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9-2004

Bonnie Steinbock University at Albany, State University of New York, [email protected]

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Recommended Citation THE MOUNT SINAI JOURNAL OF MEDICINE Vol. 71 No. 4

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BONNIE STEINBOCK, PH.D.

Abstract This article examines the ethics of egg donation. It begins by looking at objections to noncommercial gamete donation, and then takes up criticism of commercial egg donation. After discussing arguments based on concern for offspring, inequality, commodification, exploitation of donors, and threats to the family, I conclude that some payment to donors is ethically accept- able. Donors should not be paid for their eggs, but rather they should be compensated for the burdens of egg retrieval. Making the distinction between compensation for burdens and payment for a product has the advantages of limiting payment, not distinguishing between donors on the basis of their traits, and ensuring that donors are paid regardless of the number or quality of eggs retrieved. Key Words: Egg donation, ethics, commodification, payment, coercion, exploitation, informed consent, altruism, families.

BOTH PAYMENT FOR EGG DONATION and payment possibility that there will be a child, or children, for surrogacy raise ethical issues. I will address genetically linked to her out there in the world, only egg donation, for two reasons. First, more she does not have to contemplate surrendering a has been written about surrogacy than about egg child to whom she has given birth. Additionally, donation. Second, and more important, the two a child born from a surrogate arrangement may practices raise very different ethical issues. Sur- feel abandoned by the biological mother, just as rogacy, or contract pregnancy as some prefer to an adopted child often does. The feelings of re- call it, involves giving birth to a child and then jection by such children are likely to be com- waiving one's rights to custody of that child. In pounded by the recognition that the birth moth- a few well-publicized cases, surrogates have ers conceived them and relinquished them for changed their minds and attempted to keep the money. It is implausible that a child conceived children. This has never, to my knowledge, oc- through egg donation would feel the same way. curred with egg donation. This is because there Finally, whatever may be wrong with commer- is a huge psychological and emotional differ- cial egg donation, it cannot plausibly be charac- ence between giving someone else your egg to terized as "baby selling." gestate and deliver a baby, and gestating and de- livering a baby yourself and then giving that A Terminological Point: "Donors" vs. baby to someone else. Indeed, in most cases, the "Vendors" egg donor does not even know if a child resulted from her donation. While a donor certainly Some view the term "commercial egg dona- should think about how she will feel about the tion" as an oxymoron. Thomas Murray (1) writes, "Despite the repeated reference to 'donors' of both ovum and sperm, paying indi- Address all coirespondence to Bonnie Steinbock, Ph.D., Professor viduals for their biological products makes and Chair, Philosophy, Humanities 257, SUNY Albany, 1400 them vendors, not donors." He recommends Washington Avenue, Albany, NY 12222-0001; email: stein- that the term "AID" (artificial insemination by [email protected] donor) should really be "AIV" (artificial insem- Presented at the Issues in Medical Ethics 2001 Conference on "Medicine, Money, and Morals" at the Mount Sinai School of ination by vendor). In response, some maintain Medicine, New York, NY on November 2, 2001, and updated as that paying gamete providers does not make of February 2004. them vendors, because they are not being paid

© THE MOUNT SINAI JOURNAL OF MEDICINE Vol. 71 No. 4 September 2004 255 256 THE MOUNT SINAI JOURNAL OF MEDICINE September 2004 for a product, but are being compensated for ble, it does not follow that it is desirable, their time, inconvenience, and risk. I will have praiseworthy, or decent. more to say about this later. In the meantime, I The practice of commercial egg donation continue to use the term "donation" even when has come under severe criticism, but before ex- referring to the commercial enterprise, not be- amining the ethics of paying donors, we need to cause I want to prejudge the question of see if there is something intrinsically wrong whether payment is for the product or compen- about donating one's gametes to others for the sation, still less to prejudge the question of purposes of reproduction, even in the absence moral acceptability, but simply because it is ac- of any payment. cepted usage. Noncommercial Gamete Donation Law and Morality The Roman Catholic Church opposes ga- One important distinction is between the le- mete (ovum or sperm) donation because of its gality and the morality of egg donation. While views on the unity of sexual intercourse and legality and morality are not entirely separate, procreation. Sexual intercourse without open- and arguments for making something illegal are ness to procreation is wrong, the Church claims often moral arguments, the two often raise dif- (hence its opposition to birth control), but ferent issues. In Germany, Norway, Sweden, equally so is procreation without sexual inter- and Japan, the use of donor eggs is illegal (2). course (hence its opposition to most forms of It is unlikely that egg donation could be banned assisted reproduction). Even the "simple case" in the United States, because such a ban would of in vitro fertilization (IVF), where the hus- probably violate the constitutional right to pri- band and wife provide the gametes and the re- vacy (3). What about banning payments to egg sulting embryos are implanted in the wife's donors? In Canada, there is proposed legislation uterus, is impermissible, according to Catholic to ban the "buying and selling of eggs, sperm