By Michele Goodwin

A program at the University of Pittsburgh portends the inevitable: children and adolescents are eligible for interventions aimed at preserving or restoring fertility. The processes might involve the harvesting of reproductive tissues, collecting semen, and cryopreserving what doctors collect from children. The Magee-Women's Research Institute, the Magee-Women's Hospital, the Children's Hospital of Pittsburgh of UPMC, and the Pittsburgh School of Medicine are collaborators in the nation's first comprehensive program of its kind. Eager parents are already calling to register their children.

How did we get here, where children are a part of the ART landscape not as offspring, but consumers? How should the law handle this?

Autonomy figures significantly in judicial and political policy debates involving reproductive decision making. However, medical and legal policy debates focused on reproductive decision making too often suffer from reductive assumptions captured by our nation's ongoing internal struggle about abortion. In that context, competing interests about access to abortions, the constitutionality of the procedure, questions of personhood, and concerns about where life begins predominate and significantly define how the lay public and legislators speak about reproductive decision making. Yet this narrow discourse partially engages one subset of the reproductive field and misses many others.

Assisted reproduction and the umbrella of technologies combined within that framework serve as telling examples. Despite the high demand for assisted reproductive technology ("ART") services, this type of reproductive decision making typically escapes sustained social, legal, and public policy review. To date, there exists only one federal law tied to ART, and its main charge-to require the collection of data on "success rates"-serves as a passive reminder that in 1992 Congress once considered the issue. To be sure, in 1992, members of Congress had not predicted the "Wild West" of ART, and certainly not how children fit in, either as offspring of the technology or consumers.

Legally, the United States has not made much progress in considering the regulatory contours for ART procedures-unlike Canada, England, Italy, Spain, and many other countries-despite known risks associated with ART procedures, including hyper-stimulation of ovaries (thought to be linked to ovarian cancer), higher incidences of babies born with low birth weight, and increased risks of cerebral palsy, hearing impairment, and cognitive delays. Perhaps the risk most known about ART is the much-increased possibility of multiple births, publicized by the media frenzy surrounding Nadya Suleman's delivery and birth of octuplets, and life with 14 children born with the aid of ARTs.

For some of ART's most ardent critiques, the field is like the Wild West of biotechnology, where nearly nothing is outlawed and perhaps the newest wave-involving children in research experiments as users of the technology-reaffirms that point. The only existing federal law requires that fertility clinics annually report their "success rates." Indeed, parsing the difference between research and medical treatment where perverse incentives appear on both sides might be difficult for child patients, their parents, and the physicians serving them.

What's missing is a framework to help us think about when it might be acceptable for children to become consumers of ART. For example, should age matter and/or parental consent? What about mental and emotional capacity of youth? The current ART research programs involving children have not gotten that far, and likely they will not. But here are a few considerations that might get the conversation started.

There are three relevant medical scenarios for which there might be a compelling or moderate interest to consider providing minors legal access (or the right to consent to) ART: (1) adolescents suffering from cancer who will require surgery, chemotherapy, and/or radiation therapy, rendering them sterile during the process of treatment, or youths facing impending loss of fertility due to other medical conditions or illness; (2) adolescents as gamete donors for ailing relatives who wish to parent; and (3) minors living separately and financially solvent from parents and guardians in a marriage relationship.

Let's consider the case of childhood cancer. It is estimated that one in every 1,000 adults is a survivor of childhood cancer. Even more alarming, Dr. Carrie Nieman and her research partners predict that, "an estimated 1 in every 250 adults will be living with a history of childhood cancer." Their article, Fertility Preservation and Adolescent Cancer Patients: Lessons from Adult Survivors of Childhood Cancer and Their Parents, published in 2007, provides compelling evidence that preserving fertility is an important matter for teenage cancer patients and their parents.

Proponents of fertility programs designed for children contend that while the harmful reproductive effects of toxic exposures from cancer treatments may be lower in younger children, overall, it is estimated that the probability of achieving a pregnancy after surviving cancer as a child, adolescent, or young adult is reduced by approximately one-half. Dr. Teresa Woodruff, a researcher in Northwestern University's Oncofertility Consortium, explains that for girls the problem is compounded by "the prospect of menopause in their 20s or 30s." Researchers working in this domain seem to agree that the key to preserving fertility in childhood cancer patients is to begin the tissue harvesting process before "fertility-threatening treatments" begin.

The best way to meet the moral and legal challenges associated with adolescent use of ART is head on-engaging a future that is now upon us-rather than ducking our heads in the sand. This means reconsidering the role of law and the function of regulation. As importantly, confronting the expanded reach of ART services to minors also means thinking critically about physician conflicts of interests and also the parental conflicts of interests, particularly with new ART research trials. Finally, who will benefit from or be harmed by adolescent use of ART? These questions deserve our serious attention.

Michele Goodwin, JD, is Everett Fraser Professor of Law at the University of Minnesota and author and editor of several books, including Black Markets: The Supply and Demand of Human Body Parts (2006) and Baby Markets (2009).

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