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June 27, 2022

Refusing to “Play God”

Hospital Ethics Committees Can Help Navigate Religious and Moral Accommodations in Assisted Reproductive Technologies

Heather Skrabak


In 2009, Jeffrey Steinberg, director of IVF clinic The Fertility Institutes, announced that he would give in-vitro fertilization (IVF)-seeking parents the option to choose among their fertilized embryos for non-medical traits like skin color, hair color, eye color, and sex. He acknowledged that the services had not yet been offered, but argued the capability had been around for years, claiming that “this is [not] a dangerous road. It’s an uncharted road.”1 The negative reaction was swift. A pioneer of the medical trait selection process acknowledged that while it is “technically feasible … no legitimate lab would get into it and, if they did, they’d be ostracized.”2 Even the Vatican urged Fertility Institutes to think more carefully about offering this service.3 The Fertility Institutes then released a statement that the clinic would “proceed no further,” having determined that “any benefit the diagnostic studies may offer are far outweighed by the apparent negative societal impacts involved.”4

This example shows that nascent advances in non-medical trait selection in reproductive technology will face strong public push-back, especially among providers in the position to perform such controversial activities. This article will discuss the pitfalls and concerns for clinics, providers, and patients regarding provider conscience objection to such procedures and proposes that hospital ethics committees (HECs) can help address such issues.

IVF is the process of retrieving mature eggs and fertilizing them with sperm in a lab, after which the fertilized eggs (embryos) are transferred to the intended uterus.5 The process of egg retrieval and transfer is invasive,6 and the procedure is costly.7 Because of this, parents often retrieve multiple eggs to produce multiple embryos and then coordinate with a physician to select among them for transfer.8 For parents in the fortunate position to choose among embryos for transfer, current technologies allow them to screen the embryos for certain chromosomal abnormalities, like mosaicism,9 or deleterious genes, such as fragile X syndrome.10 This is considered “medical trait selection.”

Limited non-medical trait selection is currently available, such as the selection of embryos by sex.11 Soon, parents may engage in non-medical trait selection to select among embryos for traits like IQ and height. An IVF-PGT12 technology has shown limited but promising success in distinguishing among embryos based on these two traits.13 While current testing indicates that screening may only show a gain on average of 1.2 inches or three IQ points,14 technology in this sector is moving fast. Parents spending extensively to choose one to two embryos among those produced from an IVF cycle will want more data, not less. Any data — even indicating that an embryo might have a slightly higher IQ — could be enough for a parent to implant one embryo over another. While non-medical trait selection for IQ and height is in its proverbial infancy, it is on the horizon.

Providers, religious advocates, and scientists have consistently voiced objections to non-medical trait selection. The American College of Obstetricians and Gynecologists noted that “the ethical roadmap [for non-medical trait selection] that will offer direction to physicians is not … clearly laid out.”15 The American Society of Reproductive Medicine encouraged clinics to accommodate employees’ decisions about whether or not to participate in non-medical sex selection.16 Many religious groups oppose IVF entirely,17 for reasons ranging from allegations that doctors are “playing God” to the disposal of unimplanted embryos.18 Dr. John Brehany of the National Catholic Bioethics Center decried IVF non-medical trait selection specifically, declaring that it "almost instantly subjects the child to the standards and sort of the pressures, if you will, of production, and of producing an object."19

Moral concerns focus on equity issues, a perennial concern in assistive reproductive technology.20 Legal commentary has consistently raised the issue that access to assistive reproductive services remains available largely to wealthy, white communities.21 Scholars have expressed concern that racial, gender, or economic disparities may be increased with the use of non-medical trait selection.22 For IQ and height selection specifically, scholars have pointed out that selection for traits associated with economic advantage could reinforce existing economic disparities.23 Potentially, “predominant use of the technologies by the wealthy [may] increase their already-existing social advantages by selecting offspring with desirable traits,” resulting in a “genetic arms race that will leave the poor and disabled farther behind.”24 Because economic barriers which limit access to IVF often correlate to race,25 reinforcement of economic disparities may increase racial disparities.

Extensive moral and provider concerns show that this area may produce more widespread provider conscience objections, but not all Americans are opposed to trait selection. In fact, Americans overwhelmingly support medical trait selection to identify fatal, early onset diseases or those causing lifelong disability, like cystic fibrosis, sickle cell anemia, Denys-Dash Syndrome, and Hurler Syndrome.26 This notion creates a particularly difficult set of decisions for providers serving parents seeking to use the technology, who must determine which conditions should be deemed “worthy” for trait selection. Provider objections will result in three friction points: (1) patients may be refused services for discriminatory reasons, (2) hospitals and other IVF providers may face employment litigation for refusing to accommodate religious and moral objections, and (3) patients may face gaps in care because of mismanaged religious and moral accommodations by providers.

This article argues that regulators should require that hospitals and clinics offering assistive reproductive technology evaluate their policies regarding non-medical trait selection through HECs. For non-hospital IVF clinics, or ones affiliated but separate from the hospital, this could be effectuated in a variety of ways, including larger IVF facilities creating their own HEC, smaller IVF facilities partnering with hospital-based HECs, and the use of HECs for specific issues or questions similar to Institutional Review Boards.27 HEC consideration, evaluation, and publication of facility policies regarding predicted non-medical traits such as future IQ and height-based selection would allow facilities, patients, and employees to know their options regarding care and employment and appropriately balance patient interests, facility liability, and individual provider conscience.

Part I describes the historical focus of provider conscience protections and HECs and presents the modern trend towards the expansion of protection for provider conscience. Part II analyzes the legal risks of doing nothing, of adverse employment actions, and of provider objection mismanagement. Part III discusses how regulatory requirements for HECs can address these legal concerns and protect patients, facilities, and individual providers.

Part I: The History of Provider Conscience Protections and Hospital Ethics Committees

Both provider conscience protections and HECs emerged as procedures developed engendering ethical and religious concerns.28 Federal provider conscience protections originally focused on providers and institutions objecting to performing abortions and sterilizations.29 HECs emerged in parallel, to address difficult decisions required of hospitals around sterilization, end-of-life care, and the treatment of minor children.30 These issues were highlighted in the public conscience after In Re Quinlan31 and the Baby Doe cases, which centered on, respectively, cessation of life for a young woman in a persistent vegetative state and treatment of disabled newborns.32 In recent years, provider conscience protections have threatened to expand beyond their original goals. The Trump Administration attempted to give more authority to the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) to administer provider conscience protections and state regulations have expanded the scope of state provider conscience protections.33 Provider conscience protections are increasingly likely to collide with new assistive reproductive technologies.

Federal Provider Conscience Protections

Federal conscience protections began with the Church Amendments, passed following the Roe v. Wade34 decision as part of the Health Programs Extension Act of 1973.35 Named for their champion, Idaho Senator Frank Church, the Amendments were prompted by post-Roe concerns that healthcare workers would be required to perform abortions against their will.36 Concerns about providers being required to perform sterilizations against their will also emerged after Taylor v. St. Vincent’s Hospital,37 in which a district court enjoined a Catholic hospital to make its facilities available for a sterilization over the objections of the hospital’s management.38 The Church Amendments were intended to protect healthcare providers from engaging in behavior contrary to their religious or moral convictions. The majority of the Church Amendments, Sections B, C, and E, specifically apply to sterilization and abortion.39 However, Section D, written more broadly, declares that:

No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.40

The Church Amendments apply to all federal funds “under a program administered by the Secretary of Health and Human Services”41 and thus attach to almost every HHS dollar.42 HHS has interpreted such language to indicate that receipt of any HHS funds requires an entire organization to conform to the requirements, even in areas not directly funded by HHS.43 For facilities offering IVF, this means that any receipt of funds under Medicare, Medicaid, the Patient Protection and Affordable Care Act (PPACA) exchanges, or other programs could subject their entire operation to the Church Amendments.

Courts have interpreted the Church Amendments narrowly. Initially, the Church Amendments were only applied to abortion or sterilization cases.44 At least one court declined to expand the Church Amendments further despite the broad language of Section D, finding that the “statutes concern the right to decline to perform requested sterilization and abortion procedures”45 and would not cover provider objections to stopping life sustaining treatment. Additionally, federal courts have found that there is “no basis for implying a private right of action under the Church Amendment,”46 leaving enforcement to federal regulators.47

Regulations implementing the Church Amendments have consistently struggled to define their scope. The first rule implementing the Church Amendments came in the waning days of the Bush Administration and designated OCR as the regulatory agency for the Church Amendments.48 This 2008 rule defined “health service” and “health service program” broadly,49 which prompted extensive comments and concerns about their scope,50 and the rule was enjoined for failing to address those concerns.51

The Obama Administration set out a new Conscience Rule in 2011 which rescinded the 2008 Conscience Rule but maintained OCR’s regulatory authority.52 The 2011 Conscience Rule reiterated the 2008 Rule’s focus on abortion objections and agreed with commentor concerns about overbroad definitions of healthcare services, opting to remove the definition section entirely and defer decisions on precise interpretation to OCR.53 HHS emphasized its support for “clear and strong conscience protections for health care providers,” focusing on addressing ways that the 2008 rule was “unclear and potentially overbroad in scope.”54

In 2018, the Trump Administration issued a proposed rule regarding the Church Amendments, followed by a final rule in 2019.55 These rules interpreted the Church Amendments broadly to give extensive deference to agency determinations. The rules greatly expanded the “health services program[s]” to which provider objections could apply, strengthened enforcement mechanisms, and declined to define how accommodation would be balanced by employer needs.56 In response to commentors concerned that the rule could allow providers to refuse to provide “HIV treatment, pre-exposure prophylaxis, or infertility treatment,” HHS stated that the “Department [was] unaware of any cases claiming denial of service regarding these procedures brought under any of the statutes implemented by this rule.”57 HHS declared that in the event of a complaint, “the Department would examine the facts and circumstances of the complaint to determine whether it falls within the scope of the statute in question and these regulations.”58

The 2019 Conscience Rule was enjoined before it could go into effect.59 The enjoining courts found that the rule was too expansive and did not balance employer and patient needs.60 For example, in City and County of San Francisco v. Azar, the court concluded that the 2019 Conscience Rule was a “persistent and pronounced redefinition of statutory terms that significantly expands the scope of protected conscientious objections” which “would come at a cost — a burden on the effective delivery of health care to Americans in derogation of the actual balance struck by Congress [in the Church Amendments].”61 As the 2019 Conscience Rule was enjoined, the current regulatory guidance is the 2011 Obama-era Conscience Rule, which lacks a precise definition of discrimination and covered health programs. Current interpretation of the Church Amendments lies in fact-specific determinations by OCR.

