Is Regulation The Answer? Who Would Be The Regulator?

The last post (about the US as major sperm exporter) raises important questions about the regulation of ART generally and third-party gametes in particular.   As the post notes part of the reason the US dominates the world market is tied to the fact that in some regards the US is essentially unregulated while in other regards (STD testing) it is quite regulated.   If regulation were uniform, the US would lose a lot of its competitive advantage.

This raises the question of regulation of ART.  I’ve written before–with some frequency–about the inconsistent nature of ART regulation.   Part of the problem is identifying the level at which regulation should occur.  Should it be state by state?   Nation by nation?  In either case you get variation and inconsistency.

I want to tie this back to a post I put up a couple of weeks ago about ART regulation in Canada.    The main national regulator is being disbanded, although there is some debate about the significance of this move.    Just after I put up today’s post I came across this article.   The headline pretty well sums it up–in the view of the authors of a study done at the University of Calgary, regulation province by province will be more effective than national regulation.

As someone familiar with the haphazard pattern of regulation you find state to state in the US this seems a curious conclusion.    If the provinces enact different regulatory regimes, then people can evade the regulations simply by travelling next door.  This is, of course, what happens as people travel between the US and Canada as well but creating more difference may not make things better.

But perhaps regulation should be more local rather than national.   As the article notes (and as I think this blog demonstrates) many of the issues involved in drafting regulations are ethical or moral.    If we’re going to legislate morality, perhaps it should vary state to state (or county to county or province to province).  The study’s authors think these issues should be left to legislators, but that doesn’t tell us what level of legislators.

Though the article (and I guess the study) does not address it, I find myself thinking about international regulation as well.  I think that for some people the idea of uniform regulation globally seems like a good idea.  There is something appealling about it, I must say.   But I find it impossible to imagine that this is possible in this field.

For instance, as I mentioned in the last discussion, countries differ in who is allowed to use ART.     These differences are rooted in differing cultural as well as religious ideals of the family and how it ought to be constructed as well as different views of the importance of individual autonomy.    Where would a uniform international standard come from?

I’ve really no conclusion to offer, I’m afraid.  I do see that it is a mess out there and people get caught in between inconsistent legal regimes and people get hurt.  I just don’t see any terribly clear solutions.

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6 responses to “Is Regulation The Answer? Who Would Be The Regulator?

  1. My parent's donor is my father

    Naomi Cahn has written a paper that you might be interested in (if you are not already familiar with it) “The New Kinship” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2018969
    She provides US regulation suggestions starting on page 42. I only briefly gave the paper an overview and did not see any specific mention of international regulation recommendations.

  2. I disagree with the concept of provincial or state regulation as it become corruptible. I would chose federal system that is not part of the political system or one that can be lobbied too, or even a Hague system where it is firmly centered around ALL parties (including the unborn party) rights and privileges and removes or caps the profit side which does cause harm.

    I do foresee this period as a time people in the future will look back at in horror.

    • You’re right, state regulations aren’t going to be near enough, not for the big issues. We need federal laws, starting with an egg and sperm law that prohibits conceiving a person by any means other than joining a man and a woman’s unmodified gametes. We also need an international treaty, though I’d argue it is already prohibited by the rights of the child treaty; manufacturing human beings intentionally (including gamete donation) violates human trafficking treaties and crimes against humanity treaties. But some don’t think so, so I guess it needs to be made explicit with a new treaty, and states can’t make treaties, so there has to be a federal law that overrules state laws that allow cloning, etc.

      • I think the likelihood of any federal legislation passing is pretty close to zero. It’s not the sort of thing the US Congress is likely to take the time to work through. Even in the states its very hard to get any legislation around any of this.

        I don’t say this because you shouldn’t say what you’d like–it’s always good to have a goal. But in the meantime there’s this terrible patchwork that snags people in all sorts of ways. I just am not sure what one can do about it.

    • It will be interesting to see how history judges us and where we will go from here. Some of this will happen in a timeframe that some of us may actually see, of course. In general, it looks to me like science is moving us closer and closer to something that has echoes of that brave new world. Certainly more and more screening is possible and, whether one is having genetically related children or not, it seems like the myriad of ethical issues raised by that screening will be with us. I’ve read stories recently about the ability to produce eggs from stem cells–which would mean that women won’t have a finite supply of eggs and who knows what all else. I’ve read about the ability to manipulate genes, which brings with it all sorts of fears about designer children.

      I am not sure, but I think you mean to suggest people will look back in horror because of how we’ve dealt with issues around access to information about gamete providers? I actually think that is shifting even as we have this conversation. Maybe we’ll be looked at as a time when understandings shifted and they’ll give us some credit for trying?

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