teaching. The wrong is compounded in gamete and embryos, including their exchange for donation, as the introduction of "a third party" goods, services or other benefits...." The Minis- violates the unity of marriage. In addition, ac- ter of Health adds (4), "This prohibition will cording to the Rev. Albert Moraczewski, egg come into force over a period of time to ease the donation is demeaning to women, "A donor transition from the current commercial system woman is not really being treated as a person," to an altruistic system." Legislation in the he said. "Whether she is paid or acts out of United States banning payment to egg donors kindness, her egg is being used, so she is not might not withstand constitutional scrutiny. It fully treated as a person whose reproductive ca- would depend on whether or not banning pay- pacity should be expressed as a result of the ment is viewed as an undue restriction on pro- love of her husband" (6). creative liberty. The point I am making is that But why is egg donation demeaning? Pre- even if there are serious moral objections to sumably blood donation is not demeaning, and commercial egg donation, there could be con- does not fail to treat the donor as a person. What stitutional barriers to making it illegal. is the difference? The answer, according to the When the topic is the morality of a contro- Vatican, is that egg donation involves a wrong- versial practice, an important question is ful use of reproductive capacity. But then to whether it is morally permissible. However, this characterize egg donation as demeaning is not to is not the only question we can ask. Margaret give a reason why it is wrong; rather, egg dona- Little characterizes moral permissibility as "the tion is demeaning because it is wrong. To see thinnest moral assessment." Writing about egg donation as demeaning, one must accept the abortion. Little (5) says, "... many of our deep- principle that reproductive capacity should be est struggles with the morality of abortion con- exercised only through a sexual act in the concern much more textured questions about its text of a loving marriage. And that principle is placement on the scales of decency, respectful- justified by the supposedly indissolvable unity ness, and responsibility. It is one thing to decide of sex, love and procreation. There is nothing that an abortion was permissible, quite another inconsistent or incoherent in this view, but it is to decide that it was honorable; one thing to de- unlikely to be persuasive to non-Catholics who cide that an abortion was impermissible, quite accept contraception or assisted reproduction. another to decide that it was monstrous." So A different objection to gamete, specifically even if paying egg donors is morally permissi- sperm, donation comes from Daniel Callahan. Vol. 71 No. 4 PAYMENT FOR EGG DONATION AND SURROGACY-STEINBOCK 257

AID is "fundamentally wrong," according to child-rearing responsibilities without much Callahan, because a sperm donor is a father, thought is reprehensible; one thinks of Rousseau, who has all the duties of any other biological who took five illegitimate children he had with father, including rearing responsibilities. Sperm his mistress to an orphanage. But is that what donation, according to Callahan, is as irrespon- gamete donors do? Sperm and ova are not, after sible as abandoning a woman when she be- all, children. In my opinion, gamete donors do comes pregnant. He writes (7): not give others their children to raise. Rather, they enable people who very much want to have The only difference between the male who children of their own to do so by providing impregnates a woman in the course of sex- them with genetic material. A woman who does ual liaison and then disappears, and the man not have eggs can still experience gestation, who is asked to disappear voluntarily after birth, and lactation, giving her a biological, if providing sperm, is that the latter kind of ir- not genetic, connection to her child. In addition, responsibility is, so to speak, licensed and if her husband's sperm is used, he will also have legitimated. Indeed, it is treated as a kindly, a biological connection to the child. beneficent action. The effect on the child is of course absolutely identical — an unknown, The Need for Egg Donation absent father. Egg donation began in the early 1980s; the Certainly, it is true that the child born from first pregnancy using this technique was re- sperm donation does not know his or her ge- ported in Australia in 1983 (2). Ovum donation netic father. But it is not true that these children is offered to women with three types of repro- are fatherless, as is true of most children whose ductive problems. Women in the first group fathers abandon their mothers. They do have fa- lack functioning ovaries. Those in the second thers— the men who are raising them. Why, one group have no detectable ovarian failure, but may ask, is it irresponsible to enable an infertile they do not achieve pregnancy through IVF. man, who wants very much to parent a child, to These include women for whom ovarian re- become a father? Sperm donors, it may be said, trieval is unsuccessful and those who cannot do not evade or abandon their obligations, as do undergo egg retrieval, usually because scarring men who abandon women they have impreg- or endometriosis prevents access to the ovaries. nated, but rather transfer their rearing rights and A third group of women use donated eggs for duties to others. These others may be men or genetic reasons. they may be single women or lesbian couples, When egg donation was first introduced, the who are increasingly using sperm donation. Is it eggs came from either close friends or relatives, wrong to donate sperm if the resulting child in a practice known as "known donation," or will grow up in a fatherless home? Is this an they came from women who were undergoing abandonment of one's responsibility as a fa- IVF themselves. Because the number of eggs ther? In my view, this depends on whether