The Faculty Lounge

Germany Allows Embryo Screening For Genetic Defects

Last week, the Federal Supreme Court in Leipzig ruled in support of a Berlin gynecologist who had screened embryos created during IVF for genetic defects prior to implanting them. This is an important case in Germany, which has quite restrictive laws on fertility treatments and bans embryo research (gated survey of IVF guidelines and regulations of sovereign nations or political subdivisions thereof).  I previously blogged about Germany’s strict embryo protection laws, which have caused some researchers to move to other jurisdictions.

According to the Washington Post:

The doctor had treated three couples between 2005 and 2006 who could not get pregnant naturally. In all three cases, one of the partners carried the risk of a congenital genetic illness that would have "very likely led to a miscarriage, the death of the newborn right after the delivery or the birth of a critically ill child," the court wrote.

I previously blogged about PGD, embryo screening for sex selection, and the surrounding ethical debates here.

Uncharitable Sperm

 In Free Fertility Foundation v. Commissioner Of Internal Revenue (Filed July 7, 2010) the tax court held that Free Fertility Foundation’s activities may promote population growth and the propagation of one man’s seed, but do not promote health for the benefit of the community.  The foundation thus does not qualify for a charitable tax exemption.  The facts of the case are fascinating on many levels, so I detail them at some length here.

According to the court, William C. Naylor, Jr. (Naylor), a software engineer who holds more than 10 patents on various inventions, founded and incorporated Free Fertility Foundation in 2003 in California as a nonprofit public benefit corporation with the purpose of providing sperm free of charge to women seeking to become pregnant.  Petitioner’s Web site states that:

Naylor is its “single sperm donor” and chronicles Naylor’s life from infancy to adulthood.  Naylor’s donor profile includes photographs, a physical description, health information, family history, and achievements.  In particular, the Web site provides great detail of Naylor’s academic and athletic accomplishments during elementary school (e.g., spelling bee competition), junior high school (e.g., science fair competition), high school (e.g., swimming competitions), and college (e.g., recognition as “top engineering student”).  On the Web site Naylor states:

I derive meaning and happiness from believing that I am making the world a better place.  Being a sperm donor is a way that I can help a few people to have children who otherwise could not.  This makes more of a positive difference to the world than all of the inventions and scientific discoveries that I could ever create.

Naylor is Free Fertility’s secretary and treasurer.  His father, a retired university professor, is the president and chairman.  Naylor and his father are the only board members and officers, and make all determinations about who will receive the free sperm.   Now, this is where the facts get very interesting:

Preference is given to women “with better education” and no record of divorce, domestic violence, or “difficult fertility histories” and are from families “whose members have a track record of contributing to their communities”; who are in “a traditional marriage situation”; who are under age 37; who are ethnic minorities; and who are “from locations where * * * [petitioner has] not previously accepted recipients.”

According to the court, “An organization is not operated exclusively for exempt purposes unless it serves a public rather than a private interest.”  The court goes on to say that the promotion of health for the benefit of the community is a charitable purpose, but only if “the class of beneficiaries is sufficiently large to benefit the community as a whole.”

The court ruled that, although the free provision of sperm may, under some circumstances, be a charitable activity, Free Fertility does not qualify for tax exemption “because the class of petitioner’s beneficiaries is not sufficiently large to benefit the community as a whole.”  Specifically:

the class of potential beneficiaries includes only the limited number of women who are interested in having one man-–Naylor–-be the biological father of their children and who survive the very subjective, and possibly arbitrary, selection process controlled by the Naylors.  Over a 2-year period, petitioner received 819 inquiries and provided sperm to 24 women.  In deciding who receives the sperm, petitioner has certain preferences that narrow the class of eligible recipients. It is not apparent what, if any, relationship some of these preferences have to the promotion of health.  For example, petitioner prefers women “from families whose members have a track record of contributing to their communities” and women “with better education”.  Petitioner does not provide medical care, research, education, or other services that advance or further health.

The court concludes:  “Simply put, petitioner’s activities may promote the propagation of Naylor’s seed and population growth, but they do not promote health for the benefit of the community.” 

The court may very well be right about the limited benefits of Naylor's activities, but the language used in the case does raise the issue of society’s differing expectations about the motives of men and women who part with reproductive material and, in particular, the traditional skepticism associated with claims of altruistic sperm donation. (Issues that I explore in depth here and here).

In contrast to the altruistic rhetoric surrounding even commercial egg donation, sperm donors are typically assumed to donate primarily, if not solely, for profit opportunity. Indeed, the presumption that sperm donors are motivated by profit-seeking is so strong that men expressing altruistic motives are frequently viewed with skepticism and assumed to be deviants or egomaniacs intent on propagating the earth. 

As I discuss in the above-linked articles, this concern is reported in sources as wide-ranging as the Archbishop of Canterbury’s Commission, which worried that sperm donors might invoke “altruistic idealism” to disguise what was actually “spiritual pride” in their greater virility and ability to propagate, to The Genius Factory, which notes that the key attraction of sperm donation to most young men is “making money for something you do anyway,” and that, although some men claim altruistic motives, many of them are really egomaniacs.

As I argue in Sunny Samaritans and Egomaniacs:

Sperm donation, historically associated with deviant behavior, continues to evoke a lingering skepticism regarding donor motives. Monetary payment may have the capacity to normalize these transactions, providing an acceptable donor motive unrelated to sexual impulses or egoistic desires to spread male genes. Sperm donation thus becomes a job like any other, mapping onto more comfortable stereotypes of male interests in financial gain.

The willingness of women to procreate solely for monetary gain, however, causes discomfort of a different sort. As is the case with commercial surrogates, egg donors are reframed as loving altruists, generously giving “the gift of life” to help others less fortunate.

Update:  I realized belatedly that Paul Caron posted on this case also.

HT: Naomi Cahn

Image source

What Religion Is Your Egg?

 Israel has always posed many interesting issues relating to oocyte donation.  Now, according to the WSJ, things are heating up even more. For example, under current Israeli law, only women already undergoing fertility treatments can donate their eggs, leading to oocyte shortages and reproductive tourism.  (For prior Lounge discussions of reproductive tourism by UK couples see here and here).

For example, from the website of IVF@Israel:

Egg donation is subjected to restrictions by the Israeli Ministry of Health. A new "egg donation" law is expected in the "near" future, hopefully. Currently, availability of eggs for donation in Israel is low, since the law limits donation from IVF patients only. However, we do offer egg donation in Kiev Ukraine (a major European airline hub). The IVF in Kiev had received formal recognition by the Israeli Ministry of Health, and is run by Israeli physicians. Donors are healthy, fertile women, who undergo routine tests as recommended by the American Society for Reproductive Medicine (ASRM).

