Some Further Thoughts on The Sale of Pre-Made Embryos

Just before Thanksgiving I put up a post about a fertility clinic in CA that is offering pre-made embryos for sale.  (This is rather a coarse way of putting it, perhaps, but it makes the point.)   There’s a lot to think about here and there have been a number of thoughtful comments.  I wanted to return to the topic and offer a few further thoughts to continue the conversation.

First, for those who think that selling eggs and sperm is wrong, this too is obviously wrong.   I think it is fair to say that for those people it is wrong for the same reasons selling sperm and eggs would be wrong–and there are a whole array of reasons.  While I think there is an important conversation here–about the propriety of selling sperm/eggs–it is one that has already received extensive attention here.

This why I want to focus on why those who are comfortable with a market for eggs/sperm might nevertheless draw the line at the market for pre-made embryos.  It is worth noting that this is where the line is drawn by many in the fertility industry.    And of course, some people might decide not to draw a line here but to permit the sale of premade embryos as well.

Second, there is at least one simple justification for drawing a line between sale of  gametes and sale of premade embryos:   If you believe that life begins when the sperm fertilizes the egg (which I think is often called “conception”) then that could be one reason to say it is not okay to sell the pre-made embryos–because that is selling life.    Interestingly, I don’t think this is why most people who would draw a line here do so.   My impression (and it is only that) is that those who think life begins at conception generally object to sale of sperm and eggs, too.   I’m not sure, however, that this is logically necessary.  It seems to me taht you could have a weaker version of the idea that life begins at conception and this could lead you to the conclusion that embryos are qualitatively different from gametes in a way that mandates different treatment.

Third, there is an economic/class aspect to this discussion I’d like to highlight.  I think it is generally agreed that most people would rather use custom-made embryos instead of pre-made embryos.  There are a number of reasons why the custom made option is generally more desirable.   For one thing, you get to pick the specific gametes.    For another, you control the extra embryos which gives you control over the creation of full genetic siblings.   There are probably more reasons, too.

If it’s clear that the custom-option is generally preferable then why have the ready-made?  I think the answer is because it is cheaper.  In other words, for some people the price of the custom made embryos is prohibitive.   The ready-made are a low-cost option.

That means if we say “no ready-made embryo sales” we will be forcing people of limited means to either compromise their financial security to go the expensive route (which seems like a bad beginning) or forego using ART.   (I suppose they  might also enter one of the contests I’ve written about.)   This seems like something that ought to be taken into consideration in the the discussion.   It always worries me when we do things that essentially affects people with less money while those with more can simply walk around whatever obstacles you put in place.

Finally, a lot of the problems people have raised are really tied to anonymity and secrecy.   If children do not know that they were created using third-party gametes that is, to my mind, problematic.   These problems exist in the conventional egg/sperm market just as much (and really to my mind, no more) as they do in the pre-made embryo market.  I don’t see why premade embryos must be composed of material from anonymous providers nor do I see why parents cannot be given access to the information and encouraged to tell their kids what they need to know.  Again, I think there are very important issues here, but I’m not sure they are particular to the discussion at hand.


10 responses to “Some Further Thoughts on The Sale of Pre-Made Embryos

  1. in the previous post i wrote that perhaps while an embryo is not a person, it is still more of a person than a gamete

    • A gamete is a person, it’s just not a baby. A gamete belongs to the body it came from just as a hand belongs to the body it came from. We are the sum of our parts; if you hit my leg, you hit me. If my foot kicks you, I kick you. If I donate my kidney to you, you have my kidney in your body. It’s still my kidney its just helping your body filter toxins instead of mine. Funny thing about a human sex cell; when donated it does not help your body reproduce the way the kidney helps your body filter toxins – the donated gamete continues to support my reproductive function, not yours. The gamete should not be regarded as new life or the potential for new life but rather regarded as part of the donor’s body and its action should be regarded as action by the donor. Any action upon the gamete should be regarded as action upon the donor. The embryo is tougher. For a while I regarded the embryo as being part of the woman’s body, now I’m not so sure.

      • A gamete is a person? You mean a gamete is the person it comes from, right? To me this seems like a difficult idea. I don’t think any part of me (my eggs, my fingernails, whatever) is actually me. It’s just a part. And while the whole may be the sum of the parts, the parts on their own don’t stand in on the whole.

        I don’t think parts–be they gametes or fingernail clippings–are people. They have none of the attributes I assign to people–no will, no autonomy.

        It sounds like you would not distinguish between the part and the whole? Is that what you mean? Or is that that gametes are particularly special parts? (I’m confused by the example of a kidney that you use. I don’t think the kidney is me or is a person–though it’s a part of me.)

