Trading-off reproductive technology and adoption: Does subsidizing IVF decrease adoption rates and should it matter?

Minnesota Law Review

Volumn 95, Issue 2, 2011, Pages 485-577

  Glenn Cohen, I ^a   Chen, Daniel L ^b  

^a HARVARD LAW SCHOOL   (United States)

^b DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 79955933067     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (466)

1. DEBORAH SPAR, THE BABY BUSINESS 213 tbl. 7-2 (2006).
2. Id. (citing Peter Neumann et al., The Cost of a Successful Delivery with In Vitro Fertilization, 331 NEW ENG. J. MED. 239, 239-43 (1994)).
3. 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, 175 n. 216 (2005).
4. Appendix A, is available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=1707650. Abstract B is available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=1707655.
5. Anjani Chandra et al., Fertility, Family Planning, and Reproductive Health of U. S. Women: Data from the 2002 National Survey of Family Growth, CENTERS FOR DISEASE CONTROL & PREVENTION, 106 tbl.67, 136 tbl. 97 (Dec. 2005), http://www.cdc.gov/nchs/data/series/sr-23/sr23-025.pdf.
6. See id. at 108 tbl.69, 154;
7. see also SPAR, supra note 1, at 1-2. Male factors and female factors each account for about a third of infertility cases, with some combination accounting for ten percent, and about twenty percent categorized as unexplained.
8. Frequently Asked Questions About Infertility, AM. SOC'Y FOR REPROD. MED., http://www.asrm.org/awards/index.aspx?id=3012 (last visited Sept. 28, 2010);
9. see also Katherine T. Pratt, Inconceivable? Deducting the Costs of Fertility Treatment, 89 CORNELL L. REV. 1121, 1130-35 (2004). Male-factor infertility includes "disorders related to impaired sperm production, maturation, or transfer[;]... blocked or absent vas deferens[; and]... absent or retrograde ejaculation, " and it can result from "hormonal imbalances; genetic disorders; environmental factors; anatomical defects; sexually transmitted diseases; spinal cord injuries; and bladder, prostate gland, or testicular cancer or surgery."
10. Pratt, supra, at 1130-31 (footnotes omitted). Female-factor infertility includes "ovulation disorders, blocked fallopian tubes, cervical disorders, endometriosis, and uterine disorders[,]" and can be caused by "hormonal imbalances; autoimmune reactions; genetic disorders; anatomical defects...; pelvic inflammatory disease[;] venereal disease; scar tissue; fibroid tumors; and cancer."
11. Id. at 1131 (footnotes omitted). In the absence of these conditions, female fertility is highest at age twenty-seven and then decreases dramatically after age thirty-five.
12. See I. Glenn Cohen, The Right Not to Be a Genetic Parent?, 81 S. CAL. L. REV. 1115, 1165 & n. 161 (2008) (citing SPAR, supra note 1, at 15). This is the result of the combination of multiple factors, including ovarian and uterine dysfunction and chromosomal abnormalities in their eggs.
13. Pratt, supra, at 1131.
14. Lisa Ikemoto refers to these groups as the "dysfertile." Lisa C. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47 HASTINGS L. J. 1007, 1008-09 (1996). (Pubitemid 126407589)
15. JUDITH F. DAAR, REPRODUCTIVE TECHNOLOGIES AND THE LAW 25 (2006).
16. Id. at 26-28.
17. Id.
18. Id. at 28.
19. See, e.g., id. at 40-41 (describing intracytoplasmic sperm injection, gamete intrafallopian transfer, and zygote intrafallopian transfer).
20. E.g., SPAR, supra note 1, at 24.
21. The CDC describes its cycle measure, which we use in the empirical portion of our study, as follows: Because ART consists of several steps over an interval of approximately 2 weeks, an ART procedure is more appropriately considered a cycle of treatment rather than a procedure at a single point in time. The start of an ART cycle is considered to be when a woman begins taking drugs to stimulate egg production or starts ovarian monitoring with the intent of having embryos transferred.... For the purposes of this report, data on all cycles that were started, even those that were discontinued before all steps were undertaken, are submitted to CDC.... CDC, ASSISTED REPRODUCTIVE TECHNOLOGY SUCCESS RATES 4 (2006), available at http://www.cdc.gov/ART/ART2006/508PDF/ 2006ART.pdf.
22. DAAR, supra note 8, at 40-41;
23. Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 MINN. L. REV. 55, 58-59 (1999).
24. DAAR, supra note 8, at 41.
25. Id.
26. Id.
27. see also Coleman, supra note 15, at 58-59.
28. See, e.g., DAAR, supra note 8, at 568-71.
29. This figure breaks down as follows: 41, 369 cycles for women under age thirty-five; 23, 376 for women ages thirty-five to thirty-seven; 19, 755 for women ages thirty-eight to forty; and 9346 for women ages forty-one to forty-two.
30. CDC, supra note 14, at 89.
31. Specifically, 44.6 percent resulted in pregnancy and 38.7 percent resulted in live births for women under age thirty-five. The figures are, respectively, 37.1 percent and 30.4 percent for women ages thirty-five to thirtyseven; 27.7 percent and 20.6 percent for women ages thirty-eight to forty; and 17.7 percent and 10.8 percent for women ages forty-one to forty-two.
32. Id. The CDC also reports data for IVF using frozen embryos from nondonor eggs and for IVF using donor eggs.
33. Id. We do not reproduce that data here.
34. SPAR, supra note 1, at 213 tbl. 7-2.
35. Id. (citing Neumann et al., supra note 2, at 239-43). The large range depends on factors such as the age of the mother.
36. See Neumann et al., supra note 2, at 239. The numbers will also vary based on the particular state in question.
37. See, e.g., Martha Griffin & William Panak, The Economic Cost of Infertility-Related Services: An Examination of the Massachusetts Infertility Insurance Mandate, 70 FERTILITY & STERILITY 22, 26 (1998) (estimating that in 1993 the average cost for a live birth in Massachusetts with IVF was $69, 448, and over $100, 000 for women over the age of forty).
38. See THE ALAN GUTTMACHER INSTITUTE, UNEVEN & UNEQUAL: INSURANCE COVERAGE AND REPRODUCTIVE HEALTH SERVICES 9 tbl. 1 (1994) (reporting that only fourteen to seventeen percent of employers cover IVF);
39. Dolgin, supra note 3, at 175 n. 216 (2005);
40. Julie Appleby, Pricey Infertility Care Sparks Insurance Clash, USA Today, Dec. 19, 2001, at 1B, available at http://www.usatoday.com/money/covers/2001- 12-19-bcovwed.htm ("Among insurance policies offered by large employers, less than 20% cover IVF-and even fewer cover more advanced techniques....") ;
41. see also Anna Mulrine, Making Babies, U. S. NEWS & WORLD REP., Sept. 27, 2004, at 60, 62 (stating that IVF insurance coverage is "a rarity in the United States, where 85 percent of insured Americans have policies that will not cover that treatment").
42. Some taxpayers may be able to partially finance fertility treatments using the deduction in § 213 of the Internal Revenue Code, which allows a taxpayer to deduct expenses for medical care not covered by insurance to the extent the expenses exceed 7.5 percent of the taxpayer's adjusted gross income (AGI). I. R. C. § 213 (a), (d) (1) (2006);
43. see also Pratt, supra note 6, at 1137-38.
44. This is slated to increase to ten percent in 2013. Affordable Care Act Implementation Timeline, DEMOCRATIC POL'Y COMMITTEE, 7 (2010), http://dpc.senate.gov/healthreformbill/health65.pdf. The IRS has historically taken inconsistent positions on the deductibility of fertility expenses.
45. See Pratt, supra note 6, at 1137-61. While the tax status of costs associated with donor eggs and surrogacy still remain uncertain, the IRS has recently clarified in Publication 502 that expenses associated with IVF are deductible. INTERNAL REVENUE SERV., PUBLICATION 502: MEDICAL AND DENTAL EXPENSES 8 (2009), available at http://www.irs.gov/pub/irs-pdf/p502.pdf (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) "). A recent tax court decision, Magdalin v. Commissioner, however, suggests the deductibility of IVF services is limited to medically infertile, married, opposite-sex couples.
46. See Magdalin v. Comm'r, 96 T. C. M. (CCH) 491, 492-93 (2008)
47. aff'd No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009)
48. cert. denied, 130 S. Ct. 2388 (2010) (mem.);
49. Katherine T. Pratt, Deducting the Costs of Fertility Treatment: Implications of Magdalin v. Commissioner for Opposite-Sex Couples, Gay and Lesbian Same-Sex Couples, and Single Women and Men, 2009 WIS. L. REV. 1283, 1311-25. Even for those able to take the deduction for IVF, it is ordinarily a much less powerful way of financing fertility than is the insurance mandate. To borrow an example from Pratt (using 2004 tax rules), if an infertile couple eligible for the deduction makes $100, 000 per year at a marginal tax rate of thirty percent, and they spend $10, 000 on fertility services, taking the I. R. C. § 213 deduction only saves them $750. Pratt, supra note 6, at 1180-81. By contrast, if an insurance mandate that fully covers a cycle of IVF applies and the patient is insured, the patient does not pay for the cost of the cycle aside from her general health insurance premium. There is also a large (and frankly somewhat shady) market in fertility loans that has emerged.
50. See generally Melissa B. Jacoby, The Debt Financing of Parenthood, 72 LCAW & CONTEMP. PROBS., Summer 2009, at 147, 160-64.
51. See, e.g., Susan Frelich Appleton, Adoption in the Age of Reproductive Technology, 2004 U. CHI. LEGAL F. 393, 400.
52. Id.
53. See id.; Jamil S. Zainaldin, The Emergence of Modern American Family Law: Child Custody, Adoption, and the Courts, 1796-1851, 73 NW. U. L. REV. 1038, 1045-46 (1979). For more on the pre-1851 U. S. experience
54. see generally Naomi Cahn, Perfect Substitutes or the Real Thing?, 52 DUKE L. J. 1077, 1102-12 (2003).
55. See, e.g., Appleton, supra note 26, at 401;
56. Stephen B. Presser, The Historical Background of the American Law of Adoption, 11 J. FAM. L. 443, 465 (1972);
57. Zainaldin, supra note 28, at 1042-45.
58. But see Cahn, supra note 28, at 1112-13 (arguing that the conventional view exaggerates the extent to which the Massachusetts statute breaks with the status quo and that the conventional view also exaggerates the depth of scrutiny the statute gives to children's interests).
59. See, e.g., David Brodzinsky, Infertility and Adoption Adjustment, in INFERTILITY 246, 247 (Sandra R. Leiblum ed., 1997).
60. Joan Heifetz Hollinger, Introduction to Adoption Law and Practice, in 1 ADOPTION LAW AND PRACTICE 1-1, 1-65 (Joan Heifetz Hollinger ed., 2009).
