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14 - Preventing Medical Device-Borne Outbreaks

The Case of High-Level Disinfection Policy for Duodenoscopes

from Part IV - The Impact of Medical Device Regulation on Patients and Markets

Published online by Cambridge University Press:  31 March 2022

I. Glenn Cohen
Affiliation:
Harvard Law School, Massachusetts
Timo Minssen
Affiliation:
University of Copenhagen
W. Nicholson Price II
Affiliation:
University of Michigan, Ann Arbor
Christopher Robertson
Affiliation:
Boston University
Carmel Shachar
Affiliation:
Harvard Law School, Massachusetts

Summary

This chapter examines the FDA’s role in regulating ART devices. The FDA’s statutorily defined purview to regulate devices includes [things] “used in” or “intended to affect…man or other animals.” This chapter considers the FDA’s jurisdiction over devices that affect or diagnose pre-embryos, embryos, or fetuses that are not generally considered people or animals under US law. It discusses the legal and ethical implications of the FDA’s claim over ART devices without changing or clarifying its regulatory charge to include such organisms and whether or not the FDA has overstepped its power by regulating these instruments as devices. It also reviews the FDA’s existing classification of devices involved in ART (Class II). In light of the catastrophic and painful consequences that can follow malfunction of these devices (such as cryobanks thawing or embryo swapping) and that anecdotal accounts suggest such malfunctions are happening more frequently, this chapter questions if ART devices should be reclassified or if an alternative regulatory mechanism could more effectively protect consumers in the ART industry.

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