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Possible Policy Strategies for the United States Comparative Lessons C H A P T E R T E N My “marching orders” for this chapter came in the form of a number of questions: Why is there such a lack of regulation in the area of reprogenetics in the United States? What sorts of strategies might be employed to replace the numerous and frequently overlapping advisory bodies with more effective and broader regulation? Could regulatory bodies be used in the United States to deal with speculative harm? These are huge and daunting questions. They are also important questions that highlight the differences, often profound, between the legal and political culture of the United States, on the one hand, and that of Canada, the United Kingdom, and many other jurisdictions, on the other. In this chapter I emphasize the importance of taking cultural considerations into account in designing legal solutions. To use an agricultural metaphor, however successfully avocados may be grown in California, they can’t be grown in Scotland! I argue that a broad, national regulatory framework like that provided by the British Human Fertilisation and Embryology Authority (HFEA) or the one recently enacted in Canada’s Bill C-6, the Assisted Human Reproduction Act,1 is unlikely to be an effective or politically viable approach in the U.S. context. Nevertheless, there are important roles to be played by the state and by existing institutions, such as contract law, private law, professional self-regulation, and ethical guidelines. In addition, certain practices might appropriately be addressed by legal prohibitions, such as human reproductive cloning or A L I S O N H A R V I S O N Y O U N G germline alteration. These are the practices that seem to attract a high level of national and international consensus as being unacceptable. From the outset, we should recognize that U.S. culture has historically tended to be suspicious of government and the potentially intrusive power of the state. This position is closely related to the dominant discourse of individual rights and liberalism (Harvison Young 1998), which places a high value on individual construal of the good life and sees state intervention as justified only to address real harm, and then (at least in principle) as minimally as possible . Canadian culture, however, is more collectivist or communitarian in nature and sees the state as a benevolent force, expecting the state to be the architect of broad solutions to social challenges. Although the literature, particularly the feminist literature, is replete with powerful indictments of many aspects of new reproductive technologies (NRTs), the starting premise tends to be quite different from that in Canada. In other words, government intervention in the United States tends to be seen as a last resort, or at least as minimalist. As Cass Sunstein has said, “American law generally treats private preferences as the appropriate basis for social choice” (1986, 1129). The right to make individual choices in privacy comes first and foremost. More frequently than in Canada, controversies in the United States play out in the context of an individualist, rights-oriented framework . This is illustrated by the fact that courses and conference topics in this area tend to have titles such as “Reproductive Rights.” On the other hand, as a Canadian teaching in the United States a few years ago, I called my University of Pennsylvania course “Regulation and NRTs.” During the first class, I asked my students what sorts of issues interested them. The answers were generally framed in terms of rights: rights of access to NRTs by the disabled and by gays and lesbians, rights to know your biological parents, rights to abortion, rights to autonomy, rights to procreate, and so on. These answers stood in stark contrast to those I had received a year earlier at McGill University , where student after student spoke of the need to control and regulate the technologies and their applications. In the United States, the Canadian approach to issues relating to NRTs is likely to seem startlingly foreign. The executive summary of the final report of the Royal Commission on New Reproductive Technologies outlines the Canadian approach this way: “Government, as the guardian of the public interest, must act to put boundaries around the use of new reproductive technologies, and must put in place a system to manage , not just for now, but, equally important, in an ongoing way” (Royal ComP O S S I B L E P O L I C Y...

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