5.  Shopping for Eggs and Sperm

In the McDonald case, the couple used an egg from an anonymous donor and the sperm from the husband to create their child.  Where did the egg come from?  It is very likely that the McDonalds paid for it at a fertility clinic that specializes in assisted reproductive technologies.  In many states, reproductive cells – called “ gametes” – can be sold as personal property.  For instance, Section §32.1-289.1 of the Virginia Anatomical Gift Act legalizes the sale and donation of gametes, unfertilized human female eggs (“ova”) and male sperm (“self-replicating fluids”)

A lucrative market has arisen for human eggs and sperm.  Gametes from young college-educated men and women are sought after by fertility centers for infertile couples. Advertisements for donors fill the media print and internet media.  See, e.g., The Arlington Courier, June 17, 1998, Page 15; The Docket, George Mason University Law School, January/February 1997, Page 6.  Some Web sites look like huge fertility supermarkets, buying and selling human gametes, not only to infertile couples, but also to anyone who can afford it.  The finished baby may not yet be for sale, but the raw materials to make one are being sold like any consumer product.

What kind of rules do we expect around the sale and transfer of eggs and sperm?  Deducing from evolutionary principles, our first expectation might be that rules governing gamete transfer between parties be designed to facilitate reproduction as the single means of dispersing our genes.  Artificial reproductive technologies (“ART”) are simply an alternative procreative strategy, and they require donor eggs and sperm.  Consistent with these principles, gamete sale is permitted by most state governments in the United States. 

Access to ART, and donor sperm and eggs, reflects the same theme implicated in Skinner of procreative liberty as a fundamental right.   ART preserves this right for couples who have reproductive disabilities.  Ordinarily, individuals with reproductive defects would be deprived of the right to reproduce.  Adoption could satisfy the instinctual need to have progeny, but it is ineffectual if the goal is to produce genetic heirs.  ART provides a way of overcoming this.  Crispina Calvert had viable eggs, a fertile husband, but no uterus in which to grow an embryo.  Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).  Her only chance at propagating her own genes in combination with her husband’s was to find someone else to culture the embryo for them.  The state in putting her freedom to contract for the use of Anna Johnson’s womb ahead of other policy considerations – namely, encouraging a baby selling market – recognized the importance of procreative liberty, and that it should be free from impediments.

The demand for gametes can arise in a number of different circumstances.  One set of cases is where individuals seek to exercise their procreative right, but do not have the reproductive partner to accomplish it.  These circumstances led Siobhan HH, a woman in a lesbian relationship with another woman, to turn to a gay friend to contractually supply her with the necessary sperm to create a baby. Matter of William TT v. Siobhan HH. Females who are not engaged in a relationship with a male often chose gamete donation to achieve their procreative goals.  Another situation where gametes become a sought after commodity is when a defective procreative unit has formed, where one or both partners do not have viable gametes, or a healthy reproductive pathway.  This kind of problem set the scene for Dr. Elizabeth Stern to contract with Mary Beth Whitehead to be artificially inseminated with her husband’s sperm.  In the Matter of Baby M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988).                                 

Just where do we go shopping for gametes?  The most common source of gametes is a reproductive partner – a wife, husband, boyfriend, or girlfriend – who is a willing collaborator in the project to make a baby.  This is one solution.  But, when there is no partner, is it better to purchase gametes from a specialty store, like buying eggs in a supermarket, or to go looking for a friend, or acquaintance, that will agree to supply the missing ingredients?  The dangers of acquiring gametes from a party who is known to the procreator is that the supplier may come after the baby when it is born.  In William TT and Baby M, this is exactly what happened.  Whether the gamete providers simply changed their mind, or whether the birth of a genetic heir stimulated the parenting instinct, the end result was that the provider sought, contrary to the original agreement, a larger, more significant, role in the baby’s life, beyond simply being the donor of its genetic information.  What started out as an arm’s length transaction reformed into a battle over the baby.

The risk of inviting a friend to donate genes to the baby may explain why the sale of anonymous gametes from fertility facilities is the most effective way of meeting the demand for gametes.  Gamete sale, rather than promoting baby markets and turning babies into commercial goods, may actually have the opposite effect.  When gametes are traded between parties who know each other, there is the later risk that the provider will have second thoughts about the transaction, and decide that it is the baby they really want.  Disputes over baby possession, such as those that arose in William TT and Baby M, turn the baby into a commodity.  Anonymous gamete sale eliminates this danger.

If selecting partners for their genes is so important evolutionarily, why would someone go out and get anonymous sperm or egg from a gamete repository?  As it turns out, anonymity is relative.  Gamete banks provide a wealth of information on its donors.  One sperm bank provides its customers with baby pictures, personal essays, and audio files, in addition to extensive genetic testing and medical backgrounds.  Donors are sorted, into a low-budget registry having less complete information on donors, or into a choice Doctorate Registry where all donors are in the process of earning, or have earned, a doctorate (e.g., in medicine, law, or pharmacy).  A web page permits potential customers to select and reserve sperm by physical characteristics of the donor.  Choosing a donor sperm by relying on baby pictures, essays, and audio interviews may actually increase the donor’s attractiveness, a unique mating strategy.  Anonymity protects the baby from later disputes, and preserves the family sanctity from interlopers who may later claim baby.