Book Review: Test Tube Families

This book is written by a lawyer who is both an expert in family law and also, as she puts it, 'a player in the fertility game'. Naomi R Cahn is a research Professor of Law at Washington University Law School, and this book examines the position of the fertility market under US law.

In the US, Professor Cahn writes: 'there is comparatively little regulation of this industry and its participants…the regulation that does exist is piecemeal; purchasing eggs or semen involves entirely different regulations from those involved in determining whether the seller or purchaser is the parent or whether donor-conceived offspring have any rights to information about their donors. To a large extent, legal regulation of the fertility market, of the identity needs of resulting children, and of the determination of parenthood, have developed separately, and the legal approaches developed well after the technological innovations appeared.'

The result of this is an incomplete tangle of applicable legislation, which leaves gaps, uncertainties and inconsistencies in the law, according to Professor Cahn. She illustrates this argument with accounts of cases where the existing law fails to provide a clear and appropriate structure for the complex mixture of issues thrown up by the 'fertility industry'.

Questions addressed include: Should parents be able to sue a fertility clinic for breach of contract or the tort of emotional distress if a donor conceived child is born disabled? Are contracts for the provision of gametes, fertility services or the relinquishing of parental rights enforceable? Should donor anonymity be determined by the providing clinic? In addition, state law varies, creating inconsistencies in the internal market and confusion when parties move to different states.

The ethical status of fertility treatment is reflected in its legal regulation and the contrast with UK law is considerable. Although private fertility clinics operate on a commercial basis in the UK, they are overseen and regulated by the Human Fertilisation and Embryology Authority (HFEA) under the Human Fertilisation and Embryology (HFE) Act. The core of UK fertility clinics' business, gametes, cannot be bought and sold, and donors are required to donate altruistically, getting paid reasonable expenses only.

By contrast, fertility treatment in the States is a free market. Professor Cahn describes it as 'an industry, a market where gametes are bought and sold… infertility is a 3-4 billion dollar per year business whose participants include surrogate mothers and major drug companies'. Gametes are traded like any other consumer good with premium prices being paid to 'women with highly competitive qualifications, such as higher IQs ((intelligence quotients) or particularly desirable physical characteristics'.

Those who accept the strict regulation of the UK fertility market and altruistic donation of gametes may find the US position distasteful and unethical. But Professor Cahn argues that there is little desire for UK-style legislation in the US.

'Donors, recipients, banks, clinics and physicians have little incentive to push for public regulation that might result in additional restrictions on their activities. Buyers want to buy, sellers want to sell, banks want to market… Jurisprudentially, we lack a coherent framework for addressing issues involving human gametic material, she argued.

The US also lacks the regulatory framework provided by public health systems in the UK and other countries. .' She adds, without any apparent irony '... no one in the world of reproductive technology has any incentive to advocate for more openness and regulation, aside from the children, some disgruntled gamete providers and the occasional unhappy patient. Reproductive technology is a multibillion dollar business that is thriving on its own terms'.

Professor Cahn proposes some useful reforms. Her proposals include legal consistency, particularly over the identity of donor conceived children and the rights of parents; transparency; a requirement to test gametes for serious genetic conditions; the provision of counselling to 'consumers'; and restrictions on the number of donations by any one donor.

As a 'consumer' of the fertility industry, however, she declares herself in favour of the free market, including the sale of gametes. She avoids the related ethical issues, dismissing arguments about eugenics and commodification of the resulting children, whose interests are insufficiently discussed. Professor Cahn's position is clearly primarily guided by her own interests as consumer. 'Many of us who have used reproductive technology do not want to disturb the machine that has given us our children', she says.

Buy Test Tube Families: Why the Fertility Market Needs Legal Regulation from Amazon UK.