When I was teaching a course on Taboo Trades and Forbidden Markets in Israel earlier this year, the country was still reeling from the scandal at an Israeli fertility clinic in Romania.  Thirty fertility center employees, including two Israeli physicians, were arrested in connection with allegations that the Sabyc fertility clinic in Romania made payments to human egg donors, a practice which is illegal there.

In part because of these and other scandals, new legislation designed to ease the oocyte shortage in Israel has been introduced, which would expand the pool of eligible egg donors. But, according to the WSJ:

In an effort to win support from the Knesset's ultra-Orthodox factions, the bill also has a provision requiring a woman undergoing fertility treatments in Israel to do so only with eggs from a woman of the same faith.

The debate has raised precarious ethical questions. "The notion that there is Jewish blood is offensive," said Zev Chafets, a former government spokesman who also has written about reproductive medicine in Israel. When people make such a distinction, he says, "'It's not about science; it's about race. It's saying, 'We don't want outsiders, and our criterion is blood.'"

But the legislation is also expected to “increase the already high demand for Jewish eggs in the U.S., and could call into question the religious status of thousands of children born to Jewish women around the world.”  In the U.S., there have been reports of a shortage of egg donors from particular ethnic groups, especially Jewish, East Asian and East Indian, with resulting price premia for such donors.

(HT: Danny Sokol)

Related Posts:
Egg Versus Sperm Donation (Part 982)
The Value of Smart Eggs

U.K. Oocyte Raffle


How Is An Egg Donor Like A Prostitute?



Like A Virgin? We Sell That Here!

Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research

A New Meaning To "Nest Egg"

U.K. To Reconsider Payments to Egg and Sperm Donors

Adoption: Altruism versus Selfishness

 Tyler Cowen, in response to a post from Bryan Caplan, argues:

Bryan writes:

On adoption: I think that adoption is a noble, generous act, and admire those who do it.  But I personally don't want to adopt.

I can't disagree with any word in that first sentence, but it leaves me uneasy.  Bryan's forthcoming book -- Selfish Reasons to Have More Kids -- is about...selfish reasons to have kids.  (It will, I promise you, be very interesting and make a splash.)  So here is my challenge to Bryan: write down the ten most important selfish reasons to have kids and then ask how many of them apply to adopted children.  Most of them will.  Which isn't to say those are the only reasons to adopt (or have) kids, but they are real nonetheless.  So why do the adopting parents seemingly get described as selfless martyrs?  It's almost as if the selfishness, without the replication angle, has to be stuffed into a box somewhere.  Do all those selfish reasons for having kids require replication as a kind of amplifying mechanism, without with we are left with the slightly underwhelming purely altruistic motives?

From the remainder of the post, I gather that Cowen does not necessarily agree that the primary reasons to have (or adopt) children are selfish ones, though he leaves this aside for the sake of argument.  Instead, the point is that both biological and adoptive parents become parents for similar reasons – selfish ones, under Caplan’s definition -- yet Caplan believes the reasons of the biological parent are primarily selfish, whereas those of the adoptive parent are depicted as primarily generous. 

This is to me a quite fascinating post, as the (ir)relevance of motive is a topic I cover at length in both teaching and research (See, for example, prior posts here and here).   And I’ve frequently wondered why one transaction is routinely characterized as at least partially altruistic (e.g. egg donation, blood donation, surrogacy), whereas reasonably similar transactions are assumed to be largely or wholly selfish (e.g. sperm and plasma donation).  

But this difference in the presumed motives of adoptive versus biological parents is not one that had occurred to me before.  In prior work, I’ve theorized that characterizing particular transactions as selfless or altruistic is a means of normalizing otherwise jarring events – for example, mothers are supposed to love their children, not sell them for profit.  Thus the characterization of commercial surrogacy and oocyte donation as primarily altruistic, selfless acts may reduce the dissonance associated with cash-for-motherhood transactions. 

Is it possible that a similar move is at work with adoption?  And, if so, what is the discord that must be normalized?

Adoption is no longer particularly unusual in this day and age, of course – many of us adopt children ourselves or know others who have done so.  But, as Viviana Zelizer documents, the sentimental value of children (the economically “worthless,” but sentimentally “priceless” child, as she puts it) is a relatively recent development.  Historically, children who were not genetic offspring (thus serving no evolutionary impulse) were valued primarily for their ability to contribute to household income.  (I discuss this social transformation and its impact on the baby market in more depth here).

Today’s adoptive “priceless” children provide neither gene survival nor economic contribution.  This would, it seems, make today’s adoptions selfless acts, as judged by historical standards.

Egg Versus Sperm Donation (Part 982)

 From Strasbourg Observers (a blog commenting on developments in the case-law of the European Court of Human Rights) on the case of S.H. and others v. Austria:

At issue was the Austrian Artificial Procreation Act prohibiting the use of ova from donors and sperm from donors for in vitro fertilization. . . .

The Austrian Government argued that “ova donation might lead to problematic developments such as exploitation and humiliation of women, in particular of those from an economically disadvantaged background” (par. 49). The Court’s reply to this argument is, rightly, that potential future abuse is not a sufficient reason for prohibiting a specific procreation technique as a whole if it is possible to devise safeguards against such abuse (par. 77).

 

But what the Court fails to do is to condemn the Government’s argument. Why does this risk of exploitation and humiliation only pertain to women? Why can men not be exploited and humiliated when donating their sperm? The truth is that there is an invidious stereotype at work here that formed the underlying reason for the Austrian legislation. The stereotype is that women’s sexuality is something vulnerable, something holy that needs to be protected, while men’s sexuality is something active – if not aggressive. That is paternalism, not biology.

Radically different attitudes toward egg and sperm donors are not limited to Austria.  As we’ve discussed many times here at the Lounge, the commercial disparities between the egg and sperm markets in the U.S. are vast, ranging from divergent recruiting and advertising techniques to differences in the donor attributes valued by consumers.  One of the most drastic differences between the two markets, however, relates to presumed donor motivations (it is widely contented that egg donors are, and should be, motivated primarily by altruism, even when large sums are exchanged, while sperm donors are presumed to be motivated solely or primarily by profit-seeking); fears of exploitation, coercion, and commodification (raised much more frequently in connection with egg donors than with sperm donors); and the resulting attempts to control egg donor compensation.  (I discuss all of this in more depth in Sunny Samaritans and Egomaniacs: Price Fixing in The Gamete Market.  What’s that you say?  That this is the 7000^th time I’ve blogged about that paper and that anyone with even a remote interest in reading it would have done so already?  Well, you’re probably right.)

There are, of course, many differences between egg and sperm donation (as well as between egg donation and other types of human tissue and plasma donation), including the riskiness of the procedure.   Yet, the widely articulated coercion concern raised against compensated egg donation is particularly one that should be carefully scrutinized for class and gender bias. There are many dangerous jobs regularly performed for compensation, often by employees with lower socio-economic status and education levels than egg donors (who are often valued for their academic credentials, among other characteristics).  Those jobs are also performed primarily, if not exclusively, by men.