61. Id.
62. Id.
63. Id.
64. The AFCARS Report, U. S. DEPARTMENT HEALTH & HUM. SERVICES, § V, http://www.acf.hhs.gov/programs/cb/stats-research/afcars/tar/report12.htm (last visited Oct. 3, 2010).
65. Id. § III. Most of these children were not relinquished upon birth, but were removed involuntarily from their parents for reasons of neglect or abuse.
66. Hollinger, supra note 31, at 1-67. The remaining 2000 children were adopted with public agency involvement, but were not part of the foster care system.
67. The AFCARS Report, supra note 35, § V.
68. The AFCARS Report, supra note 35, § IV.
69. Id. § V.
70. Id.
71. Hollinger, supra note 31, at 1-69.
72. Id. at 1-70.
73. Id.
74. Id.
75. Id. at 1-71.
76. How Many Children Were Adopted in 2000 and 2001?, U. S. DEPARTMENT HEALTH & HUM. SERVICES, 2 (Aug. 2004), http://www.childwelfare.gov/pubs/s-adopted/ s-adopted.pdf.
77. International Adoption Facts, EVAN B. DONALDSON ADOPTION INST., http://www.adoptioninstitute.org/research/internationaladoption. php (last visited Oct. 3, 2010).
78. Id.
79. Cost of Adoption Update: 2008-2009, ADOPTIVE FAMILIES, http://www.adoptivefamilies.com/articles.php?aid=2076 (last visited Oct. 3, 2010). These numbers do not reflect the Federal Adoption Tax Credit, up to $12, 150 in 2009.
80. Adoption Benefits Increased, INTERNAL REVENUE SERVICE, http://www.irs.gov/formspubs/article/0,id=177982,00.html (last updated Nov. 26, 2009).
81. See also SPAR, supra note 1, at 180 (reporting that as of 2004, domestic infant adoptions in the United States cost "between $10, 000 and $40, 000");
82. Kathleen A. Lamb, Exploring Adoptive Motherhood: Adoption-Seeking Among Hispanic and Non-Hispanic White Women, 11 ADOPTION Q. 155, 160 (2008) (citing Costs of Adopting, U. S. DEPARTMENT HEALTH & HUM. SERVICES (June 2004), http://www.childwelfare.gov/pubs/s-cost/s-costs.pdf) (suggesting a cost of $2500 for adoption of special needs children from foster care in the United States, $5000 to $40, 000 for domestic infant adoptions, and $7000 to $30, 000 for international adoptions).
83. Cost of Adoption Update, supra note 48. These numbers include home study costs, travel expenses, in-country adoption expenses, getting the child's visa and passport, etc., and they do not reflect the Federal Adoption Tax Credit, up to $12, 150 in 2009.
84. Id.
85. see also SPAR, supra note 1, at 184 tbl.6-2 (listing the 2004 costs for international adoption through several different agencies; for example, the Wide Horizons for Children agency charges a base application and agency fee of $5700, and country-specific additional program fees of $18, 240 for adopting from Guatemala, $15, 000 for adopting from Russia, $7165 from China, $6700 from Ethiopia, and $5000 from India).
86. Brodzinsky, supra note 30, at 247.
87. E.g., id. at 248;
88. Solangel Maldonado, Discouraging Racial Preferences in Adoptions, 39 U. C. DAVIS L. REV. 1415, 1432 (2006).
89. Maldonado, supra note 51, at 1431-32.
90. Douglas R. Esten, Transracial Adoption and the Multiethnic Placement Act of 1994, 68 TEMP. L. REV. 1941, 1942 (1995).
91. See Multiethnic Placement Act of 1994, Pub. L. No. 103-382, § 551, 108 Stat. 3518, 4056
92. (codified at 42 U. S. C. § 5115a (1994) (repealed 1996));
93. see also Small Business Protection Act of 1996, Pub. L. No. 104-188, § 1807, 110 Stat. 1755, 1899 (reenacting the pertinent portions of the Multiethnic Placement Act under the Interethnic Adoption Provisions).
94. Esten, supra note 53, at 1943.
95. Removal of Barriers to Interethnic Adoption Amendments, 42 U. S. C. § 1996b (2006).
96. See David J. Herring, The Multiethnic Placement Act: Threat to Foster Child Safety and Well-Being?, 41 U. MICH. J. L. REFORM 89, 99-102 (2007) (discussing the debate surrounding the MEPA);
97. see also Elizabeth Bartholet, Where Do Black Children Belong? The Politics of Race Matching in Adoption, 139 U. PA. L. REV. 1163 (1991).
98. The AFCARS Report, supra note 35, § V.
99. See Small Business Job Protection Act of 1996, Pub. L. No. 104-188, § 1807, 110 Stat. 1755, 1899.
100. I. R. C. § 23 (b) (1) (2006);
101. see also Pratt, supra note 6, at 1179-80.
102. I. R. C. § 137 (a) (1), (d) (1) (D);
103. see also Pratt, supra note 6, at 1179.
104. I. R. C. § 23 (b) (3) (A);
105. see also Pratt, supra note 6, at 1179.
106. Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115
107. (codified as amended in scattered sections of 42 U. S. C. (2000)).
108. Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat. 501
109. (codified at 42 U. S. C. §§ 620-628, 670-679 (1988)).
110. James R. Marsh, Federal Impact on Adoptions, in 3 ADOPTION LAW AND PRACTICE, supra note 31, at 17-5.
111. Id.
112. Id.
113. Kathleen S. Bean, Aggravated Circumstances, Reasonable Efforts, and ASFA, 29 B. C. THIRD WORLD L. J. 223, 224 (2009).
114. Marsh, supra note 65, at 17-6.
115. Id. at 17-3 to-6.
116. Libby S. Adler, The Meanings of Permanence: A Critical Analysis of the Adoption and Safe Families Act of 1997, 38 HARV. J. ON LEGIS. 1, 8 (2001).
117. Marsh, supra note 65, at 17-5 to-8.
118. Id.
119. Id.
120. Id.
121. Id.
122. Id.
123. Other possible methods of subsidizing reproductive technologies would include a more generous tax deduction for infertility medical expenses or a tax credit for these expenses. States could, at least theoretically, also subsidize these treatments through direct payments to health care providers in this sector or investments in technology development. They could also include the service in the list of services for which Medicaid reimburses.
124. These mandates are powerful, especially the complete mandates, because they defray so much of the costs of using IVF. That said, as a mechanism for improving access, state-level insurance mandates have two clear limitations. First, because they determine the content of what must be included in an insurance policy, they are only effective at improving access for those who are or will be insured. Second, because of ERISA preemption, employers that self-insure are not bound by these mandates in insuring their population.
125. See 29 U. S. C. § 1144 (b) (2) (B) (2006);
126. Allison Overbay & Mark Hall, Insurance Regulation of Providers that Bear Risk, 22 AM. J. L. & MED. 361, 380 (1996). Precise statistics on the number of self-insured firms in each state are unavailable, though a study using 1997 data from seven states found that thirteen percent of all firms, fifty-six percent of firms with 500 or more employees, twenty-five percent of firms with 100-499 employees, and three percent of all employers with fewer than 100 employees, were self-insured.
127. M. Susan Marquis & Stephen H. Long, Recent Trends in Self-Insured Employer Health Plans, HEALTH AFFAIRS, May/June 1999, at 161, 163. A more recent study using a different methodology suggests this number has grown significantly in the past decade, estimating that fifty-five percent of all workers and seventyseven percent of workers in large companies are now covered by self-funded plans that escape the mandates.
128. KAISER FAMILY FOUND. & HEALTH RESEARCH & EDUC. TRUST, EMPLOYER HEALTH BENEFITS: 2007 ANNUAL SURVEY 148 tbl.10.3 (2004). As discussed in more depth below, in our empirical analysis we follow the literature by attempting to control for the population in each state that is covered by self-insured employers and track these changes over time.
129. See MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE 76-78 (2006).
130. See generally AMARTYA SEN, DEVELOPMENT AS FREEDOM (2000) (articulating the capabilities-functionings view).
131. NUSSBAUM, supra note 80, at 76 (emphasis added).
132. NORMAN DANIELS, JUST HEALTH: MEETING HEALTH NEEDS FAIRLY 43 (2008);
133. see also id. at 29-60 (outlining Daniels's theory of the "special moral importance of health").
134. Id. at 59. It is worth emphasizing that both of these theories do a better job justifying classifying infertility treatment as the meeting of health needs for partnered individuals with impaired fecundity, rather than single individuals or same-sex couples (the "dysfertile"). It may be possible to construct an argument on Daniels's framework for covering infertility of these groups as well, based on the notion that failing to do so would unfairly deny these groups access to the "normal opportunity range" to pursue the "array of life plans reasonable persons are likely to develop for themselves" on the basis of marital status or sexual orientation, in a way that is inappropriate in a liberal society.
135. Id. Doing so, though, would require Daniels to de-emphasize his biological conception of "normal functioning."
136. Id. These are difficult questions, but ones we are able to sidestep in this Article because the state mandates in question largely target the reproductive needs of married individuals of childbearing age with medical infertility.
137. Bragdon v. Abbott, 524 U. S. 624, 629 (1998)
138. (quoting 42 U. S. C. § 12182 (a) (1994)).
139. 42 U. S. C. § 12102 (2) (A).
140. Bragdon, 524 U. S. at 638-39.
141. We put to one side disagreement as to what welfare consists of-for example, whether it is best thought of as pleasure and the absence of pain (hedonism), or the satisfaction of desire
142. see generally L. W. SUMNER, WELFARE, HAPPINESS, AND ETHICS (1996) (exploring these divisions), because we believe that the capacity to reproduce would be valued on any variant.
143. See, e.g., David Orentlicher, Discrimination Out of Dismissiveness: The Example of Infertility, 85 IND. L. J. 143, 154-56 (2010) (collecting studies);
144. Pratt, supra note 6, at 1128 & n. 22.
145. It remains an open question whether the negative effects of being denied genetic reproduction could successfully be reduced by widespread attempts to de-emphasize the importance of the genetic connection in parenting. For more on the malleability of preferences about genetic parenthood and the law's expressive function in shaping them
146. see Cohen, supra note 6, at 1142, 1151, 1189-90. It bears noting, though, that at least in the foreseeable future such preference reprogramming seems unlikely.
147. See Tarun Jain et al., Insurance Coverage and Outcomes of In Vitro Fertilization, 347 NEW ENG. J. MED. 661, 665 (2002);
148. Barton H. Hamilton & Brian McManus, Infertility Treatment Markets, The Effects of Competition and Policy 26 (Oct. 2005) (unpublished manuscript), available at http://apps.olin. wustl.edu/faculty/hamiltonb/wpapers/ Infertility%20Treatment%20Markets.pdf (correlating a decrease in multiple birth rates with Universal insurance mandates).
