Vice President, Spence & Elster, P.C.

Nanette Elster is Vice President of Spence and Elster in Chicago, and adjunct faculty teaching bioethics at DePaul University and the University of Illinois at Chicago. Ms. Elster has extensive experience in legal and ethical issues related to women’s and children’s health and assisted reproductive technologies. She serves on the Advisory Board of the Chicago Center for Jewish Genetic Disorders and is a member of the ABA coordinating group on bioethics and the law. She has been a co-chair of the Working Group on Reproductive Technology at the Institute for Science, Law and Technology and was a board member of the Integritas Institute for Health Care Ethics. She holds a Bachelor of Arts degree from the University of Illinois at Urbana-Champaign (1986), a law degree from Loyola University School of Law (1989), and a Master of Public Health degree from Boston University School of Public Health (1993). She is the author of numerous articles on genetic and reproductive health with a particular focus on the impact on women and children.

According to the National Center for Health Statistics approximately ten percent (10%) of the population of childbearing age suffer from infertility, which is defined as the inability to conceive after one year of unprotected intercourse.  Overall, the prevalence of infertility in married couples is 7.1%; in Black married couples, 10.5%; and in Hispanic married couples, 7.0%.  Despite these figures, the seeking out of infertility services has been most common among non-Hispanic, White women at a rate of 10.7%.  A number of factors may account for this difference including issues such as insurance coverage, socioeconomic status, cultural differences, effectiveness of treatment and general accessibility.  This paper will discuss some of the barriers that may contribute to the current racial and ethnic disparities in the use of assisted reproductive technologies (ARTs) including adjunct therapies such as preimplantation genetic diagnosis (PGD).This, in turn, poses numerous barriers to procreative liberty. 

The paper will begin with a discussion of reproductive rights and whether ART is or should be considered a procreative liberty.  Next, it will discuss some of the historical antecedents of racial inequality in reproductive health care, followed by an overview of infertility and ART along with adjunct therapies to ART including PGD in the US.  Should all forms of human reproduction be seen as something to which every individual is entitled? How can bioethics support ART and other technological advances such as PGD in such a way that the technology is fairly and equitably used and distributed?  Or should bioethics and law come together to identify acceptable barriers to procreative liberty within a specified context?  With these questions as a guide, the paper will conclude with a discussion of the legal and ethical limits that may be considered to effectuate policy in this area without perpetuating racial and ethnic disparities and inequalities.