I agree with Professors Cahn and Collins that “eight is enough.” I am perhaps more skeptical than they are about assisting Nadya Suleman, a mother who already has six children, to have more. I wonder whose funds financed fertility treatments for a single, unemployed mom on disability benefits, and, perhaps even more critically, who will fund the children’s ongoing care. I am certainly concerned about the dubious ethical standards of the doctor who provided the reproductive care. But I also have serious reservations about anyone choosing to impose my views—or those of others—on the country as a whole.
I therefore applaud Professors Cahn and Collins for leading with the question, “Should we regulate?” and for framing their proposals in the context of a principled distinction between regulations of the type that tend to be federally regulated in other contexts (how many embryos to implant in a single in vitro procedure, for example) and personal decisions better left to individual autonomy (such as whether a single mother ought to have more children). I fear, however, that although the distinction they draw is principled and in many ways persuasive, it is a line unlikely to stick and unlikely to fully address the ethical framework for reproductive technologies if in fact it does take hold.
My concerns do not proceed from any reflexive libertarianism. I do not reject government regulations per se, nor do I believe that the market, through the magic of the unseen hand, will necessarily correct misguided decisions to implant six embryos in an unemployed thirty-two-year old. Instead, I question the framework Cahn and Collins develop for determining when and what type of regulation is appropriate. I argue for a dynamic theory of regulation, informed by the concept of evolutionary economics, that would ask not just what kind of regulations are needed, but also how regulatory implementation is likely to affect who becomes a patient, what kinds of doctors are likely to provide the services they seek, and where and when medical treatment is likely to occur. This analysis is dynamic—and evolutionary—not in a biological sense, but in the sense that it anticipates how change in one arena, such as the expansion of insurance coverage, might affect another area, such as the number of embryos likely to be implanted or the need to regulate issues not of concern in today’s fertility practices. In short, I am more concerned about whether fertility clinics locate in Detroit or Windsor, whether President Obama or a Georgia governor appoints the regulators, and whether Ms. Suleman can afford in vitro fertilization at all than I am with having a government official stop the next doctor willing to implant too many embryos.