Med Law Rev. 2014 May 27. pii: fwu016. [Epub ahead of print]
IS EUROPE 'GIVING IN TO BABY MARKETS?' REPRODUCTIVE TOURISM IN EUROPE AND THE GRADUAL EROSION OF EXISTING LEGAL LIMITS TO REPRODUCTIVE MARKETS.
Abstract
The main question in this article is how national legal orders in Europe, given their often restrictive laws on reproductive markets and assisted reproductive technologies (ARTs), are currently responding and should respond to reproductive tourism, in light of the fact that access to foreign reproductive markets seems to be making these national laws 'merely symbolic'. Although many national governments have finally managed after many years of political and legal struggles to establish a carefully balanced legal framework for the regulation of these often ethically and religiously sensitive matters, ironically reproductive travel seems to be turning national reproductive laws into a dead letter. Currently, as a reaction to these developments, new legal strategies are being proposed and explored. Within the European context, the view is gaining ground that laws that curb international reproductive markets and their accompanying streams of fertility tourism have become ineffective, meaningless, and even harmful. As a result, a certain tendency towards tolerance of reproductive markets and reproductive travel can be detected in both politics and academia. According to this line of reasoning, restrictive and prohibitive legislation should be replaced by more pragmatic policies that take the realities of reproductive markets as a starting point. From this perspective, the legal restrictions within the country of origin, rather than the lack of regulation in the country of destination, should be regarded as the core of the problem. As a result, an increasing number of scholars and policy makers are arguing for more lenient national policies towards ARTs, hoping to thereby remove the main incentive for aspiring parents to resort to foreign reproductive services. This emerging pragmatic strategy of tolerance towards reproductive tourism and international reproductive markets rests on three arguments, which are each critically examined in this article. Although these arguments offer valuable insights, several disadvantages and weaknesses tend to be overlooked. The critical examination of these pragmatic arguments is followed by a plea for a more positive understanding and recognition of the symbolic dimensions of reproductive legislation. It is argued that ART laws also have an important communicative, expressive and anthropological meaning and function, which surpass these laws' practical effectiveness. Alternatively, policies based on the pragmatic tolerance of reproductive markets show significant shortcomings, which also need to be taken into consideration by national governments when evaluating existing ART laws.
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