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Ethical issues arising from the use of assisted reproductive

warrant attention, balance and prioritization. Balanceand prioritization may be achieved in different ways, The purpose of this paper is to address ethical issues depending upon the ethical orientations, principles arising from four aspects of the employment of and levels of analysis that are brought to bear. For assisted reproductive technology (ART), namely: instance, deontological or principle-based orienta-tions may produce different outcomes from utilitarian or consequentialist orientations, ethical principles • the establishment and change of social policies; such as beneficence and justice may be ordered in • commercialization of human gametes and embryos; different priorities, and interpersonal or microethics may justify different results from public or macro- Different conclusions can be of equal ethical merit, Issues will be considered in this sequence, but related to the different factors that contribute to they are not entirely separate from each other. There undertaking ethical reflection. For instance, much is unavoidable overlap among them, and some topics consideration of ART involves gamete and embryo may fit as well under the headings of two or more donation, but in the Islamic tradition, where con- issues. Similarly, there is some overlap among issues ceiving children and raising them in religious faith are addressed in this and the other background papers particularly important values, so too is the integrity on ethical and social concerns in this publication.
of a family’s genetic lineage (2). Accordingly, in this Accordingly, for the sake of convenient analysis, context, gamete and embryo donation from outside a topics will be presented under headings and sub- married couple is ethically unacceptable, but within a headings, but they are not to be considered as marriage artificial techniques may be employed to discrete from each other. Some discussions will relate achieve pregnancy. In contrast, the Roman Catholic to others in different sections of the paper, and in branch of Christianity limits acceptable human other papers. Further, the thrust of some discussions reproduction to natural intercourse between a married may appear to vary from and even contradict that of couple (3), but may tolerate transfer of a donated others. This is because ethical analysis does not ovum to an infertile woman’s reproductive system for necessarily lead to a self-determined conclusion; natural insemination there by her husband. Artificial rather, it exposes considerations that require or conception may therefore be ethically available to a Muslim but not an observant Roman Catholic couple, consent and the prohibition of incest. The mature and and ovum donation may be ethically available to a responsible are not privileged over the immature and Roman Catholic but not an observant Muslim couple.
irresponsible, nor the wealthy over the poor or the Within some religious faiths, ethical pluralism is healthy over the infected, but all rank equally as rejected, and divergence from authoritative doctrine individuals able to exercise choice of reproductive may be deemed heresy. The modern practice of ethics behaviour according to their own preferences and or bioethics is secular and pluralistic, however ( 4 ), recognizing that ethical reasoning on the same issue In contrast to the capacity of usually fertile can justify different conclusions. This is not to say individuals to undertake consensual reproductive that every option is acceptable, but that adherents of behaviour in private, is the public attention and one preferred outcome may well acknowledge that regulation to which reproductively impaired indivi- adherents of an alternative preferred outcome are duals are increasingly subject when they propose applying approaches that result in different ethical, resort to ART. Particularly in developed countries where ART techniques have been pioneered, such asAustralia and the UK, state and national commissionswith distinguished memberships have proposed The principle of equity
criteria by which ART may become restrictivelyavailable to reproductively impaired people. Proposals Equity and equality
of many commissions have been enacted into laws oradopted as professional or clinical practices. These may Equity is distinguishable from equality, although the limit access to ART to legally married or cohabiting two often coincide. Equality requires the identical heterosexual couples in relationships of specific treatment of all despite their differences, whereas duration, require or facilitate their scrutiny according equity requires equally fair treatment of individuals to medical, genetic and perhaps psychological stand- taking account of ethically significant differences ards, or screen them by reference to other criteria such among them. The ethical principle of justice requires as age, personality and criminal or childcare history.
that like cases be treated alike (hence the legal pre- An ethical concern is the extent, if any, to which occupation with precedents) and that different cases different approaches towards reproductively impaired be treated in ways that acknowledge the differences, and unimpaired people, established in law or practice, raising ethical concerns of likeness and difference. For can be justified. An important human rights provision instance, the private insurance industry in the USA is nondiscrimination on grounds of physical and has long treated men and women as equals in covering mental disability, according to which reproductively contraceptive services for neither. However, women disabled people should be placed at no disadvantage bear the consequences of, particularly unplanned, in contrast to people of usual fertility. Another provi- pregnancy more directly and oppressively than men.
