The growing phenomenon of cross-border reproductive travel has four significant legal dimensions. First, laws that ban or inhibit access to assisted reproductive procedures in one country lead patients and physicians to travel to other countries to acquire, to contribute to or to provide assisted reproductive services. Such laws may include provisions that criminalize those who assist or advise patients to undertake such travel. Second, the law may expressly criminalize crossing borders to obtain, to be a donor for or to perform certain procedures. Third, the law may interfere with the ultimate goal of reproductive travellers by refusing to recognize them as the parents of the child they have crossed borders to conceive. Finally, facilitating cross-border reproductive travel may expose physicians, attorneys and brokers to malpractice or other civil liability. This article explores these legal dimensions of cross-border reproductive care and uses the legal doctrines of proportionality, extraterritoriality and comity to assess the legality and normative validity of governmental efforts to curb or limit assisted reproductive practices.
This article explores the four significant legal dimensions of the growing phenomenon of cross-border reproductive travel. It first discusses laws that ban or inhibit access to assisted reproductive procedures to show how restrictive laws in one country often lead patients and physicians to travel to other countries to acquire, to contribute to, or to provide assisted reproductive services. Such laws may include provisions that criminalize those who assist or advise patients to undertake such travel. The article then explores how the law, albeit rarely, may expressly criminalize crossing borders to obtain, to be a donor for, or to perform certain procedures. Turning to the third dimension of cross-border reproductive care, this article shows how the law may interfere with the ultimate goal of reproductive travellers when they meet with refusal by their country’s officials to recognize them as the parents of the child they have crossed borders to conceive. Finally, this article describes how cross-border reproductive travel may expose physicians, attorneys and brokers to malpractice or other civil liability. After discussing all four legal dimensions of cross-border reproductive care, this article analyses the legality and normative validity of governmental efforts to curb or limit assisted reproductive practices.
Introduction
Nation-states in all regions of the world often use the law as a tool for regulating assisted reproductive technology. In roughly 40% of countries surveyed in the IFFS Surveillance 2010, assisted reproduction is governed by statute, sometimes in accordance with comprehensive licensing schemes but more often on a piecemeal basis (Jones et al., 2010). Although not a definitive accounting of every relevant regulation in every country, the Surveillance nonetheless provides important evidence of the wide-ranging variation among the laws that govern assisted reproduction around the world, variation likely owing to differing ‘cultural attitudes, traditions, religious views, and the majority’s moral position’ (Gürtin-Broadbent, 2010).
In countries where law is the primary regulator of assisted reproduction, it dictates what procedures may be undertaken, who may have access to them, what portion of the costs will be covered by public or private health insurance and the parentage ramifications of resort to particular procedures. These laws play a role in the global phenomenon of cross-border reproductive care (CBRC), because patients in countries with restrictions on assisted reproduction often choose to travel to other more permissive countries in search of treatment. Part of the growing worldwide phenomenon of medical tourism, these migrations have been called many things, most frequently reproductive tourism. More recently, the more neutral term ‘cross-border reproductive care’ has taken hold. Although not all CBRC is the result of legal restrictions, a significant amount of CBRC is either caused by these laws or otherwise fraught with legal hazards for doctors, patients, attorneys and brokers.
This article explores the ways in which laws regulating assisted reproduction trigger, prohibit or interfere with CBRC. It also examines the points at which doctors who travel abroad to provide care or who, alongside attorneys and brokers, advise and encourage patients to travel abroad for care, risk criminal or civil liability. Finally, with the aid of the legal doctrines of proportionality, extraterritoriality and comity, this article analyses the legal and normative defensibility of laws that inspire, forbid or attempt to deter CBRC.
Section snippets
Reproductive tourism and the law
The rapidity with which information about infertility procedures can be exchanged and the ever-increasing options that patients with sufficient economic resources have to travel for infertility treatment have created a reproductive technology industry that is authentically global in scope. Joining the cross-border activities of physicians, clinics and patients are attorneys and brokers who specialize in advising patients on their options and bringing them together with suitable providers. The
Application of legal doctrines
In connection with what follows, some definitions may be helpful to the reader. Proportionality is a doctrine that places limits on legislative power. It requires that before a law will be permitted to intrude into matters of great human importance – like reproduction – the objective of the law must be sufficiently weighty and the means employed by the law must be the only or the least intrusive means of achieving the objective. Extraterritoriality is a broad doctrine defining when a state’s
Conclusion
The law interacts with cross-border reproduction in several important ways. First, the law can act as a trigger of CBRC, provoking patients and physicians, beleaguered by restrictive reproductive laws, to seek more permissive legal regimes. Second, a country’s laws may act extraterritorially to ban cross-border procurement or delivery of procedures banned at home. Third, the law may deny legal recognition of children born abroad using techniques disapproved of in the home country. Finally,
2022, Management of Infertility: A Practical Approach
The number of assisted reproduction treatments undertaken worldwide has risen steadily since 1990. However when it comes to regulation, due to political, ethical, and social reasons related to assisted reproduction practice, each country has a different perspective. Several factors contribute to these differences, including financial issues (affordability, treatment costs), customary law, cultural and belief dimensions. In addition, individual and professional options may play different roles in different societies. The different restrictions across different countries, highlight a very complex reality, whose legislation represents a constant topic of debate and undergoes continuous evolution. In the daily practice, patient counseling and informed consent have both legal and ethical dimensions. The aim of this chapter is to provide an overview of assisted reproductive technology regulation, presenting its major legal issues and to underline the specific aspects of quality or data management and informed consent in assisted reproductive technology treatments.
