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.
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