sion is to ensure due protection of children, however, The inequity of this equality became clear when which allows, for instance, lawful removal from their insurance companies speedily extended their cover to parents’ care of children exposed to or at serious risk include the new male potency drug Viagra (5), moving of abuse or neglect. This provision may afford an some state legislatures to require coverage of ethical justification of laws and practices that bar or scrutinize access to ART of people whose circum- An initial issue of equity and equality concerning stances or histories furnish credible apprehension ART is whether people with impaired fertility, that, even unintentionally and despite their good will, including those who turn to ART because their natural any children for whose care they became responsible reproduction would expose their children to un- would be at risk of serious disadvantage or neglect.
acceptable risks of harmful genetic inheritance, should The ethical principle of respect for persons balances be as free to reproduce as people of usual fertility. In rights of autonomy against rights to protection of many countries and cultures, particularly of the western vulnerable persons, of whom young, dependent world, the latter are not subject to legal prohibitions, requirements of marriage or, for instance, medical The goal of serving the best interests of prospec- screening on genetic or other grounds, although they tive children is sometimes invoked to justify limiting are subject to the regular law on their partners’ capable people’s access to ART, even though the consequence Ethical issues arising from the use of assisted reproductive technologies may be that the prospective children whose interests usually fund diagnostic services, and may fund drug are claimed to be protected are never conceived. The and surgical treatments, such as of diseased fallopian inequality or inequity of controlling the reproduction tubes, that restore fertility, but not ART that does not of infertile people who are dependent on ART, when reverse the medical condition of infertility but over- that of usually fertile people is not and perhaps cannot comes it by artificial means of conception.
be controlled, is sometimes explained on pragmatic or The ethical and related human rights principle of utilitarian grounds, and by recognition that, in many nondiscrimination on grounds of disability raises the countries, fertile people whose parenthood exposes question of whether states should ethically do more their children to undue risks will be subject to child than to permit those with the personal means to avail protective intervention that denies them childrearing themselves of accessible ART services to do so; that opportunities. However, the children of fertile couples is, whether ART should be allowed as luxury medi- are not legally removable from their care on the ground cine, like, for instance, cosmetic surgery, available with only that public agencies believe that they can better minimum screening on social or moral grounds to those serve the children’s “best interests” by placing them with the means of purchase, or whether the principle elsewhere, and it appears inequitable to invoke a “best of equity requires some measure of public funding or interests” criterion legally to deny ART to infertile subsidy of ART services, such as by taxation relief couples when there is little risk of their future children for its cost. States that provide publicly funded health care services to restore natural capacities, includingreproductive capacities, may claim that they satisfy Disability and pathology
their duties of equity in treating all eligible recipientsof state medical services alike, and that they have no Impairment of fertility may be due to a pathological further ethical responsibilities to those that ordinary cause, but it is ethically contentious to describe people care cannot assist. It may be that medical treatment seeking access to ART generically as unhealthy or of pathological conditions that cause infertility, such diseased people, or, indeed, apart from their impaired as premature menopause and fallopian tube blockage, reproductive capacity, as disabled. Infertility itself is discharges the duty of health care equity, and that not a disease, and alone it does not impair medical there is no such duty to relieve remaining disability by health, although among those who want to have their provision of costly ART services. Nevertheless, limited own genetically related children it may impair their access to ART services due to their high cost remains health in so far as the World Health Organization a major equity issue raising questions about reproduc- recognizes “health” as a state not only of physical well- tive rights of people with limited financial means.
being but also of mental and social well-being. On thisbasis, UN conferences have endorsed the definition Negative rights and positive rights
that: “Reproductive health is a state of completephysical, mental and social well-being and not merely Considering impaired fertility as a reproductive the absence of disease or infirmity, in all matters relat- disability raises the concern of the appropriate public ing to the reproductive system and to its functions or macroethical response to the rights of such disabled and processes. Reproductive health therefore implies persons to equitable treatment. Rights are often that people are able to have … the capability to contrasted by reference to negative and positive rights.
reproduce and the freedom to decide if, when and how Negative rights amount to rights to be left alone, often to do so. Implicit in this last condition are the whereas positive rights require that holders be provi- right of men and women to be informed and to have ded, often by state agencies, with means to exercise … the right of access to appropriate health-care such rights. Rights to luxury goods and services are services that will … provide couples with the best usually considered only as negative rights. By chance of having a healthy infant” (7).
