Collaboration and commodification in assisted procreation: Reflections on an open market and anonymous donation in human sperm and eggs

Law & Society Review, 2002 by Shanley, Mary Lyndon

The practices through which American society regulates the transfer of human gametes (eggs and sperm) reflects and shapes our understanding of our relationship to our genetic materials. The ways in which we think about and justify these practices engages important themes of liberal political theory and law: the understanding of individuals as autonomous or defined (at least in part) by relationships that entail dependence and care; the meaning of reproductive freedom and procreative collaboration; and the extent to which a free market may protect or undercut individual liberty. Two ethical and policy questions reflect these issues: should persons created with third-party gametes be able to learn the identity of the donor(s), and should the sale of eggs and sperm be prohibited, regulated, or left to the open market? This article contends that society should prohibit both anonymous transfer of and payment for human gametes themselves. Abolition of both anonymity and payment in the practice of gamete transfer is necessary to reflect properly the collaborative nature of assisted procreation. Although political reality may lead society to permit payment of a strictly capped "inconvenience allowance" for undergoing the procedures involved in transferring one's gametes, such payment (while preferable to payment for gametes themselves) inappropriately conceptualizes use of one's body as a commodity.

During the academic year 1999-2000 an ad appeared for a few weeks in the newspaper of the college where I teach: "Special Egg Donor Needed-$25000," said the headline (Miscellany News [newspaper of Vassar College], 3 Dec. 1999, p. 22). The text continued, "We are a loving, infertile couple hoping to find a compassionate woman to help us have a baby. We're looking for a healthy, intelligent college student or college graduate, age 21-33, with blue eyes and blonde or light brown hair. Compensation $25,000 plus expenses. Your gift of life would bring great joy. Please contact us through our representative" (an 800 phone number followed). An ad placed in some other college newspapers offered $50,000 for the eggs of an athletic, 5-foot-10-inch woman, who had scored at least 1,400 on the Scholastic Aptitude Test (New York Times [Metropolitan Edition], 3 Mar. 1999, p. A10). Another ad, placed by an agency, that ran almost every week in my campus newspaper stated, "Being an Egg Donor Is an Awesome Gift" and offered $5,000 plus expenses to any donor who was "healthy, age 21-30, a non-smoker, and average weight" (Micellany News, 24 Mar. 2000, p. 5). Such offers are attractive to some of my students, both those who want altruistically to help others, and those who are concerned about the financial debt they have incurred from student loans. More than personal considerations, however, should arise in thinking about whether or how to respond to such ads; conceiving children through the use of third-party genetic material raises complex ethical, social, and legal issues.

The practices through which we regulate the transfer of human gametes (eggs and sperm) reflects and shapes our understanding of our relationship to our genetic material, the extent to which family bonds are created by nature and by human will, and the role the market should play in forming families. The ways in which we think about and justify these practices engages important themes of liberal political theory: the understanding of individuals as autonomous or defined (at least in part) by relationships that entail dependence, interdependence, and care; the meaning of reproductive freedom; and the extent to which a free market may protect or undercut individual liberty. Here, I approach these theoretical issues by focusing on two ethical and policy questions that arise when people form families with gametes supplied by other persons. First, should persons created with third-party gametes be able to learn the identity of the donor(s)? Second, should the sale of eggs and sperm be prohibited, regulated, or left to the open market?

At the outset, one must decide what to call the practice under discussion. In "gamete transfer," a person uses sperm or eggs from someone else who is not his or her spouse or life partner and has no intention of being a legal or social parent to the child created from this genetic material. (A gamete can be either an egg or a sperm; a gamete is a cell that contains half the genetic material needed for human procreation.) This practice is usually called gamete "donation," a term that suggests that a gift is being made. Only rarely, however, do people transfer gametes without receiving money for them. (Instances of transferring gametes to another as a gift are almost always between family members.) Since one of the ethical issues I want to examine is the buying and selling of eggs and sperm, I will speak of gamete "transfer" rather than "donation." I will refer to the person who is the source of the gametes as the "provider," not the "donor," reflecting the fact that he or she is paid. I do not discuss directly the fertility clinic or sperm bank that acts as an intermediary between provider and recipient, although such vendors (often intent on maximizing profits) shape current practices of gamete transfer.2