I do not mean to suggest that the only taboo transactions of this nature are those in which the primary suppliers are women – Al Roth has a wonderful list of repugnant transactions through time that serves as evidence to the contrary. However, the purported dangers of commodification and the need to protect a supposedly vulnerable population from the coercive effects of the marketplace have been especially prominent defenses of constraints on the markets for female sexual and reproductive labor, including sex work, oocyte donation, and surrogacy.  And, this anticommodification and coercion rhetoric is frequently invoked by interest groups who, at best, have little interest in female empowerment and, at worst, have economic or political interests at odds with it.  (I discuss this in greater detail in my newest draft, A Woman’s Worth.)   

More skepticism, like that shown by the Strasbourg Observers, is in order when it comes to attempts at “protecting” egg donors.

(HT: Larry Helfer)

Related Posts:
The Value of Smart Eggs
U.K. Oocyte Raffle

How Is An Egg Donor Like A Prostitute?


Like A Virgin? We Sell That Here!



Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research



A New Meaning To "Nest Egg"



U.K. To Reconsider Payments to Egg and Sperm Donors
 

Defective Sperm No Basis For Products Liability Suit

The 3rd U.S. Circuit Court of Appeals has ruled in Donovan v. Idant Laboratories that genetic defects in sperm from a sperm bank cannot form the basis for a products liability suit, because it would recognize a claim of "wrongful life."  According to Law.com, the case:

Upholds a June 2009 decision by U.S. District Judge Thomas N. O'Neill Jr. that rejected claims by both a mother and a daughter who suffers from Fragile X syndrome, a mutation known to cause a group of maladies that include mental retardation and behavioral disorders.

O'Neill had initially ruled that, under New York law, the sperm bank could be sued under products liability laws because "the sale of sperm is considered a product and is subject to strict liability." But two months later, O'Neill reversed himself and dismissed the entire case, predicting that the New York Court of Appeals would reject the claim. "I find it more likely than not that it would find that the injuries alleged in plaintiff's strict liability and warranty claims are essentially claims for wrongful life."

The Third Circuit affirmed, stating: “Regardless of whether a particular cause of action is denominated as one of contract, products liability, or something else, all of the claims on behalf of B.D. suffer from the same defect: the lack of a cognizable injury.”  Said the Court:

Wrongful life cases pose particularly thorny problems in the damages context:  “Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependant upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence.  This comparison the law is not equipped to make.”  Becker, 46 N.Y.2d at 412.

For procedural geeks, the lower case raised some interesting choice of law issues. While both New York and Pennsylvania have "blood shield statutes" that prohibit products liability suits stemming from blood or blood products, Pennsylvania's blood shield statute includes human tissues other than blood, whereas New York's statute includes only blood and its derivatives:

O'Neill found that there was a "true conflict" between the laws of the two states because "semen is not a blood derivative," and Brittany Donovan would therefore have a valid cause of action under New York law, but not under Pennsylvania law. . . .

Although other states' blood shield laws and Section 19 of the Restatement (Third) of Torts all say that human tissue and organs are included in the list of products that are exempted from strict liability law, O'Neill found that "the relevant New York statute does not and no case law has extended the statute to also exempt human tissues like sperm."

For a history of blood shield laws and an argument that the blood industry’s response to the HIV/AIDS epidemic in the early 1980’s strongly suggests that things would have turned out better for some, perhaps many, recipients of blood products had strict-liability rules been in effect, see Clark C. Havighurst, Trafficking in Human Blood: Titmuss (1970) and Products Liability (PDF).  The full symposium volume is here:

 

Volume 72	Summer 2009	Number 3
SHOW ME THE MONEY: MAKING MARKETS IN FORBIDDEN EXCHANGE Kimberly D. Krawiec Special Editor
Foreword                      PDF		Kimberly D. Krawiec	i
Trafficking in Human Blood: Titmuss (1970) and Products Liability                      PDF		Clark C. Havighurst	1
Altruism, Markets, and Organ Procurement                      PDF		Julia D. Mahoney	17
Gender and the Value of Bodily Goods: Commodification in Egg and Sperm Donation                      PDF		Rene Almeling	37
Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market                      PDF		Kimberly D. Krawiec	59
Commercial Surrogate Motherhood and the Alleged Commodification of Children: A Defense of Legally Enforceable Contracts                      PDF		Hugh V. McLachlan J. Kim Swales	91
Surrogacy and the Politics of Commodification                      PDF		Elizabeth S. Scott	109
The Debt Financing of Parenthood                      PDF		Melissa B. Jacoby	147
Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform                      PDF		David E. Bernstein Thomas C. Leonard	177

 

 

(HT: Kathy Bradley)

Related Posts:

Does The Number 1700 Cause Sperm To Go Where It Shouldn’t?
Celebrity Look-Alike Sperm Sale
U.K. To Reconsider Payments to Egg and Sperm Donors
More Live Sperm, Dead Donor
Live Sperm, Dead Donor . . . No Case
No End To Men

The Value of Smart Eggs

A few weeks ago, Aaron D. Levine (Assistant Professor, Georgia Institute of Technology) visited my Taboo Trades and Forbidden Markets seminar in advance of the release of his Hastings Center Report: Self-Regulation, Compensation, and the Ethical Recruitment of Oocyte Donors.  The report represents an important effort at bringing empirical analysis to bear on questions that are often answered largely through anecdote: who are egg donors, how much are they paid and why, and how are they found? (Paul Caron has links to the extensive media coverage).

The report uses a novel data set—a collection of oocyte donor recruitment ads published in college newspapers across the country—to assess the extent to which advertisements that recruit donors comply with the ASRM guidelines for compensating oocyte donors, which specify maximum compensation levels of $5000, in the absence of justification, and prohibit compensation above $10,000.  Levine finds that $5,000, the maximum compensation level acceptable under the ASRM guidelines without justification, was both the modal and median value among the set of 105 advertisements.

Roughly 50% of the advertisements offered compensation in excess of $5000 and roughly 23% offered compensation in excess of $10,000.  Some of the ads offering more than $5000 and most of those offering above $10,000 also contained appearance or ethnicity requirements, which is prohibited by the ASRM compensation guidelines.   Finally -- and this is the portion of the report that has generated the most media attention -- Levine’s data strongly suggest that donor agencies and couples are placing more value on oocytes donated by women with higher SAT scores, which would violate the ASRM guidelines.   Indeed, in one model, an increase of one hundred points in the SAT score of a typical incoming student increased the compensation offered to oocyte donors by $1,930 for general advertisements placed by donor agencies; by $3,130 for advertisements placed on behalf of a specific couple; and by $5,780 for advertisements placed by a donor agency on behalf of a specific couple.