the retrieved exceeded the number of embryos that child can be expected to have a reasonably good could be safely implanted, women undergoing life. There is evidence that children in single- IVF often had extra eggs, which they were often parent households are at a disadvantage (since willing to make available for donation. This it is usually more stressful to raise a child on source greatly diminished when it became pos- one's own), but growing up in a lesbian family sible to freeze embryos (egg freezing is still ex- does not appear to have a negative impact on perimental). Another source of eggs was from quality of parenting or children's psychological patients undergoing tubal ligation (6). How- development (8). Many lesbian mothers attempt ever, the demand for donors soon outstripped to mitigate the disadvantages of not having a fa- these sources and programs began to recruit ther by making sure that there are other men in women from the public at large through adver- their child's life. tising. Thus, commercial egg donation came David Benatar (9) acknowledges that "ga- into being. mete donation is not a unilateral abandonment of The main reason for the increasing demand responsibility," but rather a transference of re- for egg donors is that, for some women, using sponsibility. Nevertheless, Benatar thinks that an egg donor significantly improves their the responsibility of child rearing is one that chances of becoming pregnant. "An infertile should not be transferred, that doing so shows a woman using her own eggs for in vitro fertiliza- lack of moral seriousness. Certainly, transferring tion has about a 15 to 20 percent chance of be- 258 THE MOUNT SINAI JOURNAL OF MEDICINE September 2004 coming pregnant, less if her ovaries are scarred dominal cavity. If the hyperstimulation is mild, by infection or endometriosis or are simply too it will recede after the donor's next menstrual old to function effectively. With an egg donor, period. If the hyperstimulation is moderate, her chances of bearing a child shoot up to 30 or careful monitoring, bed rest, and pain medica- even 40 percent" (10). The older the woman, tion may be necessary. Severe hyperstimulation the greater are her chances of becoming preg- is infrequent, but may cause serious medical nant if she uses donor eggs. According to one complications, such as blood clots, kidney fail- article (11), "a 44-year-old woman attempting ure, fluid accumulation in the lungs, and shock. IVF with her own eggs at Pacific Fertility has a This condition can be life-threatening. Severe 3.5 percent chance of becoming pregnant. If hyperstimulation occurs in about 1-10% of that same woman uses a donor egg from a IVF cycles. It may result in one or both of the younger woman, her chances of giving birth are donor's ovaries having to be removed. 50 percent." For some women, therefore, egg The mature eggs are removed from the donation provides the only realistic option for ovaries in a minor surgical procedure called having a child. "transvaginal ovarian aspiration." It is usually done in the physician's office. First, the donor What Is Involved in Egg Donation? will be given painkillers or put under intra- venous sedation. Then, the physician inserts a The process is very time-consuming. First, needle through the vagina to aspirate the eggs the prospective donor must be accepted into a out of the follicles. According to one descrip- program; this may involve several visits. She tion, "The procedure takes 15 to 60 minutes will undergo physical and gynecological exam- and, except for grogginess and some mild inations, blood and urine tests, and a psycho- pelvic discomfort, there should be no after- logical examination, and participate in discus- effects (12)." Some may experience more than sions of the responsibilities involved in becom- mild pelvic discomfort: one egg donor de- ing a donor. Because eggs cannot be frozen (or scribed it (on a website for donors) as "feeling "banked"), the actual donation cycle will not like somebody punched you in the stomach." occur unless the prospective donor is accepted, Many donors find the actual retrieval less un- is matched with a recipient, and has given her pleasant than the side effects from the drugs. consent. The following is typical of the medical Why Do Women Want to Donate? process undergone by donors. First, the donor may take a prescribed medication for one or Given the rigors of egg donation, why more weeks to temporarily stop her ovaries' would a woman who was not undergoing IVF or normal functioning. This makes it easier to con- tubal ligation be willing to undergo egg dona- trol her response to fertility drugs which will be tion for strangers? Some donors are curious used later in the cycle. She will be given an in- about their own bodies and fertility. They want jection by the physician or instructed in how to to know if their eggs are "good" (10). Some inject the medication daily at home. The med- have a personal reason for helping, such as hav- ications may cause hot flashes, vaginal dryness, ing friends or relatives who have struggled with fatigue, sleep problems, body aches, mood infertility or have undergone miscarriages. Oth- swings, breast tenderness, headache and visual ers are attracted by the idea of giving "the gift disturbances. of life," as the advertisements for egg donors Next, medications must be injected over a put it. One donor explained it as follows, on a period of about 10 days to stimulate her ovaries donor website: "I can't even describe how it felt to mature a number of eggs (typically 25 - 30) to know that in some small way I helped this for retrieval. Frequent early morning transvagi- couple achieve a huge dream in their life." But nal ultrasound examinations and blood tests while most egg donors are motivated in part by (about every 2-3 days) are needed to monitor altruistic considerations, most women would the donor's response to the drugs, and adjust the not be egg donors for strangers without finan- dose as needed. While using