I’ve been running a couple of discussion threads here–one trying to catalog possible harms from third-party reproduction and one on the role of gender and altruism in the same context. I’ll assume some familiarity with the content of those posts and the discussion they spurred as I move forward here. I’m also going to assume for the moment that I’ve generated an adequate list of concerns to be taken into account in establishing a system that uses third-party gametes. It’s never too late to go back and add more if they come to light, of course.
I think the various ways you could structure the use of third-party gametes can be laid out along something like a spectrum and the way I am going to start this discussion is by identifying the two ends of the spectrum. That’s likely all I’ll get to in this post, especially as I am now going to pause for a word about terminology. (Actually, I only got as far as examining one end of the spectrum today.)
I’ve referred to use of “third-party gametes” and “third party reproduction” and I should explain why and what I mean by that. I mean reproduction that uses gametes from a person who is not going to be a legal parent. The obvious instances of this is when a couple uses sperm or eggs provided via a bank of some sort. The couple plans to parent the child, so they are the first and second parties. The provider of sperm/eggs is a third-party and so it’s “third-party reproduction.” One thing to note: the term “third-party” can be a little misleading. When a single woman uses sperm from a sperm bank to have a child, she’s the first party and the provider of the sperm is a third party and there isn’t any second party.
Sorry to take so long about this, but I think the term may be helpful. I’m open to modifying it or discarding it.
Now–the spectrum. It seems to me that at one end would be rule saying that no third-party reproduction would be permitted. It’s worth thinking about what that might mean/how it might look. (Let’s be clear that I’m not endorsing this–just exploring the topic.)
You could close down all the businesses that provide third-party gametes. You could also directly criminalize the production of or use of third-party gametes. (After all, even without sperm banks people engage in low-tech third-party reproduction.)
But perhaps the most effective step would be to say that as a matter of law there are no third-parties. What that means, I think, is that you’d say that anyone who provided the gametes is necessarily a legal parent. A man might still provide sperm for ART but if he did he’d be a legal parent of any resulting child. This negates the main purpose of third-party reproduction. A couple would by far less likely use third-party gametes if the end result was that one member of the couple would end up as a legal co-parent with the gamete provider. A single mother wouldn’t use third-party gametes because in the end she wouldn’t be a single mother–she’d be a c0-parent with the gamete provider.
Of course you could go down this road anyway and have the gamete provider surrender parental rights after the birth of the child while the partner (if there is one) adopts the child. But that’s both more complicated and more iffy than current practice. And some places wouldn’t let the gamete provider surrender parental rights if it left only a single parent.
It also seems to me that if you changed the rules to ensure that the gamete provider is always a parent this would drive people towards use of anonymous providers. (If no one knows who the provider is, then there is someone out there with parental rights, but no chance they’ll be exercising them in a way that causes trouble.) I assume this is an unacceptable state of affairs to anyone who wants to do away with use of third-party gametes, so it seems to me you’d also need to bar use of anonymous gametes to prevent people from working around your purpose.
So in sum, at one end of the spectrum you’d have a system with two rules:
- If you provide gametes for reproduction then you are a legal parent of any resulting child
- All gamete providers must be fully identified
That’s it for today.