It’s a testament to Aaron’s good nature that he’s still friendly to me, after I first invited him to Duke for a workshop, then attacked his paper for an hour and a half.  (I did buy several rounds of drinks at the Washington Duke as reimbursement, as I’m a strong believer in just compensation).  Though Levine’s research brings much-needed empirical insight to bear on questions of egg donor compensation, I very much disagree with the report’s normative position – that the ASRM oocyte donor compensation restrictions are justifiable and their violation a cause for industry, public, and government concern.  

The report’s conclusion relies on three highly contestable assumptions: (1) that oocyte donor compensation is commodifying; (2) that oocyte donor compensation, especially at high levels, is coercive or exploitative; and (3) that selecting and compensating oocyte donors on the basis of personal characteristics, such as ethnicity or intelligence, is ethically problematic.  The first two assumptions – commodification and coercion – are ones that I’ve critiqued at length, both in recent scholarship (see here and here) and on this blog (see the links below). 

But the third assumption – that selecting and compensating oocyte donors on the basis of personal characteristics presents ethical problems – is dubious as well.  The fertile have always selected reproductive mates based on qualities such as appearance, race, ethnicity, and intelligence.  Their sorting process is normally more subtle than a four or five figure advertisement in a prestigious college newspaper, but the infertile have fewer options at their disposal and the end result is the same – some traits are more highly valued in a reproductive mate than others, a realization that should have no shock value among even the most sheltered of academic sensibilities.

In his response accompanying the report, John Robertson (Texas, law) questions whether there are really any ethical problems raised by the study – after all, Levine finds compliance with the ASRM guidelines in at least half the advertisements in his sample.  I would argue, however, that Levine’s study highlights a serious ethical issue, though it is not infertile couples or the agencies working on their behalf whose behavior is ethically troubling.  It is ASRM’s paternalistic and misguided attempts to control oocyte donor compensation through the same type of professional guidelines that courts have rejected when employed by engineers, lawyers, dentists, and doctors that should raise an ethical red flag.

Related Posts:
U.K. Oocyte Raffle
How Is An Egg Donor Like A Prostitute?

Like A Virgin? We Sell That Here!


Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research


A New Meaning To "Nest Egg"


U.K. To Reconsider Payments to Egg and Sperm Donors

U.K. Oocyte Raffle

Via Al Roth. 

According to press reports:

The raffle, to be held on Wednesday, is to promote a tie-up between the Bridge Centre, a fertility clinic in London, and the Genetics and IVF Institute (GIVF) in Fairfax, Virginia.

The Anglo-American commercial venture was set up last autumn and is aimed principally at women in their forties and fifties who have little prospect of a successful pregnancy with fertility treatment using their own eggs. . . .

Michael Summers, a senior consultant in reproductive medicine at the Bridge, . . . believes a relaxation of restrictions on payment for egg donors in Britain will depend on the results of the next election. If the ban stays in place, he predicts infertility tourism to America will grow steadily.

Feminist law professor Bridget Crawford thinks the auction is “repulsive” and “should shock the doubt out of anyone who has ever questioned the existence of a massive commercial trade in human body parts — and human eggs, in particular.” 

But the reason for the venture between Bridge and GIVF – and thus the raffle – is precisely because the U.K. prohibits commercial trade in human eggs. HFEA rules requiring donor registration and limiting egg donor compensation to lost wages and reimbursable expenses, a £250 maximum, have caused severe gamete shortages and resulting fertility tourism to other countries, which I discuss at length here.  What’s repulsive is not the raffle, but the U.K.’s misguided policies on egg donor compensation, which unfortunately are making their way into some U.S. state legislatures this year. 

Related Posts:

How Is An Egg Donor Like A Prostitute?
Like A Virgin? We Sell That Here!

Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research

A New Meaning To "Nest Egg"

U.K. To Reconsider Payments to Egg and Sperm Donors

How Is An Egg Donor Like A Prostitute?

A few weeks ago, House Bill 3077, which would make it illegal to compensate women for oocyte donation, easily passed the Oklahoma house by a vote of 85-8. Said Rep. Rebecca Hamilton, D-Oklahoma City, the bill’s author, fertility clinics "could use donor eggs all they want; they just can’t go out and solicit women with money.” According to news reports, Hamilton has likened the practice to prostitution, claiming that “it turns doctors into predators.” 

The debate harkens back to an exchange in September, in which Dr. Naomi Pfeffer drew fire for a statement to the Motherhood in the 21st Century Conference at the University College London that compared egg donors to prostitutes.  As reported in The Times:

British couples who travel abroad for IVF treatment and buy other women’s eggs are engaging in a form of prostitution, a fertility conference was told yesterday. . .

Professor Pfeffer, who researches controversial developments in medicine, told the Motherhood in the 21st Century Conference at University College London: “The exchange relationship is analogous to that of a client and a prostitute. It’s a unique situation because it’s the only instance in which a woman exploits another woman’s body….

These women are being encouraged to take real risks with their health through ovarian stimulation and egg retrieval. It commodifies women’s bodies and treats their reproductive capacities as a service.

So, what sort of crazy person would compare an egg donor to a prostitute?

I would.  But not for the reasons that either Hamilton or Pfeffer have in mind. 

As I argue in the recently posted, A Woman’s Worth, an egg donor is much like a prostitute in the following sense: both are selling something that is often expected or encouraged to be given for free or at a reduced price, despite its high economic value. 

Like many taboo markets, the markets for sex and oocytes present a paradox. These robust commercial industries attract large numbers of suppliers and consumers, yet continue to be regarded as socially problematic—perhaps deviant or repugnant—and in need of strict controls. Even when legal, taboo markets and those who supply them may be stigmatized, like the prostitute, or, like the egg donor, romantically recharacterized as an altruistic nonmarket transactor whose economic exchange is limited in ways that other markets are not.  I contend that these tendencies are often the product of unexamined instincts and are laden with class and gender prejudices and anxiety about the body, especially women’s bodies, that have little relation to the stated objections to the underlying transaction.

Oklahoma Rep. Ryan Kiesel, who objects that the law is discriminatory because it is directed only at women, tried unsuccessfully to amend the bill to also prohibit men from selling sperm.  The differential treatment of egg and sperm donors and, in particular, the very different assumptions regarding their motivations for “donating” reproductive tissue is a subject I explore at length in Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market. 

Oocyte donation presents health risks that sperm donation does not. Yet, the widely articulated coercion concern raised against compensated egg donation is particularly one that should be carefully scrutinized for class and gender bias. There are many dangerous jobs regularly performed for compensation, often by employees with lower socio-economic status and education levels than egg donors (who are often valued for their academic credentials, among other characteristics).  Those jobs are also performed primarily, if not exclusively, by men. For example, fishing, logging, aircraft pilot, and construction top the list of the most dangerous jobs, and more than ninety-two percent of all workplace fatalities are men.  (See here for more discussion of these points).