analogy to transportation, governments may provide Infertility can deny mental or social well-being and low-cost or subsidized public transit services by road be a cause of acute affliction and anguish, evidenced and rail to take people to and from work and between by the extent of physical and financial cost individuals major population centres, but not maintain rural are willing to bear for its relief. However, many transit networks, provide subsidized airline services, countries that provide publicly funded health care for or provide motorized vehicles for private use. Similarly, medically necessary services do not fund ART. They they may provide routine, low-cost treatment for pathological causes of infertility and limited higher- result from natural or medically assisted procreation, cost care for more resistant conditions, but not the but many mental disorders are transient, of different more expensive forms of ART. They may explain this levels of severity and amenable to treatment. It has in terms of health care economy, and also by reference been observed that “The stigma suffered by the to cost-effectiveness considerations in the budgeting mentally ill dates back to antiquity and has its origins in fear, lack of knowledge and ingrained moralistic The negative right to ART, meaning individuals’ views. Though erroneous, these associations remain right to acquire access by their own resources, pervasive…. At times, the unusual and even un- requires that state and other agencies forbear or founded nature of psychiatric theories and the restrain themselves, or be restrained by judicial or practitioners who uphold them has compounded the other lawful means, from undue intervention by their problem” ( 9 ). Equity requires that particular appli- creation of barriers or obstacles to equitable access.
cants for ART be clinically assessed on their indivi- Many of these barriers have been of a moral nature, dual merits, and not be denied rights of access on prohibiting individuals from unfettered resort to both grounds of impersonal, collective stigmatization and publicly funded and privately available ART services.
Some initial reactions to novel means of conception ART applicants’ liability to exclusion on grounds have exhibited what has been described as “moral of their physical health should similarly be clinically panic”‚ meaning an unreasoning fear of subversion assessed. Their vulnerability to premature death or of the moral order. It was noted in 1991 that “While disability, leaving young children at risk of orphanage, the past 40 years has seen the meltdown of the nuclear destitution or neglect, may properly weigh negatively family and its surrounding myths and ideologies—in in the balance, but rights of access should not be less than ten years half of all children born in the denied on the basis of negative stereotyping. The United Kingdom will be brought up outside the British Medical Journal has recently observed, for ‘conventional’ family—new demons, chimeras and instance, that in view of the prolonged life expectancy spirits have been summoned to haunt the new families of people who are HIV-positive and receiving treat- which technological and personal upheavals have ment now available, particularly in developed countries, there is no justification for denying infertil- For instance, unmarried individuals, including ity treatment to patients who bear the infection. It single people and partners in same-sex relationships, reported that “Judicious use of combination anti- have been barred from ART by laws or by institutional retroviral therapy during pregnancy and labour, or professional rules or practices. These have been delivery by caesarean section, and avoidance of based on or reinforced by claims that limits are breastfeeding are proved measures which have compelled or justified to protect children against births reduced the risk of vertical transmission to less than into unstable or otherwise unconventional domestic 2%” (10). Exclusion of HIV-positive applicants from settings. These speculative claims may be un- ART programmes may be explained not by their supported by empirical data, however, such as is incapacities to be suitable parents, but by health care available of the harms suffered by children that live practitioners’ inequitable reluctance to treat them as in violent homes. Comparable claims that have denied rights to adoption of children are now yielding in many countries to recognition that children are as well reared surplus embryos may be liable to comparable negative in less conventional as in more conventional home stigmatization, for instance when gay men are rejected environments. It is increasingly recognized that more as sperm donors, it is doubtful that they have an than conservative orthodoxy and negative speculation ethical or equitable right of donation. The question is based on generic bias are required to deny a right of sometimes posed of, whether human tissue donors, for instance‚ of blood for transfusion or creation of Preconceptions about the unsuitability and plasma products, have a general right or only a ineligibility for access to ART of those affected by selective privilege of donation. Egalitarians tend to mental disorders may also require reconsideration on favour the former in light of the humiliation and loss grounds of equity. Mental disorder of a severe nature, of self-esteem those whose altruistic offers of although not requiring institutionalization, may justify donation are rejected may suffer. The right/ privilege ineligibility for a childrearing role, whether children distinction may be a false dichotomy, however, since Ethical issues arising from the use of assisted reproductive technologies donation may be neither a right nor a privilege, but tion and birth of children has customarily been only a qualified opportunity; that is, an opportunity regarded as a private or family matter, regulated by the to offer to satisfy objectively, scientifically justified unpredictable chance of nature or as a divine mystery criteria of eligibility. For instance, a couple may be outside decisive human control. The principles of admitted to an ART programme as suitable, informed family law within a community reflect its most historical recipients of the service, but not be eligible on genetic and customary or intuitive values, often embedded in or other grounds to donate their gametes or surplus religious beliefs regarding private intimacy, associated embryos to others. They have no ethical rights of with the transition between generations of family donation, but only the right to offer to donate (see the chapter on “Gamete and embryo donation” for The emergence of ART including gamete donation details on the criteria of acceptability).
