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Note: Hard Choices: Where To Draw the Line on Limiting Selection in the Selective Reduction of Multifetal Pregnancies

By Mary A. Scott. Full text here.

In the last few years, a growing number of states have enacted or proposed laws that limit a woman’s right to have an abortion when her reasons for seeking the abortion are based on a specific characteristic of the fetus, most notably sex or the presence of a genetic abnormality, such as Down syndrome. At the same time, the assisted reproduction industry is facing the ongoing challenge of high numbers of multifetal pregnancies resulting from in vitro fertilization. In response, recognizing the many health risks inherent in multifetal pregnancies, physicians are increasingly acknowledging the need for a procedure called selective reduction. Selective reduction involves the termination of one or more fetuses in a multi-fetal pregnancy to preserve the life and health of both the mother and the remaining fetus or fetuses.

In light of states’ recent rush to enact motivation-based abortion prohibitions, it is important to consider how such laws might apply in cases of selective reduction. Fertility patients and their physicians often find themselves in the difficult position of having to choose which fetus or fetuses to keep and which to reduce. In most cases, the decision is based on practical considerations—the physician selects which fetus to terminate based on proximity to the maternal abdominal wall. In other cases, however, physicians will consider apparent genetic abnormalities or the parents’ desire to have a child of a particular sex. Making these choices appears to be in direct conflict with many states’ laws, if they are interpreted to apply to selective reduction. There is currently no jurisprudence determining whether state abortion laws encompass selective reductions. Such limitations on selective reduction could produce a chilling effect on providers, unnecessarily interfere with fertility patients’ medical needs, and risk running afoul of individual reproductive rights.

This Note proposes a state-led regulatory framework that exempts selective reduction from the ambit of abortion laws; refines reporting requirements for the assisted reproductive technology industry that will increasingly encourage single embryo transfer policies; and refrains from limiting fertility patients’ choices of which fetus or fetuses to carry to term except in the selective reduction of twins to a singleton where no genetic abnormalities are present. The solution this Note suggests will serve legitimate state interests without unnecessary state intervention in medical decisions.