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Test Tube Families

Test Tube Families: Why the Fertility Market Needs Legal Regulation

Naomi R. Cahn
Copyright Date: 2009
Published by: NYU Press
Pages: 304
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  • Book Info
    Test Tube Families
    Book Description:

    The birth of the first test tube baby in 1978 focused attention on the sweeping advances in assisted reproductive technology (ART), which is now a multi-billion-dollar business in the United States. Sperm and eggs are bought and sold in a market that has few barriers to its skyrocketing growth. While ART has been an invaluable gift to thousands of people, creating new families, the use of someone else's genetic material raises complex legal and public policy issues that touch on technological anxiety, eugenics, reproductive autonomy, identity, and family structure. How should the use of gametic material be regulated? Should recipients be able to choose the "best" sperm and eggs? Should a child ever be able to discover the identity of her gamete donor? Who can claim parental rights?Naomi R. Cahn explores these issues and many more in Test Tube Families, noting that although such questions are fundamental to the new reproductive technologies, there are few definitive answers currently provided by the law, ethics, or cultural norms. As a new generation of "donor kids" comes of age, Cahn calls for better regulation of ART, exhorting legal and policy-making communities to cease applying piecemeal laws and instead create legislation that sustains the fertility industry while simultaneously protecting the interests of donors, recipients, and the children that result from successful transfers.

    eISBN: 978-0-8147-9002-1
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
  4. Introduction
    (pp. 1-10)

    PRODUCING FAMILIES TODAY is a paradox. It is, for some, the most intimate of intimate acts and, for others, a multibillion-dollar business that simultaneously creates our closest relationships. Although 90 percent of Americans do not have fertility problems, 10 percent do. Each year, about one million people seek some sort of fertility treatment, and three hundred thousand go as far as undertaking in vitro fertilization. The infertility statistics are real and scary. A woman’s fertility drops off beginning in her late twenties, continues to fall even more dramatically after the age of thirty-five, and plummets when she reaches forty. Once...

  5. Part I Initial Conceptions

    • 1 The Treatment Plan for Legal Issues
      (pp. 13-28)

      In May 1995, when Brittany Johnson was seven years old, she was diagnosed with an unusual genetic disorder that affects her kidneys.¹ Neither of her parents, Ronald and Diane Johnson, had kidney disorders in their family history. Instead, Brittany inherited the kidney disease from Donor 276, who provided the sperm to California Cryobank that ultimately resulted in her birth.

      California Cryobank opened in 1977. Like other early sperm banks, California Cryobank focused on freezing the sperm of men who were considering sterilization, ensuring that the men would be able to have biological children with their partners. But it soon expanded...

    • 2 The Treatment Plan for Creating Babies
      (pp. 29-40)

      HOW DO YOU know if the new reproductive technologies are right for you?¹ There is the technical answer: if you are infertile or if, clinically, you need gametes from another person because you are single or gay; and there is the psychological/moral answer: if you are emotionally, mentally, and perhaps spiritually prepared to begin.

      The medical definition of infertility applies to a couple that has been trying to conceive and been unsuccessful for six months to one year, depending on their age. But you can find out about your fertility long before one year. Walk into any drugstore and, next...

  6. Part II The State of ART

    • 3 Market Regulation
      (pp. 43-72)

      IN JUNE 2007, viewers of the soap operaThe Bold and The Beautifulwatched as characters struggled with a case of “scrambled eggs.” In July 2006, viewers of the soap operaDays of our Liveslearned that vials of eggs had been switched in a fertility clinic, so the wrong sperm fertilized the wrong egg. Is this just the stuff of soap operas, or is it real life?

      For anyone seeking sperm, there are thousands of possibilities. In the United States alone, there are dozens of sperm banks in a business that accounts for about $75 million per year.¹ Consumers...

    • 4 Parenting Regulation
      (pp. 73-87)

      IS A SPERM donor a father? An egg donor a mother? In 2003, the Maine Supreme Court struggled with whether to notify an anonymous sperm donor of a court action involving “his” child. A lesbian couple purchased sperm from California Cryobank (the bank also involved in the kidney-disease case discussed in chapter 1). One of the women became pregnant and gave birth to a boy (called only “I.H.” by the court). The biological mother wanted to recognize her partner’s relationship to I.H. by making the partner a guardian for her son. The two women went to court to guarantee that...

    • 5 Donating to Parenthood
      (pp. 88-113)

      GAMETE PROVIDERS ARE not the legal parents of any resulting child—or are they? Most states have laws providing that a sperm donor has no rights to any resulting child and that the intending parents are the legal parents, but very few have comparable laws concerning egg or embryo donation. Even the statutes that do exist are often limited in scope; although many of those covering sperm provision address insemination of married women, like the 1973 Uniform Parentage Act, some do not address parenthood issues outside the marriage context. Given the legal history of parentage determinations, in which concerns about...

