By Leslie Mann
The field of assisted reproductive technology, or ART, is advancing so rapidly that many describe it as a new frontier. As science continues to advance and meet the demand for children born with the help of donated sperm, donated eggs and/or surrogates, every procedure forms a new kind of relationship, fraught with potential legal pitfalls.
Nanette Elster, 49, is vice president of Spence & Elster, P.C. with offices in Lincolnshire, Ill., and Chicago. An attorney who specializes in reproductive law and fertility law, Elster counsels donors, recipients and surrogates about the ever-changing laws, drafts contracts and negotiates among all parties. Thanks to Illinois’ ART-friendly laws and its many fertility clinics, many parents-to-be come here from other states and abroad.
Philadelphia-based psychologist Andrea Braverman has worked with Elster on service projects including a national egg/sperm registry.
She describes Elster as insightful and big-hearted in a field, she said, “where people’s lives and futures hang in the balance.” She considers Elster as one of the leaders in the field of ART law. “Nanette is an indefatigable force of nature,” Braverman said. “She shies away from nothing.”
Elster’s part-time job as the manager of ethics outreach for the American Dental Association allows her to keep one foot in public health, her original career choice; she holds a master’s degree in public health.
At Loyola University Chicago, Elster teaches biotechnology, bioethics law, public-health law, genetics and writing. Each summer, she also teaches legal and ethical issues at Hamline University School of Law in St. Paul, Minn. Elster is co-author of “Ethical Dilemmas in Fertility Counseling” (American Psychological Association), a primer that explores the psychological, medical and ethical quandaries of ART. Elster serves on the boards of the Alliance for Fertility Preservation, the American Bar Association’s Special Committee on Bioethics and the Law, and the Center for Jewish Genetics in Chicago.
Elster lives in Northbrook, Ill., with her husband, Kayhan Parsi, a bioethics professor, her mother and her 12-year-old daughter, Allanah. She has two stepsons.
Another member of Elster’s household is Hope, her beloved schnoodle (a schnauzer-poodle mix). “When I met Hope at an animal shelter and heard her name,” Elster said, “I knew she was meant for our family.”
Following is an edited transcript of our conversation.
Q: ART law has enjoyed rapid-fire advancement in the last few decades. What were the historical turning points that continue to affect parents-to-be?
A: The (1978) birth of Louise Brown, the first IVF baby; the disputed custody of Baby M, born (in 1986) to a surrogate; Johnson v. Calvert (1990), which defined the “mother” as the one who “intends” to raise the child, not the surrogate; Davis v. Davis (1992), when frozen embryos were declared neither person nor property; the (1997) Julie Garber case, about the custody of a woman’s frozen embryos after she died. Also, believe it or not, the (1996) birth of Dolly the sheep, which brought new concerns about cloning. Each scientific innovation brings new legal, ethical and policy questions.
A: Law follows medicine for a reason. Courts first look for an analogy in existing legislation. But, with ART, we’re seeing new challenges we haven’t encountered before. For example, some laws define “motherhood” as genetic or gestational, but there’s still confusion about “maternity” in egg donation and surrogacy. The laws keep evolving.
Q: What are the greatest ART ethical dilemmas we face today?
A: What do we do with the hundreds of thousands of frozen embryos that haven’t been transferred to women for gestation? How can we help more women use ART without increasing the incidence of multiple births, which can endanger the moms and the children? As cancer survival rates improve, how can we help survivors preserve their fertility? How can we help children find information about their genetic kin?
Q: You say the adoption community has blazed trails for ART. In what ways?
A: Adoption has made people far more sensitive about how we describe familial ties. It’s helped us understand the importance of disclosure, openness and honesty. We’re more aware of the language we use to describe everyone involved.
Q: You’re open about your experience with ART. Tell us how it affects your work.
A: I tell my clients and my students about my experience with IUI (intrauterine insemination, a fertility treatment that involves placing sperm inside a woman’s uterus to facilitate fertilization) so they know I understand that ART affects everyone involved, donors, recipients, surrogates, extended family, the children. Too often, the psychological and social issues for children aren’t really considered until after they’re born. My daughter is a spokesperson already, too. She comes to my classes and explains correct ART language. A “real dad,” for example, is the one who tucks you in at night, not the man who donated his sperm.
Q: You credit your father for giving you the courage to proceed with IUI.
A: I was in my thirties and not married. After I had surgery for endometriosis, my dad was in the recovery room. He knew I wanted a child, so he encouraged me to find a sperm donor before my condition worsened. I promised I would. Later, as he was dying, I said I was sorry that he wouldn’t be there to see my child born. He said, “Oh, but I will be.” After my daughter was born, she immediately reached for his wedding ring, which I was wearing on a necklace. That’s why she has the extra “L” in her name, for his name, Allan. At a time when intentional single motherhood was still a bit novel, I’m not sure I would have been brave enough to move forward, had it not been for his voice in my ear.
Q: Why does your husband describe you as “Kantian” (for German philosopher Immanuel Kant)?
A It means I do something because it’s the right thing to do, not because of my own desires. He’s right; I do.
Q: What’s your mantra?
A: Be fair, be kind, be honest. My grandma Sal epitomized that; she was one of the kindest people I’ve known.
Q: What can we learn from the early jobs we take before we launch our careers?
A: I baby-sat and I was a stock person at Marshall Field’s, so I learned to always hang up clothes after you try them on! I love (comedian) Louis C.K.’s line that you should do your job, no matter what it is: “Just do the s–t out of it!”
Q: What do you do for fun?
A: I walk constantly. I listen to ’80s alternative music. I love traveling. I’m always trying to find more time to just be with my family.
Q: What books are on your nightstand?
A: “The Happiness Project” by Gretchen Rubin and “On Immunity: An Inoculation” (by Eula Biss).
Q: How do you find inspiration?
A: As a teacher, I love seeing my students flourish. Some become peers. In my service work, solving problems for people impacted by ART inspires me. (In my practice), I’m inspired by people who go to great lengths to build their families and by the people who so generously help them by being donors or surrogates. It’s rewarding to help them make informed decisions and proceed without litigation. I love getting their baby pictures.
Q: Will you ever retire?
A: No. I love this work.