149. But see Melinda B. Henne & M. Kate Bundorf, Insurance Mandates and Trends in Infertility Treatments, 89 FERTILITY & STERILITY 66, 73 (2008) (noting research supporting this relationship, but observing uncertainty about the correlation's strength);
150. Meredith Reynolds et al., Does Insurance Coverage Decrease the Risk for Multiple Births Associated with Assisted Reproductive Technology?, 80 FERTILITY & STERILITY 16, 22 (2003) (finding that while state-level insurance mandates were correlated with decreased multiple embryo transfer rates, there was no conclusive evidence that they actually decreased the number of multiple births).
151. See Jain et al., supra note 90, at 665.
152. See id.;
153. Hamilton & McManus, supra note 90, at 27.
154. But see Henne & Bundorf, supra note 90, at 71 (suggesting that existing data cannot rule out a different possible mechanism whereby more individuals with poor prognoses now seek IVF due to the mandate, thus decreasing the multiple birth rate not because of reduced embryo transfer, but because more patients unlikely to conceive are added into the denominator for multiple birth rate);
155. Reynolds et al., supra note 90, at 22 (suggesting that insurance mandates may at the same time increase the number of individuals attempting ART who but for mandates would not have, but that these individuals can only afford a single procedure due to co-pays and uncovered expenses, resulting in additional multiple births).
156. The risks to children from a multiple birth include stillbirth, physical and developmental disability, respiratory distress syndrome, intracranial hemorrhage, cerebral palsy, and blindness-all risks associated with premature birth.
157. Jain et al., supra note 90, at 665. The maternal risks include premature labor and delivery, pregnancy-induced hypertension, gestational diabetes, and uterine hemorrhage.
158. Id.
159. See, e.g., id. (citing Tamara L. Callahan et al., The Economic Impact of Multiple-Gestation Pregnancies and the Contribution of Assisted-Reproduction Techniques to Their Incidence, 331 NEW ENG. J. MED. 244 (1994)) (noting that hospital charges for twin birth and triplet births were four and eleven times as high as singleton births, respectively, according to 1991 data).
160. See DAAR, supra note 8, at 296 (discussing this possibility).
161. But see infra notes 98-99 and accompanying text (suggesting some countervailing health concerns from using IVF).
162. While many of these theories would support improving access to IVF as a prima facie matter, we cannot go so far as to say there is a universal overlapping consensus involving all possible moral theories on the point. In particular, nonutilitarian but liberal theories that either do not regard health as a primary good or do regard health as a primary good but reject infertility as a bona fide health care need, would not support the claim. We examine the question of whether infertility is a health care need in more depth below.
163. See, e.g., Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23 BERKELEY J. GENDER L. & JUST. 18, 42-43 (2008) (supporting these mandates as attempts to deal with cost and racial barriers to infertility access, but expressing concerns about their effectiveness);
164. Elizabeth A. Pendo, The Politics of Infertility: Recognizing Coverage Exclusions as Discrimination, 11 CONN. INS. L. J. 293, 343-44 (2005) (supporting these mandates as a way of ending discrimination against the infertile, but suggesting they be federalized to avoid the problem of ERISA preemption);
165. Debora Spar & Anna M. Harrington, Building a Better Baby Business, 10 MINN. J. L. SCI. & TECH. 41, 50 (2009) (noting that "[p]oor, infertile people suffer twice as a result, first from the inability to conceive for free and then from the unaffordability of assisted reproduction, " and supporting expansion of state-level insurance mandates covering IVF).
166. Michèle Hansen et al., The Risk of Major Birth Defects After Intracytoplasmic Sperm Injection and In Vitro Fertilization, 346 NEW ENG. J. MED. 725, 729 (2002);
167. see also Allen A. Mitchell, Infertility Treatment-More Risks and Challenges, 346 NEW ENG. J. MED. 769, 769 (2002) (analyzing the study).
168. Mitchell, supra note 98, at 769.
169. This idea is associated with Derek Parfit's Non-Identity Problem, which states that a particular child cannot be harmed by being brought into existence unless a given life is not worth living, for the child's counterfactual is not existing at all.
170. See DEREK PARFIT, REASONS AND PERSONS 358-59 (rev. ed. 1987). This problem raises a host of complex and interesting issues discussed in great depth in prior and forthcoming work by one of this Article's authors.
171. See I. Glenn Cohen, Intentional Diminishment, the Non-Identity Problem, and Legal Liability, 60 HASTINGS L. J. 347 (2008);
172. I. Glenn Cohen, Well What About the Children?: Best Interests Reasoning, the New Eugenics, and the Regulation of Reproduction (unpublished manuscript) (on file with author).
173. See, e.g., ELIZABETH BARTHOLET, FAMILY BONDS: ADOPTION AND THE POLITICS OF PARENTING 93 (1999) (noting social preference for adoption of biologically similar children).
174. See generally Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209 (1995) (discussing the negative social consequences of the emphasis put on the genetic ties between parents and children for the infertile and for racial discrimination).
175. See, e.g., GENA COREA, THE MOTHER MACHINE: REPRODUCTIVE TECHNOLOGIES FROM ARTIFICIAL INSEMINATION TO ARTIFICIAL WOMBS 3 (1979) ("What is the real meaning of a woman's 'consent' to in vitro fertilization in a society in which men as a social group control not just the choices open to women but also women's motivation to choose?");
176. Barbara Katz Rothman, The Meanings of Choice in Reproductive Technology, in TEST TUBE WOMEN: WHAT FUTURE FOR MOTHERHOOD? 23, 31 (Rita Arditti et al. eds., 1984) ("[A]ll of the new treatments for infertility have also created a new burden for the infertile-the burden of not trying hard enough. Just how many dangerous experimental drugs, just how many surgical procedures, just how many months-or is it years?-of compulsive temperature-taking and obsessive sex does it take before one can now give in gracefully?"). For an excellent history of radical and liberal feminist depictions of infertile women in legal and nonlegal scholarship
177. see Jody Lyneé Madeira, Common Misconceptions: Reconciling Legal Constructions of Women in the Infertility and Abortion Contexts 6-26 (2010) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=1565172.
178. See, e.g., Rachel Anne Fenton, Catholic Doctrine Versus Women's Rights: The New Italian Law on Assisted Reproduction, 14 MED. L. REV. 73, 79 (2006);
179. Ethical and Religious Directives for Catholic Health Care Services, U. S. CONF. CATHOLIC BISHOPS, http://www.usccb.org/bishops/directives.shtml (last visited Sept. 29, 2010) ("Homologous artificial fertilization (that is, any technique used to achieve conception using the gametes of the two spouses joined in marriage) is prohibited when it separates procreation from the marital act in its unitive significance (e.g., any technique used to achieve extra-corporeal conception).").
180. See, e.g., Coleman, supra note 15, at 66;
181. Ethical and Religious Directives for Catholic Health Care Services, supra note 103.
182. See, e.g., RICHARD A. EPSTEIN, MORTAL PERIL: OUR INALIENABLE RIGHT TO HEALTH CARE? (1997).
183. See Jain et al., supra note 90, at 666
184. (citing John A. Collins et al., An Estimate of the Cost of In Vitro Fertilization Services in the United States in 1995, 64 FERTILITY & STERILITY 538 (1995)).
185. K. R. Omurtag & T. L. Toth, The Cost Effectiveness and Health Outcomes of In Vitro Fertilization (IVF) as a Mandated Benefit, 88 FERTILITY & STERILITY (SUPPLEMENT 11) S122, S122 (2007).
186. Whether such an argument succeeds may depend on the theory giving rise to the state's obligation in the first place. On Nussbaum and Daniels's approaches, for example, the treatment of infertility would appear to have equal standing as the treatment of other health states.
187. See supra notes 80-82 and accompanying text. Daniels, at least, has built in to his theory a form of this objection in his notion that right claims to health care are "system-relative, " and just because an individual may have a claim to health does not mean all societies will be unjust if they do not satisfy all elements of his health need. As he puts it, "[t]ypically, not all health needs can be met under reasonable resource constraints. Deciding... what resources are to be used - both within and outside the health sector - requires careful moral judgment and a wealth of empirical knowledge about the effects of alternative allocations."
188. DANIELS, supra note 82, at 146. Ultimately, "[t]he right to health can yield entitlements only to those needs that we can reasonably try to meet."
189. Id. By contrast, Nussbaum's account seems to reject the notion that justice can dictate satisfying some health needs before others. In Nussbaum's view, "all ten of these plural and diverse ends are minimum requirements of justice, at least up to the threshold level, "
190. NUSSBAUM, supra note 80, at 175, such that "the capabilities are radically nonfungible: lacks in one area cannot be made up simply by giving people a larger amount of another capability."
191. Id. at 166-67. As a result, her "theory does not countenance intuitionistic balancing or tradeoffs among them, " but instead "demands that they all be secured to each and every citizen, up to some appropriate threshold level."
192. Id. at 175. She recognizes that "[i]n desperate circumstances, it may not be possible for a nation to secure them all up to the threshold level, but then it becomes a purely practical question what to do next, not a question of justice"; that is, "[t]he question of justice is already answered: justice has not been fully done here."
193. Id. at 175. For more explicitly welfarist-consequentialist models this objection may be easier to ground: within the health sector the state should satisfy health needs that make larger contributions to welfare before those that make smaller contributions. Evaluation of this objection may also turn on the form of government action increasing availability in question (direct subsidy, tax deduction, insurance mandate, etc.).
194. See, e.g., Orentlicher, supra note 88, at 169. We discuss a related issue in more depth below.
195. See infra text accompanying notes 125-29.
196. Peter J. Neumann, Should Health Insurance Cover IVF? Issues and Options, 22 J. HEALTH POL. POL'Y & L. 1215, 1225-26 (1997). Neumann's preferred solution on this front, though, is not to reduce IVF mandates but to increase support for adoption by employers, as well as through tax credits.