But, thank goodness we can now count on the fine minds in the Oklahoma legislature (as well as New York’s and the American Society for Reproductive Medicine) to protect women from the possibility of earning too much money.

(HT: Naomi Cahn)

Related Posts:

Like A Virgin? We Sell That Here!
Sunny Samaritans or Entrepreneurs? New York Allows Egg Donor Payments For Stem Cell Research
A New Meaning To "Nest Egg"
U.K. To Reconsider Payments to Egg and Sperm Donors

Baby Markets Is Here!

Baby Markets: Money and the New Politics of Creating Families, edited by Michele Bratcher Goodwin (University of Minnesota), is available from Cambridge University Press.  Contributors include: Michele Goodwin, Martha Ertman, Kimberly Krawiec, Mary Anne Case, Sara Dorow, Ruth Arlene-Howe, Elizabeth Bartholet, Jose Gabilondo, Mary Eschelbach Hansen, Daniel Pollack, Naomi Cahn, Maggie Gallagher, Debora Spar, John Robertson, June Carbone, Nanette Elster, Lisa Ikemota, Michelle Oberman, Viviana Zelizer, Sonia Suter

And my chapter, Price And Pretense In The Baby Market, is available on SSRN.  Abstract:     

Throughout the world, baby selling is formally prohibited. And throughout the world babies are bought and sold each day. As demonstrated in this Essay, the legal baby trade is a global market in which prospective parents pay, scores of intermediaries profit, and the demand for children is clearly differentiated by age, race, special needs, and other consumer preferences, with prices ranging from zero to over one hundred thousand dollars. Yet legal regimes and policymakers around the world pretend that the baby market does not exist, most notably through prohibitions against baby selling - typically defined as a prohibition against the relinquishment of parental rights in exchange for compensation.

This Essay explores the costs of societal pretense that legal baby markets do not exist. Those costs include scarcity, foregone opportunities to address market failures, an inability to develop regulations designed to further particular public policies unlikely to be advanced solely through the goal of profit-maximization, and the promotion of rent-seeking. This Essay focuses specifically on the rent-seeking problem, arguing that, although frequently defended by those who contend that commercial markets in parental rights commodify human beings, compromise individual dignity, or jeopardize fundamental values, bans against baby selling (at least as currently written and enforced) serve little purpose other than enabling anti-competitive behavior by the most economically and politically powerful baby market participants.

Baby Markets in Charlottesville

I drove up to UVA yesterday for a great panel on Baby Markets, sponsored by the Feminist Legal Forum, Lambda Law Alliance, and the Health Care Association.  The panelists were yours truly, the fabulous Sarah Lawsky, and the also fabulous Julia Mahoney. 

Wow!  Charlottesville has had a lot of snow lately (compared to the sprinkle we’ve received in North Carolina, at least).  The panel was a lot of fun, though.  Always great to see Julia and Sarah and to discuss these issues with such knowledgeable colleagues.  And the student moderator, Kate Lydon, did a great job putting everything together, organizing a set of questions, and keeping the three of us on track.   Finally, the audience -- very engaged, with lots of smart questions -- seemed genuinely interested in learning more about these issues.

There is a slight problem getting home, though.  I just got my car out of the shop on Monday, after having it serviced, tires changed, and all sorts of other costly repairs.  On the way up here, all the service lights went on, the car started shaking, and the smell of some unidentifiable (but clearly burning) fluid became apparent.  I don’t know what all of that means, but I’m sure it can’t be good.  A few minutes ago, the tow truck came to take it away.  

Pictured above, the Boar's Head Inn.  Not a bad place to be stuck, as you can see, but also not a place where I'm likely to meet my next article deadline, since I don't have my books or notes with me.  

Update: Below is the flyer for the event.

Taxing The Human Body

Feminist Law Professor Bridget Crawford has a cool new paper up on SSRN, Taxation, Pregnancy and Privacy.  My tax colleagues will be thrilled that I now have a source (other than pestering them) for my constant questions about the potential tax implications of the growing markets in virginity, medical marijuana, and other strange goods and services.

Though primarily an exploration of the tax implications of surrogacy markets, Crawford also investigates a wide variety of commercial transactions involving the human body, including blood, hair, breast milk, plasma, sperm, and the wearing of tattoos (temporary and permanent) for compensation.  As Crawford notes, “[i]ncome tax concepts apply awkwardly to the human body.”  So awkwardly, in fact, that “one gropes for apt (if inelegant or even offensive) analogies.”

This awkwardness is readily demonstrated by the quotes from case opinions that Crawford marshals.  Says Crawford, “[a]t least one court has opined that human blood is no different, in a tax sense, from ‘hen’s eggs, bee’s honey, cow’s milk, or sheep’s wool for processing and distribution.’”  And according to another, “[m]ilk is a commodity, whether from a human being or a cow.”

Applying this logic to commercial surrogacy, Crawford argues that, from an economic perspective, there is no difference between a surrogate and someone who agrees to wear an advertising tattoo.  Both taxpayers put their bodies to an agreed-upon use for compensation, receiving income in the process.

Despite the clear status of surrogacy compensation as taxable income, Crawford finds signs of noncompliance in surrogates’ reporting of that income.  She contends that many surrogates do not understand their reporting obligations and those that do often reject the characterization of their surrogacy proceeds as income. (A phenomenon she discusses in greater detail in Taxing Surrogacy).  She advocates remedying this situation through clear IRS guidelines regarding the tax treatment of surrogacy proceeds and the obligation of surrogacy agencies to issue Form 1099s to surrogates that will prompt compliance with reporting obligations.

Crawford recognizes the potential downside to enforcing income tax reporting by surrogates – equating commercial surrogacy with other forms of work risks disrupting the altruism narrative that renders commercial surrogacy socially acceptable for surrogates themselves, intended parents, and society at large.  She concludes, however, that “[o]f all the unanswered (and unanswerable) questions about surrogacy, taxation is not one of them.”  The IRS should enforce and collect taxes due on surrogacy payments.

For those seeking potential income opportunities but are squeamish about selling their bodily fluids and tissues or reproductive capacity, make sure to check out leaseyourbody.com as an alternative: 

a revolutionary way of advertising! Our Participants agree to wear temporary tattoos (logos) supplied by Advertisers. By doing so, YOU can earn BIG $$$$$.  In exchange, Advertisers (companies) can gain novel exposure for their business.

Top Image: Kari Smith, who reportedly auctioned her forehead space on eBay in order to pay for her 1-year-old son’s private education. Goldenpalace.com, an Internet gambling company, spent $10,000 to have their website address tattooed on Smiths forehead.

