The debt financing of parenthood

Law and Contemporary Problems

Volumn 72, Issue 3, 2009, Pages 147-175

  Jacoby, Melissa B ^a  

^a NONE

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EID: 77951991197     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (324)

1. See, e.g., DEBORA L. SPAR, The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception 3-6 (2006).
2. CHARIS THOMPSON, Making Parents: The Choreography of Reproductive Technologies 26-27 (2005)
3. A list of scholars' calls for regulation can be found in Jaime King, Predicting Probability: Regulating the Future of Preimplantation Genetic Screening, 8 Yale J. Health Pol'y L. & Ethics 283, 288 n.20 (2008)
4. Michael J. Malinowski, Creating Life? Examining the Legal, Ethical, and Medical Issues of Assisted Reproductive Technologies: A Law-Policy Proposal to Know Where Babies Come from During the Reproductive Revolution, 9 J. Gender Race & Just. 549, 552 (2006).
5. For arguments against regulation, see Martha M. Ertman, What's Wrong with a Parenthood Market? A New and Improved Theory of Commodification, 82 N.C. L. Rev. 1, 22 (2003) (discussing the benefits to nontraditional parents of the lack of public regulation of the parenthood market).
6. See, e.g., Spar, supra note 1, at 1-2, 31 ("Roughly 10 to 15 percent of all adults experience some form of infertility."). Infertility is difficult to measure because many do not report to their doctors.
7. See Michele Goodwin, Assisted Reproductive Technology and the Double Bind: The Illusory Choice of Motherhood, 9 J. Gender Race & Just. 1, 18 (2005) ("Poorer women, who lack health coverage, are likely to be disproportionately underrepresented or unaccounted for with infertility statistics.").
8. For racial differences in diagnosing infertility, see also DOROTHY ROBERTS, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 255 (1997)
9. Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23 Berkeley J. Gender L. & Just. 18, 24 (2008)
10. Charles P. Kindregan Jr. & Steven H. Snyder, Clarifying the Law of Art: The New American Bar Association Model Act Governing Assisted Reproductive Technology, 42 Fam. L.Q. 203, 226-27 (2008) (discussing a more inclusive definition of infertility that includes "the desire to achieve pregnancy by means other than sexual intercourse")
11. Lars Noah, Assisted Reproductive Technologies and the Pitfalls of Unregulated Biomedical Innovation, 55 Fla. L. Rev. 603, 613 (2003).
12. cf. Amy B. Monahan, Value-Based Mandated Health Benefits 25 (Univ. of Minn., Working Paper No. 25, 2008) (citing a range of monthly costs for ovulation stimulation and artificial insemination from $200 to $5000, depending on drugs and medical monitoring). Artificial insemination is the most frequently used.
13. See John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 Case W. Res. L. Rev. 323, 324, 349 (2004).
14. For IVF costs, see SPAR, supra note 1, at 59 tbl.2-3 (listing costs at representative clinics). According to the latest Medical Expenditure Panel Survey, out-of-pocket expenditure on healthinsurance premiums in 2004 was $2336 for a family of three or more persons. DIDEM BERNARD & JESSICA BANTHIN, Med. Expenditure Panel Survey, Family-Level Expenditures on Health Care and Insurance Premiums Among the U.S. Nonelderly Population, 2004, at 5, 13 (2007). Mean total expenditures for privately insured families were $6430. Id. at 2.
15. Gestational surrogacy costs range from $30,000 to $120,000. SPAR, supra note 1, at 92, 96 (describing prices as of 2004). On who actually profits from such transactions, see Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies, 66 Wash. & Lee L. Rev. 203 (2009).
16. SPAR, supra note 1, at 210 ("Both sides of this market would prefer to believe that they are not substitutes for one another. But in reality, of course, they are.")
17. Krawiec, supra note 11 (noting that intended parents for whom assisted reproduction is unsuccessful or unavailable may resort to adoption). On whether it is truly a substitute, see Gillian Hewitson, The Market for Surrogate Motherhood Contracts, 73 Econ. Record 212, 213 (1997).
18. On the social construction of the preference for biological children, see, for example, ELIZABETH BARTHOLET, Family Bonds: Adoption, Infertility, and the New World of Child Production 93 (1993)
19. Roberts, supra note 7, at 267 (referring to the desire for genetically related children as "cultural artifact"); id. at 260 ("Infertile white couples are expected to turn to adoption only as a last resort, after exhausting every available means of producing a genetically related child. The Black community, on the other hand, expects its financially secure members to reach out to the thousands of Black children in need of a home."). See generally SPAR, supra note 1, at 160
20. Susan Freilich Appleton, Adoption in the Age of Reproductive Technology, 2004 U. Chi. Legal F. 393, 432 (observing that adoption agencies encourage potential parents to think of adoption as a last resort "by rejecting prospective adopters who are simultaneously exploring medical interventions to have a child")
21. Robin Fretwell Wilson, Uncovering the Rationale for Requiring Infertility in Surrogacy Arrangements, 29 Am. J.L. & Med. 337, 340 (2003) (discussing how states used to give adoption preference to people with known infertility).
22. For a historical perspective, see Viviana A. Zelizer, From Baby Farms to Baby M, Society, March 1988, at 23, 24 (reviewing changes to the value of children to adults generally and noting that "[b]y 1937, infant adoption was being touted as the latest American fad.").
23. See Michele Goodwin, The Free-Market Approach to Adoption: The Value of a Baby, 26 B.C. Third World L.J. 61, 66-67 (2006) (comparing costs of adoption for white and black infants).
24. See Solangel Maldonado, Discouraging Racial Preferences in Adoptions, 39 U.C. Davis L. Rev. 1415, 1441 (2006) (debunking the myth that international adoptions are cheaper than domestic ones, particularly when compared to African American children).
25. See, e.g., SPAR, supra note 1, at 179 tbl.6-1 (listing domestic adoption-placement fees from 2004 for eight agencies, with only two charging on an income-based sliding scale); id. at 184 (listing foreignadoption fees by agency and specific program fees by country).
26. see also Elizabeth Heitman, Infertility as a Public Health Problem: Why Assisted Reproductive Technologies Are Not the Answer, 6 Stan. L. & Pol'y Rev. 89, 96 (1995) ("Infertile couples reportedly willing to try and to pay 'almost anything' to create their own baby are not unlike many chronically ill Americans searching for a cure.").
27. See, e.g., Marianne Bitler & Lucie Schmidt, Health Disparities and Infertility
28. Impacts of State-Level Insurance Mandates, 85 Fertility & Sterility 858, 859 (2006) ("Of the 6.2 million women with impaired fecundity in 1995, 2.7 million (44%) had ever sought treatment.")
29. Daar, supra note 8, at 29 ("Generally, only half of all individuals who are diagnosed as infertile seek treatment to assist them in reproduction.")
30. Dorothy Roberts, Race and the New Reproduction, 47 Hastings L.J. 935, 937, 941 (1996) (discussing possible reasons for racial disparities in the use of reproductive technology)
31. Barton H. Hamilton & Brian McManus, Infertility Treatment Markets: The Effects of Competition and Policy 3 (Oct. 2005) (unpublished manuscript, available at http://www.olin.wustl.edu/faculty/hamiltonb/wpapers/Infertility%20Treatment%20Markets.pdf) ("Access to ART is a central issue in infertility treatment because of the large difference between the number of American couples who report reproductive difficulties and those who use ART.").
32. See BARTHOLET, supra note 12, at 30-32 ("The adoption world does essentially nothing to reach out to the infertile to educate them about adoption possibilities."). For barriers to adoption compared to reproductive medicine, see Appleton, supra note 12, at 444-46.
33. See ROBERTS, supra note 7, at 251-64 (stating "[b]lacks make up a disproportionate number of infertile people avoiding reproductive technologies" and reviewing reasons beyond economic factors)
34. Daar, supra note 8, at 34-40 (including among barriers to access psychological factors and some discrimination against certain groups)
35. see also Hamilton & McManus, supra note 17, at 3-4 (discussing how increased competition between clinics is an alternative method of expanding access, although effects are not identical)
36. See SPAR, supra note 1, at 30 ("In this market. .. price acts harshly as a constraint on demand.").
37. I.R.S. Publication 502 (2008), available at http://www.irs.gov/publications/p502/index.html (reporting that deductible expenses include procedures to "overcome an inability to have children" including "[p]rocedures such as in vitro fertilization (including temporary storage of eggs or sperm)" and reversal surgery and other procedures). Medical care is "the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body." 26 U.S.C. § 213(d)(1)(A) (2006).
38. See generally Katherine T. Pratt, Inconceivable? Deducting the Costs of Fertility Treatment, 89 Cornell L. Rev. 1121 (2004) (discussing the taxation of fertility treatment costs)
39. Anna L. Benjamin, Note, The Implications of Using the Medical Expense Deduction of I.R.C. 213 to Subsidize Assisted Reproductive Technology, 79 Notre Dame L. Rev. 1117 (2004) (addressing the implications of using the medical-expense deduction to subsidize fertility treatments).
