Marsha Garrison · September 2008
76 GEO. WASH. L. REV. 1402 (2008)
In 2003, the Sunday Styles section of The New York Times published a striking advertisement featuring a smiling baby and a bold headline asking “Do You Want to Choose the Gender of Your Next Baby?” Readers were directed by this advertisement to a fertility clinic willing and able to fulfill a would-be parent’s desire to choose her baby’s sex. This and similar clinics offer would-be parents the chance to choose a child free from inherited disease or defect. They provide assistance to potential parents who themselves lack viable ova or sperm, and some will facilitate large cash transfers that enable the infertile to buy ova and sperm from a desirable “donor.” In attempting to fulfill their clients’ desires, many fertility clinics implant pre-embryos in numbers that elevate the risk of a multiple birth or employ untested procedures that may enhance the risk of birth defects. Some clinics offer such services postmenopause and even postmortem. It is with good reason that their highly profitable business has been termed the “Wild West” of American medicine.
Most other technologically advanced nations have taken a much more active regulatory stance toward assisted reproductive technology (“ART”). The United Kingdom has the most comprehensive regulatory scheme; the pioneering Human Fertilisation and Embryology Act of 1990 (“Act”) was drafted
to ensure that . . . sensitive issues of moral and legal complexity are dealt with in a clear framework . . . . to balance what are the sometimes conflicting interests of the involuntarily childless and the children of the reproduction resolution . . . . [and] to mediate between the families who may benefit from research into the causes of genetically inherited disease . . . and the human embryo or foetus.
The Act sets out a comprehensive regulatory framework that governs artificial insemination, in vitro fertilization (“IVF”), surrogacy, and research involving pre-embryos; it also establishes a governmental agency to license ART providers and to resolve issues not dealt with in the statute. As a result of this comprehensive regulatory scheme, in the U.K., it is public policy, not market forces, that determines whether sex selection is offered to would-be parents and how a host of other reproductive technology questions should be resolved.
Although few nations as yet have regulation as comprehensive as that of the U.K., many have legislative or regulatory standards governing some aspects of ART practice, and most have at least established national commissions to formulate such standards. As a result of these regulatory initiatives, many nations, such as member states of the Council of Europe, forbid sex selection except to avoid serious genetic illness. Some ban the sale of reproductive material, or restrict the number of pre-embryos that may be implanted, or disallow the use of reproductive technology postmenopause or postmortem—or all of these options.
Can—should—the United States abandon its laissez-faire, market-based approach to reproductive technology in favor of a regulatory model? In this Article, I conclude that some ART regulation is both constitutionally permissible and desirable. Part I analyzes the constitutionality of ART regulation. This section also develops an “interpretive” regulatory strategy that relies on related areas of law for policy guidance. Part II relies on this approach to develop regulatory standards and an organizational model to govern medical choices made by patients using ART. Part III, again relying on the interpretive approach, develops regulatory standards to govern the transfer of sperm and ova used in ART.
