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Gotten, not Begotten

Fred de Noyelle / GODONG

MercatorNet - published on 08/08/13

The logical slippery slope to human embryo factories begins with surrogacy and gamete sales

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.

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