Prior Related Posts:
Like A Virgin? We Sell That Here!
The Antebellum Market and Empowerment

Show Me The Money: Making Markets in Forbidden Exchange

The Law & Contemporary Problems volume, Show Me The Money: Making Markets in Forbidden Exchange, which I’ve blogged about before (see here and here), was published this week.  Here’s the table of contents, with hyperlinks to each of the published articles:

 

The articles are interesting contributions to the field of various “taboo trades,” including blood, organ, surrogacy, egg, sperm, parenthood, and some labor markets. For example, in Trafficking in Human Blood: Titmuss (1970) and Products Liability, Clark Havighurst concludes that theories, such as those popularized by Titmuss, that human blood collection should be left to the dictates of personal altruism and professional standards, rather than to market forces, liability rules, and consumer choice, arguably left the public more vulnerable to blood contamination in the face of the HIV crisis than would have been the case if a more commercial approach to the blood industry had been openly accepted.

In Altruism, Markets, and Organ Procurement, Julia D. Mahoney dissects traditional objections to organ markets—including objections based on improper commodification, the potential crowding out of donation, safety concerns, increased transplant costs, and the exploitation of the vulnerable— arguing that these criticisms “range from the highly contestable to the demonstrably wrong.”

Rene Almeling, in Gender and the Value of Bodily Goods: Commodification in Egg and Sperm Donation, and I, in Sunny Samaritans and Egomaniacs: Price-fixing in the Gamete Market, rely on similar data to reach both similar, and quite different, conclusions. We both argue that, for biological and social reasons, the structure of the gamete market is highly gendered. But Almeling contends that eggs and egg donors are more highly valued than sperm and sperm donors. I conclude instead that, as in most other industries, the economic forces of supply and demand are allowed to set sperm prices, while egg prices are set through the same type of professional standards and pricing “guidelines” that have been declared per se illegal in other industries.

In Commercial Surrogate Motherhood and the Alleged Commodification of Children: A Defense of Legally Enforceable Contracts, Hugh V. McLachlan and J. Kim Swales defend the legal enforceability of surrogacy contracts, as well as their prior work on commercial surrogacy, against criticisms by others, including Elizabeth S. Anderson, Eric Blyth, and Claire Potter, contending that rational prospective parents may consider that there are advantages and disadvantages to both altruistic and commercial surrogacy, and intended parents should be allowed to freely choose which system best suits their preferences. In Surrogacy and the Politics of Commodification, Elizabeth S. Scott examines the history of commercial surrogacy, from the moral panic seeking to stamp out commercial surrogacy that ensued after the Baby M decision, to the more sanguine view evidenced today by many courts and legislatures, which seek primarily to ensure certainty of parentage and to address other policy concerns arising from commercial surrogacy. Of particular interest is Scott’s analysis of the evolving views of feminists and liberals to the commercial surrogacy question and the resulting demise of the unstable coalition formed among feminists, liberals, and social conservatives in the wake of Baby M.

In The Debt Financing of Parenthood, Melissa B. Jacoby considers a vitally important, yet frequently overlooked, aspect of making markets in traditionally forbidden exchange: how such exchange will be financed and the potential policy implications of those financing choices. Finally, in Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform, David E. Bernstein and Thomas C. Leonard consider the original contested commodity—human labor. Bernstein and Leonard argue that immigration, working poverty, and the relationship of women to the marketplace are not simply modern political and economic issues, but were vital and contentious issues a century ago, laying the groundwork for American labor reforms, including minimum-wage laws, that had previously been considered unthinkable government limitations on free exchange in the labor market.

Money can’t buy everything, but as the contributors to this volume demonstrate, it buys more than is commonly assumed. From blood and organs to eggs, sperm, and parenthood, money is closely intertwined with numerous items, activities, and relationships that many contend should be impervious to, or even sacredly immune from, market forces. As demonstrated by these authors, popular notions regarding the existence of sacred spheres of life immune from market forces are, at a minimum, overstated and, in some cases, wholly false. Such beliefs, nonetheless, are genuine formal and informal constraints on the development of markets in forbidden exchange. Negotiating the boundaries and limits of legal and societal definitions of forbidden exchange in the face of resource constraints, scientific innovation, and changing social mores will be the future challenge for scholars in these fields.

 

Yet More Embryo Errors

From Courthouse News Service:

A couple who sought fertility services to prevent passing on a genetic disorder says doctors at the Reproductive Genetic Institute carelessly commingled their eggs and sperm with that of other patients to create embryos. . . .

But they say doctors carelessly fertilized her eggs with another man's sperm and used her husband's sperm on another woman's eggs.

The complaint is here.

(HT: Egg Donation and Surrogacy Law Blog)

Prior related posts:
More Embryo Errors
Does The Number 1700 Cause Sperm To Go Where It Shouldn’t?

UCI Egg Theft Case Developments

Selecting for Sex: US entrepreneurship in the baby market

Via Al Roth: Choosing sex of children: repugnant in Britain but not in U.S. 

The Times reports: US clinic offers British couples the chance to choose the sex of their child

A new clinic in Manhattan is appealing to British couples who want to pick the sex of their next child — a process that is banned in the United Kingdom.

Pre-implantation genetic diagnosis (PGD), which can reveal the sex of an embryo, is prohibited in Britain except when it is used to screen for genetic diseases.

The United States relaxed its regulations on sex selection in 2001 and American medical centres report interest from British patients who find out about their “family balancing” services through online advertisements.

A less controversial, but less reliable, method of gender selection relies on sperm sorting. 

As I discuss in Altruism And Intermediation in the Market for Babies (which, unless otherwise indicated, is also the source for all facts and quotes in this post), preimplantation genetic diagnosis (PGD), originally developed as a means to screen embryos for a variety of devastating genetic childhood diseases, weds two nascent fields— assisted reproduction and genetic testing—by removing and genetically testing one cell of a three-day-old, eight-cell embryo.  Only those embryos possessing the desired genetic variant—such as the absence of a chromosomal mutation associated with a particular hereditary disease—are implanted. 

But increasing numbers of customers seeking PGD do not carry genetic diseases—some are not even infertile.  Instead, critics charge, they are purchasing a custom-made baby that meets their genetic specifications, such as a particular gender.

The relevant question, of course, is whether this aspect of the baby market is one with which we feel comfortable.  And if not, why not.  Objections to sex selection tend to fall into three categories: (1) slippery slope concerns, (2) gender imbalance concerns, and (3) sexism concerns. (In addition, some ethicists, including the ASRM Ethics Committee, differentiate between pre- and post-conception sex selection methods.  For more on this, follow the Modern Medicine link at the end of this post)

Harvard political philosopher Michael Sandel articulates the slippery slope concern as follows: "sex selection is one step down the road to designer children, in which parents would choose not only the sex of their child, but also conceivably the height, hair color, eye color, and ultimately, perhaps, IQ, athletic prowess and muscular ability."  Sex selection defenders counter that such “doomsday scenarios” have been raised since the dawn of IVF, and have not come to pass, nor are they likely to.

