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Problems with legislating against 'reproductive tourism'

22 March 2010
By Dr Zeynep Gurtin
Centre for Family Research, University of Cambridge
Appeared in BioNews 550
Earlier this month, the Turkish Ministry of Health revised its regulations pertaining to assisted reproduction technologies (ARTs). The new regulatory structure considerably extends the specifications and requirements for the practice of ARTs in Turkey, and introduces a range of additional prohibitions. Two new developments are particularly striking. The first stipulates that all women in their first cycle of IVF can only have a single embryo transferred, with a maximum of two embryos for women over 35 on their second and women under 35 on their third or subsequent IVF cycles. The second bans partaking in or facilitating travel in pursuit of donor gametes.

Although the former, with fears that it will significantly reduce IVF success rates and effect a large proportion of those seeking fertility treatments, has generated greater controversy and more adverse reactions from patients and practitioners within Turkey, the latter signals a more worryingly restrictive attitude towards the autonomy and rights of citizens which may have international implications.

Cross-border reproductive care (CBRC), sometimes referred to as 'reproductive tourism' or 'reproductive exile', is now a worldwide phenomenon. Although the quest for extraterritorial reproductive services has a long history (namely in the pursuit of abortions, sterilisation and contraception), the more recent coupling of the forces of globalisation with the heterogeneity of ART regulations have facilitated and fuelled unprecedented flows of reproductive travel across national borders. As such, there have been concerted attempts made by various international organisations, including the ESHRE Task Force on Ethics and Law (1), ICMART (2), and the first international forum on CBRC convened in Canada in January 2009 (3), both to address the legal and ethical issues involved and to gather accurate information. Increasingly debates are taking place at the national level, concerning the extent to which CBRC impacts national maternity services (4) and the duties or ethical obligations of practitioners and regulators. Indeed, a large portion of a recent horizon-scanning seminar organised by the UK's Human Fertilisation and Embryology Authority (HFEA) Committee on Ethics and Law was devoted particularly to issues surrounding CBRC.

Yet, opinions on whether CRBC is 'a problem' per se remain divided. While some see it as an inequitable arrangement by which a few can afford to 'buy their way out' of the ethical and moral choices provided in their own jurisdictions (5), or as the slide down the slippery slope of de-regulation (6), others argue that it is 'a pragmatic solution' (7). The central debate in CBRC 'is the question of the appropriate balance to be struck between the moral views of the majority and individual human rights and freedoms; whether it is legitimate to restrict an individual's reproductive autonomy and, if so, to what extent such restrictions may be applied.' (8)

Until the introduction of the new regulations, Turkish citizens who needed (and wanted) donor sperm, eggs or surrogacy could bypass the national ban on all forms of third-party assisted reproduction by seeking ARTs elsewhere, most commonly in nearby Northern Cyprus. As a developing infrastructure of inter-clinic collaborations facilitated covert and seamless treatments, newspapers reported that 'around 2-3000 patients per year' sought donor gametes in Cyprus. When I interviewed experts and clinic directors in December 2008, Turkish views regarding CRBC were divided. Some argued that the Turkish government and the Turkish public were 'not yet ready' to legalise donation, but, since they saw it as a private matter, were glad to offer their desperate patients an alternative solution. Others criticised the practice as commercialised, deceitful, and unethical. One practitioner even assessed the former attitude of the government as amounting to systematic hypocrisy: 'It is like saying it is illegal to kill a man here, if you want, you have to go and do it in Cyprus!'