40. For taxable years beginning in 2008, the maximum federal adoption tax credit is $11,650. 26 U.S.C. § 23(b)(1) (Supp. II 2008)
41. Rev. Proc. 2007-66, 2007-45 I.R.B. 3-4.
42. This adoption tax allowance is a credit against taxes due under the Internal Revenue Code. § 23(a)(1). It can be carried forward if a portion of the credit is unused, but it is not "refundable." § 23(c)(1). The tax credit starts phasing out for taxpayers with modified adjusted gross income exceeding $174,730 and is completely phased out if income exceeds $214,730. Rev. Proc. 2007-66, 2007-45 I.R.B. 4.
43. Maldonado, supra note 14, at 1441 n.124.
44. By recent counts, about a quarter of health-insurance plans cover some fertility diagnoses or treatments. Lucie Schmidt, Effects of Infertility Insurance Mandates on Fertility, 26 J. Health Econ. 431, 432 (2007)
45. see also Monahan, supra note 9, at 30 (offering estimates of large-employer coverage for various diagnoses and treatments of infertility)
46. See Nat'l Conference of State Legislatures, 50 States Summary of State Laws Related to Insurance Coverage for Infertility Therapy (2008), available at http://www.ncsl.org/programs/health/50infert.htm
47. American Society of Reproductive Medicine, Frequently Asked Questions About Infertility, http://www.asrm.org/Patients/faqs.html#Q8 (last visited June 23, 2008) (listing fourteen states whose laws "require insurers to either cover or offer to cover some form of infertility diagnosis and treatment").
48. Peter J. Neumann, Should Health Insurance Cover IVF? Issues and Options, 22 J. Health Pol. Pol'y & L. 1215, 1217 (1997)
49. Sonia L. Nazario, Infertility Insurance Gains Backing, WALL ST. J., Dec. 5, 1989.
50. For a discussion of the efforts to characterize infertility as a disease, see Margarete Sandelowski & Sheryl de Lacey, The Uses of a "Disease": Infertility as a Rhetorical Vehicle, in Infertility Around the Globe: New Thinking on Childlessness, Gender, and Reproductive Technologies 33, 36-37 (Marcia C. Inhorn & Frank van Balen eds., 2002).
51. See, e.g., Neumann, supra note 27, at 1216-17 (reviewing studies).
52. See Amy Monahan, Federalism, Federal Regulation, or Free Market? An Examination of Mandated Health Benefit Reform, 2007 U. ILL. L. REV. 1361, 1371. About eighty-five percent of companies with more than 1000 employees self-insure, and, overall, self-insuring companies account for half the workforce employed by companies offering health insurance.
53. Christina H. Park, Prevalence of Employer Self-Insured Health Benefits: National and State Variation, 57 Med. Care Res. & Rev. 340, 347 (2000).
54. Mandated coverage faces objections not specific to reproductive medicine. See Clark C. Havighurst & Barak D. Richman, Distributive Injustice(s) in American Health Care, 69 Law & Contemp. Probs. 7, 62 (Autumn 2006) (discussing the role of mandates in raising costs and mandates as the product of special-interest lobbying "in an atmosphere of general consumer-voter disinterest")
55. Barak D. Richman, Insurance Expansions: Do They Hurt Those They Try To Help?, 26 Health Aff. 1345, 1348 (2007) (finding that mandated insurance coverage did not equalize the use of pharmaceutical and mental-health services among vulnerable populations).
56. See Neumann, supra note 27, at 1218-19 ("An emotional debate has attended the issue of health insurance coverage for IVF.")
57. Carson Strong, Too Many Twins, Triplets, Quadruplets, and So On: A Call for New Priorities, 31 J.L. Med. & Ethics 272, 276 (2003) ("Particularly relevant is the fact that millions of people in the United States lack health insurance and do not qualify for Medicaid or Medicare.").
58. See BARTHOLET, supra note 12, at 211-12 (lamenting that the "significant IVF-related regulatory move" has been coverage mandates rather than imposing stricter regulations on IVF)
59. ROBERTS, supra note 7, at 290
60. see also BARTHOLET, supra note 12, at 34-35 (describing how society gives "preferred treatment to those who choose child production over child adoption")
61. Neumann, supra note 27, at 1225-26, 1232 ("Any decision by health insurers regarding IVF has implications for adoption.").
62. See generally Appleton, supra note 12, at 427, 428-31 (discussing barriers to adoption that do not exist for reproductive medicine and the possibility that they affect demand)
63. See, e.g., ROBERTS, supra note 7, at 291 ("Research designed to reduce infertility, programs that facilitate adoption, and the general provision of basic human needs are examples of expenditures that would help a far broader range of people than IVF.")
64. Heitman, supra note 16, at 96-97 (conceptualizing infertility as a public-health problem)
65. Some of the controversy relates to the use of extra fertilized eggs that will not be discussed here. See, e.g., Steven Goldberg, Technology Unbound: Will Funded Libertarianism Dominate the Future?, 18 Stan. L. & Pol'y Rev. 21, 27-28 (2007) ("To many Americans, a 'spare embryo' is a human life. As a result, discarding an embryo is entirely unacceptable.").
66. See, e.g., THOMPSON, supra note 5, at 56 ("Feminists are well placed to understand the special burden that involuntary childlessness places on women, but they are ambivalent about supporting women who seek infertility treatments because of the implicit support that this seems to lend to conventional gender roles and gendered stratification.")
67. Lyria Bennett Moses, Understanding Legal Responses to Technological Change: The Example of In Vitro Fertilization, 6 Minn. J.L. Sci. & tech. 505, 522-23 (2005) (reviewing Catholic objections to IVF).
68. See Mary Crossley, Dimensions of Equality in Regulating Assisted Reproductive Technologies, 9 J. Gender Race & Just. 273, 285 (2005) (discussing trait-selection practices)
69. Goodwin, supra note 7, at 31 (discussing the use of procedures to choose sex and features of children)
70. King, supra note 6, at 285 ("The technology has been a godsend to couples with family histories of genetic disorders and chromosomal mutations causing infertility. However, expanding its use to permit prospective parents to select embryos based on a wide array of genetic characteristics presents substantial risks to individuals involved in the procedure and to society as a whole.").
71. See, e.g., Goodwin, supra note 7, at 22 ("Despite its popularity, ART is a gamble: there are no guarantees of pregnancy (although some doctors make exaggerated claims that they can help 95% of patients conceive).")
72. Neumann, supra note 27, at 1230 ("The concern has been compounded by the fact that programs have used varying definitions of what constitutes a success: some programs have defined a success as a "live birth," while others have used a 'pregnancy,' whether or not the pregnancy came to term.")
73. Noah, supra note 8, at 614 (describing "questions. .. about the accuracy of promotional claims made by fertility clinics")
74. Strong, supra note 33, at 272 (describing "misleading advertising by some infertility programs, particularly in regard to pregnancy success rates")
75. See ROBERTS, supra note 7, at 248-49 (noting how "arduous" the IVF process is, "usually followed by heartbreaking disappointment," the physical and emotional trauma of which concerns many feminists)
76. Charis Cussins, Producing Reproduction: Techniques of Normalization and Naturalization in Infertility Clinics, in Reproducing Reproduction 66, 74 (Sarah Franklin & Helena Ragoné eds., 1998) ("Infertility clinics expect infertility treatments to be stressful, and almost all clinics have in-house psychologists to counsel patients (at an additional cost).")
77. Heitman, supra note 16, at 95 (discussing how disappointed expectations compound the trauma of fertility barriers)
78. Sandelowski & de Lacey, supra note 27, at 38 (reviewing research on the impact of failure at various phases of treatment)
79. See, e.g., Hamilton & McManus, supra note 17, at 4 (calling multiple births "socially expensive and dangerous")
80. Heitman, supra note 16, at 95 ("The growing use of infertility treatments nationwide has been associated with a marked rise in the number of multiple-gestation pregnancies and an attendant incidence of related complications and costs for mothers and babies.")
81. Moses, supra note 38, at 583-84 (discussing the relationship between multiple birth and health risks)
82. Neumann, supra note 27, at 1226 (discussing health risks to the mother)
83. John Robertson, Procreative Liberty and Harm to Offspring in Assisted Reproduction, 30 Am. J.L. & Med. 7, 10 (2004) ("The most serious health problem posed by assisted reproduction is the high rate of multiple gestations.")
84. Strong, supra note 33, at 272 (discussing multiple births and their consequences, and positing that the problem is that "too much weight is given to the autonomy of infertile couples and not enough to the interests of the children.")
85. see also Cussins, supra note 41, at 75 ("The rigors of repeated invasive techniques and hormonal hyperstimulation on women, and the associated culture of perseverance, have been much criticized in infertility medicine.")
