Why can’t embryos be bought and sold like any other commodity? Making this surprising proposal is less surprising than where it was made – in the America’s leading medical journal, the New England Journal of Medicine.
Even in the Wild West of assisted reproductive technology, trading embryos is almost universally condemned. Even the peak body for US IVF clinics, the American Society for Reproductive Medicine (ASRM), has declared flatly that “the selling of embryos per se is ethically unacceptable.”
However, as I. Glenn Cohen, a bioethicist at Harvard Law School, and Dr Eli Y. Adashi, of Brown University’s medical school, point out, this prohibition is not as absolute as it sounds. After all, embryo donation is permitted, even though it is not a major part of clinical practice.
So the authors question the consistency of banning embryo sales without banning the sale of sperm and eggs. After demolishing a number of common arguments against establishing a market in embryos, they finally discover one issue that does seem to be an obstacle: “the lack of clear legal guidance as to the parentage of the embryo”.
“What, for example, would happen to made-to-order embryos if the relevant clinic goes bankrupt? What would happen to such embryos if a gamete provider objects to the sale after fertilization or demands that the embryos be returned or destroyed? These unanswered legal questions give us the most pause about mainstreaming made-to-order embryos. Coordinated efforts by legislators and professionals will be required if this legal void is to be addressed.”
However, Cohen and Adashi seem confident that these issues can be solved. After all, the issues surrounding commercial sperm and egg donation are also complex, but Americans are still free to buy and sell gametes.
Their arguments rest on three pillars. First, the sale of gametes is already accepted. Why not embryos? Second, embryos obviously do not deserve special respect, since they are routinely destroyed in IVF clinics and laboratories. Third, the sale of embryos in no way resembles the abhorrent sale of children. “The latter involves potential harm to an already existing child. The former involves choosing whether particular children will be produced or not, and the practice is more similar to the sale of gametes than the sale of children.”
Is a market in made-to-order embryos the future of assisted reproduction? Actually, as Cohen and Adashi point out, it is its present. At least one clinic in the US offers discount IVF for infertile couples by “creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients”. Only two or three states have banned the sale of embryos.
Commenting in Bill of Health, a Harvard Law School blog, John Robertson, an expert in reproductive law from the University of Texas at Austin, and the chair of the Ethics Committee of the ASRM, says that parentage is not really a problem. He believes, however, that there will never be a big market for off-the-shelf embryos. “A more likely business model is for a clinic to recruit an egg donor, obtain and freeze multiple eggs, and then sell batches of eggs to women who have sperm but no eggs.”