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71 Maryland Law Review


Legal scholarship portrays women as reproductive decision makers in conflicting ways. The distinctions between depictions of infertile women and women considering abortion are particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar stereotypes of pregnant women considering abortion, depicting them as confident and competent decision makers. This Article argues that legal scholars' use of a "desperate woman" stereotype denies women's ability to critically assess the health risks and life benefits of fertility treatments, particularly when similar stereotypes have been met with scorn in the abortion context. These constructions perpetuate emotional paternalism; undermine the dignity, autonomy, and capacityof infertile women; and justify restrictions on decision making in the Assisted Reproductive Technology context. Infertility may well produce emotional distress; however, the construction of infertile women as governed by desperation unnecessarily impugns their capacity for autonomous decision making. To these ends, this Article examines the contributions that emotion can make to autonomous decision making, and the need for a more relational model of autonomy that acknowledges the socially embedded nature of treatment decisions. Because current constructions of "desperate" infertile women ignore available clinical research and have serious ideological and practical consequences, it is crucial to unmask and reframe them to prevent them from being incorporated into jurisprudence or legislation.