State Provider Conscience Protections

Several states protect individual providers from employment discrimination for conscience objections, some of which apply beyond provisions of abortion and sterilization.62 According to an analysis by The Guttmacher Institute, as of May 1, 2022, 46 states have laws protecting healthcare provider refusal to provide abortion services, 12 protect refusals to provide contraception, and 18 protect refusals to provide sterilization services.63 At least five states specifically protect objections to participation in research with reproductive aspects, such as research and treatment involving stem cells, cloning, research on gametes or embryos, medical use of fetal tissue, and umbilical cord blood banking.64

A few state laws arguably cover non-medical trait selection. For example, Maryland’s provider conscience law applies to both individual providers and hospitals, and states that a “person may not be required to perform or participate in, or refer to any source for, any medical procedure that results in artificial insemination, sterilization, or termination of pregnancy.”65 A hospital may not be required to perform those services or refer patients elsewhere.66 Artificial insemination is often the first step in assistive reproductive technology, and refusal to refer could prohibit patients from accomplishing non-medical trait selection in IVF.

Virginia has considered providers’ moral and religious beliefs in genetic counseling. Genetic counseling is often a prerequisite in IVF treatments and deeply intertwined with the trait selection process. Virginia’s conscience clause allows genetic counselors to refuse to participate in counseling that “conflicts with their deeply-held moral or religious beliefs” and that refusal cannot be a basis for damages, “provided the genetic counselor informs the patient that he will not participate in such counseling and offers to direct the patient to the online directory of licensed genetic counselors maintained by the Board [of Medicine of Virginia].”67 If a genetic counselor re-directs a patient to other counselors for trait selection specifically, interested parents may be delayed in ascertaining the information they need to seek such services.

Oklahoma specifically contemplates IVF procedures and their benefit to the embryo. Oklahoma’s law prohibits employment discrimination based on employee refusal to perform “an experiment or medical procedure on an in vitro human embryo that is not related to the beneficial treatment of the in vitro human embryo” or “an experiment or medical procedure on a developing child in an artificial womb, at any stage of development, that is not related to the beneficial treatment of the developing child.”68 It seems that testing embryos or selecting among them for a non-medical trait could easily fall into such a category, and Oklahoma’s law would likely cover an employee refusing to perform non-medical trait selection.

HECs Advise on Reproductive and Infant Decision-Making

In parallel to the Church Amendments, healthcare institutions developed HECs to help with difficult decision-making in reproductive and child health.69 HECs have consistently attempted to address bioethical issues prompted by public outcry to controversial healthcare decision-making. For example, the eugenics movement of the 1920s and 1930s prompted public outcry, especially following chilling decisions like Buck v. Bell.70 Institutional hospital committees emerged as a reaction to manage such potential ethical challenges. These committees were typically comprised of three to four physicians who convened to determine if an individual was appropriately “feebleminded” to be sterilized.71 Similarly, in the 1950s and 1960s, therapeutic abortion committees were formed to review if abortions were medically justified.72 Bioethics and health law evolved to allow stronger patient decision-making; by 1976, such committees had begun to review parents’ power of attorney end-of-life decisions and made headlines in In re Quinlan.73

In 1978, prompted by public pressure following In re Quinlan, Congress formed the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research and directed the Commission to produce a report on current bioethical issues, including screening and counseling for genetic conditions.74 This report noted the importance of “medical genetic teams” of physicians, nurses, social workers, researchers, and laboratory technicians to assist hospital and clinical approaches.75 In 1984, Congress enacted legislation that encouraged the use of committees in “sustaining life,” particularly focused on questions of treatment of minor children, prompted by high-profile cases around the neonatal treatment of babies born with severe congenital defects.76 These neonatal treatment committees were charged with educating the relevant parties, hospital staff, and families, and recommending guidelines for treatment.77

Medical decision-making can sometimes come before a court of law, when decisions have become contentious or stalled. Courts have recognized their limitations in making medical ethical assessments and have welcomed the expertise of ethics committees.78 For example, the court in In re Spring,79 in determining the need for a court order to end life-prolonging dialysis treatment found that “concurrence of qualified consultants may be highly persuasive on issues of good faith and good medical practice.”80 Courts are especially hampered, and rely on medical assessments greatly, when judgments must be quickly determined. The court in In re A.C.81 struggled to review a decision to allow a cesarean section of a terminally ill pregnant woman, noting that such time constraints were not “mere technical deficiencies” and bemoaning that “[t]he trial court, faced with an issue affecting life and death, was forced to make a decision with almost no time for deliberation.”82

The two major roles of current HECs are: (1) defining policies on controversial issues prior to their encounter and (2) serving as a forum to address case-by-case controversial, ethical patient issues as they arise.83 Currently, most hospitals have HECs of some form engaged in developing institutional clinical policy.84 Of those, 86 percent play a role in ongoing clinical decision-making through consultation on specific cases.85 Participation in HECs varies, with most including physicians, nurses, pharmacists, psychologists, ethicists, patient advocates, and laypersons.86 They have the flexibility to include hospital administrators, attorneys, social workers, and even clergy.87 Ongoing legal commentary suggests further areas of application for HECs, including addressing questions of infant and child care.88 HECs are the ideal venue to grapple with life-creating and sustaining questions to ensure that hospitals make the best decisions for future or young children.

Part II: Anticipated Legal Issues of Provider Conscience in Non-Medical Trait Selection

The legal risks involved with provider conscience in non-medical trait selection involve the risk of doing nothing, the risk of adverse employment decisions, and the risk of inadequate institutional policies. IVF providers and hospitals that take no action to address potential conscience refusals may risk discrimination claims based on complex state law. Healthcare institutions may face employment law issues if they require their providers to provide certain categories of care to which the providers may legally refuse. Healthcare institutions establishing inadequate or miscommunicated institutional policies may have gaps in patient care and provider liability. These three issues will be discussed in turn, showing that courts often apply fact-specific determinations and consider the interests of various parties.

The Risk of Doing Nothing: Discriminatory Refusal Claims

Thus far, state and national conscience protections have been claimed by IVF providers in very limited situations, often when the provider objects to the use of IVF by an individual due to the individual’s status in a protected group, such as LGBT individuals. In these instances, courts weigh the patient’s rights as a member of a protected class against the refusing physician’s religious rights.89 At first glance, these situations of refusal according to status may be simply considered “discriminatory refusals” and contrast with provider objections to providing the services itself. However, discriminatory refusals are protected by some state civil rights laws, which may be broader than physicians anticipate. The risk of not knowing what types of refusals may be covered puts IVF clinics at risk of violating state civil rights laws through refusals.

A traditional discriminatory refusal is seen in North Coast Women’s Care Medical Group, Inc. v. Superior Court,90 in which a lesbian patient sued her physicians and clinic when they refused to perform IVF under California’s Unruh Civil Rights Act and alleged discrimination based on sexual orientation.91 The physicians asserted an affirmative defense that their constitutional rights to free speech and the free exercise of religion exempted them from complying with the Unruh Act.92 The court applied the Employment Division v. Smith93 test to find that while the California law burdens the religious practice of the physicians, that burden was sufficiently justified by California’s “compelling interest in ensuring full and equal access to medical treatment irrespective of sexual orientation.”94

Importantly, the North Coast court placed the burden on the clinic to accommodate future conflicts between physician religious beliefs and the Unruh Civil Rights Act by “ensuring that every patient requiring [a procedure] receives ‘full and equal’ access to that medical procedure through a [clinic] physician lacking defendants’ religious objections.”95 In Minton v. Dignity Health,96 a court applied the North Coast standard to a discriminatory refusal against a transgender man denied use of facilities at a Catholic healthcare institution for a hysterectomy to address his gender dysphoria, when the same institution had allowed his physician to schedule hysterectomies for conditions not directly associated with transgender status.97 The court found that the refusal was a violation of the Unruh Civil Rights Act because the patient was denied full and equal access to healthcare treatment.98 In that case, the court found that offers to arrange treatment elsewhere, days later, did not meet North Coast’s requirement that a hospital provide “full and equal access” with a non-objecting physician.99

Discriminatory refusal cases can cover more statuses than physicians anticipate, as they rely heavily on state-specific civil rights laws, which may cover different statuses. For example, the Court of Appeals of Michigan, in Moon v. Michigan Reproductive & IVF Center, P.C.,100 found that a single woman seeking IVF presented a legally cognizable claim when she brought a discrimination claim based on marital status under Michigan’s Civil Rights Act.101 The District Court for the District of Columbia, in E.M. v. Shady Grove Reproductive Science Center P.C.,102 found that a single woman seeking IVF could pursue discrimination claims based on marital status, as well as “source of income” and “family responsibilities” under the D.C. Human Rights Act.103 The D.C. civil rights statute was broader than that of Michigan, specifically allowing claims for discrimination based on “source of income” and “family responsibilities.”