injectable fertility cial compensation. Many say that egg donation drugs, the donor may experience mood swings, would be impossible if they were not compen- breast tenderness, enlarged ovaries and bloat- sated for lost work time, transportation, daycare ing. Occasionally, these medications result in costs, and the like. However, most donors think ovarian hyperstimulation syndrome, in which that reimbursement for pecuniary expenses the ovaries swell and fluid builds up in the ab- alone is not enough. They think that it is only Vol. 71 No. 4 PAYMENT FOR EGG DONATION AND SURROGACY-STEINBOCK 259 fair that they should receive reasonable com- Some infertility experts maintain that the ads pensation for what they go through in order to offering large sums of money for special donors provide eggs: the inconvenience, burden, and are not genuine offers, but rather a "bait and medical risk they have endured. switch" tactic to recruit donors. Donors who re- spond are told that the ad has been filled, but How Much Payment? that there are other recipients (offering substantially less money) seeking donors. The Daily Compensation has been increasing rapidly Californian ad mentioned above specifically over the years. In the mid-1980s, egg donors stated, "This ad is being placed for a particular were paid only about $250 per cycle. Today, the client and is not soliciting eggs for a donor payment is usually between $1,500 and bank." I recently e-mailed the International In- $3,000 —depending on the location of the fertility Center in Indianapolis, asking them if clinic. In an effort to attract donors, some clin- the fee of $35,000 mentioned in the news report ics offer substantially more. In 1998, Brooklyn was actually paid to anyone. They responded IVF raised its donor compensation from $2,500 that the "high-profile client" on whose behalf to $5,000 per cycle to keep pace with St. Barn- they had advertised did not find an ovum donor abas Medical Center in nearby Livingston, New meeting the requirements, and so no ovum Jersey. "It's obvious why we had to do it," says donor was compensated $35,000 for a cycle. I Susan Lobel, Brooklyn IVF's assistant director. have not been able to discover if any "special "Most New York area IVF programs have fol- donors" have received the sums in the ads. lowed suit" (13). Most people would distinguish between rea- Donors with particular attributes, such as sonable compensation and offering $30,000 or enrollment in an Ivy League college, high SAT more to special donors. What explains the neg- scores, physical attractiveness, or athletic or ative reaction most people experience when musical ability have allegedly been offered far learning of these huge offers? Perhaps we think larger sums. "The International Fertility Center that people who are so intent on getting supe- in Indianapolis, Indiana, for instance, places ads rior eggs (or "designer genes") will be incom- in the Daily Princetonian offering Princeton petent parents. Instead of anticipating having a women as much as $35,000 per cycle. The Na- child to love, it seems that the couple is focus- tional Fertility Registry, which, like many egg ing on the traits their child will have. They are brokerages, features an online catalogue for not satisfied with having a healthy child, which couples to browse in, advertises $35,000 to is the reason for genetic screening of donors. $50,000 for Ivy League eggs" (13). In March Nor is their aim simply to have children who re- 2000, an ad appeared in The Daily Californian semble them, something that adoptive parents (the campus newspaper for the University of also usually want. These are reasonable re- California, Berkeley), which read, "Special Egg quests, whereas seeking donors from Ivy Donor Needed," and listed the following criteria League schools, with high SATs and athletic for a "preferred donor": "height approximately ability, indicates something else. The placers of 5'6", Caucasian, S.A.T. score around 1250 or these ads want, and are willing to pay huge high A.C.T., college student or graduate under sums to get, a "superior" child, and this seems 30, no genetic medical issues." The compensa- inconsistent with an ideal of unconditional tion was listed as $80,000 "paid to you and/or parental love and acceptance. the charity of your choice." In addition, all re- Moreover, anyone who thinks that it is pos- lated expenses would be paid. Extra compensa- sible to guarantee that a child will be brilliant, tion was available for someone especially gifted athletic, musically talented, or even blond in athletics, science/mathematics or music. haired and blue eyed, is likely to be disap- Perhaps the most well-known instance of pointed. According to several prominent geneti- commercial egg donation is Ron Harris's web cists writing in The New Republic "despite what site, www.ronsangels.com, which offered mod- your high school biology teacher told you, els as egg donors, "auctioning their ova via the Mendelian rules do not apply even to eye color Internet to would-be parents willing to pay up or hair color" (16). Even genetic diseases to $150,000 in hopes of having a beautiful widely considered to follow Mendelian rules, child" (14). A subsequent story suggested that like sickle-cell anemia, may be more or less se- the "egg auction" might just be a publicity stunt vere, due to the interaction with other genes in to attract people to an erotic web site, a claim the genome. Predicting or determining non- that a spokesman for Mr. Harris denied (15). disease-related traits like intelligence, athletic 260 THE MOUNT SINAI JOURNAL OF MEDICINE September 2004 ability, or musical talent is even less likely, as by learning that the woman who provided the there are probably thousands of genes that play egg from which he or she was conceived re- a role. Finally, the interaction of genes and the ceived payment? It seems to me that this con- environment makes it very difficult to know in cern stems from an inappropriate analogy with advance what phenotypic