    • 6 Donor Identity
      (pp. 114-130)

      THESE NEWSPAPER HEADLINES tell compelling stories about the contemporary nature of anonymity and disclosure in gamete provision. They portray the differing and often converging interests that gamete-provided children, their parents, their providers, the clinics, and the state may have. Should there ever be disclosure of the donor’s identity? If so, under what circumstances? Will donors still provide gametes if there is the possibility (or certainty) of disclosure? Is it the children’s right to know who provided their genes? Does this smack of privileging biology? Is it the parents’ right not to know? To know? Must parents tell their children of...

  7. Part III Race, Class, and Gender:: Who Benefits?

    • 7 Barriers to Conception
      (pp. 133-144)

      As these vignettes show, infertility crosses class and race. Indeed, poor and African American women are more likely to be infertile than wealthier,white women, reproductive services generally are not available across class, and black families are less likely, even within the same class, to use these services.

      This chapter explores these barriers to conception. There are numerous barriers to fertility, including financial difficulties, even for heterosexual couples. Some European countries provide routine funding for IVF, while American health care does not tend to cover IVF costs. Reasons for infertility may also differ by race. Cultural factors may be a determinant...

    • 8 Expensive Dreams
      (pp. 145-164)

      THE FOLLOWING AD appeared on the San Francisco Bay Area Craigslist in August 2007:

      Are you a female age 21–30? Nation Wide Egg Donation is looking for egg donors IMMEDIATLY for clients we are working with. . . .Donors should be 5ft 4in or taller, college educated (in college ok), height and weight proportionate, not taking or have taken any anti-depressant drugs for severe depression or ADD (Zoloft etc), non-smokers, very reliable and responsible, able to go to a few early morning doctor appointments with notice (will reimburse lost wages, mileage, babysitter reimbursement etc up to $800 per cycle),...

    • 9 What Is Wrong with Technology?
      (pp. 165-186)

      ALTHOUGH—INDEED, BECAUSE—reproductive technology produces babies, it also produces cultural controversies. In addition to confusing issues surrounding the identity and meaning of parenthood, and beyond the implications of our failure to regulate them, the new reproductive technologies tap into profound and deeply held moral values. Ironically, although legal regulation of the reproductive technologies treats parenthood, identity, and genetics separately, cultural opponents of the reproductive technologies conflate creating babies with a series of social problems.

      First, making babies outside the human body allows children to have only one known legal parent, so the technologies can facilitate single parenthood and child...

  8. Part IV Baby Steps Forward

    • 10 Baby Steps: Going to Market
      (pp. 189-200)

      GIVEN STATE VARIATION in legal approaches and the lack of cohesiveness in thinking through the issues of identity, parenthood, and marketing, we need to develop coherent sets of laws that recognize the interrelated aspects of these issues. The final part of the book argues for new approaches. Each chapter addresses one of the three main concerns of this book: the technology market, parenthood determinations, and identity formation.

      How do we regulate the reproductive technology market? Other chapters have explored supply and demand, cost and price. This chapter examines if, when, and how to regulate market suppliers directly, focusing on the...

    • 11 Five-Parent Families? A Parenting Proposition
      (pp. 201-214)

      THE CURRENT LAWS on the identity of parents for children born through the new reproductive technologies are complex, confusing, and inconsistent, varying from state to state and often depending on marital status. A nonmarital woman may be the only legal parent of a child born through artificial insemination—or may not, depending on the state and whether any contractual agreement will be enforced. A woman who gestates another couple’s embryo may be the mother—or may not, depending on the state. A man who provides sperm may be the father—or may not, depending on the state where the donation...

    • 12 Finding Out
      (pp. 215-234)

      TO CONFRONT THE delicate issue of whether to disclose the identity of gamete providers, this chapter reframes the issue from a rights-based view to one weighing the relative interests and practical concerns of all the parties—providers (donors and industry), legal parents, and offspring. The discussion emphasizes arguments in favor of identity disclosure, addressing the most common objections to disclosure. The chapter closes with recommendations on how to implement what I term “limited disclosure.” The discussion also identifies different strategies used by other countries, analyzing whether those methods would be desirable or even permissible within the United States’ legal system....

  9. Conclusion
    (pp. 235-238)

    AFTER TWELVE CHAPTERS about the law of reproductive technology, there remain myriad unanswered questions about daily occurrences in the field. How old is too old? Should sixty-three-year-old women be able to have babies? Should doctors be able to take eggs from kindergarten children undergoing cancer treatment, mature the eggs, and freeze them for when the child wants to become a mother? Should a mother be able to donate eggs for her seven-year-old infertile daughter? Should a fertility clinic’s insurance cover reproductive mishaps?

    This book has focused on pushing the legal system to respond to these difficult issues. The easy cases...

  10. Notes
    (pp. 239-288)
  11. Index
    (pp. 289-294)
  12. About the Author
    (pp. 295-295)