        I’m not sure about your proposition that any action upon the gamete should be regarded as an action upon the donor. Suppose I provide a kidney to someone else. If the kidney is subsequently injured in some sort of accident, I think the recipient should have the right to complain rather than me. Though the kidney was my body part I gave it away and have no further control over it. Certainly if the person is offered a medication that might cause some damage to the kidney the choice whether or not to take the medication is the recipient’s and not mine, right?

        There’s a second proposition I think you offer that is interesting, too. I think you assert that action of the gamete should be considered action by the donor, right? (That fits in with other things you’ve said elsewhere about the donor reproducing when the gamete is used.) I think I disagree with this but I should think about that a bit more before saying so definitively.

        Finally, if a gamete is a person (and it is the provider of the gamete) then it’s interesting to think about what happens when sperm fertilizes egg. In your view is it the case that at that point the egg is no longer me and the sperm is no longer the man who provided it? Maybe better to say that the egg and sperm no longer exist indepedently? Instead there is one new thing–the fertilized egg/pre-embryo. And it is neither me or the man. Is it a person at all or something else again?

        • Yes I think that is the interesting thing about an embryo; once the sex cells that belong to two individuals join to make the embryo – ‘it’ has it’s own unique cells which begin reproducing to build it’s own body – it is unto itself yet is being developed by the body of the woman who produced the egg. I tend to see this as her embryo because it begins with her egg but it is not part of her body but rather resident in it. Much to ponder.

          I do think the body part when separated from the body still ‘belongs’ to the body it came from. If I was hacked up in 20 pieces and scattered about by a nut case – the cops and various children on their way home from school might happen upon ‘my’ ears or fingers or what not. I am not saying that my fingers constitute a whole person, I’m saying that what is done to my body parts is done to me the person so my parts deserve the same respect as I do because the sum total of them is me the person with the heart and brain.

          You can force me to do something against my will but it is still me who does it not you. This is the reality of someone ‘using’ donor gametes. Even if they use them without permission what they are doing is forcing the reproduction of another person’s body – they force THEM to reproduce but are not reproducing THEMSELVES.

          Everyone whoever lived had their eyes their nose their whatever and it either works or it does not. If someone gives you their eyes or nose or whatever it means that you have theirs now but it would never be a true statement to say that their lung was your lung. The lung donor is helping the recipient to use his lung to help the recipient’s body breathe. The lung donor could give his lung with the caveat that when one becomes permanently available from a basically deceased donor that he get to have his back – a lender so to speak. So long as someone was willing to pay for the operation I see that as not entirely unreasonable that one might lend a vital organ to someone for a while to help them stay alive. It is quite generous actually.

          The gamete or the embryo is very different from blood or a kidney or a lung which helps the recipient’s body produce more blood, helps the recipient’s body filter toxins or helps the recipient’s body to breath – the gamete or embryo never helps the recipient’s body reproduce. At most it helps the recipient’s body gestate. But the gamete or embryo continues in service to the bodies that produced the egg and sperm – the gamete does not stop doing what it is suppose to do but it continues to do it for the bodies it came from rather than for the person receiving it.

          • I do not have time to respond to everything here (almost dinner time–squash in oven) but a couple of points.

            I guess I disagree about the body parts–that what is done to them is done to you. When I get my hair cut it is swept up and then transferred for use soaking up oil slicks. More power to whoever does it, but it isn’t me. For that matter, when a man ejaculates his sperm may go every which way and get mopped up with tissues or whatever. That’s not happening to him. I suppose in both cases the key thing is that the thing (the body part) has been given up–abandoned, even. And I think the same thing can be said for third-party gametes. People (for the most part) give them up willingly–they do not expect to see them again, they do not want them back. (I’m not concerned here with with what I think are a tiny number of cases where materials may actually be stolen.) I don’t think anyone is forced here.

            It’s a bit far afield, but I also think about transplanted organs differently. If you donate your heart, it is always true that it was your heart. But if there is a living, pumping heart in the chest of person X I’m inclined to think it is person X’s heart–even though it is also true that it was donated–given–to X by whoever had it first. I don’t think it remains the property of the (now deceased) donor. But this is far afield. And I must tend to dinner. Sorry. I stop here.

            • OK then that settles it. You said you don’t think a donated body part “remains the property” of the body it was harvested from. So you do think of body parts as transferable property, and you don’t think you can both give the body part away and still call it yours. Fair enough.

              So you bought some gametes. Is it fair to say that they are YOUR gametes? YOUR sex cells? YOUR genes? YOUR DNA? I mean you cannot very well assert that the gamete belongs to you but the cells and DNA in the gamete still belong to the donor, can you? That’s gets a bit messy in terms of who controls what.

