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Somerville: Let’s respect embryonic life, not commodify it

By Margaret Somerville, Calgary Herald, August 6, 2013

Leia Picard, who owns Canadian Fertility Consultants and has been charged with offences under the Assisted Human Reproduction Act, 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,” according to the National Post.

Claire Burns, a Toronto woman who has set up an advocacy group for egg donors, said in the same article that undercover sales are taking place in Canada, and “fertility brokers in the U.S., where commercial transactions are legal, routinely advertise in Canada for donors and surrogates … donors tend to be treated like a ‘commodity.'” Should we change the law to allow the sale of sperm, ova and embryos, and payment of surrogate mothers? An article in the New England Journal of Medicine by I. Glenn Cohen and Eli Y. Adashi explores the ethical and legal issues raised by a for-profit human embryo industry, sets out the case for allowing sale, shows where this would lead and why we should not follow the U.S. It describes the proliferation of commercial gamete sources (sperm and oocyte banks) in the U.S. as opening “the door to a madeto-order embryo industry in which embryos are generated with a commercial transaction in mind.”

The authors cite a November 2012 report in the Los Angeles Times which describes one 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 states “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.”

Note the language: “industry,” “commercial transaction,” “batch of embryos,” “customer” and “making babies.” This language of commerce correlates exactly with Burns’ observation, presumably referring to paid ova “donors,” “that donors tend to be treated like a ‘commodity.'” The same characterization is truer of the treatment of the embryos. Embryos become manufactured products for sale; human reproduction is commercialized and gamete sellers objectified. Donation of “spare” embryos “left over” from IVF procedures is regarded by many people as ethical or, even, ethically required, because it gives them 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 madeto-order embryos and conclude the “most obvious distinction … is the fact that the latter constitutes a forprofit transaction in which embryos are being treated as a profit-generating commodity,” which they do not see as an ethical barrier.

However, creating human embryos to sell them offends respect for the transmission of human life. The fate of these embryos, whether they are transferred to a woman’s uterus, used for research or destroyed, does not rest with their biological parents.

Cohen and Adashi reject 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 believe “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 examine procedures in the U.S. – for example, creating embryos from purchased oocytes with the intention of 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, as the purpose of the sale is to treat infertility.

They say: “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 practised.”

They 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.

It doesn’t seem to have occurred to the authors that some of the practices, in particular, the sale of gametes, might not be ethical and should be prohibited. Just because we once thought something was ethical doesn’t mean 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 shouldn’t restrict their autonomy by prohibiting such sales. They counter arguments that women selling their ova are desperate and open to exploitation, by pointing out they might simply choose to make money in this manner and have a right to make that choice. But even when that choice is free, the destructive impact of this commercialization on societal values about the sale of human life cannot be avoided.

In Canada, we’ve legislated that sperm, ova and embryos are not for sale and that surrogate motherhood must be altruistic. We should keep it that way.

Margaret Somerville is Samuel Gale Profess or of Law and director of the McGill Centre for Medicine, Ethics and Law and is a leader in the discuss ion of ethical questions in medicine.

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