86. King, supra note 6, at 308 (discussing health risks to the mother in an unsuccessful pregnancy)
87. Wilson, supra note 12, at 344-47 (discussing literature on the risks to children born through IVF or ISCI). Some studies show a lower rate of multiple births when intended parents have insurance coverage for assisted reproduction. See THOMPSON, supra note 5, at 4 tbl.1.1 (reviewing data)
88. Strong, supra note 33, at 275 ("The study found that in the states with comprehensive coverage there was a statistically significant decrease in the number of preembryos per transfer and the multiple birth rate per transfer cycle.").
89. See, e.g., Goodwin, supra note 7, at 3-4 ("Largely ignored are agency, financial incentives, choice, and the health risks associated with the technology.")
90. Moses, supra note 38, at 584 (discussing the health problems and financial burdens of multiple births)
91. Noah, supra note 8, at 619-24 (describing the problems with multiple births, low birth weight, and prematurity)
92. See, e.g., Goodwin, supra note 7, at 22 ("Despite its popularity, ART is a gamble. .. .")
93. Neumann, supra note 27, at 1219 (noting others who have referred to IVF use as gambling)
94. David Schmittlein & Donald Morrison, A Live Baby or Your Money Back: The Marketing of In Vitro Fertilization Procedures, 49 MGMT. Sci. 1618, 1619 (2003) (referring to couples considering IVF as "placing the largest-scale single [financial] gamble of their lives").
95. Some mandate legislation prohibits higher cost-sharing for fertility treatments than for other medical services, but does not prohibit cost-sharing altogether. See, e.g., Family Building Act of 2007, H.R. 2892, 110th Cong. § 2707(c) (2007)
96. Jessica S. Banthin et al., The Financial Burden of Health Care 2001-2004, Health Aff., Jan. 2008, at 188, 190 (reporting on the increase in financial burden from health care being driven by people with private insurance).
97. See, e.g., Cussins, supra note 41, at 72 (reporting from clinic observation that "[i]f you are not covered for the treatment and are not prepared verbally to attest that you can personally cover the costs, no scheduling will occur. If you have been seen but have reneged on a payment, no subsequent appointments will be made either.")
98. Judith F. Daar, Regulating Reproductive Technologies: Panacea or Paper Tiger?, 34 Hous. L. Rev. 609, 661-62 (1997) ("[C]onsumers largely pay cash for services rendered[;]... in most cases patients either pay cash or use credit cards for all services....")
99. Noah, supra note 8, at 607, 616 (referring to reproductive technology as being in a market in which most patients pay out of pocket in full)
100. Barton H. Hamilton & Brian McManus, Technology Diffusion and Market Structure: Evidence from Infertility Treatment Markets 3, 8 (Sept. 2005) (unpublished article), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=813826 (describing how the fertility market is a health-care market based on direct patient payments).
101. See Goodwin, supra note 7, at 50-51 ("Indeed, that thousands of infertile couples annually pay out-of-pocket costs for assisted conception technologies further demonstrates the demand for such services.").
102. See THOMPSON, supra note 5, at 63 tbl.2.1 (describing package deals and refund programs that charge $27,000 for three rounds of IVF and refund $20,000 if the patient is not pregnant within a year)
103. id. at 237 (discussing flat-fee unlimited-service plans). The American Medical Association Code of Medical Ethics generally discourages making fees contingent on the successful outcome of medical treatment. See American Medical Association Code of Medical Ethics Opinion 6.01 (1994). For a critique of that position, see David A. Hyman & Charles Silver, You Get What You Pay For: Result-Based Compensation for Health Care, 58 Wash. & Lee L. Rev. 1427 (2001).
104. See Schmittlein & Morrison, supra note 44, at 1618, 1632 ("Our analysis suggests that guarantees... are made economically viable for clinics by pursuit of less-infertile couples who are in the beginning stages of fertility assistance, rather than using IVF as a 'last resort' as had been the case previously.")
105. id. at 1619 ("The guarantees are viable if new, relatively fertile couples are induced to proceed directly to IVF instead of trying natural conception or less invasive procedures. For these couples, on standard economic bases, these IVF 'guarantees' are not a good deal.").
106. See generally Noah, supra note 8, at 613 (discussing whether some doctors start treating infertility too early). Cf. Lisa Barrett Mann, A Baby, or Cash Back: Some IVF Centers Offer Risk-Sharing Deals, Wash. Post, May 18, 2004, at HE01 (reporting that encouraging earlier IVF increases the chances of success). But see David A. Hyman & Charles Silver, supra note 49, at 1469 (critiquing Schmittlein and Morrison's interpretation of their results).
107. IntegraMed claims that one out of five IVF procedures in the United States is performed by an associated fertility practice. Press Release, IntegraMed America, Inc., IntegraMed President & CEO Jay Higham Named Ernst & Young Metro New York Entrepreneur of the Year 2008 Award Winner (June 30, 2008), available at http://www.reuters.com/article/pressRelease/idUS95456+30-Jun-2008+BW 20080630. IntegraMed's recent SEC filing describes two relevant divisions as follows: Our Fertility Centers Division is comprised of a provider network of 10 contracted fertility centers located in major markets across the United States. We offer products and services to these providers designed to support the fertility centers' growth. This division also supports a Council of Physicians and Scientists, as well as ARTIC, a captive insurance company which provides malpractice insurance to member physicians. Our Consumer Services Division offers products directly to fertility patients. The division's Shared Risk(R) Refund and financing programs are designed to make the treatment process easier and more affordable for patients. As of June 30, 2008, the division maintained a contracted network of 22 independent fertility clinics under its Affiliate program which is designed to distribute the division's products and services to a wider group of patients than just those serviced by our Fertility Center locations. The division also offers fertility medications directly to patients via a competitively priced mail-order pharmacy. IntegraMed, Quarterly Report (Form 10-Q), at 8 (June 30, 2008). See generally Greg Borzo, National Networks Try to Attract Infertility Patients, OB/GYN NEWS, Feb. 15, 2001, at 1
108. Marilyn Case, Doctors Begin Offering Creative Payment Plans for Fertility Treatment, Wall. ST. J., Sept. 8, 2000, at B1. IntegraMed collects accounts receivable for the clinics in its network. See IntegraMed, Quarterly Report (Form 10-Q), at 23 (June 30, 2008).
109. IntegraMed, Quarterly Report (Form 10-Q), at 18 (June 30, 2008). IntegraMed's secondquarter profits in 2008 rose forty-six percent. See Market Watch, IntegraMed Q2 Revenue Grows 46%, Drives 19% Rise in Net Income, http://www.reuters.com/article/pressRelease/idUS132468+31-Jul-2008+BW20080731(last visited Sept. 18, 2008).
110. ARC reports that its associated clinics represent thirty-five percent of the IVF market. Advanced Reproductive Care, ARC's Background, http://www.arcfertility.com/employers/back grounder.html (last visited Sept. 18, 2008).
111. See, e.g., Ewing v. Ewing, No. 06-CA-148, 2007 WL 4563458, at *1 (Ohio Ct. App. Dec. 20, 2007) (using the mother's money to partially finance fertility treatments)
112. Robert J. Stillman, A 47-Year-Old Woman with Fertility Problems Who Desires a Multiple Pregnancy, 297 J. Am. Med. ASS'N 858, 859 (2007) ("I did have an insurance carrier that covered my first couple of IVF treatments. But after that, they're not covering anything anymore. So I have had to, you know, get some money from some of my relatives.")
113. Esther B. Fein, Calling Infertility a Disease, Couples Battle with Insurers, N.Y. TIMES, Feb. 22, 1998, §1, at 1 ("If [couples with fertility problems] can, they usually then borrow from relatives or friends.")
114. Nat'l Endowment for Fin. Educ., How to Make Adoption an Affordable Option 36-37, available at http://www.smartaboutmoney.org/nefe/uploadfiles/Adoption Option.pdf [hereinafter NEFE] (listing relatives as a source of adoption financing).
115. See, e.g., Ewing, 2007 WL 4563458, at *16 (describing how funds for IVF were drawn from a 401(k) account, a life insurance policy, and a gift from the mother). The National Endowment for Financial Education lists loans against retirement funds as a source of adoption cash, but also notes the risks to long-term financial stability. NEFE, supra note 54, at 36-37
116. see also Mary Jo Feldstein, Creative Financing Plans Aimed at Steep Infertility Treatment Costs, St. Paul Pioneer Press (Minn.), Sept. 3, 2006, at 7E [hereinafter Feldstein, Creative Financing Plans]
117. Mary Jo Feldstein, The Cost of Conception, St. Louis Post-Dispatch, Aug. 6, 2006, at A1 [hereinafter Feldstein, The Cost of Conception] (discussing the use of savings to pay for $40,000 to $50,000 in fertility treatments).
118. In re Pisko, 364 B.R. 107, 110 (Bankr. M.D. Fla. 2007) (adjudicating the case of a couple who sold their house and used $12,000 of the proceeds to pay for Honduran adoption expenses rather than for delinquent federal taxes).
119. See, e.g., Fein, supra note 54 (describing a "drug cooperative for needy, infertile women from the local Orthodox Jewish community").
