Gaia Bernstein on Reproductive Technologies and Donor Anonymity

Gaia Bernstein (Seton Hall University School of Law) has posted Regulating Reproductive Technologies: Timing, Uncertainty and Donor Anonymity on SSRN. Here is the abstract:

Two global trends have emerged in the regulation of Artificial Reproductive Technology (“ART”): the adoption of a comprehensive regime to regulate the practice of ART and the prohibition on gamete donor anonymity. This Essay uses the publication of Naomi Cahn’s book, Test Tube Families, which advocates both the adoption of a comprehensive regime and the anonymity prohibition, as a lens through which to assess the suitability of these regulatory trends to the United States.

First, this Essay develops two dimensions of law and technology theory – timing and uncertainty – to evaluate the effectiveness of adopting a comprehensive regulatory regime. This Essay argues that although belated regulation of a new technology may incur enforcement hurdles due to the entrenchment of social norms, these hurdles are alleviated when, as in the case of ART, the technology is administered by intermediaries.

This Essay then distinguishes between two ultimate goals of reducing uncertainty surrounding the use of new technologies: alleviating fears that inhibit the adoption of a new technology and protecting individuals already using a widely adopted technology from unexpected legal circumstances. It argues that the adoption of a comprehensive regulatory regime for ART will relieve the latter type of uncertainty.

Secondly, the Essay examines the effects of the prohibition on gamete donor anonymity on the availability of donor gametes and the consequent social adoption of ART technology that is dependent on donor gametes. The Essay analyzes the data from three representative jurisdictions that prohibit anonymity: Sweden, Victoria (Australia), and the United Kingdom. It reveals that these jurisdictions suffer from significant shortages in donor gametes and underscores that efforts to combat these shortages resulted in eroding commitments to equality and the prevention of commodification. The Essay, therefore, cautions against the adoption of a prohibition on donor gamete anonymity in the United States.