197. Id. at 1232-33.
198. BARTHOLET, supra note 101, at 30.
199. Id. at 35.
200. Id. at 35-36.
201. Id. at 35-37.
202. See, e.g., Appleton, supra note 26, at 410-21 (comparing the regimes governing reproductive technology and adoption and concluding that "for those intent on adding a child to the family without sexual reproduction and without adoption's difficulties and intrusions, the law of ARTs should not present an obstacle" such that in "the main, the existing legal treatment of ARTs across the United States makes adoption a less attractive alternative for meeting the interests of those with fertility problems and a desire to have children");
203. Madelyn Freundlich, Supply and Demand: The Forces Shaping the Future of Infant Adoption, 2 ADOPTION Q. 13, 14-20 (1998) (discussing how the increased success rates of IVF and expansion of access to IVF through insurance mandates is likely to cause a reduction in the number of adoptions);
204. Joan Heifetz Hollinger, From Coitus to Commerce: Legal and Social Consequences of Noncoital Reproduction, 18 U. MICH. J. L. REFORM 865, 926-28 (1985) (arguing that reproductive technologies present "an altogether different category of potential harm: the risk of indifference to the many thousands of children, indeed, to the hundreds of thousands, who are already born but in desperate need of parents to raise them, " and that without more resources committed to support adoption, "the worlds of adoption and of noncoital reproduction will grow farther and farther apart, and those who resort to the laboratory to conceive a child will be symbolically, if not actually, diminishing the role of adoption in our society");
205. Jacoby, supra note 25, at 153 (claiming that IVF insurance mandates "steer some intended parents toward assisted reproduction who might otherwise have seriously considered adoption");
206. Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies, 66 WASH. & LEE L. REV. 203, 211 (2009) (arguing that "prospective parents determined to have a child may be forced into the next best substitute, say adoption, when their first reproductive choice, say ART, has been fully exhausted without success or becomes otherwise unavailable"). Martha Field has offered a parallel critique as to surrogacy: It would be a real social harm for surrogacy to substitute for adoption. Surrogacy allows creation of new, made-to-order children, but only at the expense of children who already exist and who need homes. Some answer that it is hard to adopt the healthy, white infants that many desire. But the shortage of newborns we have experienced in this country lately has resulted in many children being adopted who once would have been hard to place. Children we used to label "unadoptable" are finding adoptive homes these days, and the surrogacy system threatens to reverse that trend. This would be a real social cost of promoting surrogacy. While there is room for argument that this alone should not be a controlling consideration, it surely is wrong to evaluate the surrogacy system without at least taking account of the interests of existing children. Their interest must be taken into account, along with the interests of existing childless couples and others in society.
207. Martha A. Field, Surrogacy Contracts-Gestational and Traditional: The Argument for Nonenforcement, 31 WASHBURN L. J. 1, 8 (1991);
208. see also Elizabeth S. Anderson, Is Women's Labor a Commodity?, 19 PHIL. & PUB. AFF. 71, 91 (1990) ("Leaders of the surrogate industry have proclaimed that commercial surrogacy may replace adoption as the method of choice for infertile couples who wish to raise families. But we should be wary of the racist and eugenic motivations which make some people rally to the surrogate industry at the expense of children who already exist and need homes.").
209. For what it is worth, we have seen no evidence that states adopting these mandates have even considered the possible effect on adoption, though the poverty of state legislative histories makes that conclusion somewhat uncertain. Of course, if these authors are right (both normatively and empirically) in their claims, the issue then becomes one of reforming laws for states with mandates, and dissuading those states that might adopt these mandates in the future from doing so.
210. While the general I. R. C. § 213 tax deduction for medical expenses and fertility loans may be helpful for some individuals, it is not usually as valuable as a tax credit like the one available for adoption.
211. See supra text accompanying notes 25 and 62. Thus, as Pratt concludes, "tax law currently favors adoption over fertility treatment, even if fertility treatment expenses are characterized as medical expenses."
212. Pratt, supra note 6, at 1180. To use Pratt's illustrative example (using 2004 tax law rules): Lee and Shannon are infertile. They are deciding whether to adopt a foreign child or do a cycle of IVF. The cost of either option is $10, 000. Assume that their gross income for the year is $100, 000 and their marginal tax rate is 30 percent. If they adopt, they can claim a § 23 credit of $10, 000. The credit saves them $10, 000 in taxes and reduces their net adoption cost to zero. If they do the IVF cycle and take a § 213 medical expense deduction, the deduction will be $2, 500 (their $10, 000 medical expense less $7, 500, which is 7.5 percent of their gross income). The $2, 500 deduction will save them $750 ($2, 500 deduction multiplied by the 30 percent tax rate) in taxes. Their net cost for the IVF procedure is $9, 250 ($10, 000 less $750 tax savings).
213. Id. at 1180-81.
214. Bragdon v. Abbott, 524 U. S. 624, 638-39 (1998).
215. See, e.g., Dan W. Brock, Separate Spheres and Indirect Benefits, COST EFFECTIVENESS & RESOURCE ALLOCATION (Feb. 26, 2003), http://www.resource- allocation.com/content/pdf/1478-7547-1-4.pdf.
216. If one viewed infertile individuals as a particularly vulnerable group, then the denial of infertility treatments to promote adoption might also seem worse than the denial in the hip replacement case because it involves a kind of emotional blackmail.
217. See supra text accompanying notes 80-82.
218. See DANIELS, supra note 82, at 36-42.
219. See DAVID MECHANIC, MEDICAL SOCIOLOGY 55 (Free Press 2d ed. 1978).
220. See supra text accompanying notes 108-09.
221. See, e.g., Brock, supra note 119, at 4-6 (explaining how direct and indirect benefits may impact health care resource prioritization and suggesting that "[i]t is unfair when prioritizing health care resources,... to favor one group of patients over another, or some health care needs over others, solely because treating them is instrumentally valuable in producing indirect non health [sic] benefits for third parties").
222. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT 86-96 (2000);
223. see also NUSSBAUM, supra note 80, at 79-80;
224. AMARTYA SEN, INEQUALITY REEXAMINED 4-5 (1992).
225. NUSSBAUM, supra note 126, at 86-96.
226. See, e.g., Pratt, supra note 6, at 1131. After all, infertility is usually a "symptom" of something, be it a germ-model disease, a congenital dysfunction, or something else. If pelvic inflammatory disease is bad and demands treatment because it causes infertility, then it seems we have the same reason to prevent it as we do to correct other kinds of infertility-unless one accepts a strong treatment-prevention distinction that we reject for the reasons stated in this paragraph.
227. See, e.g., DANIELS, supra note 82, at 149. That said, it is possible that there are subcategories of IVF users (for example, women over fifty for whom their normal functioning would not include fertility) for whom IVF is arguably an enhancement and not a treatment-access by gays and lesbians would be a closer case. However, as we suggested above, the fact that the vast majority of these mandates do not cover IVF for these subpopulations makes a determination as to this question less relevant for our claims in this Article.
228. See supra note 83.
229. These distinctions are significant since the vast majority of children available for adoption in America do not meet these criteria.
230. See, e.g., SPAR, supra note 1, at 176-77 (pointing out that children in foster care who are eligible for adoption "are older, often scarred by a difficult past, and frequently children of color");
231. Maldonado, supra note 51, at 1434-38 (explaining that many children adopted internationally are likely to have serious medical problems or developmental delays).
232. See, e.g., Barbara Fedders, Race and Market Value in Domestic Infant Adoption, 88 N. C. L. REV. 1687, 1707-08 (2010) (explaining the view of some child welfare advocates "that children of color adopted by white families may experience discomfort and a sense of alienation as they age, struggling to feel a sense of belonging with their cultures of origin").
233. See, e.g., Paul Menzel et al., The Role of Adaptation to Disability and Disease in Health State Valuation: A Preliminary Normative Analysis, 55 SOC. SCI. & MED. 2149, 2149 (2002) ("[I]ll and disabled patients generally rate the value of their lives in a given health state more highly than do hypothetical patients imagining themselves to be in such states.").
234. But see MARK S. STEIN, DISTRIBUTIVE JUSTICE AND DISABILITY: UTILITARIANISM AGAINST EGALITARIANISM 25-30 (2006) (arguing that accounts of adaptation are exaggerated).
235. See Menzel et al., supra note 132, at 2156-57
236. For more on the malleability of preferences about genetic parenthood and the law's expressive function in shaping them
237. see Cohen, supra note 6, at 1142, 1151, 1189-90.
238. See, e.g., Cahn, supra note 28, at 1153;
239. National Adoption Attitudes Survey: Research Report, HARRIS INTERACTIVE, 6, 36 (June 2002), http://www.davethomasfoundationforadoption.org/html/resource/ Adoption-Attitudes.pdf (noting that nearly a quarter of those polled did not believe it was "very likely" that adoptive parents love their children as much as they would have loved their biological children). Here too the aforementioned issues of preference adaptation and their malleability might be relevant.
240. Derek Parfit, Equality or Priority?, in THE IDEAL OF EQUALITY 81, 101 (Matthew Clayton & Andrew Williams eds., 2000).
241. See Harry Frankfurt, Equality as a Moral Ideal, 98 ETHICS 21, 21-22, 34-35 (1987) (explaining that rather than attaching moral significance to economic inequality, or even extreme poverty, a doctrine of sufficiency focuses on allocating resources to meet people's most urgent needs);
242. see also Roger Crisp, Equality, Priority, and Compassion, 113 ETHICS 745, 758 (2003).
243. Whether this follows depends not only on empirical facts about the world, but on further specifications of the sufficientarian theory. First, if the threshold is set too low we might find that both children waiting for adoption and the infertile are above it such that neither deserves preference. If we set the threshold too high, both groups may be below it, in which case we face a problem of how to make below-threshold tradeoffs. Second, is the threshold based on a monistic currency of justice-welfare, for example-or do we instead think there are multiple thresholds (health, family, happiness, etc.) for each of which all individuals need to be raised above? The existence of multiple thresholds complicates the inquiry and raises the question of how to treat between-threshold tradeoffs.
244. See, e.g., Anita Silvers & Michael Ashley Stein, Disability and the Social Contract, 74 U. CHI. L. REV. 1615, 1638 (2007) (discussing this problem under Martha Nussbaum's approach);
245. Mark S. Stein, Nussbaum: A Utilitarian Critique, 50 B. C. L. REV. 489, 496 (2009) ("Nussbaum has no principle for the resolution of conflicts among above-threshold interest... [or] below-threshold.").
246. How significant the changes adopting a prioritarian or sufficientarian model would portend and how unwelcome those changes would be depends in part on how much priority the worst-off get and what counts as sufficient to meet thresholds on particular articulations of these theories. One conceivable way to avoid this result would be to argue for a prioritarian or sufficientarian approach in this domain, but a more utilitarian approach in other state decisions. Such an argument, however, would bear the burden of justifying why a special approach is warranted in this context and not elsewhere.
247. Adding in nonconsequentialist moral theories as possible contenders would further complicate the picture, and it would raise interesting questions of whether children waiting for adoption might make rights claims that could count as side constraints and whether there are any countervailing rights claims on the part of parents.
248. See Cohen, supra note 100, at 361 n. 44;
249. Cohen, supra note 100 (unpublished manuscript). Without sidetracking the main discussion too much, the point goes as follows. Take the following purely illustrative and skeletal facts about the population to be true: Hypothetical 1: There exist three children (Alvin, Simon, and Theodore) waiting for adoption, each with welfare four. If IVF mandates are not in place, they will be adopted, and their welfare will increase by three to seven. If, by contrast, the mandates are in place, none of them will be adopted (and their welfare will remain at four), but three new children (Huey, Dewey, and Louis) will come into existence with welfare seven. Should a utilitarian consequentialist government that purely seeks to maximize welfare support the mandates under this circumstance? This utilitarian government could have two different maximization rules. It could be a total utilitarian, which determines the best state of the world by summing up the welfare of all individuals in existence. Or, it could be an average utilitarian, which would add together the utility of all individuals in the population and then divide that sum by the number of individuals in the population.
250. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE 139-43 (rev. ed. 1999). On the total utilitarian view, opposing the mandate is preferable because the total with the mandate in place is 33 (4 + 4 + 4 + 7 + 7 + 7) while the total with it not in place is 21 (7 + 7 + 7). On the average utilitarian view, supporting the mandate is not preferable because the average utility with the mandate in place is 7 ((7 + 7 + 7)/3) versus 5.5 with the mandate in place ((4 + 4 + 4 + 7 + 7 + 7)/6). On these numbers, it appears the choice of total or average utilitarianism as the maximization rule would be dispositive. In fact, though, things are much more complicated for four reasons. First, this conclusion is to some extent dependent on the numbers we have chosen. In the first hypothetical, we have assumed that adopted children "catch up" fully (in utility terms) when adopted to the children born under IVF to begin with. This need not necessarily be so. Many studies suggest welfare outcomes may be dependent on the age at which the children were adopted.
251. See, e.g., D. Marianne Blair, Safeguarding the Interests of Children in Intercountry Adoption: Assessing the Gatekeepers, 34 CAP. U. L. REV. 349, 394 (2005). Consider in this regard a different way the world might work: Hypothetical 2: There exist three children (Larry, Moe, and Curly) waiting for adoption, each with welfare four. If IVF mandates are not in place, they will be adopted, and their welfare will increase by one unit to five. If, by contrast, the mandates are in place, none of them will be adopted (and their welfare will remain at 4), but three new children (Jan, Marsha, and Cindy) will come into existence each with welfare nine. The total utilitarian still favors the mandate since 39 (4 + 4 + 4 + 9 + 9 + 9) is greater than 15 (5 + 5 + 5). But now the average utilitarian would also favor the mandate since 6.5 ((4 + 4 + 4 + 9 +9 + 9)/6) is greater than 5 ((5 + 5 +5)/3). To be sure, we could present different sets of numbers that would have the opposite implication (making total utilitarianism oppose the mandate). The broader point is that how this tradeoff works out is dependent on other facts about the world, namely the utility boost that children waiting for adoption get as compared to the utility of children born from IVF. Second, the situation is still more complex for the utilitarian in that we have thus far been assuming that the presence of the mandate means that we are trading-off improving the life of one adopted child versus bringing into existence one new child from IVF. That need not be the case, and there is no reason to believe the world should be so neatly 1:1, as we suggested above. If, in fact, the mandate increases the number of children born through IVF more than the number of children adopted, things should look better for the mandate on either total or average utilitarian grounds. Along these lines, consider this variation on the first hypothetical: Hypothetical 3: There exist three children (Alvin, Simon, and Theodore) waiting for adoption, each with welfare four. If IVF mandates are not in place, only Alvin will be adopted, and his welfare will increase by three to seven. If, by contrast, the mandates are in place, none of the three children will be adopted (and their welfare will remain at four), but three new children (Huey, Dewey, and Louis) will come into existence with welfare seven. The total utilitarian favors the mandate because 33 (4 + 4 + 4 + 7 + 7 + 7) is greater than 15 (7 + 4 + 4). The average utilitarian now also favors the mandate because 5.5 ((4 + 4 + 4 + 7 + 7 + 7)/6) is greater than 5 ((7 + 4 + 4)/3). Third, we have been engaging in the opposite simplification that we used in the main text, now trading-off child welfare between adopted and IVF-born children but ignoring parental welfare from IVF. It can be the case under either total or average utilitarianism that the combination of the welfare improvement to parents who want to have genetically related children plus the welfare of the new children who come into existence together is greater than the welfare loss to children awaiting for adoption. On the flip side, we would have to consider things like welfare losses to prospective parents who attempt but do not succeed in their IVF usage. Fourth, to the extent average and total utilitarianism conflict, there is also the further problem of which rule to adopt in population-changing cases, or whether to adopt a mixed rule. This introduces a host of other complications relating to choosing between what Derek Parfit has called "the Repugnant Conclusion" and "the Mere Addition Paradox."
252. PARFIT, supra note 100, at 388-90, 419-21;
253. see also, e.g., ALLEN BUCHANAN ET AL., FROM CHANCE TO CHOICE: GENETICS AND JUSTICE 254-55 (2000);
254. Cohen, supra note 100 (unpublished manuscript). There are also further questions of whether our obligations to improve the lot of existing individuals (who can be harmed if their lives go badly) ought to take precedence over creating new people (who will not be harmed if not brought into existence) as opposed to merely considering the total or average welfare of two possible populations. For sophisticated arguments that we ought not ignore the welfare of individuals who will come into existence
255. see, for example, LOUIS KAPLOW, THE THEORY OF TAXATION AND PUBLIC ECONOMICS 387-90 (2008);
256. John Broome, Should We Value Population?, 13 J. POL. PHIL. 399, 406 (2005);
257. Eric Rakowski, Who Should Pay for Bad Genes?, 90 CALIF. L. REV. 1345, 1369-88 (2002). Broome suggests that while the welfare of these not-yet-existing children should count in evaluating the goodness of a state of the world, it may not create a responsibility to produce these children, thus avoiding the problematic suggestion that there is a duty to reproduce in a way that maximizes total utility.
258. Broome, supra, at 412-13. That may be true, but that qualification does not necessarily apply to the question of what steps the state should take in facilitating reproduction through IVF access among other means. All this constitutes further considerations that the proponents of the substitution theory-to the extent they are understood as making a consequentialist case for their antimandate position-would need to speak to in order to make good on their normative claim. We do not pretend to have answers to all of these points-one of the reasons why we frame this Part as concerns with the substitution theory's claim rather than as a strong statement of the opposite claim-but they do require an answer before the substitution theory (again assuming the truth of its empirical proposition) can entail the normative conclusion its proponents assign to it.
259. In focusing on the prospective-parent/adopted-child/potential-childfrom- IVF triad, we have thus bracketed many externalized costs and benefits from the decision of whether to favor reproduction versus adoption. Among other things, a true global utilitarian calculus would have to factor in the interests of prospective grandparents and other relatives in the parents having genetic children, the welfare benefit to doctors who have greater demand for IVF services (and the increased tax revenue stemming from it), and the welfare gains of the foster parents who retain children for longer periods of time without the mandates. On the other side of the ledger, the state would have to consider the social cost of the delays in the adoption of these children in domains such as the state's subsidization of foster care, the decrease in these children's future earning potential (and thus tax revenue) or increase in propensity toward delinquency, and so on. Trying to anticipate, assign values to, and then compare totals on each of the thousands of variables relevant to this truly global utilitarian question is an impossible task, and thus the public policy analysis will have to draw the line somewhere. Wherever that line is drawn, though, our point above about the ratio of IVF births facilitated to adoptions delayed or prevented, and the important empirical question of effect size we discuss below, will be crucial.
260. To be sure, Bartholet at least would clearly want to increase adoptions by all elements of society and her focus on reproductive technology access is likely pragmatic as a promising point of influence.
261. Cf. BARTHOLET, supra note 101, at 29-30. A further normative problem in attaching weight to the reproductive technology-adoption tradeoff stems from what are sometimes called "agentcentered prerogatives." In responding to the critique that consequentialism impermissibly alienates an agent from his own life projects, some have urged a modification in which we recognize that in some cases an individual may permissibly depart from his duty to produce the "best overall state of affairs" in order to pursue important life projects necessary for the integrity of the person.
262. See SAMUEL SCHEFFLER, THE REJECTION OF CONSEQUENTIALISM 5-6, 20-23 (1982). On a theory that made room for such prerogatives, one might make the case that having genetically related children is so important to one's life projects that even if failing to adopt diminishes overall welfare, one is justified in making that choice. That claim may be controversial-especially for those discussed above who think that insurance mandates covering IVF are part of the social construction of genetic parentage as an important life goal rather than serving as a way of satisfying an already existing goal-but it represents another difficulty with the normative side of the substitution theory.
263. For a further discussion of distinctions between positive and negative liberty conceptions of a right to procreate in normative and constitutional thinking
264. see, for example, I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 60 STAN. L. REV. 1135, 1139-46 (2008).
265. See supra notes 59-62 and accompanying text.
266. A 2000 Treasury Report to Congress on the adoption tax credit suggested it was not clear how much the credit (as it then existed) affected adoptions. It did suggest its role in promoting special needs adoptions (because those adoptions are already heavily subsidized) was unlikely and its role in promoting foreign adoptions was likely. Report to the Congress on Tax Benefits for Adoption, U. S. DEPARTMENT TREASURY, 3-5 (Oct. 3, 2000), http://www.ustreas.gov/ offices/tax-policy/library/adoption.pdf;
267. see Pratt, supra note 6, at 1178-80. This does not, of course, answer the question of what effect a much more generous set of tax credits for adoption might have. At least theoretically, another possibility would be for the state to refuse to aid individuals in achieving medical care for infertility for the instrumental purpose of improving adoption rates, but then attempt to compensate those individuals for the setting back of that interest. As a practical matter, it is not clear this would work since as long as the compensation is fungible with cash it might offer an alternative way to finance infertility treatments. At a theoretical level, such singling out might also counterproductively increase the stigma of being infertile and reinforce the way in which the state has selectively chosen the infertile as its instruments to improve adoption rates.
268. Improvements to the foster care system might also somewhat mitigate these concerns, although the United States' historical record on this score should make us less sanguine about this prospect.
269. Cf. SPAR, supra note 1, at 176-78 (describing the relationship between adoption and the foster care system).
270. See Pratt, supra note 6, at 1178-80.
271. See, e.g., Bernie D. Jones, International and Transracial Adoptions: Toward a Global Critical Race Feminist Practice?, 10 WASH. & LEE RACE & ETHNIC ANC. L. J. 43, 44 (2004);
272. Richard F. Storrow, Quests For Conception: Fertility Tourists, Globalization and Feminist Legal Theory, 57 HASTINGS L. J. 295, 322-23 (2005).
273. See, e.g., Elizabeth Bartholet, International Adoption: Thoughts on the Human Rights Issues, 13 BUFF. HUM. RTS. L. REV. 151, 177-91 (2007).
274. See, e.g., CHARLES R. BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS 143-53 (1979);
275. NUSSBAUM, supra note 80, at 291, 313-20 (offering a cosmopolitan view based on the Capabilities/Functioning approach);
276. Charles R. Beitz, Justice and International Relations, 4 PHIL. & PUB. AFF. 360, 373-83 (1975) (offering a cosmopolitan Rawlsian view).
277. BEITZ, supra note 151, at 151;
278. see also THOMAS W. POGGE, REALIZING RAWLS 247 (1989) (arguing that the country into which one is born "is just one further deep contingency (like genetic endowment, race, gender, and social class), one more potential basis of institutional inequalities that are... present from birth, " and that allowing one's entitlement to primary goods to depend on this fact would be morally arbitrary);
279. Beitz, supra note 151, at 367, 373-76.
280. See, e.g., JOHN RAWLS, THE LAW OF PEOPLES 30-64, 93 n. 6, 107-20 (1999);
281. Thomas Nagel, The Problem of Global Justice, 33 PHIL. & PUB. AFF. 113, 118, 127-30 (2005).
282. See generally RAWLS, supra note 153, at 34-35 (explaining that people's reasoning and rationale for "accepting functional social and economic inequalities in their liberal society" leads to people offering to others "fair terms of political and social cooperation");
283. Nagel, supra note 153, at 128-30 (explaining that "we are assigned a role in the collective life of a particular society" and that "our active cooperation... cannot be legitimately done without justification- otherwise it is pure coercion").