120. See Russell Korobkin, Buying and Selling Human Tissues for Stem Cell Research, 49 ARIZ. L. REV. 45, 51 n.35, 54, 58 (2007) (discussing discounted fees for "oocyte sharing")
121. id. at 65 (noting that the United Kingdom disallows payment for eggs but permits reduced-price treatments to egg donors)
122. see also Bartholet supra note 12, at 221 ("Patients in some programs pay for part of their treatment by agreeing to surrender some of the eggs or embryos that they produce for use by others.")
123. Thompson, supra note 5, at 257 (discussing example from Brazil)
124. Appleton, supra note 12, at 422 (citing examples of "egg sharing" financing)
125. June Carbone & Paige Gottheim, Markets, Subsidies, Regulation, and Trust: Building Ethical Understandings into the Market for Fertility Services, 9 J. Gender Race & Just. 509, 515 (2005) (noting that obtaining additional unused eggs from women undergoing IVF often involves "less inconvenience and expense" than purchasing them from other donors)
126. Roberts, supra note 17, at 941 (same); IntegraMed Fertility Network, Shared Risk for IVF Treatment Plan-Boost success and control IVF costs, http://www.integramed.com/inmdweb/content/cons/shared.jsp (last visited Sept. 18, 2008).
127. See Janet L. Dolgin, The Evolution of the "Patient": Shifts in Attitudes About Consent, Genetic Information, and Commercialization in Health Care, 34 Hofstra L. Rev. 137, 176 (2005) (citing Antonio Regalado, Clinical Trials Offer In-Vitro at a Discount, Wall St. J., Jan. 13, 2004, at D1).
128. See, e.g., Child Welfare Information Gateway, Military Families and Adoption, http://www.childwelfare.gov/pubs/f_milita.cfm (last visited June 24, 2008) (discussing the adoption subsidy for military families).
129. See, e.g., Chen May Yee & Josephine Marcotty, Miracles for Sale: With Rising Competition, Some IVF Clinics Are Offering Money-Back Guarantees and Going Farther Afield to Look for Patients, Minn. Star Trib., Oct. 22, 2007 (reporting on one person who "cleaned out" FSA in addition to a "medical loan").
130. See, e.g., Feldstein, supra note 54 (discussing working extra shifts to finance fertility treatments).
131. See, e.g., Buy For Charity, http://www.buyforcharity.com/ (last visited Sept. 18, 2008)
132. iGive.com, http://www.igive.com/welcome/ (last visited Sept. 18, 2008)
133. One Cause, http://www.onecause.com/ (last visited Sept. 18, 2008).
134. Colleen M. v. Fertility & Surgical Assocs. of Thousand Oaks, 132 Cal. App. 4th 1466, 1470 (Cal. Dist. Ct. App. 2005).
135. Guyerson v. Colorado, 85 P.3d 1073, 1075 (Colo. 2004). Although later reinstated, Guyerson originally was disbarred.
136. See Colorado v. Guyerson, 898 P.2d 1062, 1064 (Colo. 1995).
137. See Douglas Baird, Technology, Information, and Bankruptcy, 2007 U. ILL. L. REV. 305, 310 (discussing the benefits of a constant standard of living over years of fluctuating income)
138. see also Eric Belsky & Ren Essene, Harv. Univ., Joint Ctr. for Hous. Studies, Consumer Mortgage Credit at a Crossroads: Preserving Expanded Access While Informing Choices and Protecting Consumers (2008) (reviewing economic literature). According to the latest Survey of Consumer Finance data, the percentage of households with any type of debt-the most prevalent of which were home mortgages and installment loans (such as student and car loans)-reached 76.4 in 2004.
139. BRIAN K. BUCKS, Arthur B. Kennickell & Kevin B. Moore, Fed. Reserve BD., Recent Changes in U.S. Family Finances: Evidence from the 2001 and 2004 Survey of Consumer Finances A25-A30 (2006), available at http://www.federalreserve.gov/pubs/oss/oss2/2004/bull0206.pdf.
140. See, e.g., Ewing v. Ewing, No. 06-CA-148, 2007 WL 4563458, at *6 (Ohio Ct. App. Dec. 20, 2007) (involving an intended parent using a home-equity line of credit to finance fertility treatments)
141. SPAR, supra note 1, at 4; Feldstein, Creative Financing Plans, supra note 55 (reporting on the use of home-equity lines for fertility treatments)
142. Feldstein, The Cost of Conception, supra note 55 (same)
143. Justin Martin, A Baby or Your Money Back: Dr. Geoffrey Sher's Fertility Clinics Promise Results and Deliver Profits. Some Rivals Find His Methods Unseemly. Others Imitate Them, Fortune, Nov. 10, 2003 (discussing how a couple used a second mortgage to pay for an "outcome-based" assistedreproduction plan)
144. Laurence Zuckerman, Couple Now Has No Savings, More Debt and Little Hope of Having a Baby, N.Y. Times, Jan. 9, 1996, § 1, at 39 (reporting that $12,000 of a home-equity line of credit was used for gamete intrafallopian transfer plus embryo preservation)
145. Some Discover Hopes of Family Lie with Insurer, Augusta Chron., Oct. 31, 2007, at A22 (reporting on the use of home-equity loans before changes in insurance to cover $20,000 of IVF).
146. See, e.g., In re Pobiner, 309 B.R. 405, 413 (Bankr. E.D.N.Y. 2004) (discussing a $1685-permonth credit-card obligation for fertility treatments)
147. Daar, supra note 47, at 661-62 (describing how "patients either pay cash or use credit cards for all services")
148. Fein, supra note 54; Martin, supra note 67 (discussing the use of credit cards to pay for an "outcome-based" plan)
149. Liza Mundy, A Special Kind of Poverty: The Poor Get Used to Going Without. But Going Without a Baby is Hard to Get Used To, Wash. Post, Apr. 20, 2003, at W8
150. Zuckerman, supra note 67; Some Discover Hopes of Family Lie with Insurer, supra note 67 (reporting how a woman used credit cards before her husband's insurance changed to cover $20,000 of IVF)
151. See, e.g., Goodwin, supra note 7, at 34 (referring to an IntegraMed advertisement for loan terms)
152. Gena Kittner, Special Place in Brooklyn for Family; The Klahn Family Is Preparing Their Home for Four Siblings They Are Adopting from Russia to Join a Son Adopted Seven Years Ago, WIS. STATE J., Apr. 1, 2001, at A1 (reporting that a family took a $65,000 loan to adopt children from Russia). To supplement these observations, I combined other research paths with a review of the Web sites of Spar's list of top fertility clinics and representative adoption agencies, as well as those of IntegraMed and ARC, for loan information. See SPAR, supra note 1, at 54 tbl.2-1 (listing the top twenty U.S. clinics by number of IVF cycles performed in 2002)
153. id. at 179 tbl.6-1, 184 tbl.6-2 (listing typical domestic and international fees at adoption agencies). These observations are discussed in section III.
154. Case # W3-0938H, 2007 Consumer Bankruptcy Project (on file with author)
155. Pobiner, 309 B.R. at 413. This debtor sought to discharge student loans under 11 U.S.C. § 523(a)(8) (2000) and the judge denied the request. This was based in part on the judge's assessment that fertility and adoption expenses did not relate to maintaining a minimal standard of living, which is part of the undue-hardship test. Id.
156. In re Bayless, 264 B.R. 719, 721 (Bankr. W.D. Okla. 1999). The court sustained American Express's objection to the proposed fertility expenditure, denied confirmation of the plan, and dismissed the case: The Court can find no reported cases on the question of elective or discretionary medical treatments of any variety being funded through a Chapter 13 plan. This Court refuses to approve a plan that requires unsecured creditors to subsidize fertility treatments. While having children is a major life activity, it is not a necessary one, or one that cannot be postponed. On the contrary, in the modern era, it is simply another lifestyle choice. Id. at 721.
157. See MARK C. MEYER, Filene Research Inst., Lifestyle Lending Offers Innovation and Growth for Credit Unions 6, 8 (2005) (proposing that credit unions make loans for both adoption and fertility treatments).
158. According to Spar, During the course of fertility treatment... doctors do not typically suggest alternatives to their own form of treatment; they rarely advise their patients to contemplate adoption, foster care, or living without children. Such options simply are not within the confines of their profession: even though they are actually in the business of providing children for parents to raise, they define their role as curing infertility. SPAR, supra note 1, at 208-09
159. see also THOMPSON, supra note 5, at 95 (reporting on the sense among women in treatment that there always was something new to try, making it very difficult to stop treatment until a doctor declared options exhausted or finances lapsed)
160. Neumann, supra note 27, at 1225 (talking about how doctors treat the desire for a child as a medical problem rather than as a social problem that can be addressed in other ways)
161. See Roxanne Nelson, Financing Infertility, CNN.com, May 19, 1999, http://www.cnn.com/Health/women/9905/19/financing.infertility/ (noting that clinics experienced low collection rates when people were billed later-especially in the absence of a live birth).
