Is Europe 'Giving in to Baby Markets?' Reproductive Tourism in Europe and the Gradual Erosion of Existing Legal Limits to Reproductive Markets

Abstract

The main question in this article is how national legal orders in Europe, given their often restrictive laws on reproductive markets and assisted reproductive technologies (ARTs), are currently responding and should respond to reproductive tourism, in light of the fact that access to foreign reproductive markets seems to be making these national laws 'merely symbolic'. Although many national governments have finally managed after many years of political and legal struggles to establish a carefully balanced legal framework for the regulation of these often ethically and religiously sensitive matters, ironically reproductive travel seems to be turning national reproductive laws into a dead letter. Currently, as a reaction to these developments, new legal strategies are being proposed and explored. Within the European context, the view is gaining ground that laws that curb international reproductive markets and their accompanying streams of fertility tourism have become ineffective, meaningless, and even harmful. As a result, a certain tendency towards tolerance of reproductive markets and reproductive travel can be detected in both politics and academia. According to this line of reasoning, restrictive and prohibitive legislation should be replaced by more pragmatic policies that take the realities of reproductive markets as a starting point. From this perspective, the legal restrictions within the country of origin, rather than the lack of regulation in the country of destination, should be regarded as the core of the problem. As a result, an increasing number of scholars and policy makers are arguing for more lenient national policies towards ARTs, hoping to thereby remove the main incentive for aspiring parents to resort to foreign reproductive services. This emerging pragmatic strategy of tolerance towards reproductive tourism and international reproductive markets rests on three arguments, which are each critically examined in this article. Although these arguments offer valuable insights, several disadvantages and weaknesses tend to be overlooked. The critical examination of these pragmatic arguments is followed by a plea for a more positive understanding and recognition of the symbolic dimensions of reproductive legislation. It is argued that ART laws also have an important communicative, expressive and anthropological meaning and function, which surpass these laws' practical effectiveness. Alternatively, policies based on the pragmatic tolerance of reproductive markets show significant shortcomings, which also need to be taken into consideration by national governments when evaluating existing ART laws.

Use and pattern of previous care received by infertile Nigerian women

“…Referrals of patients to specialists are affected by a range of factors, including characteristics of the referring physicians, the patients and the particular type of specialist [18]. Internationally, reproductive tourism to other countries is mostly due to legal restrictions placed on certain forms of treatment in the host country [19].…”

Cross-border reproductive care for law evasion: should physicians be allowed to help infertility patients evade the law of their own country?

“…The view that CBRC for law evasion should be tolerated by restrictive countries has dominated the academic discussion on the matter to the extent that restrictive laws have been characterized as ineffective, meaningless and even harmful. Van Beers criticized this position because ''ART laws also have an important communicative, expressive and anthropological meaning and function, which surpass these laws' practical effectiveness'' [23]. ART laws may indeed have important symbolical value, but that alone is not a sufficient justification for an absolutist position.…”

Regulation of Assisted Reproductive Technologies: Gains and Losses

“…Many European countries have restrictive or prohibitive regulations for ART use, instituted with the aim of enforcing protection against possible risks of reproductive markets, such as exploitation of egg cell donors and surrogates and commodification of children. The principle of non-commercialisation, according to which ‘the human body and its parts shall not, as such, give rise to financial gain’, has been the guiding legal tradition (Van Beers, 2014, p. 3). Other grounds for legislating are based on the conviction that ‘some ARTs are harmful for some of the people involved, or violate a moral rule’ (Hoof & Pennings, 2011, p. 547).…”

“…This has led to shortages of eggs and sperms and long waiting lists. In countries like the Netherlands, few women are willing to donate ova because of the extensive hormone treatment and surgery, both of which are emotionally and physically demanding (Van Beers, 2014), again creating shortages of eggs. Spain allows anonymous egg donation and also has generous and long-standing compensation schemes for donors.…”

“…As vividly described: …all that is required to create a child is an internet connection and a credit card. Indeed, a simple Google search shows that, for instance, sperm from anonymous Danish donors, egg cells from anonymous Spanish donors and the services of an Indian surrogate mother are only a few clicks away… (Van Beers, 2014, p. 2)…”