It was reported recently that Leia Picard, who owns Canadian Fertility Consultants and has been charged with offences under the Assisted Human Reproduction Act, has said “she plans to challenge the constitutionality of the law which makes it illegal to pay anyone to donate eggs or sperm or act as a surrogate”. She also announced on her website that this summer she is going to travel from Calgary to the West Coast of BC meeting with people who would like to participate in her “fertility consultancy business”, in relation to which she currently faces 27 criminal charges, which include charges for prohibited payments.
The same article also reported that Claire Burns, a Toronto woman who has set up an advocacy group for egg donors, said undercover sales are taking place in Canada; “that fertility brokers in the US, where commercial transactions are legal, routinely advertise in Canada for donors(sic) and surrogates….[A]nd that donors tend to be treated like a ‘commodity’”.
So should we change the law to allow the sale of sperm, ova and embryos, and payment of surrogate mothers?
An article recently published in the New England Journal of Medicine, “Made-to-Order Embryos for Sale — A Brave New World?”, by Harvard law professor, I. Glenn Cohen, and Eli Y. Adashi, from the Warren Alpert Medical School, Brown University, in which they explore the ethical and legal issues raised by a for-profit human embryo industry, merits close attention in answering this question, because it sets out the case for allowing sale and shows us clearly where this would lead and why we should not follow the US on the path it has taken.
The authors describe the proliferation of commercial gamete sources (for instance, sperm and oocyte banks) in the US as “open[ing] the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind.” They cite a November 2012 report in the Los Angeles Times which describes “one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”
First, note the language used: “industry”, “commercial transaction”, “batch of embryos”, “cut[ting] costs”, “customer” and “making babies”. This language of commerce correlates exactly with Ms Burns’ observation, presumably referring to paid ova “donors”, “that donors tend to be treated like a ‘commodity’”. The same characterization is even truer of the treatment of the embryos. Embryos become manufactured products for sale; human reproduction – passing on life to our children – is commercialized; and gamete sellers are objectified.
The practice described in the report also raises the issue of increased risks of consanguinity with a future marriage partner, especially if the gamete sellers remain anonymous.
Donation of, so-called, “spare” embryos “left-over” from IVF procedures, is regarded by many people as ethical or, even, ethically required, because it gives those embryos a chance at life. (Whether it is ethical to create them in the first place is a separate question.} Cohen and Adashi compare this practice with the sale of made-to-order embryos and conclude the “most obvious distinction … is the fact that the latter constitutes a for-profit transaction in which embryos are being treated as a profit-generating commodity”, which they do not see as an ethically relevant difference or ethical barrier.
But there are ethically relevant differences. First, the intention with which the embryos are brought into existence matters: creating human embryos in order to sell them offends respect for the transmission of human life. Second, the fate of these embryos, whether they are transferred to a woman’s uterus, used for research or destroyed, does not, as it does with “spare” embryos, rest in the hands of their biological parents.
Like those advocating for the sale of gametes and embryos, Cohen and Adashi reject various ethical arguments against sale, including that “it could be posited that the sale of embryos denigrates the value of reproduction by turning it into a commercial enterprise.” They also believe that “it would be wrong to equate the sale of embryos with the patently illegal sale of children. The latter involves potential harm to an already existing child. The former involves choosing whether particular children will be produced or not, and the practice is more similar to the sale of gametes than the sale of children”. Many would argue the embryo is an “existing child”, just one at the earliest stage of development.
The authors then adopt a “we are already doing it” justification. They examine procedures involving human embryos allowed in the US – for example, creating embryos from purchased oocytes with the intention of destroying these embryos in using them for stem-cell research – and argue that selling made-to-order embryos is no different ethically and may be even less ethically concerning, in that the purpose of the sale is to treat infertility. They further opine, “it may be difficult to claim that respect for personhood requires that the sale of embryos be prohibited at a time when parentally sanctioned embryonic destruction (with or without the generation of a human embryonic stem-cell line) is being practiced.”
Cohen and Adashi conclude: “It is readily apparent why the prospect of made-to-order embryos for sale may give rise to apprehension. However, viewed through a legal and ethical lens, the concerns raised by this potentiality appear to be similar to those associated with widely accepted and more common reproductive technologies, such as the sale of gametes.” This is a “we recognize your apprehension, but be reassured this is just a small step on a legal and ethical path we’ve already taken and regard as ethical” strategy.
The argumentation in this article is a powerful example of the “logical slippery slope”, that is, the phenomenon that once a certain practice is allowed, for instance, the sale of gametes, it can be extended to allow other logically related practices, namely, the sale of embryos. What is surprising about the authors’ ethical analysis is that it does not seem to have occurred to them that some of the practices, in particular, the sale of gametes, which, through analogy, lead to their conclusion that the sale of embryos is ethical, might themselves not be ethical and should be prohibited. Just because we once thought something was ethical doesn’t mean that we should never change our minds in that respect.
Some people argue that if a person wants to sell their ova, sperm or embryos, they have a right to do so and the law has no justification in restricting their autonomy by prohibiting such sales. Moreover, they counter arguments, for instance, that women selling their ova are desperate and open to exploitation, by pointing out that they might simply choose to make money in this manner and have a right to make that choice.
But even in cases where that choice is “free”, the destructive impact of this commercialization on societal values, such as that human life is not for sale – it is “hors de commerce”; respect for human life and its transmission; and what are acceptable reasons not to bond to our biological children, cannot be avoided.
In Canada, we’ve legislated that sperm, ova and embryos are not for sale and that surrogate motherhood must be altruistic, and we should keep it that way. The lesson from the US of where changing that stance leads, should be heeded.
Margaret Somerville is director of the McGill Centre for Medicine, Ethics and Law.