162. See The Coker Group, Maximizing Billing and Collections in the Medical Practice 43 (Am. Med. Ass'n 2007)
163. see also Rhonda L. Rundle & Paul Davies, Hospitals Start to Seek Payment Upfront, WALL ST. J., June 2, 2004, at D1.
164. For an example of unpaid reproductive medical expenses of over $12,000 in a marriagedissolution case, see Darbelli v. Korbeh, No. FA044000730, 2005 WL 1219732, at *1-*2 (Conn. Super. Ct. 2005) (allocating those expenses to the husband who sought divorce due to wife's inability to bear children). See also Jane Gross, The Fight to Cover Infertility
165. Suit Says Employer's Refusal to Pay Is Form of Bias, N.Y. TIMES, Dec. 7, 1998, at B1 (reporting on a patient paying a few hundred dollars per month on a debt of $10,000 to a fertility doctor who refuses to treat without payment); cf. Cussins, supra note 41, at 72.
166. See Company Report for Capital One Healthcare Finance, Osiris, Jul. 10, 2008 (on file with Law and Contemporary Problems). The Healthcare Finance subsidiary reported operating revenue of $30.3 million in 2006 but does not separately list fertility revenue. Id.
167. Capital One Fertility, http://www.capitalonehealthcarefinance.com/fertility/ (last visited Feb. 19, 2009)
168. Prominent clinics that link to or mention Capital One Fertility include Boston IVF, Highland Park IVF Center, Shady Grove Reproductive Science Center, Cooper Center for In Vitro Fertilization, Reproductive Biology Associates, Midwest Reproductive Medicine, Fertility Center of New England, Inc., and the New England Clinic of Reproductive Medicine. The Center for Advanced Reproductive Services at the University of Connecticut offers low-interest loans of up to $25,000 that appear to be funded by Capital One Fertility. The Center for Advanced Reproductive Services, Financial Counseling, http://www.uconnfertility.com/programs_patient.htm (last visited Sept. 18, 2008).
169. ARC features an "affordable monthly payment plan" that is a Capital One Fertility loan. ARC Affordable Payment Plan, http://www.arcfertility.com/family_building/financial_services.html. IntegraMed offers "infertility financing" that is administered and offered by Capital One (last visited Feb. 19, 2009)
170. see also IntegraMed, Infertility Financing-Apply for a Loan Now, http://www.integra_medfertility.com/inmdweb/content/cons/financingpartners.jsp (last visited Feb. 19, 2009)
171. Goodwin, supra note 7, at 34 (reporting on how the IntegraMed Web site encourages people to finance fertility treatments with loans)
172. IntegraMed Fertility Network, Finance-Application Form, https://integramed.feeplan.com/form.asp?Plan=FFP&currPage=0 (last visited Sept. 18, 2008)
173. see also Kathleen Kerr, Boom in the Baby Business, Newsday, Oct. 18, 2007, at A42 (discussing loan terms).
174. Capital One's Web site lists doctors by geography. See Capital One Healthcare Finance, Find A Doctor, http://www.capitalonehealthcarefinance.com/fertility/find.asp (last visited Sept. 18, 2008).
175. Feldstein, The Cost of Conception, supra note 55
176. Feldstein, Creative Financing Plans, supra note 55
177. Capital One HealthCare Finance, Fertility, http://www.capitalonehealthcarefinance.com/fertility/ (last visited Sept. 18, 2008).
178. Capital One HealthCare Finance, Fertility, supra note 87
179. See Neumann, supra note 27, at 1226 (comparing costs based on the likelihood of becoming a parent through adoption and IVF)
180. At least one sperm bank uses the CareCredit payment plan. Rene Almeling, Selling Genes, Selling Gender: Egg Agencies, Sperm Banks, and the Medical Market in Genetic Material, 72 AM. SOC. REV. 319, 333 (2007)
181. see, e.g., CareCredit, The Choice Is Yours, http://www.carecredit.com/other/whycc.html (last visited Sept. 18, 2008)
182. see also PFS Patient Financing Home Page, http://www.p-f-s.com/ (last visited Sept. 18, 2008)
183. PFS Patient Financing, What We Do, http://www.p-f-s.com/consumer/ (last visited Sept. 18, 2008) (noted by some fertility clinics as providing loans, but on the Web site also advertising loans for "liposuction, hair restoration, and facelifts, as well as cosmetic and implant, and orthodontic dentistry, laser vision correction, dermatology, orthotics and prosthetics, home health equipment, bariatric treatments, behavioral medicine").
184. See MEYER, supra note 73 (discussing fertility lending as part of a lifestyle lending portfolio)
185. SPAR, supra note 1, at 217-24 (spelling out several alternative models, including the luxury model, for the regulation of the baby business)
186. In re Bayless, 264 B.R. 719, 721 (Bankr. W.D. Okla. 1999) (referring to the use of assisted reproduction as a "lifestyle choice").
187. The Institute for Reproductive Medicine and Science of Saint Barnabas, Financial Information, http://www.sbivf.com/financial_information.htm (last visited Sept. 18, 2008). Like some other financiers, PFS's business is not limited to fertility customers. See PFS Patient Financing Home Page, supra note 90.
188. The World Egg Bank, Recipient's Finance Option, http://www.theworldeggbank.com/The%20World%20Egg%20Bank/Recipients/egg-recipient-finance.aspx (last visited Mar. 26, 2009). The program is available to U.S. residents only. Id.
189. The World Egg Bank, Fee Schedule, http://www.theworldeggbank.com/The%20World%20Egg%20Bank/Recipients/egg-recipient-fee-schedule.aspx (last visited Mar. 26, 2009).
190. See Fein, supra note 54 (reporting on the relationship). "Brooklyn IVF" may now be "Genesis Fertility & Reproduction Medicine," a member of IntegraMed.
191. See Amy Waldman, For Childless Orthodox Jews, Fertility Treatment Is No Simple Solution, N.Y. Times, Aug. 10, 1997, § 13, at 8 (describing Dr. Richard V. Grazi as the "director of Brooklyn IVF, an infertility clinic")
192. Genesis Fertility & Reproduction Medicine, Meet Our Team, http://genesisfertility.com/index.html (last visited Sept. 11, 2008) (including Dr. Grazi).
193. This clinic notes this financing in connection with two "unlimited service" plans: The FertileCare Gold Plan (Two Years) and the Preferred Plan (One Year). Babies by Levin, FertileCare Physician Service Agreement, http://www.babies-by-levin.com/psc_3.htm (last visited Sept. 18, 2008) (advertising a flat fee for unlimited services for one or two years). The Web site says the alternative is to "pay as you go" and "take your chances with your insurance." Id. For patients who purchase tubalreversal surgery, this provider also offers free fertility treatments. Babies by Levin, Reversal Pricing, http://www.babies-by-levin.com/rev_10.htm (last visited Sept. 18, 2008).
194. Babies by Levin, Payment Options, http://www.babies-by-levin.com/finance.htm (last visited Feb. 19, 2009).
195. A patient pays twenty-four monthly installments of $291.67 for an in-patient procedure or $258.33 for an out-patient procedure. Id. Higher-weight patients may have to pay more. Babies by Levin, Weight Table, http://www.babies-by-levin.com/prepay24.htm (last visited Sept. 12, 2008). This provider also offers a "Fast-Track" program for patients who want tubal-ligation reversal quickly. Babies by Levin, Tubal Reversal-Fast-Track, http://www.babies-by-levin.com/fast_track.htm (last visited Sept. 11, 2008). A nonrefundable half of the cost must be paid to lock in the date. Id. The balance is due one week before the procedure. Id. "If the balance of the fee is not paid at that time and in that fashion then the procedure will be cancelled and will not be rescheduled." Id.
196. First National Bank, Fertility Loan "The First of Its Kind," http://www.fnb.com.lb/template. asp?id=170 (last visited Mar. 26, 2009).
197. Hayeon Lee, A Fertile Market: A Controversial New Loan Helps Lebanese Couples Conceive, Now Lebanon, Aug. 25, 2008, available at http://www.nowlebanon.com/NewsArticleDetails.aspx?ID= 56159.
198. National Council for Adoption, Financing Your Adoption, https://www.adoptioncouncil.org/resources/fianance_adoption.html (last visited Sept. 18, 2008).
199. National Adoption Foundation, Apply for a Card, http://www.nafadopt.org/NAF-credit-card/NAF-credit-card.shtml (last visited Sept. 18, 2008). 106. Id.
200. Bank of America, GoldOption Flexible Line of Credit, http://www.fialoans.com/Gold Option/NationalAdoption/ (last visited Sept. 18, 2008).
201. National Adoption Foundation, Apply for a Card, supra note 105
202. See, e.g., Dave Thomas Foundation for Adoption, Adoption Resources, http://www.dave thomasfoundation.org/Adoption-Resources/Adoption-Links#CMSNestedLinks_Id4 (linking to Bank of America)Wide Horizons for Children, Adoption ABC's: General Adoption Funding Sources, http://www.whfc.org/basics/FundingResources.htm (last visited Sept. 18, 2008) (linking to the National Adoption Foundation and the National Council for Adoption's loan programs with consumer-credit providers).
