Author: Melissa Brown

In vitro gametogenesis (“IVG”), a process through which scientists may induce any human cell to become either an egg or sperm cell, might eliminate the need for injections and painful egg retrieval procedures associated with in vitro fertilization (“IVF”). Though IVG has proven successful only in mice, hypothetical applications to human reproductive therapy may also extend to socially or situationally infertile non-heteronormative couples. This could enable gay and lesbian couples to have children genetically related to both partners.

Though some individuals feel unsettled by the implications of lab-created human life, a biotech start-up by the name of Conception opened research to human applications of IVG in 2023. As of this year, Conception scientists remain focused on their aim to create a ‘proof of concept human egg.’ Chief Scientific Officer Pablo Hurtado and Chief Executive Officer Matt Krisiloff both expressed hope that IVG would allow them to produce children genetically related to both parents in their respective partnerships.

Amid the flurry of research surrounding IVG in humans, bioethical literature entered a debate regarding the ethical hurdles should IVG become an approved Assisted Reproductive Therapy (“ART”). Such debates center around who might be precluded from IVG. If IVG, like IVF, emerges solely as an ART method, this could mean that IVG would only be accessible for those who would have the capacity to conceive but for egg and sperm count/quality challenges (heteronormative couples).

However, situational infertility also plays a role in IVG’s use as an ART. For example, should a man and a woman who knew prior to their union that neither had the ability to conceive with one another decide to marry in spite of this, their choice to pursue union would render them situationally infertile (i.e., but for their choice to be together, either party possess the potential to conceive). By the same parameters, non-heteronormative couples could be considered situationally infertile and, as such, eligible to use IVG as an ART. Despite this, questions of ART access stretch beyond the degree of infertility status.

Currently, IVF is the ideal predecessor to which one could compare IVG’s eligibility for insurance coverage (should human applications come to fruition). The National Infertility Association advertises that only eleven states and the District of Columbia have passed broadly accessible fertility preservation coverage. Of these, only the Colorado Revised Statutes and the Illinois Compiled Statutes define ‘infertility’ in a flexible manner such that it could include situationally infertile non-heteronormative couples. These definitions indicate that IVG, like IVF, will not be available through insurance for non-heteronormative couples except within Colorado and Illinois. Even within Colorado and Illinois, degree of insurance coverage will heavily depend on the policy and coverage qualifications, which will not be measured uniformly among candidates. Because of this, IVG will become the next headliner in boutique baby making, accessible to very few individuals.

This predictable inaccessibility of IVG strikes a chord among reproductive justice advocates. Those who experience infertility often feel grief, depression, anxiety, and loss of self-esteem. Those who experience situational infertility within both heteronormative and non-heteronormative couplings experience a sense of social dissonance and distress. Lack of access to IVG may also propagate the harmful societal notion that adoptive children are inferior alternatives to genetic children. As reproduction is an inherently human function, reproductive justice advocates argue that equal access to all available reproductive therapy, regardless of one’s choice in partner, is a human right.

Nevertheless, amidst the current tumultuous battleground in Alabama over the ethical implications of IVF, many wonder whether some states will begin to block ARTs such as IVF and IVG altogether. From a practical perspective, issues concerning legal accessibility and insurance coverage (espoused above) will likely block such a high percentage of otherwise eligible couples as to render the restrictive implications of the Alabama IVF ruling obsolete where IVG is concerned. Should Conception and/or similar laboratories successfully patent a reproducible methodology for IVG in humans, such a patent would likely be sold to consumers in other nations whose healthcare and legal systems better cater to cellular inducement ARTs.

Spooky season is upon us, but what do you do when you get the kind of jump scare you do not want?  On October 4^th, Walmart shopper Veronica allegedly experienced exactly that when she opened a package of Reese’s cups to find that mealworms and maggots had breached the batch. In the PSA video that Veronica posted to TikTok, she opened several Reese’s Cups on camera, demonstrating that she didn’t plant the worms herself. Comments on the video pose several questions: could it be last year’s leftover candy? Could there have been a packaging defect? The latter, of course, leads to the inevitable question: is this a Walmart problem, a Hershey problem, or will this become a mass consumer problem?

Calls for a product defect recall against Reese’s Peanut Butter Cups circulated the internet for the first time in 2014, when two men posted a video on Twitter alleging similar circumstances as Veronica’s. The same year, Fact-Checker David Mikkelson pointed out the indeterminable veracity of the video. Global insect-eating enthusiasts, on the other hand, find no problem mixing a little protein with their candy. In Bon Appetite magazine’s 2014 publication, Larry Peterman discloses not only that his company, Hotlix, creates exclusively insect-filled candies, but also that the Food and Drug Administration told him that he doesn’t have to clip the stingers off scorpions before adding them to lollipops! This, however, does not distract from the reality that in the average consumer’s preferred candy-to-insect ratio, there is such a thing as much too much, and the FDA is inclined to agree.

The FDA’s stance on insect contamination in food is that in order to be permissible, it must also be “natural or unavoidable.” The natural and unavoidable ratio of insect-to-chocolate is on average sixty or more fragments to 100 grams of chocolate, introduced or unfiltered during the processing stage of production. That’s more than a hundred bug fragments in every Hershey’s Candy Bar—and that’s before it even hits the shelves. Yet, these candy bars are still considered safe for consumption. Meanwhile, Trader Joe’s has pulled almond cookies and broccoli cheddar soup off the shelves due to insect contamination possibly too high for even the apparently insect-loving FDA. Most consumers are also unsurprised to find wasp heads in figs, as they play an essential role in pollination. So, could the line between “too much” and “much too much” be drawn depending on expectations? And what do consumers do when confronted with creepy-crawly tricks in their Halloween treats this October 31^st?

Products liability may have an answer. The Civil Jury Instructions for products liability offer a consumer expectations test, which states that in order to prove a product is defective—or, in this case, too defective to eat—”a plaintiff must prove that the product failed to perform as safely as an ordinary user or consumer of the product would expect when used in an intended or reasonably foreseeable manner, including reasonably foreseeable misuse.” Thus, companies like Walmart and Hershey may not be liable if candy is improperly stored, is beyond its expiration, or contains maggots. In a case arising from Texas, plaintiff Peables Fowls experienced a shock upon finding maggots in the Almond Joy she purchased and popped into her mouth while sitting in the Walmart parking lot. Not only did she launch herself from the truck, but she also left it in reverse and nearly lost her car to oncoming traffic. Upon review of Ms. Fowls’ tort case, The District Court found that a vendor has no duty to inspect or test a product manufactured by another for latent defects like maggots or mealworms. On a wider scope, companies may conduct food recalls voluntarily or the FDA may request a recall. So, between FDA regulations, company candidness, and products liability, the message to candy consumers this Halloween seems be: if you don’t want to risk getting tricked, the safest bet is to avoid the treat.