note 17, at 272.
112 See BARTHOLET, supra note 79, at 204.
113 See Lori B. Andrews, Reproductive Technology Comes of Age, 21 WHITTIER L. REV. 375,
382 (1999) (describing the transformation of infertility services into a highly lucrative “four billion-
dollar annual industry” in which infertility doctors with experience make an average of $625,000
per year).
114 See id. at 383–84 (noting that “some doctors give fertility drugs to women who have been
trying to have a child for just three months, even though perfectly healthy fertile women often
take up to a year to become pregnant”).
115 Id. at 383.
116 George J. Annas, Human Cloning: A Choice or an Echo?, 23 U. DAYTON L. REV. 247, 258
(1998).
117 Congregation for the Doctrine of the Faith, Instruction on Respect for Human Life in Its
Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day, at http://www.
vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-
human-life_en.html (last visited May 14, 2005). Eastern Orthodox churches are also generally
opposed to the use of IVF. N.Y. TASK FORCE, supra note 104, at 107.
2812 HARVARD LAW REVIEW [Vol. 118:2792

rooted in secular beliefs; for example, a community may oppose repro-

ductive technology based on a strong belief that such technology
would lead to the commodification of children.118 In any case, social
preferences are likely to be strong in cases dealing with central familial
issues such as access to IVF. As one commentator states, “the commu-
nity has an enormous, unparalleled stake in the family — society’s
very ability to replicate its own values and culture in the next
generation.”119
This state interest, however, is likely to be accorded very little def-
erence by courts. If access to IVF is to have any vitality at all as a
fundamental right, then mere social or moral preference alone cannot
justify state regulation of the right. This point was clearly established
in Lawrence: when confronted with the question whether the social
majority could use state power to enforce its moral views regarding
homosexual conduct, the Lawrence Court answered firmly in the nega-
tive, stating, “Our obligation is to define the liberty of all, not to man-
date our own moral code.”120 Thus, any state regulation of IVF prem-
ised solely on the social or moral preferences of the community would
likely be presumptively invalid in light of the strong private interests
involved in the IVF decision.
However, mere identification of the state and private interests at
stake is not sufficient to determine whether a regulation should be up-
held; intermediate scrutiny also includes a rough “tailoring” require-
ment that the state regulation be “substantially related” to the relevant
government interest.121 While this phrasing of the requirement is
somewhat vague, the Casey “undue burden” inquiry may be construed
as a way to clarify the analysis.122 In other words, whether a regula-
tion is sufficiently tailored to survive intermediate scrutiny may be
premised on the extent to which it burdens parties’ freedom to make
constitutionally protected choices.
Of course, defining the specific contours of the “substantially re-
lated”/“undue burden” requirement is impossible, as such standard-
based analyses inherently depend largely on the specific facts involved
and the particular manner in which the court applies the standard.
Nevertheless, a number of basic conjectures can be made regarding the
viability of various types of IVF regulations. Generally speaking, if
the regulation in question effectively eliminates a person’s ability to
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
118 See Annas, supra note 116, at 259.
119 Meyer, supra note 85, at 550.
120 Lawrence v. Texas, 123 S. Ct. 2472, 2480 (2003) (quoting Planned Parenthood of Southeast-
ern Pennsylvania v. Casey, 505 U.S. 833, 850 (1992)) (internal quotation marks omitted).
121 Clark v. Jeter, 486 U.S. 456, 461 (1988).
122 Although Casey formally framed the “undue burden” analysis as a threshold question for the
fundamental rights inquiry, see supra p. 2807, the analysis can be functionally reconceptualized as
a means of ensuring narrow tailoring between the regulation and the asserted state interest.
2005] IN VITRO FERTILIZATION 2813

choose IVF, then it will almost certainly be struck down as overbroad,

regardless of the importance of the asserted state interest; however, if
the person’s basic freedom to choose remains generally intact, then the
regulation is likely to be upheld as long as it is attached to an impor-
tant state interest. Thus, basic IVF regulations aimed at preserving
the public health — for example, a physician licensing requirement or
heightened restrictions on risky procedures — would likely be upheld
as sufficiently tailored. Similarly, reasonable clinic disclosure require-
ments or patient counseling requirements premised on protecting con-
sumers would likely be upheld as well. However, regulations effec-
tively banning IVF or otherwise functionally preventing many people
from accessing IVF altogether would almost certainly be struck down
as “undue burdens” on the fundamental right to procreate via IVF.

IV. CONCLUSION
In light of the above analysis, the Supreme Court’s substantive due
process jurisprudence militates strongly toward recognition of a fun-
damental right of access to IVF. However, though the scope of this
Note is limited to evaluating an asserted right to IVF as a doctrinal
matter, it is clear that this doctrinal analysis is not in and of itself suf-
ficient to predict the Court’s ultimate decision. Given the indetermi-
nacy of the Court’s substantive due process jurisprudence and the
flexible nature of the intermediate scrutiny standard of review, the
Court would clearly possess a wide degree of discretion — discretion
that may incorporate external factors such as cultural context and so-
cial acceptance of the asserted right — in making its decision. How-
ever, given the strong analytical foundation supporting recognition of a
right to IVF, a decision not to recognize such a right would further
confuse the Court’s already jumbled substantive due process jurispru-
dence — an outcome that, in the end, would make life more difficult
for state and private actors alike.