Given the traditional use in some countries of sex screening and abortion to discard female fetuses, PGD for gender selection has been banned in many countries. In the United States, however, gender imbalance concerns are a less persuasive rationale for limiting gender selection techniques.  In the U.S., gender selection is legally unrestricted, yet -- except within certain minority ethnic groups -- parents request girls as often as boys (by some reports, more often).  Moreover, many parents seek “family balance” (i.e. one boy and one girl, or a child of a different sex than their existing children.) 

Finally, some critics worry that sex selection practices will reinforce sexism or traditional gender roles.  The most sophisticated of these arguments focus not on outright preferences for males, which, as noted, is not a fear generally warranted in countries such as the U.S., but on more subtle effects.  For example some are concerned about birth order consequences or fear that, by choosing one sex over another, parents may reinforce gender stereotypes.

This month’s Elle magazine article on mothers who suffer “gender disappointment,” or GD, drives home the stereotyping concern about sex selection in a quite visceral way.  The piece’s quotes from mothers who invested in pink, fluff, jewelry, and ballerina outfits in the expectation of daughters, only to later suffer suicidal depression upon giving birth to boys, will doubtless appall sex selection critics concerned with gender stereotyping.  Moreover, the featured mothers cross what some believe should be an ethical line in writing about the parenting experience.  As noted by KJ Dell'Antonia at XX: “But there's one line I've never crossed—one thing I think you should absolutely never say to or about your child: I didn't want you. I wanted somebody else.”

I’m unpersuaded that any of the three rationales justify restrictions on sex selection techniques, especially here in the U.S. where population gender imbalance is not a pressing issue.  Moreover, one might plausibly contend that many of the Elle stories stem from false hopes raised by less effective sex selection techniques, rather than by sex selection per se.  But, to borrow Al Roth’s terminology, even my repugnance reflex (a fairly high bar) was triggered by the article.   

For more on sex selection techniques, ethics, and governing laws see:

Modern Medicine -- Q&A: Controversy: Gender selection via preimplantation genetic diagnosis: ethical pros and cons of the controversy (Aug. 1, 2009)

Legal Affairs -- Debate Club 3/27/06: Choosing Your Child's Sex? Featuring a debate between John A. Robertson and Barbara Katz Rothman.

For my articles on baby markets, also with some discussion of sperm sorting and PGD, including PGD for nonmedical purposes see:

Price and Pretense in the Baby Market

Altruism and Intermediation in the Market for Babies

New York Suit Seeks To Block Payments For Oocytes Used In Stem Cell Research

Feminists Choosing Life of New York (FCLNY) has filed suit in New York State Supreme Court to block the use of taxpayer funds to pay women recruited to donate their eggs for embryonic stem cell research.   The complaint, filed in Feminists Choosing Life of New York v. Empire State Stem Cell Board (available here, opens pdf), seeks:

an Order declaring that the creation of the ESSCB and the manner in which its members are appointed is in violation of the New York State Constitution and separation of powers doctrine, invalidating the June 11, 2009 Resolution and/or otherwise enjoining Respondents from making grants or otherwise authorizing spending for research on stem cell lines derived from using female human eggs where the donor was, or will be, compensated with state funds. 

According to FCLNY Executive Director, Wendy McVeigh: “New York State has the responsibility to protect women.  Instead, the state is using taxpayers’ dollars to entice young, economically vulnerable women to experiment in this medically risky procedure.”

The suit is almost certainly motivated more by FCLNY’s pro-life agenda than by a concern for the vulnerability of egg donors, which, in any event, is a sorely misguided, if commonly invoked, anxiety.  Moreover, the complaint highlights the extent to which sentiments that the state must “protect women” from coercive economic bargains are co-opted by groups with other political goals -- in this case, embryo protection.  (This is a topic I discussed more generally last week at the North Carolina Law Review’s Globalization, Families, and the State Symposium)

As I argued in this post shortly after the New York law took effect this summer, payment has long been provided for eggs to be used in fertility treatments, and the FCLNY suit, even if successful, would have no impact on the active market for oocytes used in fertility treatments.  See here for a detailed discussion of that market, and a critique of the coercion rationale against paying egg donors.   Also see this 2006 LA Times op-ed piece by Judith Daar & Russell Korobkin, making a similar argument in connection with California’s law.

(HT: Egg Donation & Surrogacy Law Blog)

IVF And The Cost of Multiples

Last week, the New York Times focused on the issue of multiple births from fertility treatments, including IVF and intrauterine insemination.  Stephanie Saul begins with a two part series, here and here, which is followed by a Room for Debate discussion.  Several of the Room for Debate contributors raise interesting points, many of which I address in the recently-published Why We Should Ignore The “Octomom.”

In Octomom, for example, I argue that -- though sad and disturbing -- the Suleman octuplets case is a rare event, and the attention and controversy that followed in its wake distracted from the more pressing public health concern – rising twin rates.  CDC data suggest that the far higher incidence of twins as a percentage of live ART births, rather than the lower incidence of higher-order multiples, is both the most logical source for public concern and the multiple-birth rate most amenable to reduction through increased attention to embryo transfer practices. 

Mark I. Evans, president of the Fetal Medicine Foundation of America and the director of Comprehensive Genetics in New York, echoes this sentiment in his Room for Debate contribution:

The “octomom” may have gotten much of the media attention on multiple births this year, but the more mundane epidemic of twins actually costs the American health care system and affects the lives of families far more.

Perhaps not surprisingly, most of the Room for Debate discussants (many of whom are fertility specialists) resist embryo transfer regulation as a means to address rising multiple birth rates from IVF, advocating instead patient and doctor education and responsible industry self-regulation.  Although I’m generally skeptical of self-regulation as an effective means to address public concerns, in this case I agree with the industry that the benefits of embryo transfer regulation in the United States are unlikely to outweigh the costs.

As I elaborate in Octomom, the U.S. fertility industry is making progress in reducing multiple births from ARTs while maintaining pregnancy success rates, and is likely to continue to do so.  This ability, however, depends on a variety of factors, including the patient’s age and the underlying cause of infertility, the ability to fund multiple ART cycles, individual clinical expertise and conditions, embryo quality, and cryopreservation techniques.  Particularly in the U.S. system of private (or private insurance) payment for ARTs, under which some customers cannot afford multiple IVF cycles, mandatory policies risk reductions in pregnancy success rates that some customers will find unacceptable.  It is thus no coincidence that the countries experiencing the greatest success with strict embryo transfer limits are those with both a well-developed and technically advanced fertility practice, and broad public funding of multiple IVF cycles.

