Commerce and Regulation in the Assisted Reproduction Industry
Robertson, John A., Texas Law Review
Commerce and Regulation in the Assisted Reproduction Industry THE BABY BUSINESS: HOW MONEY, SCIENCE, AND POLITICS DRIVE THE COMMERCE OF CONCEPTION. By Debora L. Spar.[dagger] Boston, MA: Harvard Business School Press, 2006. Pp. xix, 299. $26.95.
The ability to extract human eggs, fertilize them in a dish, and place resulting embryos in the uterus has fascinated and bothered people since the first in vitro fertilization (IVF) birth in 1978. The assisted reproduction field has grown phenomenally since then with over two million births worldwide. The technology has opened the door to egg donation, gestational surrogacy, embryo screening, and other variations on traditional ways of forming families.
Assisted reproductive technologies (ARTs) and their many variations are now firmly ensconced within the medical care system. In 2003, there were over 120,000 cycles and 35,000 births annually in the United States1 and perhaps 200,000 births throughout the world.2 These technologies are avidly sought by persons unable to have children and present an attractive career alternative for obstetrician-gynecologists.
ARTs raise both ethical and health policy issues. The ethical questions involve the status and control of extracorporeal embryos, the technologization of family and reproduction, and the ability to recombine genetic, gestational, and social parentage. They have spawned a vast literature and much popular interest, with the latest extension or dispute often generating extensive news coverage.
The health policy issues are less sexy but just as important. These concern the high cost of the procedures and lack of access, the risk that children will be born with congenital defects, and the effects on parenting and the family. A related issue is whether more direct regulation is needed for this field.
With two or more decades of experience with these technologies, most of the ethical, legal, and policy issues raised by ARTs have now been thoroughly aired, though new variations on old issues continue to arise. Some form of ART exists in most developed countries, but some jurisdictions are more strict than others about regulation and the menu of accepted or prohibited procedures. Fertilization outside of the body will continue to present offspring legal status and filiation conundrums. But the main legal and ethical questions have been resolved to the extent that assisted reproductive services are now provided to a large extent as are other medical services in a jurisdiction. It is fair to say that reproductive technologies have been "naturalized" as a standard way for people with fertility problems to find relief.3
Some people still wonder whether we have proceeded too fast in accepting technological control over conception. They fear that we have paid insufficient attention to the effect of separating and recombining the genetic, gestational, and social aspects of reproduction on children, families, and, indeed, the human narrative.4 Others are concerned about extensions of ARTs to nontraditional families, such as single men and women or gay and lesbian couples. Still others are bothered by the prospect of extensive preimplantation genetic selection and manipulation, which external access to the embryo makes possible. As a result, new controversies will arise as new techniques come on line and new uses are made. Despite its naturalization, the use or regulation of reproductive technology will continue to occupy public and professional attention for some time to come.
Debora Spar is a new entrant in the marketplace of ideas about this phenomenon. The director of research at the Harvard Business School, she offers a general, industry-wide approach to infertility treatment as a commercial enterprise. Important for Spar is the claim that treating infertility involves the "business" of buying babies, hence her title The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception. …