If there is not a law against something, that does not mean you should attempt to do it. Our very own Andrew Vorzimer is quoted in this article, which addresses the sale of grossly mislabeled “donated eggs.”
With political dividing lines carved deep into the collective consciousness, wading through the ethical minefield of embryo creation and destruction is a challenge. A recent New England Journal of Medicine (NEJM) article, “Made-to-Order Embryos for Sale — A Brave New World?” by I. Glenn Cohen and Eli Y. Adashi tackles the controversial issue of for-profit embryo creation. Possibly in an attempt to come out on a particular side of the political line, it sweeps what is truly terrifying about the practice under the rug.
The issue gained prominence last November, when the Los Angeles Times covered a Davis fertility clinic, California Conceptions, and their falsely named Donated Embryo Program. “Donated embryos” typically refer to the gift of embryos left over from a couple’s IVF procedure to another, infertile couple. The embryos belong to the people whose gametes created them, and they make the decision about whether, when and to whom they should be given.
What California Conceptions does is completely different: It creates batches of embryos from donated sperm and eggs, keeps them in an embryo bank on site, and divvies them up to sell to multiple parties for a profit. As the LA Times reporter put it, “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.”
The news about California Conceptions’ program caused a surge of public outrage (well chronicled here by Dr. Craig Sweet, medical and practice director of Embryo Donation International.) Andrew Vorzimer, a Los Angeles fertility lawyer said,
“Make no mistake, this is commodification. These are not donated embryos. Rather, they are embryos created from donors hand-selected by California Conceptions. It is one step removed from a mail order catalog. The only difference is that the product being sold is nascent human life.”
Cohen and Adashi do not share this concern. They compare the practice of creating and selling embryos to the sale of gametes and to the use of gametes and embryos for stem cell research. They conclude that, “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.”
But made-to-order embryos present a different set of questions. Reverting to the reasoning behind other technologies or practices does not address what is unethical about this.
For example, they make the argument that embryo destruction for the purpose of stem cell research raises concerns about “respect for personhood” comparable to those raised about “made-to-order” embryos. But this is only the case if you believe that embryos inherently have a claim to personhood. If you do not share this view, then the authors are leaving out the crucial difference: the embryos used for stem cell research will never become people. However, the creation of an embryo that is implanted into a woman (with a pregnancy-or-your-money-back guarantee) is about “respect for personhood” because it turns actual nascent life into a commodity, sold for a profit just like any other.
That is what is unique about this practice. But the NEJM article dismisses this and concludes that there is really only one important difference: “the lack of clear legal guidance as to the parentage of the embryos in question.”
“Parentage” is plainly not the real issue. As is the norm with gamete donation, the sperm and egg donors that were used to create the embryo would not be likely to have any claim to parenthood. The embryos will actually not have any kind of “parentage” at all. They will rather be owned by the fertility clinic, until a woman implants one into her womb.
California Conceptions markets their service as cheaper than using third-party eggs and IVF, and less time consuming than adoption. But it’s important to note that along with the heightened element of commodification, an additional imperative for “design” has seeped into their approach. To offset their costs, they have to produce embryos that multiple couples will find desirable as products. Cohen and Adashi may not find these “eugenic overtones” worrying, but acknowledging their existence is telling enough.
There is no federal law governing the sale of embryos and Cohen and Adashi note that it “appears to be legal in all but two states.” Indeed, this was the justification offered by Jennalee Ryan, who gained notoriety several years ago after advertising “the world’s First Human Embryo Bank” online. That turned out to be a failed business plan, run from her living room, but as she explained, “You know how it works? If there is no law against it, it’s legal.”
It’s one thing for eccentric business entrepreneurs to try to exploit a poorly regulated system. The fact that established scholars have made the case that we should accept selling embryos as ethical is much more troubling.