has confused the genetic cohesion and integrity of A related question is whether recipients of ART traditional family identity (15), and initially triggered services can claim a right to choose specific gamete conservative responses. First reactions to what or embryo donors. With the exception‚ for instance‚ reproductive technology shows to have become of the wife of an infertile couple choosing her brother possible are often more instinctive or visceral than as a sperm donor, couples may claim a right of choice intellectual, and policy responses have tended to of donors who meet routine criteria, such as being focus more on defence against perceived dangers to HIV-negative. It has been reported regarding ovum traditional values than on achieving potentials for donation, for instance, that “90 percent considered human satisfaction and cultural enrichment through using a sister, 76 percent decided that a sister would new applications of biotechnology. This was observed be the preferred donor, 70 percent asked a sister to with the early popularization of artificial insemination, donate, and 60 percent found a sister to be willing” when Kleegman and Kaufman noted in 1966 that: (12). Ethicists and practitioners have raised theconcern that family relationships may become blurred or confused by the use of such known donors (13), emotionally charged area has always elicited and issues of blame or regret may arise if donation is a response from established custom and law followed by an adverse outcome. Allowing ART of horrified negation at first; then negation patients to recruit donors also raises concerns of financial inducements, emotional coercion and curiosity, study, evaluation, and finally a very exploitation of dependent relationships. The New York slow but steady acceptance (16).
State Task Force on Life and the Law recommendedthat: “When known egg donors are used, informed Societies progress through this transition at consent to donation should take place outside the different paces, and establish and change their presence of the recipient. Physicians should attempt policies accordingly. Those most influenced by to determine whether known donors are motivated by religious concepts are in some ways slowest to undue pressure or coercion; in such cases, the physi- progress. For instance, since the Roman Catholic cian should decline to proceed with the donation. When Church adopted the concept of papal infallibility in applicable, the informed consent process should 1870, its teachings cannot contradict earlier papal include a discussion of the psychological and social pronouncements made ex cathedra , and much of its ramifications of egg donation within families” (14).
scholarship is devoted to assertion of the authorityof conclusions reached in earlier times. Doctrinal Establishing and changing social policies
reassessment within the church is severely compro-mised, because it has to be shown consistent withexisting authority. Social policies that reflect any Policy evolution
variation from church doctrine, such as the doctrinethat artificial or “unnatural” means of achieving The ethical conduct of a “social policy” suggests human conception are illicit, are considered a scandal pursuit of a principled, deliberative public programme or heresy, and strongly opposed. Indeed, it has been of action designed to serve the interests of a given explained that the modern emergence of secular, organized population or society, according to the pluralistic western bioethics was strongly influenced science of politics or statecraft. However, the concep- by the Vatican’s intransigence in 1968 on doctrinal reform regarding artificial contraception (17). In truly informed consent to gestation and childbirth contrast, although Islamic prohibition of gamete and could not be given by a woman lacking this experi- embryo donation is firm, the use of ART to overcome ence. Others were fearful of the psychological harm a infertility within marriage is accepted, often welcome young child might suffer from recognizing that its and even considered necessary (18).
mother is willing to give away her child to others, and Different popular religious attitudes to relations urged that women with dependent children be between human beings and their perceived divine prohibited from surrogate gestation (21).