As technologies expand and provider conscience is applied to new situations, courts will be faced with balancing important interests without much guidance. The balance of such interests will likely depend on the status of the patient and the state’s interests in its civil rights code. Differences in civil rights codes from state to state may prompt choice-of-law disputes, which are already rampant in IVF cases.104 Without strong guidance, modern courts are left to fact-specific determinations and IVF providers and patients have little indication of how to protect themselves.

The Risk of Adverse Employment Actions: Title VII Liability

Courts considering religious objections by employees typically look to the Title VII balancing test. Title VII of the Civil Rights Act of 1964105 prohibits employment discrimination on the basis of race, color, religion, sex, and national origin.106 Under Title VII, employees can request “reasonable accommodations” of their employment responsibilities, assert claims of retaliation against employers that take adverse employment actions against employees engaging in protected activities, and assert claims of discrimination for failure to hire or promote based on protected status or participation in protected activities.107 Claims under Title VII are subject to a balancing test, which considers the burden of the request on the employer.108

In addressing a challenge to the 2019 Conscience Rule, the Southern District of New York observed that the Church Amendments cannot supersede Title VII balancing tests.109 Specifically, the court noted that Title VII had governed religious accommodation in healthcare since 1972, specifically using an undue burden framework, and in passing the Church Amendments Congress gave no indication that it intended for conscience provisions to supersede Title VII concepts.110 Thus, the analysis for provider objections in non-medical trait selection under the Church Amendments would be similar to religious objections in the medical context under Title VII, with an additional ability to object based on moral concerns.

Two types of Title VII claims may apply when an individual provider asserts religious conscience in non-medical trait selection: (1) claims that an IVF clinic is not accommodating the religious objections of currently employed providers and (2) claims that an IVF clinic has engaged in discrimination by rejecting, denying a promotion, or suspending a provider due to the provider’s refusal to participate in non-medical trait selection. Both claims would be limited to protected beliefs that are “sincerely held.”111 The sincerity of an employee’s belief may be questioned only if the employee has acted inconsistently with those professed beliefs, the accommodation would be particularly desirable for secular reasons, or the timing renders it suspect.112 However, there is little guidance for the evaluation of moral claims. Some courts have evaluated Title VII claims for religion-like moral refusals.113 In Chenzira v. Cincinnati Children's Hospital Medical Center,114 a court considered veganism to be like religion in that one “could subscribe to veganism with a sincerity equating that of traditional religious views,” especially as the claimant was not alone in her views.115 Moral objections to non-medical trait selection could engender similar scrutiny.

Failure to accommodate claims often occur when a facility offers a new service or imposes a new requirement, and an individual provider would like to maintain the provider’s job while avoiding such procedures or requirements for religious reasons. Under Title VII, the workplace is required to provide a “reasonable accommodation” unless the accommodation creates an undue hardship.116 However, an undue hardship can be anything “more than a de minimis cost.”117 Often, courts consider costs to patients, other staff, and the hospital itself to be such undue hardships that facilities would not have to provide accommodations.118

Providers may request to trade assignments with fellow staff to avoid participating in the objected-to procedures, but this solution only qualifies as a reasonable accommodation if patient care remains unaffected.119 In Robinson v. Children’s Hospital of Boston,120 a new vaccination requirement for staff in patient-facing jobs met an objection from a nurse. Due to exposure to patients, lack of provider vaccination was deemed by the hospital to be dangerous to patient safety. If an employer makes a valid determination that patient care could be affected, the employer may offer reasonable accommodations such as parallel transfers or allow the individual provider to apply to other positions.121 In Robinson, the nurse was given the opportunity to apply for non-patient-facing positions. Courts have found that if every potential reasonable accommodation would still harm patient care, hospitals are under no obligation to find and provide reasonable obligations, as that would involve “a more than de minimis cost.”122

An employer’s requirement to provide reasonable accommodations is limited. Once the employee has been given “any reasonable accommodation,” the employer has fulfilled its duty.123 Employees cannot hold out for the specific accommodation they prefer as they are only entitled to a reasonable one.124 In Robinson, the court found that the hospital had fulfilled reasonable accommodation duties even when the nurse was not selected for the only available non-patient facing position and no other accommodations were made.125 Additionally, courts have found that an objecting employee does not have a Title VII retaliation claim if the employee was given reasonable accommodations and the employee does not choose among them within a reasonable amount of time.126

The second type of employee religious objection claims are discrimination claims for failure to hire or denial of promotion.127 A claimant must make a prima facie case for discrimination by demonstrating that (1) the claimant is a member of a protected class, (2) the discriminator knew of the employee’s protected class, (3) an act of harm occurred — such a suspension, denial of a promotion or bonus, or failure to hire — and (4) others who were similarly situated were either treated more favorably or not subjected to adverse treatment.128 In Hellwege v. Tampa Family Health Ctrs.,129 a nurse whose resumé indicated her membership in a pro-life nursing organization was denied employment at a Title X clinic and sued for religious discrimination in hiring.130 The court found that Hellwege had adequately alleged a prima facie case of employment discrimination under Title VII sufficient to survive a motion to dismiss.131 The case was subsequently settled.132

If a prima facie case is established, the burden shifts to the employer, or potential employer, to provide a “legitimate, nondiscriminatory reason for the employee’s rejection.”133 If the Hellwege claim had gone forward, Tampa Family Health Centers could claim that no available positions fit her apparent accommodations.134 “Legitimate, nondiscriminatory reasons” can be rebutted if the claimant can assert that the reason is mere pretext.135 In Hellwege, the claimant might have asserted that the clinic’s assumption that her membership in AAPLOG precluded her from working at a Title X clinic shows pretext, which she attempted to dispel by stating her intention to provide a variety of care consistent with her beliefs.136

The Risk of Inadequate Institutional Policies: Gaps in Patient Care

If an IVF facility or hospital develops inadequate policies or fails to adequately communicate its policies, it risks creating gaps in patient care for which it may face liability. Courts have expressed concern about both institutional policies against procedures for religious reasons that are only provided to patients after admittance as well as institutional accommodation of religious objections without safeguards to ensure continuance of care. Thoughtful institutional policies are especially important given the large number of religiously affiliated institutions providing care across the country,137 institutions which may have policies of moral and religious objections. This was seen in Elbaum v. Grace Plaza,138 in which a nursing home refused to honor the wishes of Mrs. Elbaum to have her life-sustaining treatment ceased due her to persistent vegetative state.139 The court overruled Grace Plaza’s affirmative defense of provider conscience because it found that assisted suicide objections were not covered under the Church Amendments.140 More importantly, the court found it significant that Grace Plaza failed to make its policy against the cessation of nutrition and hydration known to the family prior to admittance, and in fact only put the policy into writing after the family requested the removal of Mrs. Elbaum’s gastrointestinal tube. The court found that the facility engendered reliance so the family “had no reason to believe that Mrs. Elbaum was relinquishing her right of self-determination with regard to her medical care upon her admission to the facility.”141 The court found that if transfer to a suitable facility was impossible and no Grace Plaza staff were willing to perform Mrs. Elbaum’s wishes, Grace Plaza was required to permit a physician to carry out Mrs. Elbaum’s wishes at Grace Plaza.142 This would seem to cast a withering eye on facilities that point to an unpublicized policy only after accepting patients.

Courts have found that hospitals accommodating conscience objections, without proper staffing safeguards in place, can compromise patient safety to the point of institutional liability. This was seen in Shelton v. Univ. of Medicine and Dentistry of New Jersey,143 in which a nurse in the delivery unit objected to assisting with certain emergency procedures that she considered to be abortions.144 The hospital allowed her to trade assignments informally with other nurses, but an emergency procedure arose where a substitute was not immediately available, and she refused to participate, delaying the emergency procedure for 30 minutes.145 The court held that her refusal risked patient safety and that upcoming staffing cuts would prevent her from trading assignments in the future.146

A hospital cannot simply assert that an emergency requires staff participation in objected-to procedures without fair notice to objecting providers. This was seen in Cenzon-DeCarlo v. Mount Sinai Hosp.,147 in which a nurse affirmatively indicated during the hiring process her unwillingness to perform abortions, pursuant to a written policy to allow objections to such procedures, which had no exception for emergency procedures.148 The nurse was then compelled to participate in an abortion due to an emergency situation.149 While the court found that she did not have a private right of action under the Church Amendments, it preserved the state discrimination claims, and noted that those avenues of relief were open to her without commenting on the merits of such claims.150 Actions to affirmatively address conscience objections must consider a wide range of possible future scenarios, from emergencies to technological advances, in order to avoid failures of patient care and the attendant liabilities.

The Church Amendments have the potential to be brought against hospitals, IVF clinics, and other facilities as they begin to explore non-medical trait selection in IVF. While there are obstacles to a successful claim, the numerous complications combined with increased attention to this area of the law have the potential to truly disrupt the provision of care in reproductive medicine. Solutions must provide clarity to patients, individual providers, and facilities.

