In November 2017, a baby named Emma Gibson was born in the state of Tennessee. Her birth, to a 25-year-old woman, was fairly typical, but one aspect made her story unique: she was conceived 24 years prior from anonymous donors, when Emma’s mother was just a year old. The embryo had been frozen for more than two decades before it was implanted into her mother’s uterus and grew into the baby who would be named Emma.
Most media coverage hailed Emma’s birth as a medical marvel, an example of just how far reproductive technology has come in allowing people with fertility issues to start a family.
Yet, the news held a small detail that gave others pause. The organization that provided baby Emma’s embryo to her parents, the National Embryo Donation Center (NEDC), has policies that state they will only provide embryos to married, heterosexual couples, in addition to several health requirements. Single women and non-heterosexual couples are not eligible.
In other industries, this policy would effectively be labeled as discriminatory. But for reproductive procedures in the United States, such a policy is completely legal. Because insurers do not consider reproductive procedures to be medically necessary, the U.S. is one of the few developed nations without formal regulations or ethical requirements for fertility medicine. This loose legal climate also gives providers the power to provide or deny reproductive services at will.
The future of reproductive technology has many excited about its potential to allow biological birth for those who might not otherwise have been capable of it. Experiments going on today, such as testing functional 3D-printed ovaries and incubating animal fetuses in artificial wombs, seem to suggest that future is well on its way, that fertility medicine has already entered the realm of what was once science fiction.
Yet, who will have access to these advances? Current trends seem to suggest that this will depend on the actions of regulators and insurance agencies, rather than the people who are affected the most.
Governing the Ungoverned
A lack of government oversight means U.S. providers of fertility treatment are free to make decisions about who receives care in ways that might be considered unethical or even illegal in other fields. This leaves the U.S. at a paradoxical nexus: Pretty much any fertility treatment is available if you can pay for it, yet you can still be refused if a clinician does not agree with your lifestyle.
For example: NEDC, the source of Emma Gibson’s embryo, determines patient qualifications for those eligible to receive embryos from a “Judeo-Christian viewpoint,” according to Jeffrey Keenan, the center’s medical director.
“[Our policy is] looking at the biological reality of a family and how God created conception,” Keenan said in an interview with Futurism. “As much as you see gay people having children, you have noticed that none of them do it on their own. It is physically and scientifically impossible for gay people to have a child. So why just because we can have someone act as a surrogate, or because we can donate into a [gay] woman, why does that make it right? It doesn’t, not in and of itself.”
Naturally, the LGBT and civil rights communities vehemently oppose such views — and increasingly, so do the courts.
“Medical care available to some people should be available to all, not based on sexual orientation or other factors,” Jenny Pizer, an attorney with Lambda Legal, an organization that provides free advocacy and legal representation to LGBT and HIV-positive people, told Futurism. In 2008, Pizer was the lead attorney in the California Supreme Court case Benitez v. North Coast Women’s Care Medical Group, brought by a lesbian woman, Guadalupe Benitez, who had been refused IVF due to her sexuality. After a series of court battles lasting over seven years, the Supreme Court ruled in favor of Benitez.
“This isn’t just a win for me personally and for other lesbian women,” Benitez told the San Francisco Gate after the ruling. (Futurism requested an interview with Benitez, but she is no longer speaking to the media about this case.) “Anyone could be the next target if doctors are allowed to pick and choose their patients based on religious views about other groups of people.”