Managing Reproductive Pluralism: The Case for Decentralized Governance

When bioethicists look for solutions to complex problems, they tend to look for single standards and national institutions. Both liberal and conservative bioethicists have pressed for national standards administered by federal agencies across a wide variety of issues ranging from research ethics and assisted reproduction to the governance and financing of stem cell research. Nowhere is this bias clearer than in discussions of reproductive issues, broadly defined. Fukuyama and Furger’s report is only the latest in a long series of proposals that call for a national reproductive policy similar to that managed in the United Kingdom by the British Human Fertilization and Embryology Authority (HFEA). A single set of national rules governing reproductive matters, it has been widely argued, would provide for greater administrative efficiency, consistency, and quality of services, and avoid the “patchwork” of oversight by professional groups, sporadic state regulation, and significant deference to individual consumer choice that typifies current governance of reproduction.

In fact, any attempt to set national reproductive policy, no matter how reasonable its bioethical premises, is both politically unachievable and substantively unwise. The inability of the national government to establish a coherent reproductive policy is not the result of “political failure,” as Fukuyama and Furger would have it, but rather of profound disagreement among members of the general public, advocacy groups, policy-makers, and bioethicists about the moral status of the embryo, the right of women to control their own bodies, the appropriateness of selling oocytes and of federal funding for stem cell research, the utility of state regulation of medical practice, and a variety of other complex and controversial issues that a national reproductive policy would have to address. Given the extreme diversity of views about these issues, enactment of any coherent national reproductive policy seems unlikely. Attempts to force a national consensus where none now exists are almost certain to fail; worse, they will waste precious time on the national agenda without resolving the ethical dilemmas that currently divide us. The existing decentralized decision-making structure for public bioethical issues allows for multiple outcomes and better represents our conflicting and diverse views about reproduction.

Federal Deadlock

A national regulatory scheme for reproductive matters is likelier to succeed in countries that, like the United Kingdom, view health care as a public commodity and have a tradition of national control over it. Patients and providers in these countries accept government regulation of virtually every kind of health care issue. In the United States, however, health care is a market commodity, and self-regulation of the practice of medicine is a longstanding tradition. With the exception of quality control regulation (which bears on the licensing of providers and oversight of drugs, devices, and research), the market and professional societies regulate medical practice. Both public and professional groups have issued guidelines for the treatment of particular conditions, but adherence to these guidelines is not compulsory.

Against this status quo, the creation of an “ethics police” to regulate any part of medicine—but especially reproductive medicine, which inherently raises controversial and divisive issues—would be such a dramatic change that it would probably fail politically. Such a proposal would attract considerable opposition, and not only from those who provide reproductive medicine. Organized medical groups outside reproductive medicine but fearful of any precedent for federal control over the details of medical practice would join the opposition. So, too, would patients who fear that their access to services would be limited. Even if passed, federal rules restricting such practices as the purchase of eggs for reproductive purposes, the number of embryos that can be implanted in each reproductive cycle, or the use of preimplantation genetic diagnosis would almost certainly be subject to repeated legal challenges. The American constitutional and administrative law frameworks are more favorable to such challenges than those of other countries, making it at least possible, if not likely, that significant features of a reproductive regulatory scheme would be overturned or substantially modified by judicial action.

Some of the specific features of such a regulatory scheme are also likely to attract controversy. Pro-life and prochoice groups alike are certain to...