284. Rawls has in mind a duty to assist "burdened societies" whose "historical, social, and economic circumstances make their achieving a well-ordered regime, whether liberal or decent, difficult if not impossible."
285. RAWLS, supra note 153, at 90. Burdened societies, as Rawls uses the term, "lack the political and cultural traditions, the human capital and know-how, and, often, the material and technological resources needed to be well-ordered, " but with assistance can over time become able to "manage their own affairs reasonably and rationally and eventually to become members of the Society of well-ordered Peoples."
286. Id. at 106, 111. Being a well-ordered society requires having a "decent scheme of political and social cooperation, " meaning that the state secures "a special class of urgent [human] rights, such as freedom from slavery and serfdom, liberty (but not equal liberty) of conscience, and security of ethnic groups from mass murder and genocide, " and a right to formal equality.
287. Id. at 66, 79. This further requires that citizens view their law as imposing duties and obligations "fitting with their common good idea of justice" and not "as mere commands imposed by force, " and that officials believe that "the law is indeed guided by a common good idea of justice, " not "supported merely by force."
288. Id. at. 66-67. For more on this concept and its boundaries
289. see, for example, Matthew E. Price, Persecution Complex: Justifying Asylum Law's Preference for Persecuted People, 47 HARV. INT'L L. J. 413, 432 (2006)
290. and Mathias Risse, What We Owe to the Global Poor, 9 J. ETHICS 81, 109 (2005).
291. Nagel suggests that "there is some minimal concern we owe to fellow human beings threatened with starvation or severe malnutrition and early death from easily preventable diseases" such that "some form of humane assistance from the well-off to those in extremis is clearly called for quite apart from any demand of justice, if we are not simply ethical egoists."
292. Nagel, supra note 153, at 118. Although he is self-admittedly vague, he thinks "[t]he normative force of the most basic human rights against violence, enslavement, and coercion, and of the most basic humanitarian duties of rescue from immediate danger, depends only on our capacity to put ourselves in other people's shoes."
293. Id. at 131. He speaks of obligations to relieve others, whatever their state, "from extreme threats and obstacles to [the freedom to pursue their own ends] if we can do so without serious sacrifice of our own ends."
294. Id. In a similar vein, Michael Blake suggests a duty to provide "access to goods and circumstances" to enable people "to live as rationally autonomous agents, capable of selecting and pursuing plans of life in accordance with individual conceptions of the good, " and singles out "famine, extreme poverty, crippling social norms such as caste hierarchies" as the kinds of things against which we have obligations to intervene notwithstanding the citizenship of the victim.
295. Michael Blake, Distributive Justice, State Coercion, and Autonomy, 30 PHIL. & PUB. AFF. 257, 271 (2001).
296. Locating an obligation as to international adoption in the duty to aid burdened states faces at least two problems. First, such an obligation would only attach to a subset of source countries for international adoptees who meet the definition of "burdened states, " which may include some, but certainly not all, of the countries from which international adoptees come. Second, and more critically, the kind of institution-building assistance Rawls has in mind as part of the duty to aid burdened states-that is, assisting the state "to realize and preserve just (or decent) institutions, "
297. RAWLS, supra note 153, at 107 seems like a poor fit for a duty toward international adoptions. Whatever it may do for the actual children being adopted, it is hard to see this international adoption as helping to build just institutions in the state these children leave behind.
298. The duty toward humanitarian aid emphasized by Nagel is more promising in fit, but will likely apply only to a subset of international adoption cases. While the life prospects of many children waiting for adoption abroad are poor, it is unclear whether they are subject to "extreme threats" such as "starvation or severe malnutrition and early death from easily preventable diseases[.]"
299. Nagel, supra note 153, at 118, 131. For some sending countries there is a plausible argument that the answer will be "yes, " but for many others the answer will be "no. " We ought to be cautious in specifying the level of deprivation needed to trigger these humanitarian duties since the resulting duties are not adoption-specific; that is, if we decide a particular kind of deprivation is enough to trigger our duty to rescue these children waiting for adoption, we will bear a comparable duty to all citizens of that foreign country in comparable conditions. Too expansive a conception of the humanitarian duty will result in few meaningful differences between obligations of humanitarian and distributive justice and may have significant implications for issues like our general immigration policy that Nagel (and others) have sought to avoid.
300. See, e.g., Nagel, supra note 153, at 129-30 (discussing immigration). One might also wonder whether such a duty, if it exists, is better discharged through financial aid to those in distress abroad rather than setting back the interests of our own citizens who would like access to IVF. In any event, pursuing this path would suggest at least three steps of analysis going forward. First, we would have to make a determination as to whether the plight of children from particular sending countries is severe enough to activate humanitarian duties. Second, we would have to determine what effect IVF mandates have on adoptions from those particular countries-our approach below does not attempt to offer country-by-country analysis, nor could it have done so with the econometric frameworks we use given the small sample size that would result from splitting by country. Finally, we would have to determine whether noncoverage of IVF as a humanitarian duty would entail a "serious sacrifice of our own ends, " to use Nagel's term
301. id. at 131, an analysis that would presumably depend on not only the answers to the two prior questions (How bad is the deprivation these children are saved from? How many of the worst deprived children would be affected by abolishing the IVF mandates?), but also to the more fundamental questions discussed above as to whether we think the State has an obligation to assist in fertility as part of ensuring the health of its citizenry, and on whom the obligations to assist those waiting for adoption justly fall.
302. See DANIELS, supra note 82, at 346 (proposing an approach that "focus[es] on a middle ground between strongly statist claims that egalitarian requirements of social justice are solely the domain of the nation-state and its well-defined basic structure and strong cosmopolitan claims that principles of justice apply to individuals globally, regardless of the relations in which they stand or the institutional structures through which they interact" (citations omitted));
303. see also Joshua Cohen & Charles Sable, Extra Rempublicam Nulla Justitia?, 34 PHIL. & PUB. AFF. 147, 154-70.
304. DANIELS, supra note 82, at 345-54;
305. Cohen & Sable, supra note 159, at 147, 154-55.
306. Nagel, supra note 153, at 128-30.
307. Cohen & Sable, supra note 159, at 165.
308. Id. at 168.
309. DANIELS, supra note 82, at 338-39.
310. See supra Part II. C.
311. See supra notes 110-14 and accompanying text.
312. Pushing slightly in the other direction is a literature in sociology and economics on peer effects and reproduction, which suggests that individuals' preferences as to the number of children they have may depend on their observation of the number of children others have.
313. See Susan Cott Watkins, From Local to National Communities: The Transformation of Demographic Regimes in Western Europe, 1870-1960, 16 POPULATION & DEV. REV. 241 (1990);
314. Ilyana Kuziemko, Is Having Babies Contagious? Estimating Fertility Peer Effects Between Siblings (June 2006) (unpublished manuscript), available at http://www.princeton.edu/~kuziemko/fertility-11-29-06.pdf. This view might suggest that increased reproductive technology use among one part of the population might stimulate increased adoption rates in the other.
315. For example, drawing on data from the 1995 National Survey of Family Growth (NSFG), a survey done on a national sample of 10, 000 American women ages fifteen to forty-four seeking information on adoption attitudes among other subjects, Anjani Chandra and her colleagues found that having considered adoption, having taken steps toward adoption, and having actually adopted was more common among women who had suffered some fertility impairment and who had previously used fertility services.
316. See ANJANI CHANDRA ET AL., ADOPTION, ADOPTION SEEKING, AND RELINQUISHMENT FOR ADOPTION IN THE UNITED STATES 1, 6-7 tbls.2 & 3 (Nat'l Ctr. for Health Statistics, Advance Data Report No. 306, 1999), available at http://www.cdc.gov/nchs/data/ad/ad306.pdf. Specifically, the study found that 44.9 percent of women who had ever considered adoption reported impaired fecundity and 41.1 percent reported having tried infertility services, for those currently seeking or planning to adopt the equivalent numbers were 54.8 percent and 59.4 percent.
317. Id.
318. see also Numbers and Trends: Persons Seeking to Adopt, CHILD WELFARE INFO. GATEWAY, 2-3 (Mar. 2005), http://www.childwelfare.gov/pubs/s-seek.pdf (explaining the data from the 1995 NSFG). A similar study using the 2002 NSFG data also found that "infertility, infecundity, and using infertility services were highly significant predictors of having sought to adopt" among both Hispanic and non-Hispanic white women.
319. Lamb, supra note 48, at 166-69 tbl.2.
320. Marianne Berry, Preparation, Support, and Satisfaction of Adoptive Families in Agency and Independent Adoptions, 13 CHILD & ADOLESCENT SOC. WORK J. 157, 161, 165 tbl.2 (1996). Those seeking to adopt children from Haiti in the aftermath of the recent disaster give a poignant reminder that some who adopt do so out of humanitarian impulses rather than as a way of building a family in the face of infertility.
321. See, e.g., U. S. Works to Expedite Adoptions of Haitian Children, CNN. COM (Jan. 18, 2010, 9:57 PM) http://www.cnn.com/2010/US/01/18/haiti.us.orphans/ index.html.
322. Judith C. Daniluk & Joss Hurtig-Mitchell, Themes of Hope and Healing: Infertile Couples' Experiences of Adoption, 81 J. COUNSELING & DEV. 389, 392 (2003).
323. Id.
324. Appleton, supra note 26, at 427;
325. see also Frank van Balen et al., Choices and Motivations of Infertile Couples, 31 PATIENT EDUC. & COUNSELING 19, 19-20, 22 (1997) (showing in a 1992 study of 131 infertile couples in the Netherlands that ninety-five percent of these couples considered and eighty-six percent actually used medical help when faced with infertility, compared to only thirty-five percent who considered and five percent who actually used adoption).
326. To use an obviously slanted example purely for illustrative purposes, even if one could say that a measure increasing access to reproductive technology had a statistically significant effect on adoption at the p =.01 level, some would not be dissuaded from favoring the measure if, per year, it enabled 10, 000 additional women to conceive children through reproductive technology, but only resulted in a decrease of five children being adopted. This is just to state the obvious fact that for most public policy decision makers effect sizes matter, not just statistical significance.
327. See also Kathleen McCatney & Robert Rosenthal, Effect Size, Practical Importance, and Social Policy for Children, 71 CHILD. DEV. 173, 178 (2000). As suggested above, on many plausible moral theoretical approaches to this problem, effect sizes also matter.
