Vanderbilt Journal of Entertainment & Technology Law

First Page



Currently, an unregulated marketplace for assisted reproductive technology exists in the United States. For some people suffering from infertility, the ability to purchase human reproductive tissue, eggs, and sperm yields a maximum benefit when examined in a market context. Buyers, sellers, supply and demand, and technological advances all operate in a robust marketplace to provide the infertile with a supply of human eggs for reproduction with minimum state and federal regulatory control. Conversely, the buying and selling of all other human organs and tissues is prohibited in the United States by several federal statutes. The National Organ Transplant Act (NOTA) and the Uniform Anatomical Gift Act (UAGA) provide for complete statutory prohibitions against obtaining valuable consideration in exchange for human organs.

This article examines the lack of regulatory controls in the assisted reproductive field by identifying the technologies available to the infertile, reviewing the market forces that operate to preclude federal regulatory control and assessing the governmental and societal restrictions that prevented regulation in the human assisted reproductive technology field. The introduction reviews the scientific and technological advances of the twentieth century that led to the creation of a robust reproductive marketplace and the expectations of citizens for life improvements based on science.

The article first explores the historical and technological context of legislation that currently operates to regulate scientific technologies but excludes reproductive technology. Second, the article explores the minimal legislation enacted to regulate reproductive technology, the Fertility Clinic Success Rate and Certification Act of 1992, and the three federal agencies under the Department of Health and Human Services (the Center for Disease Control and Prevention, the Food and Drug and Administration, and the Centers for Medicaid and Medicare Services), which provide insignificant oversight. The article proceeds to examine the market forces that operate to preclude federal regulatory control: the lobbying arms and representative agents of the fertility clinics, the pharmaceuticals, and the physicians providing reproductive services. This examination of the market forces affecting the reproductive field includes an analysis of the market dynamics of supply and demand and shifts toward increased demand based on technological advances and the resulting impact on consumers. The article concludes with the opinion that the transfer of human reproductive tissue has not received comparable regulatory control to other human tissue transfer because of the economic interests of the dominant force market players, the governmental failure to address the ethical issues of a rapidly emergent technology, and the capture of administrative agencies by the dominant market forces.