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Welcome to the Wild West: Protecting Access to Cross Border Fertility Care in the United States

46 Pages Posted: 21 Aug 2013  

Kimberly M. Mutcherson

Rutgers Law School

Date Written: 2012


Along with creating babies for people who want them, assisted reproductive technology (“ART”) brings substantial ethical anxieties that spark deep and wide ranging discussion about the appropriate regulation and use of such technology. Coupled with the disquiet attendant to globalization, the fact that some people, given the means, will leave their home countries to take advantage of such technologies -- especially when they do so in order to make use of technology in a way that is forbidden by the laws of the home country -- ignites debate about procreation, exploitation, commodification, and even the relationships between and among nations.

In light of concerns that some have raised about the lack of global or even national harmonization in ART regulation that leads to forum shopping for a welcoming place to make babies, this Article takes up the question of whether there should be any legal barriers to those who come to the United States seeking cross border fertility care ("CBFC.") This Article refers to this group as reproductive travelers to distinguish them from individuals who are native users of the technology. While the phenomenon of CBFC cannot resist being swallowed by general debates about ART, especially in the United States, it is possible to imagine a subset of arguments that would lead to forbidding or at least discouraging people from coming to the United States for CBFC, either as a matter of law or policy. This Article opposes any such effort and contemplates various moral and ethical concerns about CBFC and how, and if, those concerns warrant expression in law.

Part I describes the conditions that lead some couples and individuals to leave their home countries to access fertility treatments abroad and details why the United States, with its comparatively liberal set of ART regulations, has become a popular CBFC destination for travelers from around the world. Part II offers and refutes arguments supporting greater domestic control over those who seek to satisfy their desires for CBFC in the United States by reasserting the importance of the right of procreation while also noting appropriate concerns about justice and equality in the market for babies. Part III continues the exploration of justice by investigating the question of international cooperation in legislating against perceived wrongs. This Part concludes that consistent legislation across borders is appropriate where there is consensus about the wrong of an act, but it is unnecessary and inappropriate where there remain cultural conflicts about certain practices -- in this case, assisted reproduction.

Keywords: reproductive justice, assisted reproduction, globalization

Suggested Citation

Mutcherson, Kimberly M., Welcome to the Wild West: Protecting Access to Cross Border Fertility Care in the United States (2012). Cornell Journal of Law and Public Policy, Vol. 22, No. 2, 2012. Available at SSRN:

Kimberly M. Mutcherson (Contact Author)

Rutgers Law School ( email )

217 N.5th Street
Camden, NJ 08102
United States

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