According to Irfan Şencan, the director of the Ministry of Health's Treatment Services department, the new ban on reproductive travel was added in response to the growth of this phenomenon in recent years. 'It is a way of breaking Turkish law abroad,' he argued. (9) According to Articles 18.6 and 18.7 in the new ART regulation, referring patients abroad for donor treatments is forbidden, and in the event of a discovery, at any point, of such prohibited activities, 'the person who has conducted this procedure, the persons who have referred patients or acted as an intermediary, the impregnated person, and the donor' will be reported to the state prosecutor. Turkish clinics engaged in providing or facilitating CBRC with donor gametes will be closed-down for three months in the first instance, and indefinitely on subsequent instances, all professionals involved will have their practice certificates nullified. These strict prohibitions against CBRC involving donor gametes have been justified with reference to (the existing) item 231 of the Turkish Penal Code, according to which it is illegal to 'change or obscure a child's ancestry', with a punishment of one to three years imprisonment.

Even if we put aside (for the moment) the moral implications of these amendments, it is clear that they create myriad regulatory conundrums. Several commentators have pointed out the impossibility of controlling and detecting such extraterritorial activities, particularly since, as Sibel Tuzcu, President of ÇIDER (Turkey's prolific infertility support organisation) states, Turkish couples who use donor gametes as a last resort are already extremely secretive about this information (personal communication). Some newspaper reports have suggested that the CBRC ban is a reference to two recent cases, both sensationalised and widely discussed by the media, in which an actress and a model respectively became 'single mothers by choice' using donor sperm obtained from clinics abroad. While it is possible that these 'extreme' cases acted as a catalyst for these amendments, I believe that in essence and in practice, the regulation targets Turkish clinics' activities, rather than the activity of individuals. However, by effectively tying the hands of professionals, the ban on CBRC significantly curtails the resources (to information, guidance and preparatory treatment at home) of men and women who are already in an extremely difficult situation.

It is absolutely understandable that different countries will reach different regulatory conclusions regarding ARTs, based on a variety of factors including cultural attitudes, traditions, religious views, and the majority's moral position. Yet, it may be argued that when certain treatments have been prohibited 'tolerance towards movement by minority members to other countries shows a healthy degree of relativism.' (10) For Pennings CRBC is a safety valve that allows for dissent from majority opinion and demonstrates the absolute minimum of respect for the moral autonomy of individuals. Those inclined to agree - whether as members of the public, as concerned practitioners, or as individuals desperate to pursue donor treatments - are likely to experience increased pressure, as the valve is blocked while the regulatory heat rises.
01) Pennings, G. et al, (2008) ESHRE Task Force on Ethics and Law 15: Cross Border Reproductive Care
Human Reproduction 184 |  15 May 2021
02) Nygren, K. et al. (in press), Cross-border fertility care – International Committee Monitoring Assisted Reproductive Technologies global survey: 2006 data and estimates.
Fertility and Sterility |  15 May 2021
03) Mainland, L. and E. Wilson (in press), Principles of establishment of the First International Forum on Cross-Border Reproductive Care
Fertility and Sterility |  15 May 2021
04) McKelvey A., David, A., Shenfield, F. and Jauniaux, E. (2009) The impact of cross-border reproductive care or 'fertility tourism' on NHS maternity services.
BJOG. Oct 116(11): 1520-3. |  15 May 2021
05) Hervey, T. K. (1998) Buy Baby; The European Union and Regulation of Human Reproduction.
Oxford Journal of Legal Studies. 18: 207-33. |  15 May 2021
06) Millns, S. (2002) Reproducing Inequalities: Assisted Conception and the Challenge of Legal Pluralism.
Journal of Social Welfare and Family Law. 24: 19-36 |  15 May 2021
07) Pennings, G. (2002) Reproductive tourism as moral pluralism in motion.
Journal of Medical Ethics. 28(6): 337-341. |  15 May 2021
08) Blyth, E and A Farrand (2005), Reproductive tourism – a price worth paying for reproductive autonomy?
Critical Social Policy. 25(1): 91-114. |  15 May 2021
09) Turks barred from receiving sperm or eggs donations abroad
Hürriyet Daily News |  15 March 2010
10) Pennings, G. (2004) Legal harmonization and reproductive tourism in Europe.
Human Reproduction. 19(12): 2689-2694. |  15 May 2021
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