328. See supra notes 48, 49, 130 and accompanying text.
329. See Jain et al., supra note 90, at 663 (finding that complete coverage mandates are associated with a 177 percent increase in IVF utilization, while partial coverage mandates are associated with a twenty percent increase in IVF utilization).
330. Henne & Bundorf, supra note 90, at 70.
331. Lucie Schmidt, Effects of Infertility Insurance Mandates on Fertility, 26 J. HEALTH ECON. 431, 437 (2007).
332. Marianne Bitler & Lucie Schmidt, Health Disparities and Infertility: Impacts of State-Level Insurance Mandates, 85 FERTILITY & STERILITY 858, 861-64 (2006).
333. Hamilton & McManus, supra note 90, 27-29.
334. Id. at 3.
335. See supra Part II. C (discussing the Substitution Theory, which suggests that IVF takes the place of adoption in some cases);
336. supra notes 175-79 and accompanying text (discussing other studies indicating a correlation between insurance mandates and IVF utilization).
337. 215 ILL. COMP. STAT. ANN. 5/35 6m (b) (B) (West 2008). Not all complete coverage states are exactly the same; there is heterogeneity in the exact terms of coverage. For example, in Rhode Island insurers can impose up to a twenty percent copayment and a lifetime cap of $100, 000 in coverage.
338. R. I. GEN. LAWS § 27-18-30 (2008);
339. see Jain et al., supra note 90, at 662. The authors are happy to share the survey of these laws prepared for this Article if contacted directly.
340. HAW. REV. STAT. § 431:10A-116.5 (West 2005);
341. see Jain et al., supra note 90, at 662.
342. See, e.g., Schmidt, supra note 177, at 432.
343. TEX. INS. CODE ANN. §§ 1366. 002-.004 (2009);
344. see Schmidt, supra note 177, at 433.
345. E.g., LA. REV. STAT. ANN. § 22:1036 (A) (West 2009) ("Any health insurance policy..., shall not exclude coverage for diagnosis and treatment of... infertility. This... shall not be construed to require coverage of the following: [f]ertility drugs[;i]n vitro fertilization or any other assisted reproductive technique[; or r]eversal of a tubal ligation, a vasectomy, or any other method of sterilization. "). This category is our most heterogeneous in that while Louisiana, New York, and Ohio statutes are mandates to cover these other services, the California statute is merely a mandate to offer them.
346. See CAL. INS. CODE § 10119.6 (a) (West 2005);
347. LA. REV. STAT. ANN. § 22:1036 (A);
348. N. Y. INS. LAW § 3221 (a) (1) (C) (v) (McKinney 2006);
349. OHIO REV. CODE ANN. § 1751.01 (A) (1) (h) (LexisNexis 2009);
350. Spar & Harington, supra note 97, at 52 & n. 68 (2009). Still, we construct this category as a useful check on our methods, in that since these statutes explicitly exclude IVF they ought to have no statistically significant effect on increasing IVF cycles. The effect on adoption one would predict from the introduction of these mandates is less clear: on the one hand, they might have some effect on adoption since they make some services for assisted reproduction more accessible; on the other hand, IVF is by far the most expensive of the services, and it is the area in which we would expect to see the most substitution given subsidization.
351. See Bitler & Schmidt, supra note 178, at 859;
352. Hamilton & McManus, supra note 90, at 33;
353. Henne & Bundorf, supra note 90, at 67;
354. Jain et al., supra note 90, at 662;
355. Schmidt, supra note 177, at 433, tbl.1. We discuss the divergences in Appendix A. Appendix A, supra note 4. The text of all state mandates and their categorization was verified by one of this Article's authors and by a research assistant.
356. As discussed in more depth below and set out in Appendix A, see supra note 187, as a robustness check we reran our analyses using these other categorizations as well as reclassifying some "close calls, " but we found no changes in our core findings.
357. Except where otherwise noted, each of these was the first mandate covering IVF in that state. Where the two diverge we use the law's effective date, not the enactment date.
358. See, e.g., Ellen Waldman, Cultural Priorities Revealed: The Development and Regulation of Assisted Reproduction in the United States and Israel, 16 HEALTH MATRIX 65, 89-90 (2006).
359. Three additional details are worth mentioning. First, Connecticut was originally a mandate-to-offer state, beginning in 1989, but in 2005 its mandate was changed so that it is now a partial-coverage mandate state.
360. See CONN. GEN. STAT § 38a-509,-536 (2010). In our data analysis we code it accordingly, but here we list it in both categories. Second, there appears to be some controversy about whether Ohio's statute actually covers IVF. The actual statutory term "infertility services" is left undefined and there is an exclusion for "experimental procedures."
361. OHIO REV. CODE ANN. § 1751. 01 (A) (1) (h) (LexisNexis 2009). Until 1997, this was apparently interpreted as providing a mandate that covers IVF.
362. See Schmidt, supra note 177, at 433 tbl.1, n. c. However, in 1997 the Ohio Department of State interpreted the statute to cover "diagnostic and exploratory procedures... including surgical procedures to correct... disease... of the reproductive organs including but not limited to, endometriosis, collapsed/clogged fallopian tubes or testicular failure, " but made clear that "in vitro fertilization, gamete intrafallopian transfer, and zygote intrafallopian transfer are not essential... and are therefore not mandated benefits...."
363. OHIO DEP'T OF INS., BULLETIN 97-1 (1997), available at http://www.insurance.ohio.gov/Legal/Bulletins/Documents/97-1.pdf
364. revised by OHIO DEP'T OF INS., BULLETIN 2009-07 (2009), available at http://www.insurance.ohio.gov/Legal/Bulletins/Documents/2009-07.pdf;
365. see also Schmidt, supra note 177, at 433 tbl.1, n. c. Therefore, we code Ohio as a partial mandate state from 1991-1997 and a non-IVF mandate state from 1997 onwards, and we list it twice in the chart. Third, our auditing of the CDC data shows that Montana, despite having a mandate, does not have any IVF clinics.
366. See Assisted Reproductive Technology, CENTERS FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/ART (last visited Oct. 3, 2010). To be sure that this quirk did not create any problems with our analysis, we reran our results excluding Montana and found no differences in our core findings. Therefore, in what follows we include Montana as a mandate state.
367. The data are available at Assisted Reproductive Technology, supra note 191. The collection of these data was prompted by the Fertility Clinic Success Rate and Certification Act of 1992, Pub. L. No. 102-493, 106 Stat. 3146
368. (codified at 42 U. S. C. §§ 263a-1 to-7), which requires all fertility clinics in the United States to report data.
369. See CDC, supra note 14, at 5 (noting its inclusion of 426 clinics and its belief "that almost all clinics that provided ART services in the United States throughout 2006 are represented in this report"). In each year's report, the CDC also publishes a list of facilities that have closed or failed to properly report data. In 2006, for example, there were fifty-seven clinics that failed to report.
370. See id. at 567-70.
371. See Hamilton & McManus, supra note 90, at 14;
372. Jain et al., supra note 90, at 662.
373. For the CDC's definition of cycle
374. see CDC, supra note 14, at 4. We prefer to measure cycles rather than live births for two reasons. First, this is a standard measure used by others in the literature to determine IVF utilization.
375. See, e.g., Henne & Bundorf, supra note 90, at 69-70. Second, IVF is associated with multiple births, e.g.
376. Callahan et al., supra note 94, at 244, which we feared might complicate its use as a measure of a substitute for adoption, since individuals who receive IVF may only want one child but end up with a multiple birth. As we describe below, as a robustness check we reran our analyses using live births rather than cycles as a measure and found no change in our core findings. We also reran our analyses using information on cycles from frozen nondonor eggs and donor eggs and found no change in our core findings.
377. There are slight differences between the CDC and hard-coded data, but the differences do not affect our results since no state mandate change occurred between 1994 and 1995 and our adoption data begins in 1995.
378. For each of our data sources, the "year" reported is the year the adoption was completed.
379. For more on this data-set or to receive a copy
380. see AFCARS Details, NAT'L DATA ARCHIVE ON CHILD ABUSE & NEGLECT, http://www.ndacan. cornell.edu/NDACAN/Datasets/Abstracts/DatasetAbstract-AFCARS- General.html (last visited Oct. 3, 2010).
381. The AFCARS data also contains coding for each adoption as to whether a state or federal subsidy was given, as well as the size of the subsidy
382. id., although we do not make use of this coding in our analysis.
383. This approach is supported by work done using the aforementioned NSFG data-set, which suggests that while adoption of unrelated children is more common among women with impaired fecundity, the same pattern does not carry over for adoption of related children.
384. William D. Mosher & Christine A. Bachrach, Understanding U. S. Fertility: Continuity and Change in the National Survey of Family Growth, 1988-1995, 28 FAM. PLAN. PERSP. 4, 8-9 (1996). This result does not hold as strongly across all racial groups and socioeconomic status (SES) levels in that "[b]lack families and families with low incomes and low levels of education are more likely than others to adopt a relative."
385. Id. at 9. To be sure, our assumption that if the substitution theory is correct IVF mandates should have a greater effect on related versus unrelated adoptions is not uncontestable, and confirming or disproving this assumption is a fruitful direction for further sociological or other work on the relation between adoption and IVF utilization.
386. Victor Flango & Carol Flango, How Many Children Were Adopted in 1992?, 74 CHILD WELFARE 1018 (1995);
387. How Many Children Were Adopted in 2000 and 2001?, supra note 45.
388. OFFICE OF IMMIGRATION STATISTICS, DEP'T OF HOMELAND SEC., YEARBOOK OF IMMIGRATION STATISTICS (2009), available at http://www.dhs.gov/xlibrary/assets/ statistics/yearbook/2009/ois-yb-2009.pdf.
389. Data for the period 2001-2009 are available from the DHS website. Data for the period 1972-2000 are available at Immigrants Admitted to the United States Series, INTER-U. CONSORTIUM FOR POL. & SOC. RES. (ICPSR), http://www.icpsr.umich.edu/icpsrweb/ICPSR/series/00121 (last visited Oct. 3, 2010).
390. See supra note 79.
391. We considered using as a control variable a classification based on how adoption-friendly each state was, see Christine Adamec, State Adoption Laws, in NAT'L COUNCIL FOR ADOPTION, ADOPTION FACTBOOK III 365, 367 (1999), to try to rule out bias resulting from the possibility that states which were more adoption-friendly to begin with passed IVF mandates. We ultimately decided not to use this classification because we were worried about the time-invariant nature of this categorization. In any event, in earlier iterations when we did use the classification we found little effect on our primary results.
392. These are the same variables used by Henne and Bundorf in their investigation of the effects of mandates on IVF utilization.
393. See Henne and Bundorf, supra note 90, at 69-70. Three explanatory notes are in order. First, because AFCARS did not report data from every state in the early years, Figure 1 shows a slightly misleading jump because it shows total, not average, numbers of public adoptions; states not reporting data cannot contribute to the total number of adoptions. Second, Table 2 lists different numbers of observations because our data-sets are not wholly overlapping for the time period. Finally, our level of analysis is at the state-year level.
