How Under-Regulated ART Hurts the Best Intentioned

I’ve been thinking about the surrogacy gone awry I wrote about last time.   I think (as do some of those who commented) that the fault must like with the surrogacy agency that appears to have allowed people to go forward with a surrogacy arrangement without full counselling, etc.    Of course, I don’t know this for sure, but it looks like it to me.

It isn’t the first time I’ve written about a case where all sorts of trouble was created by an incompetent or unscrupulous agency or individual working in the ART field.   And I have no doubt that some shoddy or dishonest actions are motivated primarily by greed–after all, the surrogacy agency doesn’t get paid until the deal is made.  

But here’s the thing there is rarely time to write about:  I know a lot of people who work in this field and they are fine, ethical, honest, hard-working people.  Sure, they make a living.   But they’d never compromise a client’s interest to make more money.  And they’re alert–maybe even hyper-alert–to potential conflicts of interest (as you might see if you represent both surrogates and IPs.)

I suspect it is like any other profession–there are some very bad lawyers.  There are some dishonest lawyers.  There are lawyers who put their own interests ahead of their client’s interests.   But that’s not most lawyers.  And it’s not most people who work in ART.

The problem, it seems to me, is two-fold.  One is that when ART goes awry it creates situations that often become fodder for the press., which means we read about them or see them on TV or whatever.  That gives you an exaggerated sense of how frequent misbehavior is.

The other piece is that ART is, in many ways, rather lightly regulated.   That means there’s a lot of room for variation. Sometimes rather sloppy practices might be okay for a time–until suddenly something goes wrong.

I can imagine that many people who work in ART are not eager to see more regulation, but I wonder if it would actually help the legitimate, careful and responsible practitioners by making it a little bit easier to weed out the rest.


6 responses to “How Under-Regulated ART Hurts the Best Intentioned

  1. Seems perfectly reasonable to have regulations that encourage best practices. Would make the field stronger, an outcome I fully support.

  2. what are some potntial regulations that could have prevented this mess?

    • Perhaps a psychological screening by someone not affiliated with the clinic so there is no financial incentive to push a poor match through.

    • I’m not an expert but some that come to mind: Requiring separate and independent counselling (which could be legal and/or psychological) of both IPs and potential surrogates, preferably by counsellors who have no financial interest in deals being made; requiring training for the counsellors so that they know the relevant risks to discuss; requiring that some information (like that no one can force a woman to have an abortion) be made available to all those involved. I don’t know for sure that these would be practical, but something akin to them would be, it seems to me. Perhaps as a model one could look to adoption. In that field various disclosures, etc. are required, I think, and as I understand it, it has made the practice of open adoption much smoother.

  3. Before we go down a regulatory pathway, we have to truly understand the complete marketplace. I do not think that appreciation exists as yet. There is no doubt that rogue agencies exists. There is no doubt that rogue clinics exist. But there are also rogue parents which are need to be addressed as well. I suspect rogue parents create more problems then the other two combined.
    I speak with Judges all the time who are approached by Pro Se Parents who cobble together a DIY Surrogacy. Many of these so called Petition for Parentage applications are denied because of a myriad of problems in the process (murky as to the insemination or transfer) or legal requirements (fatal contract or legal basis errors).
    Regulation may be the appropriate response to a media created frenzy. However, any regulatory attempt should be comprehensive so as to address the greatest avenue for abuse, not just the ones that make the 5 o’clock news.

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