Medical Tourism for ART: the legal issues may surprise you

March 27, 2012Carole 3 Comments »

I have written before on the topic of medical tourism, the practice of seeking medical care oversees because it is less expensive or because you can only get the services you want overseas and not in your home country. I blogged about this in two previous posts , Affordable IVF and Global Outsourcing of IVF. Recently I came across a debate on-line about the ethics of gender selection of IVF embryos to select the gender of the child.  There are numerous on-line communities that are supportive of gender selection using IVF. I am happy to provide “ask the Embryologist ” service to one of them  (Gender Dreaming ) so I am familiar with the topic. The patients whom I encounter at this site are not rabid “design a baby fanatics” portrayed by the media. Generally speaking, they have a lot of one gender and want one of the other. About half of them want that next baby to be a girl and the other half a boy so overall, it evens out.

My philosophy is pretty utilitarian regarding reproductive issues in general and gender selection of embryos before transfer in particular, namely that every child should be wanted and welcomed by his or her family and if selection of gender helps ensure that welcoming attitude before the child arrives, that seems pretty innocuous to me. Also, I have noted no preference for either males or females in the patient population I have served. Basically, if they have all boys, they want a girl and vice versa. Overall, it probably averages out.  I realize that not everyone shares this philosophy, especially when embryos may be produced that are not transferred. The American Society for Reproductive Medicine has published an Ethics Committee report on Preconception Gender Selection for Non-Medical reasons which you can download from their site here. which discusses the ethical PRO and CON viewpoints. In the end, they conclude that :”

“The Committee believes that reasonable persons might legitimately disagree over which view of gender discrimination best agrees with values of equal respect and concern for both genders. Until a more clearly persuasive ethical argument emerges, or there is stronger empirical evidence that most choices to select the gender of offspring would be harmful, policies to prohibit or condemn as unethical all use of nonmedically indicated preconception gender selection are not justified. Nor would it be unethical for parents to use or for physicians to provide safe and effective means of preconception gender selection to have a child of the gender opposite to that of an existing child or children. Similarly, it would not be unethical for parents to prefer that their firstborn or only child be of a particular gender because of the different meaning and companionship experiences that they expect to have.”

What did surprise me  was that many countries actually make gender selection for family balancing illegal.  Some countries will make an exception and allow gender selection, but only if there is a medical indication, for example, a medical condition that will be passed only to male offspring so those male embryos are not transferred. Gender selection for social reasons, also called “family balancing” is prohibited in these countries. Some (perhaps) surprising countries in which gender selection for family balancing is illegal is Canada, the United Kingdom and Australia.

Completely illegal without exception: Austria, New Zealand, South Korea, Switzerland, Vietnam
Permitted only for Medical Indication, not Family Balancing :Australia , Belgium, Bosnia & Herzegovina ,Bulgaria, Canada,China Croatia, Cyprus , Czech Republic , Denmark, Estonia, Finland, France, Germany ,Greece, Hungary, Iceland, India ,Israel, Italy Latvia,  Lithuania ,Netherlands, Norway Portugal, Singapore, Spain, Turkey, United Kingdom   (Source: Countries with laws or policies on sex selection, Marcy Darnovsky, Center for Genetics and Society, April 2009)

No restrictions on use of IVF for gender selection: USA, Russia

The BBC published an online piece  called Parents queue to select baby gender. Apparently British couples are traveling to Russia or the US to have gender selection, precisely because they can not find these services at home. The piece also cautions patients about some unethical programs that claim to provide gender selection like this IVF program , the Jinemed Center in Istanbul, which promised these services even though they are illegal in Turkey. After that investigative piece was published, that clinic came under investigation by Turkey authorities. Medical tourism requires the same, if not higher, vetting process before choosing a clinic.

Medical tourism, while it has its advantages may have a serious downside for US citizens who seek ART services overseas. Current US law requires that if US citizens want their overseas born,  ART conceived children to be US citizens, they must be able to prove that the eggs and sperm originated with the US couple and no foreign gametes were used. The article US CItizenship denied to IVF babies born overseas  describes the experience of Ellie Lavi, a dual US and Israeli citizen who learned that in order for her twins conceived by ART and born in Israel to become US citizens, she would have to prove the eggs used were hers and not that of a donor. The State Department has issued a travel warning for US citizens who seek infertility services abroad which clearly lays out the requirement to prove  biological link to at least one of the US parents. Using a surrogate overseas has the same perils.

This law seems particularly archaic since US citizens who adopt unrelated children from abroad generally have little difficulty acquiring US citizenship for their child. Furthermore, being born on US soil instantly confers citizenship regardless of parentage. So why put a special burden on children born overseas through ART?  Actually, many babies of ex-pats may face the same difficulty even conceived naturally. Ex-patriots of any country living as residents elsewhere may face problems with their child “inheriting” their home citizenship as described in Ex-pat Baby Limbo. In some cases the children may be declared citizens of a country different from both their ex-pat parents. Obviously, the law has not kept pace with emerging technologies and greater global living.

© 2012, Carole. All rights reserved.

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