Part III: HHS Should Require HECs to Address Non-Medical Trait Selection

This article argues that facilities offering assistive reproductive technologies should be required to utilize ethics committees to support decision-making leadership. These ethics committees would be comprised of community members, staff representatives, ethicists, and, optionally, religious experts to review emergent ethical concerns, establish criteria for facility procedures and staffing, and publicize resulting policies. For hospitals, existing HEC structures may be utilized. Non-hospital IVF facilities can form HEC-like structures or partner with existing HECs to determine and assert policies.

In its role in implementing the Church Amendments, HHS should issue regulations requiring the use of HECs or HEC-like structures as a condition of reimbursement. As facilities offering IVF contemplate their use of non-medical trait selection, they must consider the ethical conundrums. Facilities seeking reimbursement for non-medical trait selection would be required to (1) have a functioning HEC, partner with a functioning HEC, or form an HEC-like structure (collectively, HEC), (2) inform patients of the procedure they provide on their website, and (3) inform prospective employees about available religious or moral accommodations in job descriptions. Entities seeking reimbursement without complying would be subject to civil monetary penalties.

The success of the HEC endeavors would hinge on effectively defining policies, training staff, and increasing awareness among patients. Successful communication would ensure that patients knew the policies of facilities in advance, job applicants would know facility policies before applying, and case consultation would be clearly available for emerging issues.151 Communicating the policies would be especially important for religious facilities, as HECs would be able to delineate specific considerations and needs.152

Similar efforts at the state level have been impactful, such as the Maryland Patient Care Advisory Committee Act, which required Maryland hospitals to establish HECs.153 A 1989 study of HECs in Maryland, Virginia, and the District of Columbia after passage of the Maryland Patient Care Advisory Committee Act found that HECs had been voluntarily established in Virginia and the District of Columbia, often in large cities or teaching hospitals.154 This suggests that a gap in ethical considerations would remain for smaller or more rural providers if HEC use was voluntary. The study authors also noted some Maryland hospitals established but did not utilize their HECs, suggesting a lack of commitment to the effort beyond meeting legal compliance.155 This suggests that greater buy-in could be useful to encourage hospital commitment to bioethical policies and consultation, or more specific HEC requirements should be built into compliance regulations.

While HECs have traditionally been the purview of hospitals, HHS could require non-hospital IVF facilities to have HEC-like committees as well. As discussed above, HHS has jurisdiction over all funds the agency expends.156 For facilities offering IVF, this means that any receipt of federal funds, under Medicare, Medicaid, PPACA exchanges, or other programs, could possibly subject an entire facility to these provisions. While IVF is not included in all federal programs, 16 states currently have laws requiring insurers to either cover or offer coverage for infertility diagnosis and treatment,157 and around 500 employers offer some sort of fertility benefit.158 It would be nearly impossible for a non-hospital IVF clinic to specifically deny or avoid persons on plans covered under the Church Amendments.

This section describes how HECs can establish proactive policies to address concerns.  It describes how HECs could serve as a forum for the review of unexpected decision-making needs. It also shows how HECs could assist courts with accurate and fair legal assessments in a complex medical-ethical space.

HECs Can Establish Policies for Hospitals, Individual Providers, and Patients

In many instances of conscience objection, as noted above, individual providers, institutions, and patients lack guidance. Reasonable accommodations are piecemeal, retroactive solutions are often ineffective, and policies that allow for unplanned adjustments risk patient safety and institutional liability. Though institutions have thus far survived litigation, litigation brings avoidable stress and uncertainty to patients, individual providers, and hospitals. Here is how this article’s solution would relate to non-medical trait selection and address some cases previously mentioned.

Discriminatory Refusal Claims

When denying care to members of protected classes due to their status, the use of conscience protections as an affirmative defense is inadequate, and a simple refusal is a violation. This was seen in Minton, in the refusal to serve a transgender man,159 and North Coast, in the refusal to serve a lesbian.160 To avoid liability, a facility should establish neutral policies around the use of non-medical trait selection in IVF and consider how those policies might have a disparate impact on persons from protected classes. Potential patients could review facility policies before scheduling surgery, refer to the standards when questioning refusal, and appeal to the HEC in case of disagreement. A standard policy would assist patients such as those in these two cases unjustly denied care by providers, and facilities whose legitimate concerns prompt ethical refusal.

Discriminatory refusals may also apply more broadly than a facility might expect, depending on state civil rights definitions of protected classes.  Facilities should carefully consider the grounds on which they refuse to serve particular patients. IVF facilities, like adoption agencies and other reproductive services, regularly inquire into the patient’s relationship stability, income stability, psychology regarding future parenthood, and other issues.161 This is often ascribed to concerns about the patient themselves, concerns about future liability, and concerns about the future child.162 However, as Shady Grove demonstrates, some state civil rights laws specifically protect against discrimination based on “family responsibilities” and “source of income.”163 Application of a particular state’s civil rights laws may be unpredictable, as choice-of-law issues feature heavily in IVF cases. Both the Moon and Shady Grove courts wrestled with how deeply an IVF facility may inquire into the parent’s personal situation and how much judgment can be prescribed onto a parent’s situation before such concerns become discriminatory.164 HECs should set clear guidelines on what patient personal circumstances merit declining the patient to avoid discriminatory refusals.

Title VII Liability

Consideration by an HEC would assist facilities in preventing Title VII liability to employees and applicants. As noted above, a court considering a Church Amendment claim, whether religious or moral, would consider the Title VII balancing test. First, as Title VII only protects beliefs that are “sincerely held,” facilities may find themselves weighing if and how to evaluate the sincerity of beliefs. For moral beliefs, a court may follow Chenzira and validate moral beliefs as “sincerely held” if adherents consider and treat them with a strength similar to religion and they are not alone in their views. Considering the widespread moral and ethical objections to non-medical trait selection, a moral or ethical objection would likely have some backing. Thus, a facility seeking to begin non-medical trait selection should establish a formal process to evaluate the strength of religious and moral objections. An HEC is an ideal place to establish such a process and evaluate any suspect claims.

Second, reasonable accommodation requests may occur in response to a facility beginning to offer non-medical trait selection. As noted above, facilities are responsible for accommodating such requests based on the availability of similar positions and any resulting undue hardship. Potential accommodations would be limited by the size of the facility, the availability of positions not involving non-medical trait selection in IVF, and the difficulty of arranging and coordinating schedules to accommodate the religious or moral objection. If the provider is small, or it is too difficult to arrange the accommodation, the facility may have very little obligation to provide reasonable accommodations.

When an HEC determines that a facility may offer non-medical trait selection, the HEC must also determine what positions would be impacted and possible accommodations. Because the employee must only be presented with “any reasonable accommodation,” not one of the employee’s preference,165 the HEC may identify appropriate accommodations proactively. As discussed in Robinson, a retaliation claim is unavailable if the objecting employee was given valid reasonable accommodations and simply did not choose among them in a reasonable amount of time.166 A proactive accommodations determination avoids retaliation claims and brings transparency to employees on accommodation options.

Third, claims about discriminatory rejection, denial of promotion, or suspension due to an employee’s objection to non-medical trait selection would turn on if there is a non-discriminatory reason for the rejection, denial of promotion, or suspension. In this case, waiting until an issue emerges is not an effective strategy. In Hellwege, in which a Title X clinic denied an interview to a member of AAPLOG,167 it is possible that the clinic assumed that persons with strong pro-life views would not pursue employment at a Title X facility and that the challenges in giving care would be obvious. However, while the court found that Hellwege did not have a private right of action to bring Church Amendment claims, it did find that she had stated a prima facie case for a Title VII failure-to-hire claim.168 Thus, simply expecting that conflicts would be obvious is not an effective means of preventing these claims.

Because the Church Amendments specifically include moral objections, a court could consider a person with a moral objection to be a member of a protected class for the purposes of applying the Church Amendments.169 In a similar instance to Hellwege, a facility could not merely assume that a potential employee expressing general religious or moral affiliations would not be a good fit for a practice involving non-medical trait selection in IVF. Rather, the facility would need an explicit, publicly available policy stating that all employees should be comfortable with all activities of a facility, including non-medical trait selection in IVF. An HEC could draft such a policy to ensure the correct balance of patient care and applicant/employee protections.

Gaps in Patient Care

An HEC, particularly at a religiously affiliated facility, could proactively establish policies prior to patient admittance, potentially avoiding liability. The facility may thus avoid concerns expressed in Grace Plaza, which cast a withering eye on facilities that utilize unwritten policies shared with patients after admittance.170 An HEC would clarify the facility’s conscience concerns with non-medical trait selection on its website and would inform staff and patients. Patients must have actual notice of any policies prior to admittance, not buried legalese, to ensure that the facility’s ethical position is apparent from the outset.

Facilities choosing to facilitate provider objections may be liable for any resulting gaps in patient care if the facility was inadequately prepared. The HEC should establish clear, specific procedures, as generic, non-specific policies will fail. For example, City and County of SF v. Azar noted the hospital policy of Zuckerberg San Francisco General Hospital:

In the event a staff member feels reluctant to participate in an aspect of patient care because the patient's condition, treatment plan, or physician's orders are in conflict with the staff member's religious beliefs, cultural values, or ethics, the staff member's written request for accommodation will be considered if the request does not negatively affect the quality of patient's care.171

This policy does not clarify the protections and limits of the provider’s refusal, how the hospital will maintain patient care standards, or if the hospital may be required to decline to perform any procedures.

Similarly, allowing staff to trade assignments on the fly is not an effective solution, as seen in Shelton, in which an emergency procedure arose when a substitute was not immediately available, resulting in delays in the emergency procedure.172 Facilities with clear policies for religious accommodations could more easily determine if staffing coverage solutions risk patient care. Clearly articulated solutions allow for input from third-party ethicists, lawyers, religious scholars, and others, and more careful accommodations can be considered.