creator can influence policy responses to ART. Inmany Christian communities, for instance, it is Policy (reform) commissions
considered offensive and a condemnation that oneshould assume to “play God” with human conception Nevertheless, the advent of surrogate motherhood and birth, as an impertinent human arrogation of illustrated an ethically defensible process to establish divine power and authority. Accordingly, social policy social policy, to evaluate whether existing policy is treats the practice of ART conservatively as bordering dysfunctional or inadequate to address new technical on impropriety, and detracting from or tampering with possibilities, such as arise from ART, and to change the awe and humility with which to face divine it if necessary. From the late 1970s, many countries authority. In other religious traditions, however, such and states and provinces such as those of Australia, as Judaism, there is a perceived partnership between Canada and the USA, established governmental or humans and their divine creator, so that individuals’ other official enquiries into ART, to propose social “God-given gifts” of skill and initiative are properly policy responses to limit, accommodate and/or employed in scientific advance and in the cure or monitor effects of these new biotechnological overcoming of medical impairments, including by ART.
capacities on human reproduction and the founding In this tradition, the divine creator is described as of genetically diverse families (12,21–29) . They acting in ways of beneficence, mercy and compassion, tended to be composed of members of mixed social, and “the human being is required to imitate God in this academic, philosophical, religious and other back- respect” (19). Social policy in Israel, for instance, is grounds who were experienced in development of strongly pro-natalist (20) , and encourages ART social policy. They received representations from within marriage, provided that ovum donors to Jewish community groups and individuals, solicited informa- couples are Jewish, in accordance with the first tion and opinions they considered necessary or direction given to Adam and Eve in the biblical Book appropriate to fulfil their mandates, and consulted with of Genesis, chapter 1, verse 28, to “be fruitful and specialists in technical areas and on social and ethical multiply, and fill the earth,” reinforced perhaps by implications of policy options. They tended not demographic and geopolitical incentives.
explicitly to invoke the language or categories of Problematic and constricting though religiously ethical discussion, speaking instead of the social conditioned social policy may be, it has the ethical values and pragmatic considerations they considered advantage over purely secular policy development of significant, but their discussions and conclusions invoking profound and enduring principles. In contrast, secular policy-making is more pluralistic but The conclusions and array of recommendations may seem to defy the ethical principle of justice in that these commissions produced did not always win producing quite different responses to the same favour with ethical analysts, and were often greeted circumstance, influenced by idiosyncratic values and with dismay both by libertarians and by many who priorities and introduced as a consequence of political assessed them from conservative religious perspec- power rather than of any transcending ethical principle tives. This was because they tended to recommend or even conscious tolerance of ethical pluralism. When acceptance of some practices, such as unpaid gamete surrogate motherhood rose to public visibility, for and surplus embryo donations, prohibition of others, instance, and women were recognized as potentially such as commercial transactions including surrogate willing to gestate and surrender children to serve other motherhood agreements, and, for instance, setting of families, diametrically opposed responses appeared.
conditions and time limits by which preserved gametes Some urged and enacted policies that prohibited any woman from undertaking surrogate gestation who had The commissions contributed to ethical social not previously delivered a child, on the principle that policy development, in that they opened issues to Ethical issues arising from the use of assisted reproductive technologies public debate, either through their own processes or means to address, though not necessarily to resolve through generation of public discussion of their to uniform satisfaction, a key ethical issue of where conclusions, and sometimes both. They were the burden of proof lies to preserve or change prevail- respectful of those who made oral or written represen- ing social policies. The evidence and policy implica- tations to them, although at that time organized tions arising from individuals’ access to ART services religious institutions were better equipped to advance and from operation of ART programmes are rarely their views than bodies claiming to represent infertile unequivocably favourable or unfavourable. It is people, they beneficially added to public under- uncertain, for instance, whether treatment that results standing of the issues and response options raised in an infertile couple having a new family of two or by ART, and they attempted to justify their balancing three prematurely born children that suffer respiratory of the competing principles and pragmatic considera- and/or neurological impairments is to be considered tions that conditioned their conclusions and successful or unsuccessful, or whether treatment that recommendations. They had different levels of provides an infertile couple with one or two healthy success in having their recommendations enacted in children following a multiple pregnancy that was law, but tended to be well respected by medical and “selectively reduced” by ending the lives in utero of related professional associations whose members several embryos or fetuses is to be celebrated or deplored. When a country’s social policy is un- The ethical character of these commissions was accommodating of equivocal new technology, the based more on the transparency and integrity of their ethical question is whether potential users can claim processes than on the substance of their conclusions an ethical right to policy change to accommodate it, and recommendations, many of which were conten- so that opponents have to make the case to preserve tious among ethical analysts and commentators.
