High-Tech Mess Needs Cleaning Up
The terrible scandal that rocked the infertility program at the University of California at Irvine has left a lot of people wondering whether reproductive technologies are adequately regulated in this country.
Some - including the attorneys for the three California physicians who stand accused of stealing dozens of embryos over a period of four years and using them without consent to create babies - say the misuse of embryos is nothing more than the result of sloppy record-keeping by low-ranking administrators and technicians.
Many leaders in the field of fertility say that reproductive medicine is already highly regulated and that adding more regulations would do nothing to prevent the kind of mess that happened at UC-Irvine.
The desire by those in the field to dismiss the UC-Irvine scandal as an aberration is understandable. Few people want to impose more regulation, red tape and legal liability upon themselves. But the fact is that with the exception of a single federal law - the Wyden law, requiring fertility clinics to disclose their rates of successfully making babies, a law that has never been enforced - there are no American regulations or laws that specifically regulate the creation of children with technological assistance.
American legislation says nothing about who can use infertility services or who can donate sperm or eggs. It says nothing about the legal status of children created by artificial insemination or in-vitro fertilization, and nothing about the disposition of unwanted embryos.
The pathetic state of American law when it comes to watching over the powerful new ways we have to create babies becomes clear when compared to the laws that exist in France. In July 1994, France enacted the world’s most comprehensive set of regulations governing artificial insemination, in-vitro fertilization and other reproductive technologies. French laws are specific. Those who violate them risk fines and imprisonment.
The French restrict access to infertility treatment to couples who can prove they have been living together for a minimum of two years. French law prohibits the insemination of single women or lesbian couples. It also bans the use of reproductive technologies to make a baby if the person who donated the sperm or egg is dead.
In addition to strict eligibility criteria, French law requires those who wish to use donated sperm or eggs to consent in the presence of a judge. The law requires that be done so that if a child is born with a birth defect or some other trait or behavior the parents do not like, the parents cannot reject the baby.
When embryos are frozen, both members of the couple who created them must consent in writing, and both must certify annually in writing their continued desire that the embryos be kept frozen. Embryos cannot be stored for more than five years. They may be donated to another couple, in which case the recipient couple must go through a legal process similar to an adoption, so there can be no battles later over who are the real parents of any child that results. Most forms of research upon human embryos are prohibited.
You might not agree with the content of the French laws. I disagree with a number of the prohibitions and restrictions on who can get access to reproductive technology and what can be done with unwanted embryos. But the point is that the French have articulated a legal and moral framework for the new world of making babies that tries to protect the interests of children created by technological means. And the laws carry real penalties for those who break them. The United States has nothing at all.
While many Americans might feel that some of the French rules are misguided, the terrible and inexcusable scandal at UC-Irvine ought to spark American public debate about the need to move in the legislative direction that the French have pioneered.
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