HECs can Review Medical Decision Making in Non-Medical Trait Selection

Even when HECs have reviewed all of their policies and considered every likely objection, the occasion will arise where a new issue, a previously unconsidered aspect, or a request impossible to predict arises. HECs often serve the role of in-hospital tribunal to review issues involving liability, patient rights, and bioethical concerns.173 Facilities should require HEC review of unexpected issues to guide patients and staff. This is essential because many issues which would typically be brought before an HEC are in areas where physicians and parents are often reluctant to abdicate decision making authority - that is, care for children and reproductive decision making. As discussed in Ethics Committees in Hospitals: Alternative Structures and Responsibilities:

A general guideline would be to make review mandatory whenever there is a likelihood that a clinical decision will involve important nonmedical interests for the physician, family, or patient. The scope of mandatory review thus depends on a value judgment by a hospital's administrators, lawyers, and professional staff of the relative importance of the competing interests in certain types of cases and the likelihood that they may skew clinical judgment.174

Similarly, in its initial reports, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research recommended mandatory review of treatment decisions when parents decide to withhold life-sustaining treatment from children with Down syndrome or spina bifida.175 The Commission further recommended considering mandatory review when withholding nutrition and fluids from incompetent but non-terminally ill patients or for bone marrow draws from minors or mentally disabled persons.176

Those who argue for mandatory ethical review say it is appropriate when physicians and parents are in difficult positions to make medical decisions. Some argue that the institution shifting the burden of decision making to the family may be “a genuine abdication” of responsibility when families are dealing with the weight of time, money, and emotional stress.”177 This seems particularly applicable in the case of embryo selection in IVF, a process notoriously time consuming, expensive, and stressful. Advocates discussing infant care cases after Baby Doe urged that forums considering the individual rights of children should temper deference to the family, as children are unable to advocate on their behalf.178

However, complex religious and ethical questions of infant autonomy and the embryo as a patient have deep divide in the medical, ethical, and religious communities. In the area of non-medical trait selection, many parents may not want such complex questions left to a committee, and they should be informed of their options in the event of unexpected issues. Ideally, a facility can set protocols in place for instances when parents are required to submit to HEC decisions, or when providers must consult their HEC.

HECs Assist Courts and Hospitals in Accurate Legal Assessments

There is some indication that HEC consultation may provide a more accurate assessment of medical issues than a court. Many courts have recognized their own limitations in medical ethical assessment,179 and welcome the input of ethics committees.180 In re A.C. urged the  more widespread use of HECs:

We observe nevertheless that it would be far better if judges were not called to patients' bedsides and required to make quick decisions on issues of life and death. Because judgment in such a case involves complex medical and ethical issues as well as the application of legal principles, we would urge the establishment—through legislation or otherwise—of another tribunal to make these decisions, with limited opportunity for judicial review.181

Cases incorporating HEC findings in their final determinations are more likely to have accurate, thoughtful, and medically reasonable results, benefitting both physicians and patients. HEC consideration of situations such as refusal to serve a patient, reasonable accommodations of a provider, and policies to prevent gaps in patient care would likely involve complex consideration of the medical, ethical, and legal issues involved. Subsequent lawsuits over the outcomes of such situations may have a record or report of HEC findings and decisions, which would provide valuable input for judicial review.

Facilities may be concerned that advice from HECs would prove bad for later litigation, but on the contrary, consultation with HECs shows good due diligence on the part of the physician, and often helps should there be any later litigation.182 In fact, In Re Spring made clear that good faith HEC consultation was useful:

We in no way disapprove the practice of committee review of decisions by members of a hospital staff. But private medical decisions must be made responsibly, subject to judicial scrutiny if good faith or due care is brought into question in subsequent litigation, although the concurrence of qualified consultants may be highly persuasive on issues of good faith and good medical practice.183

The advice of the HEC, in providing an independent assessment of the medical and ethical aspects of the decision, can help establish the reasonableness of complex treatment decisions and insulate providers from liability.184

Such litigation concerns still do not force HECs to adopt a purely legal analysis. The study of HECs across Maryland, Virginia, and the District of Columbia found that respondent participants in HECs rated the committee’s decisions as only 4-out-of-5 in terms of “influenced by legal consequences.”185 That study also found only 41 percent of respondents said legal action against staff influenced their own position on matters before the committee, showing that for the majority of HEC participants, the legal threat is considered but does not play a major role.186 This allows ethical decisions to be weighed alongside legal ones, ensuring that decisions are not merely legal judgments, but rather take patient care into account. But a word of caution is wise: many argue that too much deference to HECs abdicates too much judicial review.187 Legislation can protect physicians and facility staff from liability based on their decisions as part of HECs, leading to longer and more well-rounded discussions.188 However, such legislation may skimp on oversight, which can impede the fair judicial review of HEC decisions.189 And many warn that HECs might unduly focus on risk management or public relations rather than ethical treatment of patients.190 Thus, HHS should require HECs to review non-medical trait selection decisions, but also retain strong oversight powers to ensure that HECs are not overtaking judicial review at the mercy of patient care.


The Church Amendments, passed nearly 50 years ago, now face applications far beyond Senator Frank Church’s wildest dreams. Today, IVF technology allowing selection among embryos for non-medical traits such as the likelihood of highest IQ and tallest height is on the horizon, prompting religious, medical, moral, and ethical concerns. Given the lack of definition in the current Church Amendment regulations and the interest in expansive definitions from the Trump Administration and state laws, clinician and institution conscience objections to non-medical trait selection in IVF is reasonable and likely.

In this new world, HHS should require IVF providers — hospitals and independent clinics — to wrestle with the ethical issues, consider how to address personnel objections, and communicate their position with staff and patients. The current model of HECs provides a strong model for proactive policy determination and reactive counseling if unforeseen situations arise. Almost all forms of liability — discriminatory refusal, Title VII, negligence — are likely to be reduced when there is more information in advance about what procedures will or will not be done, and how staff may be appropriately accommodated. Allowing for a forum to review and discuss unforeseen medical and ethical concerns among experts is likely preferable for courts,  facilities, and patients, and this requirement is in the best legal interests of facilities, staff, and patients. As a new technological world advances, proactive consideration of the impact of our technology on the people and patients affected is essential to protect all interests.