Admittedly, there is more room for improvement in ART twin rates.  But the U.S. lacks the political will for the strict embryo transfer limits—or, even less likely, the aggressive selective fetal reduction—that have reduced the rate of twin births from ARTs in some countries.  As I elaborate in the “octomom” article, this reflects both some sound policy judgments and some political realities.

Arthur Caplan, a professor of bioethics at the University of Pennsylvania School of Medicine, favors limiting the number of embryos transferred in infertility treatments, yet concludes that:

there is no chance that the practice of embryo transfer will ever be regulated by legislation in the United States. In a nation still deeply divided over abortion and the moral status of embryos, politicians have little interest and no stomach for opening up a public debate on any aspect of infertility treatments.

I conclude with a similar point in “Octomom”: 

In a perfect world, there may be a regulatory model that maximizes public welfare by appropriately balancing this interest [concerns re: multiple birth rates] against parental desires and the differing medical needs of fertility patients.   We do not live in that perfect world.  In addition to the usual regulatory problems of institutional competence, bureaucratic red tape, and political capture, questions of embryo transfer and multiple pregnancies in many countries, including the United States, inevitably intersect with other politically contentious issues, including the moral and legal status of embryos and abortion.  . . .

Because the solutions to multiple pregnancies from IVF that are most likely to preserve pregnancy success rates include selective fetal reduction, the creation of many embryos from which only the highest quality are transferred, and cryopreservation of excess embryos for possible future cycles, advocates of embryo-transfer limits must recognize that embryo-protection goals are not only distinct from, but are often incompatible with, multiple-birth reduction goals. . . . The political minefields of abortion and embryo rights thus render it highly unlikely that the United States will implement comprehensive embryo transfer regulation effectively designed to reduce multiple births anytime soon.

Embryo Error Updates

Last week, I blogged about the Ochsner Hospital in Louisiana, which has indefinitely suspended operations at its in vitro fertilization center in Elmwood because of a mix-up in the labeling of frozen embryos.  Approximately 100 couples may be affected by the labeling errors, and two class action lawsuits have been filed against Ochsner so far.

It has now been reported that Ochsner can't find four missing embryos belonging to one couple that the fertility clinic froze more than two years ago, and two embryos belonging to another couple have disappeared. Ochsner insists that, although frozen embryos were systematically mislabeled, none have been transferred into the wrong patient.

I also blogged about Carolyn Savage, an Ohio woman who gave birth to a boy (which she delivered to the child’s genetic parents) after the Ohio fertility clinic where she underwent in vitro fertilization transferred another couple's embryos into her uterus.

The American Society for Reproductive Medicine (ASRM) executive director Robert W. Rebar has released the following statement regarding the recent embryo mix-ups.  The statement appears to suggest that ASRM intends to work with lawmakers to develop laws to supplement existing industry self-regulation, although it is vague about what form such laws may take:

 Even with these [ASRM industry self-regulation] efforts, the incidents reported this week make it clear that there is still work to do. As the leaders in reproductive medicine, we will redouble our efforts to develop systems that will assure our patients and the public that these kinds of mistakes will not happen. 

The time has come for policy makers to sit down with the leading experts in the field to explore ways we can codify our standards to give them additional regulatory teeth.

 We will lead an effort involving our members, representatives of patient groups, policy makers and other stakeholders to work together to come up with solutions.

(HT: Egg Donation & Surrogacy Law Blog)

More Embryo Errors

I’ve blogged a few times in the last couple of weeks about sperm and embryo mix-ups, as well as egg misappropriation.  Two more cases were in the news this past week.

In Louisiana:

Ochsner Hospital Elmwood has indefinitely suspended operations at its in vitro fertilization center in Elmwood because of a mix-up in the labeling of frozen embryos.

Despite the errors, Ochsner Chief Executive Officer Pat Quinlan assured that no embryos had been implanted in the wrong mother.

According to Quinlan, "we have reason to believe the IVF center has been compromised due to what appears to be a significant labeling issues which makes us unable to account for all of the frozen embryos in our IVF center."

The hospital is conducting an audit of the entire in vitro fertilization program, which has been in operation since 2003.  Approximately 100 couples may be affected by the labeling errors.  According to news reports, two class action lawsuits have been filed against Ochsner so far.

The Ochsner motto is pictured above: "Healthcare With Peace Of Mind."  Hmmm . . .  

(HT: Adam Feibelman)

In Ohio:

Carolyn Savage gave birth to a baby boy on Friday, after the fertility clinic where she underwent in vitro fertilization transferred another couple's embryos into her uterus.  According to CNN, the Savages were informed of the mistake in February, 10 days after undergoing in vitro fertilization, and determined to voluntarily relinquish the child at birth to the genetic parents, rather than terminate the pregnancy.

The five embryos the Savages had cryogenically preserved at the clinic in Ohio (the Savages are not releasing the name of the clinic) are still unused and have been moved to another clinic in Atlanta, Georgia.  Because Carolyn has been advised by doctors against future pregnancies, the Savages are reportedly in talks with a potential gestational surrogate.

The American Fertility Association (AFA) has issued several statements regarding the matter:

In 2007, there were 132,262 IVF cycles performed in the United States (Fresh, Frozen and Donor Egg, per the CDC) in which more than 300,000 embryos were placed into the intended recipients. Embryology laboratories have extremely rigorous procedures to maximally ensure public safety and the health of our patients and their children born of IVF.

The Ohio case is rarer than 1 in a million and I speculate that human error, not malintent, will prove to be the root cause.

In a similar 1999 case in New York, custody was granted to the biological parents and visitation rights denied to the birth mother. (Perry-Rogers v. Fasano, 276 A.D.2d 67, 715 N.Y.S.2d 19, 2000 N.Y. Slip Op. 09070 (N.Y.A.D. 1 Dept. Oct 26, 2000) (NO. 1605, 1606).  There’s a large secondary literature on Perry-Rogers and related issues and, no doubt, some Lounge readers have followed the case and surrounding legal issues with interest.  As always, feel free to leave your thoughts in the comments section.

UCI Egg Theft Case Developments

From The California Bar Journal:

Egg donations

Award: $4,230,000

Doctors at UCI Center for Reproductive Health were found to have engaged in the misappropriation and nonconsensual transfer of donor eggs, several of which resulted in live births (Beasley v. Regents of the University of California, Orange County Superior Court, Plaintiff attorney: Daniel M. Hodes).

(HT: Egg Donor & Surrogacy Law Blog)

OC Register story here:

So far, 157 cases have been settled for roughly $27.7 million. Three more cases are pending.

The most recent settlements range from $45,000 to $675,000. 

 And some background here, especially beginning at fn. 125.