traits an individual commercial surrogacy. Children might well be will have. This is not to deny that traits like in- upset to learn that their biological mothers gave telligence or athletic ability have a genetic com- them away for money, but it seems implausible ponent, but only to say that they cannot be guar- that any child would have similar feelings about anteed by the choice of an egg donor (who, an egg donor. This being the case, it is hard to after all, only provides half the genes). We may see why children would be affected by whether well worry about the welfare of a child who donors were paid or not. fails to live up to parental expectations, after Another moral objection to these ads is that the parents have spent all that money. they are elitist and violate a principle of equality. The welfare of offspring is a legitimate con- There is something offensive in the idea that the cern, despite philosophical worries over how to eggs of Princeton women are worth $50,000, conceptualize it (17). If commercial egg dona- while the eggs of women at Brooklyn College tion led to poor parenting or had adverse effects are worth only $5,000. (John Arras has jokingly on the parent-child relationship, that would be an suggested that perhaps US News & World Report important moral objection. Yet such an objection should include how much their coeds can get for might not justify the conclusion that the buying their eggs in their rankings of colleges [personal and selling of eggs is morally impermissible, communication].) Yet it is not clear why we still less that it should be legally banned. For we should be offended at the difference in the price do not think that procreation is morally permissi- put on eggs if we are not offended by differences ble only for ideal parents. Nevertheless, concern in employment opportunities or salary. about effects on parenting and the parent-child Some people are disturbed not only by the relationship fall under the heading of "thick" payment of large sums to egg donors, but by any moral assessments, and may be legitimate. payment at all. Commercial egg donation is crit- On the other hand, it is possible that couples icized on the grounds that this "commodifies" who place the ads understand that they cannot the human body or "commodifies" reproduction. determine their children's traits and that they do not have false expectations. Nevertheless, they Commodiflcation might say, they want to give their child an advantage, a better chance at traits likely to help To commodify something is to give it a the child in life. It is not that they can only love market price. That in itself is not a bad thing. a tall, brilliant, athletic child, they might say, We could not buy our groceries or clothes or the but rather than they are well aware how advan- morning paper if they did not have a market tageous such traits can be. Why, they might ask, price. If some things should not be commodi- if they have the money to spend, should they fied, we need a rationale for this. This is not al- not use it to give their child the best chance in ways forthcoming. As the guest editors of a re- life? Indeed, some have argued that prospective cent special issue on commodification in the parents are morally required to have the best Kennedy Institute of Ethics Journal say (20), child they can (18). "Unfortunately, a great deal of the talk about The Human Fertilization and Embryology 'commodification' has been clumsy and sloppy. Authority (HFEA) in the U.K. cited "the physi- The term has been used as a magic bullet, as if cal and psychological well-being of children saying, 'But that's commodification!' is the born from egg donation" as a reason to ban all same as having made an argument." payments, not just large ones, to egg donors. The challenge is to distinguish legitimate According to one member of HFEA (19), "Chil- activities in which the human body or its abili- dren produced by egg donation could be ad- ties are used, from those thought to be illegiti- versely affected psychologically if they knew mate. As Ruth Macklin has put it (21), "Every that payment had been made as part of their cre- service in our economy is sold: academics sell ation." This seems not only speculative, but im- their minds; athletes sell their bodies.... If a plausible. Children may be psychologically pretty actress can sell her appearance and skill harmed if they sense that their parents' love is for television, why should a fecund woman be contingent on their having certain traits, but denied the ability to sell her eggs? Why is one why would a child be psychologically harmed more demeaning than the other?" Vol. 71 No. 4 PAYMENT FOR EGG DONATION AND SURROGACY-STEINBOCK 261

Those who tend to oppose commodification selling one's hair is morally permissible, but typically portray those who are skeptical about selling one's gametes is not, what is the moral its moral wrongness as being enamored of the difference? market, of thinking that freedom of choice is It might be thought that I am missing an ob- the only or the most important moral value. vious point. Selling one's hair is not wrong be- They say, "...there are some categories of cause hair is unrelated to sex and reproduction. human activities that should not be for sale Selling one's eggs is akin to selling one's body (22)." But this, even if true, is unhelpful. We in prostitution, and "we all know" that prostitu- want to know what things and activities should tion is wrong. Actually, prostitutes do not liter- not be for sale and why! Michael Walzer gives ally sell their bodies, since they do not relin- voting as an example of a market exchange that quish control. It is more accurate to say that should be blocked. Citizens may not sell their they rent them out, or rather that they perform votes or vote a certain way for a price (23). This sexual acts in exchange for money. Most of us is so even if the exchange is fully voluntary and believe that this is wrong, but this belief may be even if it makes both parties