  1.  Designer baby row over US Clinic, BBC News (Mar. 2, 2009),
  2.  Naik, G., A Baby, Please. Blond, Freckles – Hold the Colic, The Wall Street Journal (Feb. 12, 2009),
  3.  Jabr, F., Are We Too Close to Making Gattaca A Reality?, Scientific American (Oct. 28, 2013),
  4.  Saleten, W., Color ID Suspended, SLATE (Mar. 6, 2009),
  5.  In Vitro Fertilization (IVF), Mayo Clinic (last accessed May 9, 2022).
  6.  See ART: A Step-by-Step Guide, Society for Assisted Reproductive Technology, (last accessed May 9, 2022) (describing the ART process, which involves extensive medication, ultrasounds, procedures for oocyte retrieval, and embryo transfer).
  7.  Bahadur, N., The Cost of Infertility: This is How Real People Pay for IVF, SELF (Jan. 8, 2018),
  8.  See supra n. 6 (“[A]fter a few days of development, the best appearing embryos are selected for transfer.”).
  9.  Mosaicism is the occurrence of two or more genetically different sets of cells within an individual or tissue, often occurring during early cell division of a fertilized egg. Mosaicism may cause many different types of disorders, including some with very short life expectancies. Chromosome Mosaicism Yale Medicine (last accessed May 13, 2022).
  10.  See Greco, E., et al., Preimplantation Genetic Testing: Where We Are Today, 21 Int’l J. Molecular Sci. 4381, 4394, 4398 (2020).
  11.  Ethics Committee of the American Society for Reproductive Medicine, Use of Reproductive Technology for Sex
    Selection for Nonmedical Reasons
    , 117 Fertil. & Steril. 720, 721 (2021).
  12.  Preimplantation genetic testing (PGT) involves performing genetic testing on embryos prior to implantation, during IVF. Preimplantation Genetic Testing, Society for Assisted Reproductive Medicine, (last accessed May 13, 2022). The current focus of most such testing is on abnormal chromosomes; however, IVF-PGT technology can reveal other non-medical information such as sex. Ethics Committee of the American Society for Reproductive Medicine, Use of Reproductive Technology for Sex Selection for Nonmedical Reasons, 117 Fertil. & Steril. 720, 720 (2021).
  13.  See Karavani, E., et al., Screening Human Embryos for Polygenic Traits Has Limited Utility, 179 Cell 1424, 1425–29 (2019); Hsu, S., The Super Intelligent Human are Coming, Nautilus (Oct. 16, 2014), (predicting that genetic manipulation of embryos could soon produce humans with extraordinary intelligence); Regalado, A., Eugenics 2.0: we’re at the Dawn of Choosing Embryos by Health, Height, and More, MIT Tech. Rev. (Nov. 1, 2017), (reporting that Silicon Valley start-ups are asserting they will be able to select embryos by height, IQ and other characteristics).
  14.  See  Lanese, N., ‘Designer Baby’ Technology to Make Smarter, Taller Kids Doesn’t Work Yet, Live Sci. Online (Nov. 21, 2019),
  15.  American College of Obstetricians and Gynecologists, Ethical Issues in Genetic Testing, 111 Obstet. & Gynecol. 1495, 1500 (2008).
  16.  Ethics Committee of the American Society for Reproductive Medicine, Use of Reproductive Technology for Sex
    Selection for Nonmedical Reasons
    , 117 Fertil. & Steril. 720, 721 (2021).
  17.  See generally Sallam H. & Sallam, N., Religious Aspects of Assisted Reproduction, 8 Facts Views & Vis. ObGyn 33 (2018) (discussing views on assisted reproduction in Modern Judaism, Hinduism, Buddhism, Orthodox Judaism, Roman Catholicism, Protestants, Anglicans, Coptic Christians, Sunni Muslims, Orthodox Christianity, Catholic Christianity, Shi’a Islam, Confucianism, and other communities); Schenker, J., Gender Selection: Cultural and Religious Perspectives, 19 J. Assist. Repro. & Genet. 400 (2002).
  18.  See Cha, A.E., How Religion is Coming to Terms with Modern Fertility Methods, Wash. Post (Apr. 27, 2018),; see also Rocca, F., Pope Calls Abortion, Euthanasia, IVF Sins ‘against God the creator,’ Am. Mag. (Nov. 17, 2014),
  19.  Hadro, M., The Insidious Danger Behind ‘Family Balancing,’ Cath. News Agency (Apr. 25, 2016),
  20.  See, e.g., Roberts, D., Race and the New Reproduction, 47 Hastings L.J. 935, 937 (1996); Knouse, J., Reconciling Liberty and Equality in the Debate over Pre-Implantation Genetic Diagnosis, 2013 Utah L.R. 107, 134 (2013); Roth, L., Reproductive Selection Bias, 27 Health Matrix 263, 277-78 (2017).
  21.  See, e.g., Roberts, supra n. 20 at 937 (“One of the most striking features of the new reproduction is that it is used almost exclusively by white people.”); Maxwell Mehlman & Jeffrey Botkin, Access to the Genome: The Challenges to Equality (1998).
  22.  See Knouse, supra n. 20 at 134 (highlighting a concern that allowing selection for eye, hair, and skin color could allow selection against “racial markers,” especially if parents believe greater opportunities would be available to offspring with a specific set of genetic features.); Zafran, R., Non-Medical Sex Selection by Preimplantation Genetic Diagnosis: Reflections on Israeli Law and Practice, 9 N.C.J.L. & Tech. 187, 204 (2008) (highlighting a concern that sex selection impacts parental expectations of gender conformity leading to “a yoke of anticipation cast upon [the child] about the choice her parents made.”).
  23.  See Roth, supra n. 20 at 277–78.
  24.  Id.
  25.  Ethics Committee of the American Society for Reproductive Medicine, Disparities in Access to Effective Treatment for Infertility in the United States, 116 Fertil. & Steril. 54, 54 (2021).
  26.  See Winkelman, W., Missmer, S., Myers D., & Ginsburg, E., Public Perspectives on the Use of Preimplantation Genetic Diagnosis, 32 J. Assisted Reprod. & Genetics 665 (2015) (finding support for PGD to for diseases fatal early in life at 72.9% and causing lifelong disability at 66.7% while 14.6% supported PGD for physical traits and 18.9% for personality traits).
  27.  It is beyond the scope of this article to detail the precise regulatory requirements. Regulators may consider exemptions for smaller non-hospital IVF clinics, supportive funding for HEC creation, and incentives for hospital-based HEC to collaborate with non-hospital IVF clinics.
  28.  See infra part C.
  29.  See infra part A.
  30.  Hoffman, D.E., Regulating Ethics Committees in Health Care Institutions – is it Time? 50 Md. L. Rev. 746, 747 (1991).
  31.  355 A.2d 647, 672 (N.J. Sup. Ct. 1976).
  32.  Haddon, P., Baby Doe Cases: Compromise and Moral Dilemma, 34 EMORY L.J. 545, 579–82 (1985) (citing Child Abuse Amendments of 1984, Pub. L. No. 98-457, §§ 121-28, 98 Stat. 1749, 1752–55)).
  33.  See infra parts A & B.
  34.  410 U.S. 113 (1973).
  35.  Pub. L. No. 93-45, 87 Stat. 91, § 401(c)(1973).
  36.  See 119 Cong. Rec. 9595 (1973) (statement of Sen. Church) ("Given this state of the law [resulting from Roe v. Wade], I can well understand the deep concern being expressed by hospital administrators, clergymen, and physicians whose religious beliefs prohibit abortions and/or sterilization in most cases."); see also 119 Cong. Rec. 9597 (1973) (statement of Sen. Church that the Amendments were intended to “give protection to the physicians, to the nurses, to the hospitals themselves, if they are religious affiliated institutions. So the fact Federal funds may have been extended will not be used as an excuse for requiring physicians, nurses, or institutions to perform abortions or sterilizations that are contrary to their religious precepts. That is the objective of the amendment.”).
  37.  369 F. Supp 948 (D. Mont. 1973), aff’d, 523 F.2d 75 (9th Cir. 1975).
  38.  Id. at 951.
  39.  42 U.S.C. § 300a-7 (2018).
  40.  42 U.S.C. § 300a-7(d) (emphasis added).
  41.  42 U.S.C. § 300a-7(d).
  42.  Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968, 9976-77 (Feb. 23, 2011) [hereinafter 2011 Conscience Rule].
  43.  Nondiscrimination in Health Programs and Activities, 81 Fed. Reg 31,376, 31,386 (May 18, 2016) (responding to comments noting that nondiscrimination provisions apply to entire entities “any part of which is receiving Federal financial assistance” even to services provided outside the funds from HHS).
  44.  See, e.g., Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308 (9th Cir. 1974); Watkins v. Mercy Medical Center, 364 F. Supp. 799 (D. Idaho 1973).
  45.  Elbaum v. Grace Plaza, 148 A.D.2d 244, 255–56 (N.Y.S. 2d 1989).
  46.  Cenzon-DeCarlo v. Mount Sinai Hosp., No. 09-cv-3120(RJD), 2010 WL 169485, at *4 (E.D.N.Y. Jan. 15, 2010); see also Hellwege v. Tampa Family Health Ctrs., 103 F. Supp. 3d 1303, 1312 (M.D. Fla. 2015); Anspach v. City of Philadelphia., 630 F. Supp. 2d 488, 496 (E.D. Penn. 2008).
  47.  The Supreme Court has yet to rule on the presence of a private right of action in the Church amendments. The Hellwege court found that the substance of the Church Amendments strongly suggests that Congress intended to create an individual right and hinted that a bolder court might had tried to read a private right of action into the statute, but “decline[d] Hellwege’s invitation to engage in the ‘hazardous enterprise’ of ‘implying a private right of action on the basis of congressional silence.’”
  48.  See Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 50274, 50282 (Aug. 26, 2008) [hereinafter 2008 Proposed Conscience Rule]; Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 78072 (Dec. 19, 2008) [hereinafter 2008 Conscience Rule].
  49.  See 2008 Proposed Conscience Rule at 50282 (“Health Service/Health Service Program includes any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded, in whole or in part, by the Department. It may also include components of State or local governments.”)
  50.  2008 Conscience Rule at 78076 (response to comments on definition of Health Service/Health Services Program);
  51.  Connecticut v. United States, No. 09-cv-54 (D. Conn. 2009).
  52.  See 2011 Conscience Rule.
