Reproductive Tourism and the Role of the European Union
Morris, Elizabeth Ferrari, Chicago Journal of International Law
As reproductive technologies have developed and become more widespread internationally, an increasing number of infertile couples have continued to seek reproductive therapy, including in vitro fertilization, either with their own cells or through cell donation, with the hope that they can start families. However, these new technologies have caused European governments to respond in different ways, ranging from an outright ban based on moral and ethical objections to no restrictions on access to reproductive assistance. As a result, European countries have erected regulatory structures that often change drastically and rarely parallel one another.1
Since there is no central regulation of access to reproductive technology, the evolving legal status of cell donation has created a phenomenon called "reproductive tourism." Reproductive tourism refers to the practice of citizens leaving their home country for another in hopes of receiving treatment that has been banned in their home country, typically for safety or moral reasons.2 Although reproductive tourism has long been an issue in Europe, there has been an even greater influx in recent years as the regulations of countries within the European Union have begun to diverge even more.3
As a general matter, national regulation of reproduction is not particularly troubling. With such a spread of regulatory schemes, though, the question arises whether European citizens would benefit if countries submitted to centralized regulation by the EU. Currently, the EU only regulates the specific guidelines concerning the quality of cells to be used for transplantation and the ethical rules for compensating donors.4 Since this regulation is so narrow, countries are free to generate their own policy concerning which citizens can actually access this technology. Consequently, a country's ability to deny citizens reproductive therapies could result in unequal application of the EU's public health directives because countries with reproductive technologies compete for patients, resulting in unequal access to quality care. Accordingly, this inequality raises the question whether the EU should define the reproductive policy of its Member States.
As such, this Development will focus on the role that the EU can and should play in administering the reproductive technology needs of its Member States. First, this Development will delve into the specific problems that have arisen from lack of central regulation.5 The discussion will then turn to current EU regulation practices of donated cell material and how these initiatives are insufficient to confront the public health problems produced by reproductive tourism. Finally, the argument concludes by discussing how the EU can administer cell donations more effectively and in a manner that is more consistent with its other bioethical practices without infringing on the ethical concerns of the individual Member States. Overall, this Development will show that, although individual policymaking has historically been left to the discretion of the Member States, the unique challenges of ensuring public health norms for all Europeans require more integrated harmonization of scientific practices in individual countries. However, this harmonization does not necessarily need to offend Member States' ethics because countries would still decide whether or not to offer cell donation as a reproductive option. Rather, instead of ignoring reproductive tourism, a Directive from the EU would acknowledge that a market has developed for cell donation. By regulating this market, the EU would instill greater confidence in patient safety.
II. REPRODUCTIVE TOURISM AND THE CURRENT POLITICAL ATMOSPHERE
Reproductive or infertility tourism usually refers to "the movement of citizens to another state or jurisdiction to obtain specific types of medical assistance in reproduction that they cannot receive at home."6 Reproductive tourism occurs for a variety of reasons. …