203. Families Thru International Adoption, Grant and Loan Resources, http://www.ftia.org/grants loans.asp (last visited Sept. 18, 2008). The Web site did not list terms.
204. Maps Adoption and Humanitarian Aid, Financial Aid for Adoption, http://www.mapsadopt. org/adoption/financialaid.html (last visited Sept. 18, 2008).
205. American Adoptions, Financial Resources, http://www.americanadoptions.com/adopt/cost_ resources#adoption (last visited Sept. 18, 2008)
206. see also Jeanie Wyatt, More than Money: Adoption Requires Financial Juggling, San Antonio Express, Dec. 18, 2006, at 1E (recommending that potential users investigate loans carefully).
207. The interest rate on a nine-year loan is 0% for three years, 3% for three years, and 6% for three years. Oxford Adoption Foundation, Inc., Application Process, http://www.oxfordadoption.com/application.htm (last visited Sept. 18, 2008)
208. Oxford Adoption Foundation, Inc., Promissory Note, http://www.oxfordadoption.com/promissory.pdf (last visited Sept. 18, 2008). In addition to basic financial information, the application requires a letter of introduction that includes family information, reasons for adopting, and reasons for seeking a low-interest loan.
209. I've found none that contemplate reproductive materials or babies as collateral, as scholars sometimes imagine. See Kevin H. Smith, Security Interests in Human Materials, 28 Hofstra L. Rev. 127, 131 (1999) (hypothesizing human eggs as collateral and the steps needed for secured creditors to take possession under Article 9 of the Uniform Commercial Code).
210. Dave Thomas Foundation for Adoption: Finding Forever Families for Children in Foster Care, http://www.davethomasfoundation.org (last visited Feb. 19, 2009). This foundation pledges not to discriminate on the basis of sexual orientation, marital status, or other such criteria. Id.
211. Chase, Chase New Additions (on file with Law and Contemporary Problems)
212. See Chase, Chase Home Equity Loan Application, http://www.chase.com/ccpmweb/home_ equity/document/heapplication.pdf (last visited Sept. 18, 2008).
213. For current gaps in supply and demand of children for adoption, see Erwin A. Blackstone et al., Market Segmentation in Child Adoption, 28 Int'l REV. L. & ECON. 220, 220 (2008) (observing a mismatch between supply and demand and proposing that surpluses from adoptions of healthy white babies be used to subsidize adoptions of children less in demand)
214. Krawiec, supra note 11, at 60 ("Perhaps, in the absence of a sufficient number of healthy, white infants, prospective parents would be forced into the only sector of the baby trade that, sadly, does not suffer from a shortage of supply-the state-run foster care system, through which a disproportionate number of older, minority, and special needs children are available.").
215. China Care, Financial Aid for American Adopting Families, http://www.chinacare.org/CHIN065FinAidApp4.pdf (last visited Sept. 18, 2008).
216. World Association for Children and Parents, Financial Assistance, http://www.wacap.org/FinancialAssistance.asp (last visited Sept. 18, 2008).
217. Arkansas Adopt Today, U.S. Waiting Child Fund, http://www.arkansasadopttoday.org/USW CF.htm (last visited Sept. 18, 2008).
218. See BARTHOLET supra note 12, at 33-34 (describing the "parental screening" process used by adoption agencies). For race discrimination in the parenthood market, see, for example, ROBERTS, supra note 7, at 246-93
219. China Care, Adoption Financial Assistance, http://www.chinacare.org/CHIN065FinAidApp4. pdf (last visited Sept. 18, 2008)
220. Oxford Adoption Foundation, Inc., Application Process, http://www. oxfordadoption.com/application.htm (last visited Sept. 18, 2008) (referring to "mother applicant" and "father applicant").
221. A Child Waits Foundation, Borrowers Consent Form, http://www.achildwaits.org/forms/consentform.htm (last visited Sept. 18, 2008)
222. A Child Waits Foundation, Low Interest Loan Program Questions and Answers, http://www.achildwaits.org/Foundationinfo.htm (last visited Sept.18, 2008).
223. See, e.g., The ABBA Fund, FAQ, http://www.abbafund.org/faq.html (last visited Sept. 18, 2008)
224. see also God's Grace Adoption Ministry, Application for Financial Aid, http://www.ggam.org/main.html (last visited Sept. 27, 2008) (offering grants between $1000 and $4000 to married couples with incomes of $60,000 or less to put toward international adoption, reporting an average grant of $2000, and asking applicants to give their Christian testimony)
225. Life International, Adoption Grant and Loan Application, http://www.lifeintl.org/images/downloads/Application.pdf (last visited Sept. 27, 2008) (asking for a "personal statement of faith" as part of the grant application)
226. Lifesong for Orphans, Adoption Grants and Loans, http://www.lifesongfororphans.org/images/downloads/GrantsLoansInfo. pdf (last visited Sept. 18, 2008) (discussing matching grants, interest-free loans, and fundraising support)
227. Lifesong for Orphans, Loan FAQ, http://www.lifesongfororphans.org/images/downloads/LoanGrantFAQ.pdf (last visited Sept. 18, 2008) ("The couple agrees to exercise financial stewardship responsibility to both LifeSong and to God, to use funds that God provides to them to reimburse LifeSong for the financial assistance that God graciously provided.").
228. The ABBA Fund, supra note 125. The application requests information about the "adopting father" and "adopting mother" and the adopting mother's maiden name. The ABBA Fund, Application for Adoption Financial Assistance, http://www.abbafund.org/applicationforassistance.pdf (last visited Sept. 18, 2008).
229. The ABBA Fund, Application for Adoption Financial Assistance, supra note 126. Another application inquires about the applicant's definition of "eternal salvation" and similar concepts. Lifesong for Orphans, Adoption Grant and Loan Application, supra note 125. Life International's application for international adoption includes a religious statement that, among other things, asks applicants to describe their daily walk with God, to share salvation testimonies, and asks how God has led the applicant to adopt. Life International, supra note 125.
230. Hebrew Free Loan, Home Page, http://www.hflasf.org/ (last visited Sept. 18, 2008)
231. Hebrew Free Loan, Overview of Our Loan Program, http://www.hflasf.org/loanoverview.html (last visited Sept. 18, 2008)
232. Hebrew Free Loan, Types of Loans Available, http://www.hflasf.org/loantypes.html (last visited Sept. 18, 2008).
233. Applicants need third parties to co-sign or pledge collateral. Hebrew Free Loan, How to Apply for an HFLA Loan, http://www.hflasf.org/loanapply.html (last visited Sept. 18, 2008).
234. See Hebrew Free Loan, Client Success Stories, http://www.hflasf.org/clientstories.html#suzanne (last visited Sept. 18, 2008) (explaining how a mother used her loan to adopt a girl from a Moscow orphanage).
235. A Child Waits Foundation, Low Interest Loan Program Application Process, http://www.achildwaits.org/howtoapply.htm (last visited Sept. 18, 2008) (emphasis added). There is no prepayment penalty. See id. This loan requires automatic withdrawal from bank accounts for repayment. See id. If the loan defaults, the borrowers are responsible for one third of collection costs and the foundation's attorneys' fees. Id. Late payments have late charges of ten percent. Id. Like other organizations, A Child Waits may request to use the child's picture and story but consent to this does not affect loan determination. Id.
236. Kimberly D. Krawiec, Sunny Samaritans and Egomaniacs: Price Fixing in the Gamete Market, 72 LAW & CONTEMP. PROBS. 59, 61 (Summer 2009). See generally Philip E. Tetlock, Coping with Trade-Offs: Psychological Constraints and Political Implications, in Elements of Reason: Cognition, Choice, and the Bounds of Rationality 253 (Arthur Lupia et al. eds., 2000) (discussing fears of taboo trades, such as baby auctions).
237. See SPAR, supra note 1, at xv, 3, 101, 207(describing the growth of the baby industry despite popular protests)
238. Appleton, supra note 12, at 421
239. Margaret F. Brinig, The Effect of Transaction Costs on the Market for Babies, 18 Seton Hall Legis. J. 553, 554 (1994) ("The truth is that an adoption market already exists, however distasteful that may seem.")
240. Dolgin, supra note 59, at 157, 175-80 (describing the business of infertility treatment)
241. Richard A. Epstein, Surrogacy: The Case for Full Contractual Enforcement, 81 VA. L. REV. 2305, 2332 (1995) (referring to a "gray market (where fees go to the brokers, lawyers, and doctors who handle these transactions, and to the (inflated) medical expenses of the mother"))
242. Ertman, supra note 6, at 15 (discussing the costs of alternative insemination procedures)
243. Goodwin, supra note 7, at 17 (describing "an incredibly active infertility marketplace")
244. Goodwin, supra note 13, at 64-66 (describing "evidence of a de facto, largely unregulated, adoption free market")
245. Krawiec, supra note 11 ("Throughout the world, in fact, baby selling is formally prohibited. And throughout the world babies are bought and sold each day.")