better off. The rea- due in part to sexual puritanism. Perhaps the son why votes may not be sold is that this con- distaste we feel for prostitution stems (at least flicts with the rationale for having the institu- in part) from the way prostitutes have typically tion of voting in the first place. Voting is in- been regarded in patriarchal societies — as tended to express the will of the people in a women of no value, undeserving of respect. democracy. Democracy is subverted if votes Imagine a world in which those who provided can be bought. sexual services were treated with as much re- What we want, then, is a similarly persua- spect as psychotherapists, trainers, and sive rationale for the wrongness of selling masseurs are in our society. It might be that, human body parts. Suzanne Holland attempts to under such conditions, prostitution would not give one. She writes (24): be as degrading. But even if this argument is in- valid, there is a vast personal difference be- For many of us, our sense of the dignity of tween these two types of "selling," and there is humanity is fundamentally disturbed by the no obvious reason why paying egg donors is in- suggestion that that which bears the marks compatible with treating them with respect. of personhood can somehow be equated There are two more reasons why selling with property. We do not wish to have cer- eggs might be wrong. Providing eggs is both tain aspects of that which we associate with painful and risky. Perhaps offering money to our personhood sold off on the market for women will lead them to take undue risks, whatever the market will bear. opening up the potential for coercion or exploitation. In addition, some argue that payment Eggs should not be seen as property, according for eggs inserts the values of the market into the to Holland, because the human body is "inalien- family. I will consider these objections in turn. able." But what does this mean? To call rights "inalienable" is to say that they cannot be taken The Potential for Coercion or Exploitation away from us, though Joel Feinberg has argued that we can waive them (25). If calling the In its report on Assisted Reproductive Tech- human body "inalienable" means that others can- nologies, the New York State Task Force made not use my body or body parts without my per- the following recommendation (2): mission, that is undeniable. But why does this imply that I may not sell my gametes? If "in- Gametes and embryos should not be bought alienable" just means "may not be treated like and sold, but gamete and embryo donors property," then Holland has not given a reason should be offered compensation for the time why eggs are not property, but rather a tautology. and inconvenience associated with donation. The fact that something is a human body Payments to egg donors should not be so part does not make it obviously wrong to sell it. high as to become coercive or so low that In the novel Little Women, Jo sells her hair to they provide inadequate reimbursement for raise money for her father, who is serving as a time and inconvenience. chaplain in the Union Army. Surely that was not morally wrong of Jo, nor demeaning to her. In- Can offering large sums of money for eggs be deed, her willingness to part with "her one seen as coercive? That depends on the theory of beauty" is an unselfish and noble gesture. If coercion that one adopts (26). In one theory, to 262 THE MOUNT SINAI JOURNAL OF MEDICINE September 2004 coerce is to make a threat: do this or I will make terest. It is not paternalistic to refrain from tak- you worse off. The classic example is the high- ing advantage of someone's susceptibility to wayman who says, "Your money or your life." temptation. Clearly, potential egg donors are not coerced in Some people have tried to meet the charge this sense, no matter how much money is of- of commodification by distinguishing between fered to them. They can turn down the offer and compensating egg donors for their time, risk, be no worse off than they were. and inconvenience, and payment for their eggs. Perhaps this is too narrow a view of coer- This distinction has been challenged by several cion. Perhaps there can be "coercive offers" as commentators, including Ruth Macklin, who well as threats. Consider the following example: writes (21), "If there is something suspect about The Lecherous Millionaire: Betty's child commodifying human reproductive products, it will die without expensive surgery, which is not is similarly suspect to commodify human repro- covered by her insurance. Alan, a millionaire, ductive services." However, I think there are offers to pay for the surgery if Betty will have two reasons to distinguish between payment for sex with him. time, risk, and inconvenience, and payment for Alan is not threatening Betty. He will not eggs. First, if payment is viewed as compensa- harm her if she refuses. Yet there is a very real tion for the burdens of egg retrieval, then large sense in which she has "no choice," and for this payments based on the donor's college, height, reason we might see the offer as coercive. But or SAT scores would be unjustified. It is as bur- even if this is true, and there can be "coercive densome for a SUNY-Albany student as it is for offers," does this apply to egg donation? It a Princeton student to go through the egg re- might, if the money were offered to terribly trieval process. Additionally, if payment is poor women whose lives, or the lives of their compensation for the donor's time, risk, and children, depended on their donating eggs. A burden, then donors would be compensated re- woman whose only choice was to give away her gardless of the number or quality of eggs re- eggs or see her child die of starvation might trieved, whereas this makes no sense if payment well be seen as the victim of coercion. How- is for the product (eggs). Despite Macklin's re- ever, poor women are not usually sought out as jection of the product/service distinction, she egg donors. Typical egg donors are middle- makes