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Of Medicine and Markets

This business in births is neither inherently bad nor completely new. On the contrary. As noted earlier, there has long been a deep-seated demand for fertility treatments and a small, if historically rather useless, supply of solutions. What complicates this particular area of the baby market, however, is the fine line it walks between commerce and medicine, between treatment for an illness and purchase of a much-desired good. In other realms with similar characteristics—the market for donor kidneys, for example, or cancer treatments—the state traditionally has intervened to establish guidelines. Kidneys, we know, can never be sold. Cancer treatments are mediated through the health-care system and subject to a well-established (if occasionally inequitable) set of rules. In the fertility trade, by contrast, private rules reign. The fertility centers themselves set the rules that guide their conduct, working under the auspices of the ASRM (American Society for Reproductive Medicine). In the United States, at least, the federal government is essentially silent, offering only the merest of parameters: fertility centers must report their success rates to the Centers for Disease Control; they must abide by basic laws forbidding malpractice and fraud; and, in fourteen states, insurance companies must cover (or offer to cover) some form of infertility treatment for their policyholders. [51]

Outside these boundaries, the centers are free to operate and compete. There are no constraints on their advertising (other than basic prohibitions on fraud or misrepresentation) or on tactics for attracting their clientele. To be sure, this same degree of openness characterizes nearly all aspects of U.S. business; indeed, it is this very openness that is frequently cited as driving the vitality of U.S. commerce. But in the fertility trade, the underlying business model plays out strangely.