246. Julia D. Mahoney, The Market for Human Tissue, 86 VA. L. Rev. 163, 165 (2000) (explaining "a marked and widespread unwillingness to acknowledge the essential role of commerce in the distribution and allocation of human biological materials")
247. Richard A. Posner, The Regulation of the Market in Adoptions, 67 B.U. L. Rev. 59, 60 (1987) (discussing misconceptions about the "efficiency" of exchanging money for babies)
248. Elizabeth J. Samuels, Time to Decide? The Laws Governing Mothers' Consents to the Adoption of Their Newborn Infants, 72 Tenn. L. Rev. 509, 519 (2005) ("The market features and the role of money in infant adoption raise ethical questions related to the decisionmaking of mothers.")
249. Carol Sanger, Developing Markets in Baby-Making: In the Matter of Baby M, 30 Harv. J.L. & Gender 67, 71 (2007) (discussing "the economic framework of a developing market")
250. Debora L. Spar, For Love and Money: The Political Economy of Commercial Surrogacy, 12 Rev. Int'l Pol. Econ. 287, 289, 304-05 (2005) (discussing surrogacy as a commercial arrangement).
251. For the industry's power in bankruptcy-law debates in public and behind the scenes, see, for example, Melissa B. Jacoby, Negotiating Bankruptcy Legislation Through the News Media, 41 Hous. L. Rev. 1091 (2004)
252. Victoria A. Nourse & Jane Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575 (2002).
253. See, e.g., Pamela D. Bridgewater, Reconstructing Rationality: Towards a Critical Economic Theory of Reproduction, 56 Emory L.J. 1215, 1224 (2007) (listing parties who shape the baby business in the absence of government regulation).
254. See Schmidt, supra note 25, at 444 (reporting on the characteristics of those who receive fertility treatments)
255. see also Cussins, supra note 41, at 73 (discussing a split among fertility professionals as to whether an elite clientele was an aspiration or a problem)
256. Crossley, supra note 39, at 278 (discussing how disparate finances and the lack of insurance produces unequal access to assisted reproduction). See generally ROBERTS, supra note 7, at 247-64 (discussing the privileged lifestyle that IVF or similar procedures require).
257. See generally Martin, supra note 67 (discussing Sher's "embrace of information technology" and Internet outreach)
258. Gina Kolata, Fertility Inc.: Clinics Race to Lure Clients, N.Y. Times, Jan. 1, 2002 (reporting on fertility specialists trying to attract attention through their Web sites and noting "[s]ince most patients pay with their own money, in cash, and cash-paying patients can pretty much pick and choose where they go, fertility specialists say that if they want to survive, they have to get the attention of both patients and referring doctors")
259. Yee & Marcotty, supra note 61 (discussing how "pursuers" of fertility treatments "have become the pursued," and discussing how industry is "thriving" on the Internet, in part through featuring services and special deals on Web sites)
260. Hamilton & McManus, supra note 47 (studying early movers offering new reproductive technology and comparing their impact in competitive markets and monopoly markets)
261. id. at 25 (recommending future study on how firms differentiate themselves)
262. see also THOMPSON, supra note 5, at 88 (describing how the supply of infertility procedures started to "outstrip demand" in some places)
263. Sandelowski & de Lacey, supra note 27, at 41 (discussing various models of infertility and how consumer models underemphasize efforts of the fertility industry to create products to sell)
264. Fred Scaglione, Conceiving Profits in Fertility Medicine, EQUITIES, Spring 2006, at 10 (citing IntegraMed's president predicting that the fertility market could grow four-fold)
265. In some medical-credit models, lenders have recourse against medical providers if their patients do not pay. See Melissa B. Jacoby & Elizabeth Warren, Beyond Hospital Misbehavior: An Alternative Account of Medical-Related Financial Distress, 100 NW. U. L. Rev. 535, 559 (2006) (discussing various medical-credit relationships and role of medical-credit providers in medical providers' accounts-receivable management). For problems with the commercialization of the patient provider relationship
266. see generally Mark A. Hall & Carl E. Schneider, Patients as Consumers: Courts, Contracts, and the New Medical Marketplace, 106 MICH. L. REV. 643 (2007).
267. See Krawiec, supra note 11, at 57-58 (noting "inefficiently low supply, high consumer prices, and distributional disparities stemming from the distorted division of profits")
268. Krawiec, supra note 133, at 82 (explaining that, in an oligopsony, "consumers of fertility services are deprived of the full range and number of eggs that would be available to them in a free market")
269. id. at 65-66 (observing minimal egg donation in nations that have banned compensation)
270. Mahoney, supra note 134, at 188. For similar discussions about organs, see Michele Goodwin, The Body Market: Race Politics & Private Ordering, 49 ARIZ. L. REV. 599, 603-10 (2007) (revisiting arguments against financial compensation for organ donors and responding to those arguments)
271. Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 HARV. L. REV. 1814, 1842 (2007) (discussing concern about financial coercion, but then comparing it to dangerous occupations with higher death rates than organ removal).
272. See Capital One Fertility, supra note 80. Eggs can be acquired through an intermediary if no family or friends have offered them. Kenneth Baum, Golden Eggs: Towards the Rational Regulation of Oocyte Donation, 2001 BYU L. REV. 107, 118
273. Bridgewater, supra note 136, at 1224
274. Krawiec, supra note 11, at 20
275. Krawiec, supra note 133, at 63-64
276. The World Egg Bank, Recipient's Finance Option, supra note 93
277. See supra III, fig.1 (reporting rates of interest). Lenders of course would not be alone in profiting from the parenthood trade. See Daar, supra note 47, at 661-62 (referring to the provision of reproductive technology as a "high profit business")
278. Krawiec, supra note 11, at 42 ("In the absence of similar attempts to control the prices charged by providers of fertility goods and services to customers, anti-commodification objections boil down to assertions that the ultimate supplier of the good-the egg donor-should be the only party not profiting from the transaction, or at least she should not profit too much.")
279. Lawrence J. Nelson et al., Taking the Train to a World of Strangers: Health Care Marketing and Ethics, 19 HASTINGS CENTER REP. 36, 38 (1989) (discussing profitable fertility treatments paid in cash as in tension with doctors' fiduciary obligations)
280. Noah, supra note 8, at 614 (referring to fertility clinics as "lucrative profit centers" for the hospitals that establish them)
281. Viviana A. Zelizer, Risky Exchanges, in Baby Markets: Money, Morals, and the Neopolitics of Choice (forthcoming 2009) (noting the lack of objection to medical professionals earning money for caring for babies or body parts). For a similar discussion of taboo organ markets, see, for example, Korobkin, supra note 58, at 46 (making a parallel argument about who profits from stem-cell research and regenerative medicine)
282. Volokh, supra note 140, at 1815, 1834 (2007) (noting that hospitals and surgeons are paid "well" for their roles in transplants)
283. See SPAR, supra note 1, at 3, tbl.1-1 (reporting revenue from the 2004 fertility-treatment market by product or service).
284. There would be some limits to this growth if, as in some other countries, the United States restricted access to assisted reproduction for older intended parents. Heitman, supra note 16, at 92.
285. See GARY J. GATES ET AL., Adoption and Foster Care by Gay and Lesbian Parents in the United States 5 (2007), available at http://www.law.ucla.edu/williamsinstitute/publications/FinalAdoptionReport.pdf (reporting that over half of gay men and over forty percent of lesbians want to be parents).
286. See generally Ertman, supra note 6, at 37 ("One important effect of new family forms is that they increase agency for women and gay people generally by undermining patriarchal understandings of family.")
287. Robertson, supra note 42, at 12-13 (noting how assisted reproduction enables parenting in "novel family arrangements")
288. Ethics Comm. of the Am. Soc'y for Reprod. Med., Access to Fertility Treatment by Gays, Lesbians, and Unmarried Persons 1333, 1334 (2006) (exploring the implications of reproduction by single and homosexual individuals)
289. Ertman, supra note 6, at 35 (noting increases in gay parenting likely due to alternative insemination)
290. Robertson, supra note 9, at 349 ("[I]t is widely assumed that several thousand children are born each year from physician insemination of single women and lesbian couples."). Experts cited in the media have estimated that at least five percent of fertility clinics' clients are gay or lesbian. See, e.g., Carl T. Hall, Gays, Lesbians Seeking Parenthood Increasingly Turn to Infertility Clinics, San Francisco Chron., May 6, 2007, at A1. At the Reproductive Science Center of the San Francisco Bay Area, the rate may be as high as ten percent. Id. Regarding adoption, one agency reports that approximately five to ten percent of U.S. child adoptions are by unmarried people. Adoption Services, Single Parent Adoption, http://www.adoptionservices.org/adoption/adoption_single.htm (last visited Sept. 7, 2008). The Evan B. Donaldson Institute reports that 1.3 percent of all adoptions completed by over 300 adoption agencies were to selfidentified homosexual parents. GATES ET AL., supra note 146, at 3. See generally William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America's Children, Future Child., Fall 2005, at 97, 98 (noting that though "[n]o one knows just how many American children are being raised by same-sex couples today," conservatively, at least 166,000 children are being raised by gay and lesbian couples).
