Bill of Health contributor Dov Fox joined BYU radio’s Top of Mind with Julie Rose to discuss his new book, “Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law,” and the implications of the largely unregulated U.S. fertility industry.
Across the country, more and more Americans choose to put off starting families, with many relying on the lucrative U.S. fertility industry for family planning when the time comes. Though a booming enterprise, the industry remains distinct from other medical practices: it offers patients little recourse for medical mistakes and misconduct.
But how often does misconduct occur? Due to laissez-faire governance and a lack of mandatory reporting, “We don’t know,” says Fox, a Professor of Law and the Director for the Center for Health Law Policy & Bioethics at the University of San Diego. “By all indications it’s more frequent than one would assume.”
From dropped embryos, to switched samples, to donors misrepresenting their traits or health profiles, to faulty equipment, errors occur — and they can be devastating for families placing their trust in the industry. Some lose their one shot at a biological family, and for others, it’s their children who will live with the ramifications. So why doesn’t the law respect this kind of trauma?
Fox and host Julie Rose expand on the question. Fox notes that legal remedies are limited as these harms are not the result of physical intrusion and do not result in property loss (eggs, sperm, and embryos are not considered property).
While the federal and state governments could play a more active role in regulation, concerns of overreach on reproductive rights, uncertain electoral implications, and the lobbying power of the fertility industry explain why they’ve chosen a backseat approach. Though somewhat ironic given that “many states don’t shy away from regulating birth control or abortion or surrogacy,” public opinion about the fertility industry transect party lines in ways that are difficult for legislators to predict, leaving it up to the industry to police their own behavior.
In his book, Fox details how these political and economic forces conspire against public regulation, and he ultimately introduces a new paradigm to discuss the injuries caused by the mistakes and misconduct of the U.S. fertility industry.