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 nor 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.
Originally published at MercatorNet 8 August 2013. Used by permission, all other rights reserved.