the status quo, or whether the burden lies on Many received information and opinions, and formed supporters of the new technology to make the case their own conclusions, before the present emphasis for policy change. Similarly, when a government on evidence-based medicine arose. In light of this proposes a new law to restrict access to a newly newer perspective, some of the information they were developed service, the question is whether the given and the scientific conclusions they reached government has to make an ethical case (30), o r might now appear questionable. Further, and perhaps whether the ethical burden of resistance is on political more significantly, they made no approach to advance opponents; the policy is not ethical simply because a or consider founding the social policies they explicitly or implicitly adopted on empirical evidence. They When the need for, or desirability of, policy reform almost invariably accepted as true, for instance, that is equivocal, and there is as much to be said against children are better reared in legally married unions than policy change as for, and vice versa, the question of in unmarried unions, and that heterosexual parent- whether supporters or opponents of policy change hood provides a superior rearing environment to stable bear the burden of making their case is decisive.
same-sex unions. Many uncritically accepted conven- Neither case may be made persuasively, and the side tional stereotypes of family life and functioning, bearing the burden will fail to discharge it. Conserva- without seeking or reviewing evidence, for instance, tive or risk-averse forces will claim that a long-standing of the incidence and nature of marriage breakdown and adequate social policy should be changed only and family dysfunction within their societies, and the when advocates of innovation present a convincing effects on children’s well-being. This deficit in these argument in favour, and those of a reformist or socially studies raises ethical concerns about the adequacy experimental disposition will claim that prima facie of this method of establishing, changing or declining evidence of advantage from innovation should be sufficient to propel policy reform, and that those resis-tant to reform bear the burden of establishing the case The burden of proof
against it. In contrast, however, when a new practiceappears to threaten conventional values, such as Commissions of enquiry often include members from surrogate motherhood or human cloning, conserva- the legal profession or judiciary, sometimes as their tive forces want to speed restrictive provisions, and leaders, and some indeed have been conducted within reformists urge caution and time for balanced law reform commissions (21,26). This may provide reflection against precipitate prohibitions (31).
Both conservative and reformist preferences may treated as objects, nor only as means to ends. As ends be based on ethical principles, and often on variants in themselves, individuals have inherent worth and or counterpoints to the same principles. The principle value, not simply the instrumental or utilitarian value of beneficence may support reform to accommodate ascribed to objects, which are valued only for what the advantages attributable to a new technology, but can be done with them. Accordingly, it is inconsistent the duty to do no harm, nonmaleficence, may support with their inherent worth that human gametes and its rejection. Supporters of reform may claim that embryos should become the subject of commercial denying a policy that would accommodate the new technology does harm to those it may benefit, and This ethical reasoning is supported from a variety that reform is required by the principle of justice, since of extraneous perspectives. A religious view, adopted the new but excluded practice is like one already by the Roman Catholic Church in 1869, displacing accommodated. However, opponents may identify a earlier concepts of ensoulment that determined when feature or consequence of the new practice that the soul enters the body, is that human life begins at renders it distinguishable. For instance, advocates of conception or fertilization (34). This view requires that cloning by embryo-splitting may claim that it only an embryo be afforded the same respect and protec- simulates natural or spontaneous identical twinning, tion as a born person, although the application of this and so should be allowed, while opponents may claim view to sperm and ova appears more difficult to that it accommodates multiplication by successive establish (35). A view from philosophy and political twinning of an embryo twinned in vitro and, unlike science is that some interests, objects and functions, natural twinning, allows identical twins to be gestated such as motherhood, should not be amenable to market and born years apart. A social policy compromise may transactions because of the damage that would result be to limit induced twinning to a single occasion, and to human values, community and dignity. Margaret require concurrent implantation of successfully Radin, for example, condemns paid surrogate mother- divided embryos. Ethics may provide no self-evident hood as devaluing women in general, mothers in or clear outcome on the merits of a particular case, but particular, and children universally by making them provide protagonists of different outcomes with the “completely monetizable and fungible objects of language and concepts of their advocacy.
exchange”‚ meaning that any one may be replaced byany other and has no individual value in itself, so Commercialization of gametes/embryos
leading to “an inferior conception of human flourish-ing” (36).
