Volume 2010 — Issue 2

Infertile men and women have been using assisted reproductive technologies (ART) to conceive children since the first "test-tube baby" was born in 1978. During the past decade, however, the federal government has begun to clamp down on ART, asserting safety concerns as grounds for banning novel technologies such as cloning, nuclear transfer, and ooplasm transfer.

Some scholars and policymakers now want to extend governmental regulation to include conventional ART such as in vitro fertilization (IVF) and intracytoplasmic sperm injection (ICSI). They claim children conceived through ART face an increased risk of birth defects and other health problems.

This Article examines the medical literature and exposes a key fact: the health problems observed in such children may be linked to the underlying characteristics of their infertile parents, rather than ART as such. Viewed in light of this literature, the demand for increased regulation amounts to an attempt to restrict the reproduction of disabled persons (the infertile) on the ground that their unhealthy offspring should never be born. But, this is the same rationale eugenicists once used to justify enacting the sterilization laws of the twentieth century.

This Article concludes society should reject this new form of eugenics. The fertile majority should not enact coercive laws and regulations that undermine reproductive autonomy, oppress the infertile minority, stigmatize children, and weaken our commitment to egalitarianism.

Social networking sites like Facebook are yielding much more than the opportunity to connect with friends, view and post photographs, or show support for a particular organization or cause. Researchers are currently using social networking sites like Facebook to gather data that will yield information about people's political views, social interactions, or even their views on privacy, a practice referred to as data mining, often without the knowledge of the Facebook users from whom they are collecting data.

A number of university Institutional Review Boards (IRBs) have recently adopted policies and procedures governing online research, particularly data mining on social networking sites. Federal regulations that have their basis in ethical standards governing research require IRB review for research that involves human subjects, but whether data mining on Facebook constitutes research with human subjects is questionable. If data mining on Facebook involves an interaction between the researcher and the Facebook user, or if the researcher is collecting identifiable, private information about Facebook users, this type of research involves human subjects, and the federal regulations mandate IRB review. Researchers and universities would therefore have both an ethical and a legal obligation to ensure that subjects whose online profiles are mined for data are adequately protected from harm. If IRB review is not required, it is unnecessary and inefficient to burden researchers and IRBs with preparation and review of an IRB application for research involving data mining on Facebook.

This Article argues that data mining on Facebook does not constitute research with human subjects, but contends that if the Department of Health and Human Services' Office for Human Research Protections determines that this type of research involves human subjects, it should either undergo expedited review or be deemed exempt. It discusses the benefits that both researchers and IRBs will reap if data mining on Facebook does not involve human subjects, as well as the consequences that researchers and IRBs face if the research requires IRB review and no such review is conducted. However, unless and until the Department of Health and Human Services issues guidance addressing or specific regulations governing Internet research, whether data mining on Facebook involves human subjects can only be speculated.