The Virtues of Muddling Through

Are we ever going to do anything about assisted reproduction? Fertilizing eggs in a dish to have children chafes because such a momentous event lacks a clear regulatory framework. Occasional scandals and now the prospect of embryonic screening bring on the shivers. The temptation is to do something now before greater problems develop.

Fukuyama and Furger would create a whole new federal agency to occupy the field. Call me a noninterventionist libertarian, but I suggest that we do nothing special—certainly not creating a national agency or commission. Why not just let our mixed public-private regulatory system, with its strong common law tradition, handle it nonsystematically, as it has for years?

“Muddling through” is a respectable policy option, especially for a pragmatic people faced with irreconcilable moral quandaries. This nonsystem “system” has served well to date—even if not all the time and never perfectly—both in other contexts and for assisted reproduction. There is no convincing reason it will not work for the issues now on deck in reprogenetics: genetic screening of embryos, germline gene therapy, harvesting stem cells from embryos created by in vitro fertilization or somatic cell nuclear transfer, and the other edge technologies looming ahead.

A Policy Maven’s Delight

Fukuyama and Furger are policy wonks to the core. They think that only a new governmental body can handle adequately the complications of a reprogenetic future. With great aplomb (and maybe glee), they draft out the bones and sinews of a new independent commission to handle such matters, connecting it with proper respect both for executive appointment authority and for democratic responsiveness. They want an official body, informed by a “permanent advisory board” and a system of deliberative consultative panels, to guide us through the ethical ravines that they see arising in the future. They impress with their wide and deep knowledge of regulatory agencies and the various ways to combine responsiveness and representation with expertise and independence.

It sounds great on paper, but I remain unconvinced that there is big enough game to be bagged to justify all the effort needed to make the scheme work. They define the domain of concern as “medical practices related to human reproduction and research activities involving reproductive tissues” and list under “general ethical principles” six familiar areas of concern: children’s well-being and health, access to assisted reproductive technologies (ARTs), women’s well-being and health, informed consent, limits to commercialization, and priority of therapeutic over enhancement uses of ARTs. They then translate “these general principles … into specific rules to guide regulators.” One set of rules would deal with activities to be banned outright (reproductive cloning, creation of chimeras and hybrids, germline modification, mixtures other than gametes from a man and a woman, and patenting of human embryos). A second set would address targets of regulation, such as research cloning, preimplantation genetic diagnosis, embryo research, and commercialization of certain elements of human reproduction.

This setup allows them to flex their policy muscles. The bulk of their effort is directed to describing the current legislative and regulatory framework at the federal, state, and professional level; the experience in the United Kingdom and Canada; the pros and cons of doing nothing (Monsanto and genetically modified foods provide a case study here); incremental adjustments in the existing regulatory framework; and creating a new regulatory institution.

Their main contribution is the design of a regulatory institution that will offset political deadlock, retain scientific and medical expertise, and be responsive to the public. Their idea of an independent commission with a permanent advisory board and novel methods of public consultation through Internet surveys and interactions is a policy maven’s delight. It builds on their knowledge of bureaucratic cultures, the experience with the Human Fertilisation and Embryology Authority in the United Kingdom (now slated to become the Regulatory Authority for Tissues and Embryos), and James Fishkin’s innovative methods of iterative public consultation. Fukuyama and Furger are synthetic masters—in the good sense of “synthetic”—cutting a broad swath through many levels of history, law, and policy, but in the end, their scheme is too synthetic in the bad...