Book Review

Test Tube Families: Why the Fertility Market Needs Legal Regulation

N Engl J Med 2009; 361:429-430July 23, 2009

Article

Test Tube Families: Why the Fertility Market Needs Legal Regulation
By Naomi R. Cahn. 295 pp. New York, New York University Press, 2009. $29.95. ISBN: 978-0-8147-1682-3

Much has changed in the field of reproduction since 1978, when Louise Brown, the first “test-tube baby,” was born. In the United States, approximately 1 in 80 births is now the result of in vitro fertilization. Originally developed to treat infertility caused by damaged fallopian tubes, assisted reproductive technology now includes ethically and legally complicated practices such as gamete donation or surrogate gestation, the screening of embryos for genetic diseases or traits, and the use of excess embryos for stem-cell research. Yet one aspect of the field has lagged far behind: regulation of most aspects of the fertility industry, from research to practice and beyond, has remained remarkably sparse.

Indeed, as Naomi Cahn makes clear in her book, Test Tube Families, the law has been in “catch-up mode.” Instead of shaping expansion of the field, the law has been formed in response to legal and ethical conundrums. Cahn organizes her book around three issues and their relation to the law: the market in gametes, the creation of familial relationships through assisted reproductive technology, and the identity interests of children who are born as a result of in vitro fertilization. In her historical and contemporary analysis of legal regulation in each of these areas, she weaves erudite yet accessible translations of law, vivid depictions of cases, and personal insights to portray an industry critically in need of oversight. Cahn's account is explicitly feminist, and she carefully examines the effects of sex, race, sexual orientation, and socioeconomic class on debates about reform.

Cahn focuses on the stakeholders in assisted reproductive technology, examining the law as it relates to providers, persons who might have a legal claim to be parents (those who intend to raise the children born with the use of these techniques, gamete donors, and gestational surrogates), and children. She looks at the cultural, practical, and jurisprudential frameworks that shape, misshape, and often prevent responsible regulation of assisted reproductive technology in the United States, and she brings into sharp relief the harms of piecemeal regulation.

Cahn goes beyond arguing for reform. She devotes the final section of her book to specific recommendations for regulation in each of her organizing categories. Her proposed framework addresses not only the substance but also the implementation of regulations, with attention to roles for the federal government, for state governments, and for the industry itself.

Though she touches on many aspects of the industry, Cahn focuses on the donation of gametes and surrogacy, which represent approximately 12% of in vitro fertilization cycles. Although Cahn is particularly helpful in setting the stage for advancement of the legal regulation of gamete exchange, she does not address issues of safety, which have traditionally shaped discussions of regulation and continue to be important. For instance, most of the forms of technology that Cahn examines were introduced into practice without the federal protections that are usually afforded to research participants, and they continue without a surveillance mechanism to measure the health implications of treatment for women and children. At least three factors have led to what many have called a laissez-faire approach to innovation in reproduction: the exclusion of pregnant women, women of childbearing potential, and fetuses from research in the interests of “protecting” them; the use of procedures not subject to approval by the Food and Drug Administration; and the virtual lack of federal funding for research that involves the possibility of embryo destruction.

Cahn rigorously addresses the core of the difficulty — that economic and social forces currently shape the fertility industry, often to the detriment of fertility patients, gamete donors, children, and families. Moving all aspects of the industry forward will take just the sort of thoughtful scholarship that Cahn offers.

Anne Drapkin Lyerly, M.D., M.A.
Duke University, Durham, NC 27710