Assisted reproductive technologies (“ARTs”) have enabled many infertile couples to have children but have long been controversial. Opposition initially focused on the “unnaturalness” of laboratory conception and the doubts that healthy children would result. Once children were born, ethical debate shifted to the status and ownership of embryos and the novel forms of family that could result.

The new century has brought forth both new and old ethical concerns. The growing capacity to screen the genomes of embryos has sparked fears of eugenic selection and alteration. In addition, concerns about safety have reasserted themselves. Several studies suggest that in vitro fertilization (“IVF”) may be associated with lower birth weights and major malformations. Ethical attention has also focused on whether all persons seeking ARTs should be granted access to them, regardless of their child-rearing ability, age, disability, health status, marital status, or sexual orientation.

Between 1.7 and 4% of the world population is born with intersex conditions, having primary and secondary sexual characteristics that are neither clearly male nor female. The current recommended treatment for an infant born with an intersex condition is genital reconstruction surgery to render the child as clearly sexed either male or female. Every day in the United States, five children are subjected to genital reconstruction surgery that may leave them with permanent physical and emotional scars. Despite efforts by intersexed people to educate the medical community about their rejection of infant genital reconstruction surgery, the American medical community has not yet accepted the fact that differences in genital size and shape do not necessarily require surgical correction.

Genital reconstruction surgery may involve removing part or all of the penis and scrotum or clitoris and labia of a child, remodeling a penis or creating a vaginal opening. While the initial surgery is typically performed in the first month of a child's life, genital reconstruction surgery is not only performed on infants.

The most complex issues in the field of healthcare policy can often be reduced to the simple question “who is going to pay?” Legislatures, whether at the state or national level, are generally the entity responsible for allocating healthcare costs. When a legislative body acts to allocate healthcare costs, it simultaneously amends a society-wide, interwoven web of regulation and incentives that is steeped in decades of tradition. Further, and perhaps more importantly, healthcare cost allocation affects each individual in our society on an intimate level. Medicare is one of the most controversial elements in this grand scheme of cost allocation policy.

Medicare serves approximately 37 million senior citizens in the United States. Of course, Medicare benefits are limited. With minor exceptions, Medicare fully covers only the first ninety days of hospitalization for an eligible citizen. After such period, a Medicare-eligible citizen may draw upon a non-renewable lifetime reserve, which provides Medicare hospitalization coverage for an additional sixty days.

Hospitals in the United States rely on peer review committees to make credentialing decisions and to conduct ongoing evaluations of all medical care, thereby ensuring the quality of the physicians they employ. Physicians, however, may be reluctant to serve on peer review committees for fear of retaliatory litigation. In response, and in an effort to improve the quality of healthcare in the United States, Congress passed the Health Care Quality Improvement Act of 1986 (“HCQIA”).

Congress designed the HCQIA to improve the quality of healthcare in two ways. First, it increased the effectiveness of peer review by providing review committees with immunity from lawsuits filed in response to professional review actions. Second, it authorized the Secretary of Health and Human Services (“HHS”) to create the National Practitioner's Data Bank (“NPDB”). Any disciplinary action taken by a review committee must, as a condition to immunity, be reported for listing in the NPDB.