  53.  Id. at 9969 (stating that HHS “supports clear and strong conscience protections for health care providers who are opposed to performing abortions”); id. at 9974 (agreeing with commentators concerned with an overly broad definition of health services); id. at 9977 (removing the definitions section).
  54.  Id. at 9969.
  55.  Protecting Statutory Conscience Rights in Health Care, 83 Fed. Reg. 3880 (Jan. 26, 2018) [hereinafter 2018 Proposed Conscience Rule]; Protecting Statutory Conscience Rights in Health Care, 84 Fed. Reg. 23170 (July 21, 2019) [hereinafter 2019 Conscience Rule].
  56.  2019 Conscience Rule at 23264 (defining health services program to include “the provision or administration of any health or health related services or research activities, health benefits, health or health-related insurance coverage, health studies, or any other service related to health or wellness, whether directly; through payments, grants, contracts, or other instruments; through insurance; or otherwise.’’).
  57.  2019 Conscience Rule at 23182.
  58.  Id.
  59.  See City & County of San Francisco v. Azar, 411 F. Supp. 3d 1001, 1025 (N.D. Cal. 2019), appeal docketed, No. 20-15398 (9th Cir. Mar. 9, 2020); Washington v. Azar, 426 F. Supp. 3d 704, 722 (E.D. Wash. 2019), appeal docketed, No. 20-35044 (9th Cir. Jan. 21, 2020); New York v.  HHS, 414 F. Supp. 3d 475, 516 (S.D.N.Y. 2019), appeal docketed, No. 19-4254 (2d Cir. Dec. 18, 2019).
  60.  See City & Cty. of San Francisco, 411 F. Supp. 3d at 1024; New York v. HHS, 414 F. Supp. 3d at 557 (finding HHS had exceeding its statutory authority and the lack of balancing test or undue burden consideration significantly conflicted with Title VII’s framework and left employers without guidance on how to apply the differing standards); Washington v. Azar, 426 F. Supp. 3d at 722 (finding the rule arbitrary and capricious in part because “HHS disregarded the comments and evidence showing the Rule would severely and disproportionately harm certain vulnerable populations,” and “permit[ing] health care entities and providers to withhold basic information from patients, would contravene medical ethics and deprive patients of the ability to provide informed consent.”).
  61.  City & Cty. of San Francisco, 411 F. Supp. 3d at 1012 (noting that the Church amendments “tried to strike a balance between two competing considerations,” protection from discrimination for “doctors, nurses, and hospitals [who] wanted no part in the performing of abortions and sterilizations, among other medical procedures,” and “the need to preserve the effective delivery of health care to Americans.”).
  62.  Refusing to Provide Health Services, The Guttmacher Institute (May 1, 2022),
  63.  Id.
  64.  See, e.g., La. Stat. Ann. § 1061.20 (2016) (protecting provider objections to stem cell research and cloning); Ala. Code § 22-21B (1975) (protecting provider objections to stem cell research and cloning); Idaho Code § 18-604 (2016) (protecting provider objections to stem cell research, stem cell treatment, and cloning); Mass. Gen. Laws ch. 111L, §7(b)(ii) (protecting employee objections to stem cell research); Cal. Code Regs. tit. 17, §100040 (protecting clinical personnel objections to research on gametes and embryos); 35 Pa. Stat. Ann. § 6530.4(b) (allowing religious exception to a law requiring providers to inform pregnant women of cord blood banking options).
  65.  Md. Code Ann., Health-General § 20-214(a)(1) (emphasis added).
  66.  Id. § 20-214(b)(1)(i-ii). Artificial insemination and in vitro fertilization are technically different procedures, one involving introduction of sperm into a uterus and the other involving sperm and eggs mixed in a petri dish and the resulting embryo placed in the uterus. However, artificial insemination, due to its lower cost and perception as less invasive, is often the first step couples take in assistive reproductive technology, and when that option does not work, couples may turn to IVF. Therefore, refusal to refer for artificial insemination is likely to result in lack of patient knowledge about IVF options as well.
  67.  Va. Code Ann. § 54.1-2957.21.
  68.  Okla. Stat. tit. 63 § 1-728c(3)–(4) (emphasis added).
  69.  See Annas G. & Grodin, M., Hospital Ethics Committees, Consultants, and Courts, 18 AMA J. Ethics 554 (2016).
  70.  274 U.S. 200 (1927) (upholding a state statute instituting compulsory sterilization for “the unfit” including persons with intellectual disabilities as state interest in “the protection and health of the state” outweighed individual interest in bodily autonomy).
  71.  Robertson, J., Ethics Committees in Hospitals: Alternative Structures and Responsibilities, 7 Issues L. & MED. 83, 84 (1991) (discussing reaction to Buck v. Bell, 274 U.S. 200 (1927)).
  72.  See id. (discussing reaction to Doe v. Bolton, 410 U.S. 179 (1973)).
  73.  See id. (citing In re Quinlan at 672).
  74.  Pub. L. No. 95-622 § 1802, 92 Stat. 3412 (1978).
  75.  President’s Comm’n for the Study of Ethical Problems in Medicine and Biomedical, and Behavioral Research: Screening and Counseling for Genetic Conditions: A Report on the Ethical, Social, and Legal Implications of Genetic Screening, counseling, and Educational Programs 51 (1983).
  76.  See Haddon supra n. 32 at 579–82 (citing Child Abuse Amendments of 1984, Pub. L. No. 98-457, §§ 121-28, 98 Stat. 1749, 1752–55)).
  77.  Child Abuse Amendments of 1984, Pub. L. No. 98-457, §§ 121-28, 98 Stat. 1749, 1752–55).
  78.  See Cruzan v. Director, Missouri Department of Health, 497 U.S. 1, 26 (1990) (Scalia, J., concurring) ("This Court need not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so it will destroy itself."); id. at 286 ("[W]e do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself."); Severns v. Wilmington Med. Ctr., Inc., 421 A.2d 1334, 1349–50 (Del. 1980) (suggesting that ethics committees can assist in evidentiary hearings); In re Jobes, 529 A.2d 434, 463–64 (N.J. 1987) (Pollack, J., concurring) (arguing that ethics committees can assist family members and healthcare professionals in making end-of-life decisions for incapacitated patients).
  79.  405 N.E.2d 115 (Mass. 1980).
  80.  Id. at 122.
  81.  573 A.2d 1235 (D.C. Cir. 1990).
  82.  Id. at 1250.
  83.  Code of Medical Ethics Opinion 10.7, American Medical Association, (last accessed Nov. 21, 2021).
  84.  See McGee, G., Spanogle, J., Caplan, A., & Asch, D., A National Study of Ethics Committees, 1 Am. J. Bioethics 60, 61 (2001).
  85.  Id.
  86.  Id.
  87.  Id.
  88.  See, e.g., Shapiro R. & Barthel, R., Infant Care Review Committees: An Effective Approach to the Baby Doe Dilemma?, 37 Hastings L.J. 827, 848 (1986); Muckle, C., Giving a Voice to Intersex Individuals through Hospital Ethics Committees, 2006 Wis. L. Rev. 987 (2006).
  89.  See North Coast Women’s Care Medical Group, Inc. v. Superior Court, 189 P.3d 959 (Cal. 2008) (Baxer, J., concurring) (“[T]he state's interest—here represented in a statute—must be balanced, in appropriate cases, against the fundamental constitutional right to the free exercise of religion.”).
  90.  189 P.3d 959 (Cal. 2008).
  91.  Id. at 964.
  92.  Id.
  93.  494 U.S. 873 (1990) (holding that governmental actions that substantially burden a religious practice must be justified by a "compelling governmental interest.").
  94.  North Coast, 189 P.3d at 968.
  95.  Id. at 968–69.
  96.  252 Cal. Rptr. 3d 616 (Cal. Ct. App. 2019).
  97.  See id. at 624–25.
  98.  Id. at 624.
  99.  See id. at 625.
  100.  810 N.W.2d 919 (Mich. Ct. App. 2011).
  101.  Id. at 921 (invalidating the trial court’s grant of summary disposition based on failure to state a legally cognizable claim and reversing and remanding for further proceedings).
  102.  496 F. Supp. 3d 338 (D.D.C. 2020).
  103.  Id. at 372–75 (denying summary judgment for the IVF clinic as E.M. had presented a prima facie case for discrimination under the D.C. Human Rights Act).
  104.  See Debele, G. & Crockin, S., Legal Issues Surrounding Embryos and Gametes: What Family Law Practitioners Need to Know, 31 J. Am. Acad. Matrim. Law. 55, 65 (2018) (describing the “increasingly interstate and international nature” of IVF donor, surrogacy, and parentage arrangements as “introduce[ing] an almost mind-boggling array of choice of law and conflict of law issues”).
  105.  42 U.S.C. § 2000e, et seq.
  106.  42 U.S.C. § 2000e-2(a).
  107.  See Reasonable Accommodation Without Undue Hardship as Required by Section 701(j) of Title VII of the Civil Rights Act of 1964, 29 C.F.R. § 1605.2(b)(1) (2018).
  108.  See 29 C.F.R. § 160.2(e); see also TWA v. Hardison, 432 U.S. 63, 84 (1977).
  109.  New York v. U.S. Dep't of Health & Human Servs., 414 F. Supp. 3d 475, 574–75 (S.D.N.Y. 2019).
  110.  New York v. HHS, 414 F. Supp. 3d at 557.
  111.  Id.
  112.  See “Religious” nature of a practice or belief, 29 C.F.R. §1605.1 (2018); U.S. Equal Emp. Opportunity Comm’n, EEOC-CVG-2021-3, Compliance Manual on Religious Discrimination (2008) (definition of “sincerely held”).
  113.  See, e.g., Fallon v. Mercy Catholic Med. Ctr., 877 F.3d 487, 492–93 (3d Cir. 2017) (declining to consider general ethical beliefs to be like religion because there were not “fundamental and ultimate questions having to do with deep and imponderable matters,” not part of a larger belief system, and not “manifested in formal and external signs”); Chenzira v. Cincinnati Children's Hosp. Med. Ctr., No. 11-CV-00917, 2012 U.S. Dist. LEXIS 182139 (S.D. Ohio Dec. 27, 2012).
  114.  No. 11-CV-00917, 2012 U.S. Dist. LEXIS 182139 (S.D. Ohio Dec. 27, 2012).
  115.  Id. at *10.
  116.  See 29 C.F.R. § 1605.2(b)(1) (2018).
  117.  Id.; see also TWA v. Hardison, 432 U.S. 63, 84 (1977).
  118.  See, e.g., Siddiqi v. N.Y.C. Health & Hosp. Corp., 572 F. Supp. 2d 353 (S.D.N.Y. 2008) (finding that the hospital’s inability to find coverage for religious days requested off could be a legitimate undue hardship).