precisely this recommendation. class, often professional, young women. It is If excessive payments exploit donors, so do simply not true to say that they have no choice payments that are too low. Justice would seem but to sell their eggs. to require that the women who go through the Very large offers of money could be quite rigors of egg retrieval be fairly compensated. tempting to any woman, not just those in des- Why are only egg donors expected to act altru- perate need of money. But, as Wertheimer istically, when everyone else involved in egg points out, offers are not coercive just because donation receives payment? In light of the sacri- they are tempting. And they are not coercive be- fices of time, risk, and burden that egg donors cause they are so good that it would be irra- make, it seems only fair that they receive tional to refuse. It is not coercive to offer some- enough money to make the sacrifice worthwhile. one a great job at double the salary she is currently earning (27). Other Worries About Exploitation However, if offers of large sums of money are not coercive, they may still be criticized as Concerns about the exploitation of egg being "undue inducements." Offering "too donors are not limited to payment issues. When much" money may be an attempt to manipulate the New York State Task Force on Life and the women into becoming donors. The lure of fi- Law completed its report on assisted reproduc- nancial gain may lead them to discount the risks tive technologies (2), one of its findings was to themselves and to make decisions they will that there were serious omissions in the process later regret. To take advantage of this is a form of gaining informed consent of egg donors. of exploitation. Donors did not always know how strenuous do- It might be argued that we should not at- nation would be, or how much time it would tempt to protect adults from irrational assess- take. They often had only the vaguest idea ments or choices they will later regret, because about who would pay their expenses, should this is paternalistic. However, paternalism in- there be medical complications stemming from volves preventing people from doing what they donation. In one study, researchers were told by want on the grounds that this is in their best in- a number of women that all of their follow-up Vol. 71 No. 4 PAYMENT FOR EGG DONATION AND SURROGACY-STEINBOCK 263 care was provided free of charge, but two ism in such cases is morally appropriate, as is women were billed for medical expenses for the case with blood donation, which also in- follow-up care and medical complications even volves minimal time and risk. The greater the though both were promised that the clinic burdens and risks, the less appropriate is the ex- would cover these costs: pectation of altruistic donation. For some critics, it is not concerns about One woman was promised follow-up care vulnerable donors that lie at the heart of their prior to donating, but after the donation, that objections to commercial egg donation, but care was denied. She sought out her own rather the effects on the families that are personal physician for a sonogram and had created, and ultimately on society at large. to pay hundreds of dollars out of pocket because she was uninsured at the time. (28) Threats to Families

Another woman fainted at work while tak- Tom Murray writes (1): ing hormonal injections. She had muscle spasms and started to convulse, and had to stay New reproductive technologies are a chal- overnight in the hospital. "The clinic denied lenge to our notions of family because they that her condition was related to the donation expose what has been at the core of the fam- and refused to pay for her hospitalization. She ily to the vicissitudes of the market. At the is currently fighting with her own health insur- heart of our often vague concerns about the ance and worker's compensation over the impact of new reproductive technologies, $3500 bill" (28). such as those about the purchase of human One of the most significant sources of con- eggs, is our sense that they threaten some- flict in egg donation is the pressure on health how what is valuable about families. care providers to hyperstimulate the donor to produce the maximum number of oocytes. The While Murray acknowledges that even noncom- more eggs, the better the recipient's chances at mercial gamete donation raises "morally rele- implantation, but the greater the danger to the vant difficulties" (presumably those raised by donor of suffering from hyperstimulation syn- Callahan [7] and Benatar [9], as well as the drome (28). One donor who testified before the issue of the introduction of "a third party" into advisory committee to the New York State Task the marital relationship), he thinks it likely that Force on Life and the Law revealed that one of these difficulties are outweighed by the good of her cycles had been stopped, but she had no creating new parent-child relationships. It is idea that this was due to excessive stimulation, payment that Murray finds morally objection- which had posed health risks to her. She able. He writes (1): thought that the reason so many eggs had been retrieved was that she was "super-fertile." One If you believe that markets, the values mar- of the fertility doctors on the committee said kets exemplify, and the relationships that that it was not uncommon for clinics to "flatter" typify market interactions, celebrate human donors in this way, to get them to be repeat freedom, and that such freedom is the pre- donors. Such deceptive treatment of donors is, eminent good, then none of this should in my view, a greater source of exploitation, bother you. If, however, you regard families and an area of greater moral concern, than of- as a sphere distinct from the marketplace, a fering payment. sphere whose place in human flourishing re- Altruistic egg donation would not necessar- quires that it be kept free of destructive in- ily be immune from exploitation. In fact, the cursions by the values of the