              OK so here are some questions about what happens when a person asserts that it is there gamete and their genes and their DNA because they bought it:
              So when YOUR (bought) gamete is fertilized or fertilizes is it fair to say – that YOUR sex cells reproduced to create the zygote? When a child is born ultimately is it fair to say that YOU reproduced and that the child is YOUR OWN GENETIC CHILD? Would you even bother to refer to the process as donor conception if the donor did not conceive anything? Why bother telling the child that they are donor conceived if in fact it was you who conceived them and the DNA of the child you are raising is your DNA rather than the donor’s? If it is your DNA then are all the “donor siblings” the child has really your offspring? Is it you they want to find when they are looking for their “donor” or do they even have donors? Maybe not. Maybe they won’t need to look for anyone because the DNA in their bodies will belong to the people who are raising them just like the DNA in gametes you bought is yours. Then they won’t be paternal or maternal siblings with all those strangers and there really will be nothing of importance to bother disclosing to them.

              What happens to your gametes and DNA when you buy someone elses? Do you have 2 now? Or does the donor guy split into 20 different people who now own his genes and DNA? If the Donor committed a crime and you you would somehow be on the hook for it because they found his dna would you be so willing to call it yours? Is it the particular drop of semen that you own or the whole genetic code lock stock and serial number.

              If you don’t get where I am going with this – if you insist on speaking figuratively and abstractly and emotionally only the validity of your argument begins to fall apart. On what basis can you rightly assert that the donated gamete or embryo becomes your own Julie?
              So then you buy the gametes and then they are YOUR gametes, not the donors.

              • I’m not sure what is settled, but nevermind that.

                I know how ridiculous this is going to sound, but it depends on what “yours” or “mine” means. I think these words have complicated meanings.

                If I buy gametes–lets say frozen sperm–there is a sense in which it is mine. I can decide what to do with it. I think, for instance, that I would be within my rights to destroy the sperm or to save it for later use or to use it right away. Having the ability to decide what to do with a thing is part of what we think of as making a thing yours.

                But of course, even though I can control what to do with it, it’s still a donor gamete–a gamete provided by another person. So I can easily imagine a conversation where I said the gamete was that of donor X. But here I would say it’s the donor’s to signify its origin not its ownership. I think I can use yours in that way, too.

                In a similar vein, I certainly describe the children in my household as “mine” with some frequency. That’s not becuase I own or control them (they are teenagers and so control is rather an issue.) I think when someone says “my kids” they are using “my/mine” in yet another slightly different way. They are telling you that they are a parent to those children, though you cannot tell if it is legal/social/genetic or what other sort of parent.

                All of which is to say that I think I can certainly say that the gamete belongs to me but the DNA is not “my” DNA without being totally dishonest. I think these are just different (and common) uses of the words. With this in mind I think one can answer the questions you ask. A child produced using that gamete will certainly not be my genetic child but it may be my child.

    • I think you are saying that an embryo is qualitatively different from a gamete and therefore should be treated differently. I’m sure many share this sense. (I’m tempted to say the same thing.) That’s why I think it is worth looking at more closely.

      I see two sets of questions to think about. The first is this: law tends to divide everything into two categories–there are people and there are things. I don’t think there is a third category. Does the view of embryos as being between gametes and people suggest that there is a third category–which includes embryos? And is that the only thing it includes? Or is there some other way to think about this. After all, there are things that are very special (pets, family heirlooms, internal organs). Some things may resist commodification. Maybe embryos are such a special thing? But that’s not quite the same as saying that the occupy an intermediate category. This may not seem like it matters much, but I think it might.

      The second set of questions is related from the first. What is it about embryos that make them different/special? Of course an embryo has the potential to become a child–but so does an egg or sperm. If you think of the embryo created in a petri dish, there is still a missing ingredient–a woman to gestate it. But you are missing less than you were. Is this waht makes it special? Of cousre if you say that life begins when sperm fertilizes egg then you can see why they are special–but then it seems to me it is harder to say why they are not like people.

      It’s not that I have concluded that embryos aren’t different from sperm/eggs–perhaps they are. I’m just not satisfied that I can articulate the differences well enough to see what might follow from them.

  2. Fascinating discussion in both threads, Julie. I wish I had more time to weigh in but after a 4 day holiday weekend, my time is short. However, a look at the Tennessee Supreme Court case of Davis v. Davis might be helpful to shed some more light on the issue of what makes an embryo special as compared to a gamete. Unfortunately I am not at my desk right now, but if memory serves, the Davis Court considered the person versus property issue and concluded that embryos are neither persons nor property but rather belong in a different category that entitles them to special respect because of their potential for human life.

    While my concerns regarding the practices of California Conception do not involve this property v. person dichotomy, I thought it nevertheless helpful with respect to the question raised in this post.


    • You are right about Davis. There are a series of similar cases–couples splitting up with frozen embryos in dispute– that grapple with this. The one from WA is called Litowtz. There’s another from New York. The trial court here tried to consider the embryo as a child and did a best-interest-of-the-frozen-embryo analysis. In general that isn’t the right rule. If they are property then divorce law has lots of precedent. My recollection (which is imperfect) is that the court’s generally favor the spouse who wishes not to reproduce.

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