394. Previous studies that have also examined the effect of insurance mandates on IVF utilization rates include Jain et al., supra note 90;
395. Hamilton & McManus, supra note 90;
396. Henne & Bundorf, supra note 90. Schmidt examines the effect of insurance mandates on fertility.
397. Schmidt, supra note 177.
398. See generally JAMES H. STOCK & MARK W. WATSON, INTRODUCTION TO ECONOMETRICS 385-88 (2003) (explaining differences-in-differences framework).
399. One commentator raised concern that our analysis on international adoptions might be affected by the overall decline in U. S. international adoptions since 2004 due to changes in policies of sending countries, a decline that was orthogonal to IVF access.
400. See, e.g., Peter Selman, The Rise and Fall of Intercountry Adoption in the 21st Century, 52 INT'L SOC. WORK 575, 575-92 (2009). As discussed above, most of our international data comes before this period of decline and, more importantly, one advantage of the differences-indifferences approach, is that so long as declines in the number of children available for international adoption effect mandate and nonmandate states alike-and there is no evidence to the contrary-the approach factors them out.
401. In this way, differences-in-differences allows us to control for unobserved variables, such as cultural attitudes toward adoption, which differ from one state to the next but do not change over time, as well as factors such as ease of obtaining adoptions, which vary through time but do not vary across states.
402. See STOCK & WATSON, supra note 207, at 386 (explaining advantages of differences-in-differences analysis).
403. Id.
404. In doing so we follow Marianne Bertrand et al., How Much Should We Trust Differences-in-Differences Estimates?, 119 Q. J. ECON. 249, 272-73 (2004).
405. See supra note 187, Appendix B, Table B-1.
406. See supra note 187, Appendix B.
407. See supra note 187, Table B-2.
408. See generally WILLIAM H. GREENE, ECONOMETRIC ANALYSIS ch. 6 (3d ed. 1997).
409. See STOCK & WATSON, supra note 207, at 143-49 (describing omitted variable bias).
410. See id. at 251-53 (describing simultaneous causality).
411. See id. at 343-44 (describing the 2SLS approach).
412. See supra note 187, Appendix B, Table B-2.
413. Henne & Bundorf, supra note 90, at 70-72. Small differences between our classification and Henne and Bundorf's classification of states by mandate type are discussed in Appendix A.
414. See infra text accompanying notes 235-36;
415. supra note 187, Appendix A.
416. Hamilton and McManus use a slightly different categorization scheme, as set out in Appendix A, but find a similar result using a differencesin- differences analysis.
417. See Hamilton & McManus, supra note 90, at 28;
418. text accompanying notes 240-41;
419. supra note 187, Appendix A.
420. As discussed above, we have three separate data-sets that we use for our adoption analyses. The AFCARS data-set groups adoptions into four categories: stepparent (adoption by a stepparent), other relative (adoption by another relative), foster (adoption by nonrelated individuals who previously served as foster parents to the child), and nonrelative (adoption by nonrelated individuals who did not serve as foster parents to the child). It also has a "total public" measure meant to capture all public adoptions in the data-set. We initially hypothesized that foster adoptions would also be unaffected by the mandate, but one commentator suggested that, though national in scope, ASFA may have had state-specific effects making our finding as to foster adoption less reliable-in that it is hypothetically possible the data for foster adoption reflects state-specific effects of these statutes rather than the introduction of insurance mandates. In any event, due to this possible complication we place less reliance on our foster adoption data as compared to our finding on nonrelated adoptions, for which ASFA should have no effect, on what we are told by those knowledgeable in the field is the plausible assumption that individuals do not treat foster adoption as a substitute for other kinds of adoption or IVF use.
421. See supra Table 3.
422. As discussed below, we examine the robustness of this finding as to international adoptions through a bootstrap test and find some reason to doubt it.
423. See infra text accompanying notes 236-39.
424. In Appendix B, we also run an OLS analysis using a cross-sectional approach.
425. See supra note 187, Appendix B, Table B-2, Panel A.
426. See infra Table 4.
427. See infra Table 4.
428. * 0.0362.
429. See supra note 187, Appendix A.
430. See supra note 187, Appendix A, Table A-2; Table A-3.
431. See supra note 187, Appendix A, Table A-2, Column 1; Table A-3, Column 1.
432. See supra note 187, Appendix A, Table A-2; Table A-3.
433. Tables 5-7 show many missing values for estimates of the lag effects of offer insurance mandates. The reason is that the two states with mandates to offer, Texas and Connecticut, also enacted those statutes relatively early (1987 and 1989, respectively), such that we lack both IVF utilization and adoption data for those states before they enacted their mandates.
434. It appears that Henne and Bundorf did not examine lags in their earlier work on the effect of mandates on IVF utilization.
435. See Henne & Bundorf, supra note 90.
436. See supra text accompanying notes 110-14.
437. We considered clustering for serial correlation across states within years, but the correlation pattern implied by two-way clustering currently used in some applications allows for essentially unrestricted time dependence within cells and unrestricted cross-sectional dependence across cells within time periods, and imposes zero correlation across cells in different time periods. For example, CA in Period 1 is arbitrarily correlated with CA in Period 2. NV in Period 1 is arbitrarily correlated with NV in Period 2. CA and NV are arbitrarily correlated in Period 1. CA and NV are arbitrarily correlated in Period 2. However, CA in Period 1 is somehow uncorrelated with NV in Period 2, which is unnatural given the assumptions of this approach. Given that the data does appear serially correlated across time within states, we employ our chosen method for clustering in this bootstrap procedure.
438. See Bertrand et al., supra note 211.
439. See Esther Duflo et al., Using Randomization in Development Economics Research: A Toolkit, in 4 HANDBOOK OF DEVELOPMENT ECONOMICS 3895, 3947 (T. Paul Schultz & John A. Strauss eds., 2007). The Bonferroni adjustment multiplies the p-values by the number of tests in the family; in this case we are multiplying by four because we have four mandates in each family of tests.
440. Id. Figure 2 suggests why the randomization inference test passes for IVF utilization. The control states to which the placebo laws are assigned are on average close to zero; but this is not the case for the adoption data.
441. We have focused on complete mandates because they are the only mandates that significantly and consistently increase IVF utilization.
442. See supra Part III. C. But a careful reader of our results would notice that offer mandates have a significant negative effect on IVF cycles and that they have a significant positive effect on international adoptions (both with and without state-specific time trends). One might interpret this result as some (albeit unexpected and indirect) evidence supporting the substitution theory in that mandates which decrease IVF utilization seem to increase international adoptions. As we have said before, because there are only two states that adopted offer mandates in our data period, and the changes occurred relatively early in our data period (1987 and 1989), we do not put a lot of stock in this result as to offer mandates.
443. See supra note 192. However, to be safe, we did another bootstrap randomization of the kind described in the text as to this result and found that offer mandates do not have a statistically significant effect on international adoptions in this analysis.
444. We chose this age band on the idea that adopters over forty were more likely to have tried infertility treatments first.
445. See supra note 187, Appendix B, Table B-1.
446. See OFFICE OF IMMIGRATION STATISTICS, supra note 202;
447. supra note 173 and accompanying text.
448. See supra note 90 and accompanying text (listing and discussing these studies).
449. See Jain et al., supra note 90.
450. A different data-set limitation was suggested by one commentator on the paper who mentioned that the Flango and Flango data-set may underestimate the number of private adoptions. Many others have relied on this dataset in the literature. Even if the data-set makes this measurement error, as long as that error is uncorrelated with the introduction of the mandates themselves, then the potential measurement error would make it more difficult to detect any effect. The estimates we find would be a lower bound of the true effect. In addition, we note that it is possible that a high proportion of domestic private adoptions are interstate. As a robustness check for the possibility that interstate adoptions are in fact correlated with insurance mandates, we at one point controlled for the friendliness of state laws toward adoptions (as discussed supra note 204), but found it did not affect our results.
451. Indeed, if mandate and nonmandate states are equally likely to have interstate adoptions, and these interstate placements are uncorrelated with the mandates themselves, then our estimates provide a lower bound when using the Flango data-set (our AFCARS data measures public adoptions). In actuality, complete mandates are negatively correlated with being most friendly toward adoptions. If there are any omitted variables associated with higher interstate adoptions but not captured by the friendliness of state laws variable, we should find a negative relationship between complete mandates and adoptions, but we do not.
452. See Flango & Flango, supra note 201, at 1021-22, tbl.1.
453. See OFFICE OF IMMIGRATION STATISTICS, supra note 202.
454. Hamilton & McManus, supra note 90, at 17-18.
455. Id.
456. Id.
457. Building on a design one of this Article's authors has employed in the context of sexual harassment
458. see Daniel L. Chen & Jasmin K. Sethi, Insiders and Outsiders: Does Forbidding Sexual Harassment Exacerbate Gender Inequality? (June 2010) (unpublished manuscript), available at http://ssrn.com/abstract=1119968, one possible strategy may be to use the random assignment of appellate judges expanding or decreasing the scope of IVF mandates to examine the issue, on the theory that this random assignment will be independent of other supply and demand shifts in adoptions.
459. A different hypothetical possibility would be that since these laws have changed, individuals who try IVF and fail are increasingly switching to foster adoption rather than other forms of adoption. However, there is no reason to believe individuals would specifically substitute to this type of adoption; indeed, everything we know about the sociology of adoptive foster parents (i.e., they are often individuals who are already giving foster care on a temporary basis) suggests they are unlikely to be the population for whom IVF access makes a difference.
460. * 0.0362.
461. * 100. Indeed, even that claim is too generous to the substitution theory because it does not factor in the positive effects from these mandates on foster adoption.
462. See Pratt, supra note 6, at 1194-95 ("For example, patients may assume that, with a twenty percent per cycle success rate for IVF, the odds of success after four unsuccessful cycles would be much higher than twenty percent in their next IVF cycle. In fact, the chance of success may remain the same....").
463. For example, some literature suggests that there are nonprice-based barriers to reproductive technology use that affect African Americans and other racial minorities, even in states with mandated benefits.
464. See DAAR, supra note 8, at 38-43;
465. Tarun Jain & Mark D. Hornstein, Disparities in Access to Infertility Services in a State with Mandated Insurance Coverage, 84 FERTILITY & STERILITY 221, 223 (2005) (listing multiple nonprice barriers to minority IFV use);
466. Jaime King, Predicting Probability: Regulating the Future of Preimplantation Genetic Screening, 8 YALE J. HEALTH POL'Y L. & ETHICS 283, 313 (2008) ("Cultural and educational factors can also inhibit access...."). It is hypothetically possible that these groups both benefit least from the insurance mandates and are the most likely to adopt, which could explain why the mandates do not have more of an effect on adoption. This hypothesis would in turn generate a series of interesting research questions: for example, are there differences in the sociology of those who adopt domestically versus internationally that might make this hypothesis more or less plausible?