market, paying true risks and burdens of egg donation might be gamete providers should trouble you. less likely to be revealed in a voluntary system than in a carefully regulated commercial mar- I think we would all agree that families ket, if only because the counseling and screen- should be protected from destructive incursions ing of donors costs money. Yet altruism can be by the values of the market—but which incur- an appropriate factor. When egg donation im- sions are destructive? Presumably it is okay to poses little or no extra burden, as in the case of pay the people who care for our children: day women who are undergoing IVF themselves or care workers, nannies, and babysitters. These women having tubal ligations, there is less rea- transactions, supposedly, do not commercialize son to compensate women for donating. Altru- families. Also, presumably, there is nothing 264 THE MOUNT SINAI JOURNAL OF MEDICINE September 2004 wrong with paying those who provide fertility ing to the recommendations of the Ethics Com- treatment: doctors, nurses, receptionists, mittee of the American Society for Reproduc- lawyers, and genetics counselors. So what is it tive Medicine" (29). However, Sauer's figure about paying gamete providers that is threaten- apparently takes into consideration only the ing to families? Murray does not say. One can number of hours spent traveling to and waiting agree with his view (1) that "thinking of chil- at the clinic, together with the time required for dren as property, and of family life as essen- the procedure. It does not consider compensa- tially a series of commercial transactions, is a tion for risk or discomfort, or the time that grievous distortion," but it is unclear what this some donors will have to take off from work or has to do with paying gamete donors. Eggs are classes due to side effects from the drugs they not children, and buying eggs (or even em- must take. When these factors are considered, bryos) is not buying children. Still less is it reimbursement of $5,000 may not be an "inde- clear why reasonable compensation to egg cent proposal." Perhaps if, like Sauer, doctors providers should turn family life into a series of are worried that (29) "most importantly, and commercial transactions. most unfortunately, these expenses will have to be passed on directly to our patients, who are Incomplete Commodification: already spending considerable sums of money A Reasonable Compromise to seek this procedure," they might consider re- ducing their fees. Is there room for compromise between If compensation were completely banned, those who prefer an altruistic system of egg do- few women would agree to be egg donors. Very nation and those who think that egg donors little egg donation would occur, and this would should be paid? Suzanne Holland suggests we be unfortunate for those women who cannot take an approach she calls "incomplete com- have babies any other way. This is part of the modification" (24): justification for paying egg donors; the other part has to do with treating donors fairly. At the With respect to gamete donors, an incom- same time, legitimate concerns about the psy- pletely commodified approach could recog- chological welfare of the offspring created, and nize that donors are contributing to some- the potential for exploitation of donors, speaks thing that can be seen as a social and per- to the need to limit payments to amounts that sonal good (remedying infertility), even as are reasonable and fair. they deserve a degree of compensation that constitutes neither a financial burden ([if References they are paid] too little) nor a [temptation to undergo] health risk ([if paid] too much), I 1, Murray TH, New reproductive technologies and the family. In: Cohen CB, editor. New ways of making babies: the case of see no reason not to follow the suggestion of egg donation, Bloomington (IN) and Indianapolis (IN): Indi- [the] ASRM [American Society for Repro- ana University Press; 1996, pp, 51-69, ductive Medicine] and cap egg donor com- 2, Assisted reproductive technologies: analysis and recommenda- pensation at $5000.... Allowing some com- tions for public policy. New York: The New York State Task pensation, but capping it at $5000, would re- Force on Life and the Law; 1998, p, 237, duce the competition for eggs and perhaps 3, Bonnicksen AL, Private and public policy alternatives in oocyte curb the lure of advertising that is targeted donation. In: Cohen CB, editor. New ways of making babies: the case of egg donation, Bloomington (IN) and Indianapolis to college students in need of "easy money." (IN): Indiana University Press; 1996, pp, 156-174, 4, Executive summary. New reproductive and genetic technolo- Not everyone agrees that $5,000 is appro- gies: setting boundaries, enhancing health, Jun 1996 p, 7; priate compensation. Mark V. Sauer, a repro- Health Canada (last updated 2002-02-07), ductive endocrinologist at Columbia-Presbyter- 5, Little MO, The morality of abortion. In: Wellman C, Frey R, editors. Companion to applied ethics. Oxford (UK): Black- ian Medical Center, was "shocked" by the deci- well; 2003, sion of St. Barnabas to double compensation 6, Brozan N, Babies from donated eggs: growing use stirs ques- from the community standard of $2,500 to tions, N Y Times 1988 Jan 18; Sect, A: 1, $5,000 per cycle: "Even if one considers the 7, Callahan D, Bioethics and fatherhood, Utah Law Rev 1992; time spent in traveling to the local office and 3:735-746, waiting for an ultrasound exam to be 'work,' 8, Golombok S, Tasker F, Murray C, Children raised in fatherless donors now will be earning in excess of $300 families from infancy: family relationships and the socioe- motional development of children of lesbian and single het- per hour. I find it hard to believe that anyone erosexual mothers, J Child Psychol Psychiatry 1997; thinks this 'reasonable compensation' accord- 38(7):783-791, Vol. 71 No. 4 PAYMENT FOR EGG DONATION AND SURROGACY—STEINBOCK 265

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