This burden, in addition to the stressful and frustrating experience, is also described by Daisy Deomampo (2015) in relation to Norwegian commissioning parents' processes in obtaining legal parenthood. Moreover, it is common that parenthood documents from abroad are considered illegitimate in the home countries of the prospective parents (Crockin, 2013; Deomampo, 2015; Gamble, 2009; Kindregan and White, 2013; Melhuus, 2012; Millbank, 2013; Storrow, 2011). The current legal situation might be seen to have unwanted consequences for the parental welfare of the commissioning parents.
This study sought to explore how Swedish parents who had commissioned surrogacy abroad experienced the process of parenthood recognition. The study consisted of in-depth interviews with five couples and 10 individuals representing 10 additional couples who had used surrogacy abroad, mainly in India. The construction of motherhood and fatherhood in the Swedish system contradicts how parenthood is defined in the surrogacy process. This study found that the formal recognition of parenthood involved a complex and frustrating process where the presumption of fatherhood and step-child adoption as grounds for parenthood make people feel questioned as parents, negatively affecting parental welfare. Policy makers need to take into account the consequences of an unregulated situation regarding surrogacy, and focus more on the child–parent relationship when regulating surrogacy.
To study cross-border reproductive care (CBRC) by assessing the frequency and nature of assisted reproductive technology (ART) care that non-U.S. residents receive in the United States.
Retrospective study of ART cycles reported to the Centers for Disease Control and Prevention's National ART Surveillance System (NASS) from 2006 to 2013.
Private and academic ART clinics.
Patients who participated in ART cycles in the United States from 2006 to 2013.
None.
Frequency and trend of ART use in the U.S. by non-U.S. residents, countries of residence for non-U.S. residents, differences by residence status for specific ART treatments received, and the outcomes of these ART cycles.
A total of 1,271,775 ART cycles were reported to NASS from 2006 to 2013. The percentage of ART cycles performed for non-U.S. residents increased from 1.2% (n = 1,683) in 2006 to 2.8% (n = 5,381) in 2013 (P<.001), with treatment delivered to residents of 147 countries. Compared with resident cycles, non-U.S. resident cycles had higher use of oocyte donation (10.6% vs. 42.6%), gestational carriers (1.6% vs. 12.4%), and preimplantation genetic diagnosis or screening (5.3% vs. 19.1%). U.S. resident and non-U.S. resident cycles had similar embryo transfer and multiple birth rates.
This analysis showed that non-U.S. resident cycles accounted for a growing share of all U.S. ART cycles and made higher use of specialized treatment techniques. This study provides important baseline data on CBRC in the U.S. and may also prove to be useful to organizations interested in improving access to fertility treatments.
Unlike many European nations, the USA has no regulations concerning the use of preimplantation genetic diagnosis (PGD), a technique employed during some fertility treatments to select embryos based on their genes. As such, PGD can and is used for a variety of controversial purposes, including sex selection, selection for children with disabilities such as deafness, and selection for ‘saviour siblings’ who can serve as tissue donors for sick relatives. The lack of regulation, which is due to particular features of the US political and economic landscape, has ethical and practical implications for patients seeking PGD around the world. This paper contrasts the absence of PGD oversight in the USA with existing PGD policies in Switzerland, Italy, France and the UK. The primary reasons why PGD is not regulated in the USA are addressed, with consideration of factors such as funding for assisted reproductive technology treatmemt and the proximity of PGD to the contentious abortion debate. The obstacles that would need to be overcome in the USA for PGD to be regulated in the future are outlined. Then, the significance of the current divergence in PGD policy for patients around the world are discussed. Regulatory differences create opportunities for reproductive tourism, which result in legal, health and moral challenges. The paper concludes with comments on the need for policymakers around the world to balance respect for the characters and constitutions of their individual countries with appreciation of the needs of infertile patients across the globe.
To develop and test a nonidentifying prospective data collection system for cross-border reproductive care (CBRC) in Canada and the United States (U.S.).
Survey and cross-sectional study.
Fertility clinics.
Women traveling to and from Canada and the U.S. for reproductive care.
None.
Patients' home country, reason for crossing borders, and type of care received.
Of 32 Canadian and 440 U.S. clinics contacted, seven and 46, respectively, responded to the initial questionnaire. Three out of seven Canadian and 44 out of 46 U.S. clinics reported providing CBRC. Seventy five percent agreed that nonidentifying data on country of origin and reason for travel should be collected. However, only one of seven Canadian and none of 46 U.S. clinics that expressed initial interest actually collected data, despite multiple communications.
Although CBRC is a major component of assisted reproductive technology in North America (3%–10% of IVF cycles are provided to out-of-country patients in Canada and the U.S.), clinicians are not motivated to collect the simplest of data regarding CBRC patients. Despite this, reliable data are needed to help better understand the reasons for and impact of CBRC.
Richard Storrow is a professor of law at City University of New York. He writes at the intersection of assisted reproduction, family law and bioethics and from the perspective that respect for reproductive autonomy grows naturally out of societal commitments to equality and justice. His recent projects include analyses of discriminatory screening practices in infertility clinics, the erasure of egg donors in stem cell science and various issues arising from cross-border reproductive care. During the autumn of 2010 at Pompeu Fabra University in Barcelona, he examined the development of the Spanish law on human assisted reproduction pursuant to a Fulbright grant from the United States government. He is currently engaged in a multinational study of the regulation of assisted reproduction.