291. See, e.g., Daar, supra note 8, at 45-46. For example, Indiana State Senator Patricia Miller tried to introduce a bill that would have effectively prohibited single people from undergoing fertility treatments. See id. She eventually dropped the bill because "[t]he issue [was] more complex than anticipated." Joshua Claybourn, Legislator Drops Assisted Reproduction Bill, Ind. Barrister, Oct. 5, 2005, available at http://www.indianabarrister.com/archives/2005/10/legislator_drops_assisted_repr.html. Similarly, a Virginia house bill was introduced to prohibit licensed health providers from providing certain fertility treatments to unmarried women. Daar, supra note 8, at 45 (referring to H.B. 187, 2006 Gen. Assem., Reg. Sess. (Va. 2006)). The bill was opposed and dropped. Id. at 46. Nevertheless, a few states were successful in passing such legislation. Id. at 45, n.109 (referring to FLA. Stat. Ann. § 742.15(1) (2005) and Tex. Fam. Code Ann. § 160.754(b) (2005)).
292. Monahan, supra note 9, at 48
293. THOMPSON, supra note 5, at 216 (giving an example of a lesbian couple with insurance coverage who were told that they could not satisfy definition of infertile without heterosexual intercourse)
294. Bridgewater, supra note 136, at 1225 ("In addition to being priced out of the market, a number of buyers explore other markets for the most favorable legislative framework governing the reproductive markets and their participants.")
295. Goodwin, supra note 7, at 18 n.89 (noting how traditional definitions of infertility omit gay couples). As of August 27, 2008, fifteen states have adopted legislation requiring insurance coverage for infertility treatment to some extent. Of those states, six have expressly defined the term "infertility" in their statutes, and all six define "infertility" in the traditional sense.
296. See CAL. Health & Safety Code § 1374.55(b) (2008) (defining infertility as "either (1) the presence of a demonstrated condition recognized by a licensed physician and surgeon as a cause of infertility, or (2) the inability to conceive a pregnancy or to carry a pregnancy to a live birth after a year or more of regular sexual relations without contraception")
297. Conn. Gen. Stat. Ann. § 38a-509(a) (2007) (defining infertility as the inability to conceive or sustain a pregnancy for a period of one year)
298. ILL. Comp. Stat. Ann. 5/356m(c) (2008) (same)
299. Mass. Gen. Laws Ann. ch. 175, § 47H (2008) (same)
300. N.J. STAT. ANN. § 26:2J-4.23 (2007) (defining infertility as "the disease or condition that results in the abnormal function of the reproductive system such that a person is not able to: impregnate another person; conceive after two years of unprotected intercourse if the female partner is under 35 years of age, or one year of unprotected intercourse if the female partner is 35 years of age or older or one of the partners is considered medically sterile; or carry a pregnancy to live birth")
301. R.I. Gen. Laws. § 27-20-20(b) (2007) (requiring an individual to be married in addition to being unable to conceive or sustain a pregnancy). It is possible but not a foregone conclusion that monthly artificialinsemination attempts would count toward infertility. A pending federal proposal does not require marriage, but also uses the traditional infertility screening: Sec. 2707(a)(2) Infertility Defined-For purposes of this section, the term "infertility" means a disease or condition that results in the abnormal function of the reproductive system, which results in-(A) the inability to conceive after 1 year of unprotected intercourse, or (B) the inability to carry a pregnancy to live birth. Family Building Act of 2007, H.R. 2892, 110th Cong. (2007). Some language is more general, but still is likely to be construed as the traditional definition.
302. See, e.g., H.R. 1384, 2007-08 Gen. Assem., Reg. Sess. (Ga. 2008) (defining infertility as "the condition of an otherwise presumably healthy individual who is unable to conceive or sustain a pregnancy during a period of one year" and mandating coverage by insurance policies of "medically necessary expenses of diagnosis and treatment of infertility"). But cf. S. 750, 2007 Gen. Assem., Reg. Sess. (N.C. 2007) (premising insurance coverage on infertility treatment being recommended by the attending physician and performed in medically supervised facilities rather than on meeting a statutory definition of infertility).
303. See, e.g., Gates ET AL., supra note 148, at 3 (reviewing state restrictions on adoption and foster care)
304. Robertson, supra note 9, at 336-37 (reviewing states prohibiting gay or lesbians from adopting)
305. W. Bradford Wilcox & Robin Fretwell Wilson, Bringing Up Baby: Adoption, Marriage, and the Best Interests of the Child, 14 WM. & Mary Bill RTS. J. 883, 888 n.29, 889-90 (2006) (listing states prohibiting adoption by unmarried people)
306. Christian Eichenlaub, Comment, "Minnesota Nice:" A Comparative Analysis of Minnesota's Treatment of Adoption by Gay Couples, 5 U. St. Thomas L.J. 312, 315-28 (2008) (reviewing a spectrum of state approaches to the possibility of adoption by gay and lesbian couples). See generally THOMPSON, supra note 5, at 6 (discussing the state's role in family creation through adoption "only according to tacit criteria of social engineering").
307. For example, loans to single people could be different. After the enactment of the Equal Credit Opportunity Act (ECOA), some scholars observed that, from the perspective of women's groups and civil-rights organizations, "lenders continue to deny loans to creditworthy consumers and practice gender and spousal discrimination." Willy E. Rice, Race, Gender, "Redlining," and the Discriminatory Access to Loans, Credit, and Insurance: A Historical and Empirical Analysis of Consumers Who Sued Lenders and Insurers in Federal and State Courts, 1950-1995, 33 SAN DIEGO L. REV. 583, 585-86 (1996) (arguing that ECOA has not achieved its goal of protecting at-risk consumers and courts have been inefficient in resolving discrimination claims). Allegations of sex discrimination in lending were commonly tied to allegations of marital discrimination.
308. Elwin Griffith, The Quest for Fair Credit Reporting and Equal Credit Opportunity in Consumer Transactions, 25 U. Mem. L. Rev. 37, 106 n.321 (1994) (noting that a creditor may request the designation of a courtesy title, such as "Mr." or "Mrs.," only if the application form states it is optional). According to one commentator, prior to ECOA, "women were forced to answer questions on credit application forms that addressed age, sex, race, religion, birth control practices, and childbearing intentions."
309. Laura Eckert, Inclusion of Sexual Orientation Discrimination in the Equal Credit Opportunity Act, 103 COM. L.J. 311, 336 n.4 (1998).
310. See ROBERTS, supra note 7, at 248 (discussing how clinics reinforce traditional conceptions of family and may not serve "single women, lesbians, welfare recipients, and other women who are not considered good mothers")
311. id. at 247 (describing reproductive medicine as "more conforming than liberating")
312. THOMPSON, supra note 5, at 86 (discussing a heterosexual norm in observed clinics, particularly in the earlier days)
313. Crossley, supra note 39, at 276 (reporting examples of clinics discriminating against same-sex couples)
314. Heitman, supra note 16, at 94 (discussing a stable-marriage requirement at some clinics)
315. Robertson, supra note 42, at 38 (balancing the rights of same-sex couples to have children with the professional discretion of providers)
316. Robertson, supra note 9, at 325, 349 (discussing clinics that screen out gay or lesbian patients and whether they have legal right to do so). But see Ertman, supra note 6, at 25-26 (noting a decline in discrimination at sperm banks for lesbian and single women who are attempting artificial or alternative insemination).
317. See, e.g., N. Coast Women's Care Med. Group, Inc. v. San Diego County Superior Court, 44 Cal. 4th 1145 (Cal. 2008) (finding that a doctor who refused to perform certain actions to provide fertility care to lesbian couple was not exempt from compliance with the California Unruh Civil Rights Act)
318. Jacob M. Appel, May Doctors Refuse Infertility Treatments to Gay Patients?, Hastings Center Rep., July-August 2006, at 20, 21 ("What remains unclear is whether physicians with bona fide religious objections to treating certain patients are exempt from these [statutory] proscriptions.")
319. Daar, supra note 8, at 22, 35, 43-44 (discussing some reproductive-medicine providers' attempts to discriminate on the basis of marital status, sexual orientation, or disability)
320. see also sources cited supra note 154
321. For a review of the literature suggesting that children of same-sex couples are not at undue risk, see Meezan & Rauch, supra note 148
322. Charlotte Patterson, Children of Lesbian and Gay Parents, 15 Current Directions Psychol. Sci. 241-44 (2006) (reviewing studies and positions of major professional organizations)
323. Robertson, supra note 42, at 38 ("The question remains, however, whether the right of gays to reproduce should be deemed so important that they should be protected against discrimination by ART providers who object to gay reproduction and rearing.").
324. The structure of Capital One Fertility loans-fixed-installment loan rather than credit card or line of credit-obscures the possibility that borrowers often are repeat-loan customers