Despite its permissive stand on many issues of marriage and
reproduction, Canada has made selling sperm, ova or embryos or paying a
surrogate mother a crime punishable by 10 years' imprisonment. In
January 2009, however, the 2004 law on reproductive technologies comes
up for review. There are strong rumours that a number of interest
groups have joined forces to build up a well-organised, industry-funded
and professionally orchestrated (by a PR firm) campaign to amend the
act's prohibitions on payment.
Same-sex married couples argue that these prohibitions should be eliminated because they discriminate against them in exercising their right, which comes with marriage, to "found a family" as guaranteed under Article 16 of the United Nation's Universal Declaration of Human Rights.
The fertility industry (a US$3 billion-a-year industry in the United States alone) also opposes these prohibitions because it finds them a major hurdle to getting on with business — payment is necessary to attract gamete "donors." For the same reason, it opposes prohibition of donor anonymity.
Some scientists want the prohibitions on payment and the act's prohibitions on cloning and the creation of human embryos for research repealed to facilitate research, particularly human embryo stem-cell research.
So what are the arguments for and against the sale of gametes and embryos and payment of surrogate mothers, which values are at stake, and what messages would we send if we were to change the law to allow payment?
Reports of gametes being sold and surrogate mothers paid in Canada despite the legal prohibitions are used to argue that if people are going to do that, we should legalise those transactions. Such a response means declaring ethical and moral bankruptcy. There will always be people and corporations that break laws, but we don't abandon those laws if they protect individuals and society from serious risks and harms or enshrine important fundamental values.
The language used to promote legalising payment for ova donation describes desperate childless couples and young women interested in helping them. The fertility industry heavily markets itself through the lens of altruism. On the whole, however, women are not interested in "donating" unless they are paid and the majority, at least, do it to earn money they need. Desperate Canadian childless couples, going to the U.S. to buy gametes and embryos, have been described as cross-border shoppers. Should we be shopping for gametes and embryos?
We have always formed our most important shared societal values around the two landmark events in each and every human life, birth and death. Commercialising the passing on of human life to the next generation effects a radical change in the values created around birth. A child becomes a wanted product and the more exclusive the product the more it costs — the ova of tall, blond, blue-eyed, athletic, Ivy League graduates are being advertised for up to US$50,000 each.
A next step is designer children — genetic interventions to further enhance embryos' "desirable" characteristics. That, too, will be good business for the fertility industry, especially because the potential market is much larger than just infertile people.
Risks to ova donors are also a serious concern. Ovarian stimulation and ova retrieval involve a small risk of death or serious injury, including of future infertility, and considerable discomfort. A major concern is ensuring the fully informed consent of the donor. As a non-therapeutic procedure, legally, ova donation requires the fullest possible disclosure of harms and risks and free consent. Payment raises concerns about undue influence affecting consent.
Some advocates of payment draw an analogy between payment for abortion and payment for gametes, but the similarities are superficial, at best. Whatever our views on the morality and ethics of abortion, there is a major difference between paying a physician to carry out a procedure (as is the case in abortion) and paying people for parts of their bodies and, arguably, the most intimate and precious aspect of those bodies — their ability to pass on life to their children through their gametes.
The same is true of paying a woman for the use of her body to gestate a child, as in surrogate motherhood. Likewise, there's a difference between poor people (or anyone) using their bodies to work for money, on the one hand, and selling their bodies, on the other. Calls for an open domestic market and the commercialisation of human reproduction — as was the case with slavery — make human life and its transmission property to be bought and sold. And that affects all of us and our values, not just those who trade or are traded.
As the French Civil Code puts it, human life and its transmission should be "hors de commerce" if we are to respect it as we should and hold it in trust. Human life and its transmission are not property to do with as we like. We implement this approach in prohibiting the sale of organs for transplantation. Gametes and embryos deserve at least equal respect.
Finally, and most important of all, in deciding whether payment for gametes and embryos is ethically acceptable, we must consider the impact commercialising human reproduction would have on the children who result and on others' respect for them. The ethical doctrine of anticipated consent requires that when a person seriously affected by a decision cannot give his or her consent to that decision, we must ask ourselves whether we can reasonably anticipate that if they were present they would consent. If not, it's unethical to proceed.
Many adults conceived through sperm donation have spoken out against paying donors, saying that it turns them and their lives into commodities. Indeed, as their ranks swell and they contact each other on the internet, an increasing number of donor-conceived adults are speaking out against gamete donation itself.
Margaret Somerville is founding director of the Centre for Medicine, Ethics and Law at McGill University in Montreal.