The ethical argument against commercialization of Ethical arguments against commercialization
gametes and embryos is not simply the pragmatic harmthis may do to the spirit and practice of altruism. Nor Ethical arguments against commercialization include is it the inducement payment affords sellers to conceal reference to dangers of exploitation of vulnerable and misrepresent reasons why the material they pro- people, such as those who are impoverished, and to pose to sell may be tainted and harmful to recipients, the more abstract concept of human dignity (32). A advanced in a modern classic text opposing paid principal argument against allowing human gametes donation of blood for transfusion (37), and indirectly and embryos to be the subject of commercial or profit- advocating the moral and practical superiority of (UK) earning exchange stems from the ethical principle of socialized medicine over (USA) market-directed health respect for persons, which is sometimes considered care. Rather, the argument is that commercialization analogous to the concept of human dignity as applied through commodification damages important ethical in Europe. Neither gametes nor embryos are persons, values in that it raises functional utility over inherent but both may be considered potential persons and human worth, invites competitive bidding for superior what philosophers describe as “the argument from over inferior products, in the case of gametes and potential” (33) requires that they be treated with the embryos‚ perhaps because of offensive distinctions respect and dignity due to the persons they have the in genetic pedigree and racial or ethnic properties, and potential to become. Since abolition of slavery, the imposes a monetary tariff on all means by which concept advanced by the German secular philosopher children are conceived and born. That is, a man’s Immanuel Kant (1724–1804) has prevailed, that people, loving act by which his wife conceives their child and by implication potential people, should not be becomes reduced to his transfer of sperm of a given Ethical issues arising from the use of assisted reproductive technologies market value, and her gestation becomes a service, of donation with other payments for products and even when unpaid, that is known to be commercially services that are reputable and tolerated in materialistic marketable at an employment rate per month or lesser and capitalistic or market-based economies. They find contradiction and even hypocrisy in social tolerance This impoverishes the quality of human and family and sometimes admiration of some forms of commerce life, because it devalues and impersonalizes a in the overcoming of infertility that accompanies profound act of personal commitment and dedication.
condemnation of giving and receiving commercial The social fracture in relationships is comparable to rewards for supply of the gametes and embryos that that done by a guest invited to a friend’s home for may make treatment possible. For instance, medical dinner who strips the invitation of its personal practitioners earn professional fees or salaries for their character by equating enjoyment of the company and services (41), infertility clinics organize diagnosis and the meal to a restaurant service, and expresses treatment on a for-profit basis, particularly since appreciation by placing the assessed money value on publicly-funded health services tend not to cover the table in cash. A more obvious analogy may be in ART services adequately or at all, in some countries equating reproduction to prostitution. This descrip- sperm banks provide samples for payment, labora- tion is now often redeemed or mitigated, acknowledg- tories charge for testing gametes, genetic and other ing the vulnerability and oppression that direct young counsellors earn livelihoods by their availability and, persons into this occupation, by being termed for instance, drug companies and equipment manu- “commercial sex work”‚ but its original description facturers sell their products for care of infertile implies shameful and immoral debasement, or sacrifice patients. The demand or expectation that only those who supply their own sperm, ova or embryos for the This analogy contributes to another pragmatic same purpose should be altruistic, appears unjust.