  119.  See, e.g., Shelton v. Univ. of Med. and Dentistry of N.J., 223 F.3d 220 (3rd Cir. 2000) (holding a nurse’s refusal to perform an emergency procedure that she considered an abortion risked patient safety and trading assignments was not a reasonable accommodation); Robinson v. Child. Hosp. Bos., No. 14-10263-DJC, 2016 WL 1337255 (D. Mass. Apr. 5, 2016) (holding a nurse’s vaccination objection risked patient safety).
  120.  No. 14-10263-DJC, 2016 WL 1337255 (D. Mass. Apr. 5, 2016).
  121.  See, e.g., id. at *7 (holding allowing a nurse to apply for non-patient facing jobs was a reasonable accommodation); Shelton, 223 F.3d at 226–7 (holding a hospital’s offer to transfer the objecting nurse to a different unit or another available position were reasonable accommodations).
  122.  See Robinson, 2016 WL 1337255, at *31 (holding a hospital had fulfilled its obligations when the objecting nurse was not selected for the only available non-patient facing position and no other accommodations could reasonably be made).
  123.  See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986).
  124.  See, e.g., Horvath v. City of Leander, 946 F.3d 787, 791 (5th Cir. 2020) (holding a firefighter objecting to a vaccination requirement had been given a reasonable accommodation and could not hold out for a specific, preferred accommodation).
  125.  Robinson, 2016 WL 1337255, at *31.
  126.  See, e.g., id. at *25 (holding that a nurse had voluntarily resigned when she did not choose among valid specific accommodations for her vaccine objection); Horvath, 946 F.3d at 793 (5th Cir. 2020) (dismissing a firefighter’s Title VII retaliation claim when he was fired for disobeying a direct order, which was to choose among valid specific accommodations for his vaccine objection).
  127.  See Hellwege v. Tampa Family Health Ctrs., 103 F. Supp. 3d 1303, 1312 (M.D. Fla. 2015); see also Moncivaiz v. Dekalb County, No. 03 C 50226, 2004 U.S. Dist. LEXIS 3997 (N.D. Ill. Mar. 12, 2004) (part-time secretary interviewing for full-time position alleging she was not hired because of her stand on abortion).
  128.  See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
  129.  103 F. Supp. 3d 1303 (M.D. Fla. 2015).
  130.  Id. at 1306.
  131.  See id. at 1313.
  132.  Mediation Report, Hellwege v. Tampa Family Health Centers, 103 F. Supp. 3d 1303 (M.D. Fla. 2015) (No. 14-cv-01576).
  133.  See McDonnell Douglas, 411 U.S. at 802.
  134.  See Hellwege, 103 F. Supp. 3d at 1306 (“[W]e do not have any position for antepartum & laborist only.”).
  135.  See McDonnell Douglas, 411 U.S. at 804.
  136.  See Hellwege, 103 F. Supp. 3d at 1306 (“Due to the fact that we are a Title X organization and you are an [sic] member of AAPLOG, we would be unable to move forward in the interviewing process.").
  137.  Accord Mincer, J., Watchdog finds much larger Catholic influence on U.S. hospitals, Reuters (May 5, 2016), (reporting that Catholic-owned or affiliated hospitals increased 22% between 2001 and 2016, comprising around 14.5% of all acute care hospitals on average and above 30% in some states).
  138.  148 A.D.2d 244 (N.Y.S. 2d 1989).
  139.  Id. at 249.
  140.  See id. at 255–56.
  141.  Id. at 256.
  142.  See id.
  143.  223 F.3d 220 (3rd Cir. 2000).
  144.  Id. at 222.
  145.  See id. at 223.
  146.  See id.
  147.  626 F3d 695 (2d Cir. 2010).
  148.  Id. at 699.
  149.  See id. at 696.
  150.  Id at 699.
  151.  See Hoffmann, D., Does Legislating Hospital Ethics Committees Make a Difference – A Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia, 19 L. Med. & Health Care 117 (1991) (finding lack of formal means to notify patients led to less case consultation).
  152.  See McGee, supra n. 84 at 63 (discussing the use of HECs on religious hospitals).
  153.  Md. Code Ann. Health-Gen §19-371 (LexisNexis 2013).
  154.  Hoffmann, supra n. 151 at 117.
  155.  See id. at 116 (discussing the 15% of Maryland hospitals with established but inactive committees).
  156.  See supra nn. 41-43 and accompanying text.
  157.  State Laws Related to Insurance Coverage for Infertility Treatment, Nat’l Council of State Legislators (June 12, 2019),
  158.  Dickler, J. & Young, K., Coverage for Fertility Treatments Often Comes Up Short, CNBC (June 30, 2019),
  159.  See Minton v. Dignity Health, 252 Cal. Rptr. 3d 616, 624–25 (Cal. Ct. App. 2019).
  160.  See North Coast Women’s Care Medical Group, Inc. v. Superior Court, 189 P.3d 959, 968 (Cal. 2008).
  161.  See Ethics Committee of the American Society for Reproductive Medicine, Child-rearing Ability and the Provision of Fertility Services, 100 Fertil. & Steril. 50, 51 (2013).
  162.  See id.
  163.  E.M. v. Shady Grove Reproductive Science Center, No. 19-657, 2020 WL 6158575 at *12 (D.D.C. Oct. 21, 2020).
  164.  See id.; Moon v. Michigan Reproductive & IVF Center, P.C., 810 N.W.2d 919, 921 (Mich. Ct. App. 2011).
  165.  Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986).
  166.  See, e.g., Horvath v. City of Leaner, 946 F.3d at 793 (dismissing a firefighter’s Title VII retaliation claim when he was fired for disobeying a direct order, which was to choose among valid specific accommodations for his vaccine objection); Robinson v. Child. Hosp. Bos., No. 14-10263-DJC, 2016 U.S. Dist. LEXIS 46024, at *25 (D. Mass. Apr. 5, 2016) (holding that a nurse had voluntarily resigned when she did not choose among valid specific accommodations for her vaccine objection).
  167.  Hellwege v. Tampa Family Health Ctrs., 103 F. Supp. 3d 1303, 1306 (M.D. Fla. 2015).
  168.  Id. at 1313.
  169.  See Chenzira, 2012 U.S. Dist. LEXIS 182139, at *10 (evaluating moral views as “sincerely held”).
  170.  See Elbaum v. Grace Plaza, 148 A.D.2d 244, 256 (N.Y.S. 2d 1989).
  171.  City & County of San Francisco v. Azar, 411 F. Supp. 3d 1001, 1025 (N.D. Cal. 2019).
  172.  See Shelton v. Univ. of Medicine and Dentistry of New Jersey, 223 F.3d 220, 223 (3rd Cir. 2000).
  173.  See, e.g., Schweikart, S., Who Makes Decisions for Incapacitated Patients Who Have No Surrogate or Advanced Directive?, AMA J. Ethics (July 2019),; Pope, T.M., The Growing Power of Healthcare Ethics Committees Heightens Due Process Concerns, 15 Cardozo J. Conflict Resol. 425, 425–26 (2014); Dolgin, J., Resolving Health Care Conflicts: A Comparative Study of Judicial and Hospital Responses, 9 Wake Forest J.L. & Pol’y 495, 496 (2019).
  174.  Robertson, supra n. 71 at 89.
  175.  See President’s Comm’n for the Study of Ethical Problems in Medicine and Biomedical, and Behavioral Research: Deciding to Forego Life-Sustaining Treatment: Ethical, Medical, and Legal Issues in Treatment Decisions 216–17 (1983).
  176.  See id. at 227 (1983).
  177.  See, e.g., Francis, L. The Roles of the Family in Making Health Care Decisions for Incompetent Patients, 1992 Utah L. Rev. 861, 862.
  178.  See Haddon supra n. 32 at 571 (1985).
  179.  See Cruzan v. Director, Missouri Department of Health, 497 U.S. 1, 26 (1990) (Scalia, J., concurring) ("This Court need not, and has no authority to, inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so it will destroy itself."); id. at 286 ("[W]e do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself.").
  180.  See, e.g. Sevems v. Wilmington Med. Ctr., Inc., 421 A.2d 1334, 1349–50 (Del. 1980) (suggesting that ethics committees can assist in evidentiary hearings); In re Jobes, 529 A.2d 434,463–64 (N.J. 1987) (Pollack, J., concurring) (arguing that ethics committees can assist family members and healthcare professionals in making end-of-life decisions for incapacitated patients); In re A.C., 573 A.2d 1235, 1237 n.2 (D.C. 1990); In re Spring, 405 N.E.2d 115, 122 (Mass. 1980) (concluding that the opinion of ethics committee may be persuasive evidence of good faith and good medical practice).
  181.  In re A.C., 573 A.2d at 1237 n.2.
  182.  See Robertson supra n. 71 at 86.
  183.  In re Spring, 405 N.E.2d 115, 122 (Mass. 1980).
  184.  Accord Cushing, M., Hall, D., Harry, M., & Weiss, E.C., The Role of Hospital Ethics Committees in Decisions to Terminate Treatment, 29 Boston Bar J. 22 (1985).
  185.  Hoffman, supra n. 151 at 112. Lawyers were more likely than social workers, nurses, and physicians to think that the committee was influenced by legal consequences.
  186.  Id.
  187.  See, e.g., Pope, T.M., The Growing Power of Healthcare Ethics Committees Heightens Due Process Concerns, 15 Cardozo J. Conflict Resol. 425, 441­–47 (2014); Dolgin, J., Resolving Health Care Conflicts: A Comparative Study of Judicial and Hospital Responses, 9 Wake Forest J.L. & Pol’y 495, 569–75 (2019).
  188.  Accord Wilson, R.F., Hospital Ethics Committees as the Forum of Last Resort: An Idea Whose Time Has Not Come, 76 N.C. L. Rev. 353 (1998).
  189.  Id.
  190.  See, e.g., McGee, supra n. 84 at 60.

Heather Skrabak

JD Candidate 2022, The George Washington University Law School, Washington, D.C.

Heather Skrabak received her J.D. in 2022 from The George Washington University Law School. She is specifically interested in health justice and bioethics. Mrs. Skrabak majored in migration studies and public health at Boston University and was a member of AmeriCorps Community HealthCorps at East Boston Neighborhood Health Center. She subsequently worked in health advocacy for the American Diabetes Association and the Association of Asian Pacific Community Health Organizations. At GW Law, she was a Kahan Health Law Fellow and a Notes Editor for The George Washington University Law Review. Beginning in Fall 2022, she will be clerking for the Honorable Carlos F. Lucero of the U.S. Court of Appeals for the Tenth Circuit. She may be reached at [email protected].

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