reason to oppose commerce in human gametes and Even where the admonition of Richard Titmuss embryos; that it would be liable to be exploitive of against commercial purchase of blood for transfusion those vulnerable through poverty who have no other (37) is taken seriously, laws often allow payment for means of earning. Gamete selling is more oppressive whole blood or plasma donation, as an exception from of women than is sperm selling of men, since ova their general prohibition of commerce in human recovery, perhaps following superovulation induced tissues, on pragmatic grounds. The social need for an by hormonal or other drug treatment, would be adequate supply of transfusible blood and blood considerably more physically invasive and un- products overwhelms objections of principle to comfortable or risk-laden. Similarly, experience shows commercial transactions. The physical dangers to that infertile couples may be induced to trade a number which people are exposed from infertility are less than of their cryopreserved embryos created in vitro in those posed by loss of blood and by anaemia, but exchange for a further treatment cycle, when they where the claims of infertile patients to have children cannot afford its financial costs. This payment in kind, are respected, commercial incentives to donation, in exchange for services rendered, would not be asked where necessary, may be ethically tolerable. Accord- or invited of couples that request further treatment on ingly, the UK Human Fertilisation and Embryology Authority (HFEA) has suspended its plan to prohibitpayment to sperm and ova donors of a modest fee and Ethical arguments allowing commercialization
reasonable expenses (42). Allowance may serve theethical goal of beneficence, and the burden may fall Few arguments urge commerce or trafficking in human on those who argue that, on the contrary, commercial- gametes or embryos as positively desirable in itself ization violates the ethic of nonmaleficence, that is the (38,39), and some who find payments defensible ethic to do no harm, to make their case persuasively.
recognize that there is something unsavoury in In utilitarian terms, they must show that the harm of individuals selling their gametes (40). However, many society enduring relievable childlessness, and find that exchange for value may be tolerable, and imposing it on those who seek to have children, is less analogous to practices societies have already accept- than the harms that would arise from commercial ed. Invoking the ethical principle of justice, that like transactions in human gametes and embryos.
cases be treated alike, they equate giving and The case that would-be sellers might suppress receiving commercial rewards for rendering the service information that would expose their genetic material and embryos as unsuitable for use is considerably that ovum sales may involve women in medically weakened where modern means of genetic diagnosis unnecessary, invasive and risk-bearing treatments has are available, since they make reliance on the substance, but the procedures are the same for proposed seller’s disclosure of personal and family commercial as for altruistic donors, and although the history less necessary. More persuasive may be the latter may be willing so to serve only for family claim that payment would induce poor people to members and friends rather than for strangers, the undertake what people of means refrain from doing, exchange of money does not itself affect the nature that is‚ to make their genetic material and embryos of the procedures, and should not affect the care available to strangers. The special emotional burden offered by those who counsel or conduct them.
of donation of extra embryos created in infertility The objection that commercialization of donation treatment is that the gamete donors may remain unfairly attracts poor people to serve as vendors, and childless, while knowing or suspecting that a strange unfairly privileges rich people as purchasers, may be couple have borne and are rearing their child. The risk factually correct. However, this does not distinguish that impoverished people will become liable to gamete and embryo sales from the attraction poor exploitation arises from many sources. These include people may feel to sell their labour in low-paying, experience in tissue donation, for instance, when four unpleasant or above-average risk employment, or from poor Turkish workers were paid to fly to a London the capacity of rich people to purchase superior hospital for removal of kidneys for transplantation consumer products and services, including private into wealthy recipients, in documentation of eye and health care. Where legal prohibitions exclude the kidney sales in the Republic of Korea under recession capacity of affluent people to purchase the products (43), and in surrogate motherhood transactions when and services they desire in their jurisdictions of there are significant wealth differences between residence, they are allowed to seek them elsewhere, commissioning couples and gestational mothers, including as “reproductive tourists”. In any event, the raising concerns about “how such practices might fur- unjust privileges available to people of means do not ther oppress poor and disadvantaged women” (44).
provide ethical grounds to deny poor people the Against this, however, it is argued that in order to opportunity to obtain benefits as they perceive them.
sustain prohibitions of apparently exploitive practiceson ethical grounds, “we need better reasons than our An ethical middle ground—regulation
own feelings of disgust” (45). “Protecting” willing,intellectually competent vendors of their gametes and Even where gametes themselves cannot legally be sold embryos against “exploitation” may disrespectfully or purchased, donors often receive payments that may deny them their ethical claim to autonomy, and hold not be unlawful. Prohibition of commercial commodi- them within a paternalistic confine that is itself an fication of gametes has not prevented payments from oppressive exercise of power over less powerful being made to donors, not for their genetic material members of society. They may consider such a sale itself but for the service of making it available. That to be the best option open to them, so that their posi- is, they receive payment not in a commodity transac- tion is worsened when the option is removed.
tion but under a service transaction. Men are not paid, The argument that poor people cannot exercise for instance, for the genetic properties or volume of intelligent choice, such as the choice of a healthy, their ejaculate, but for the service of offering its fertile woman to donate ova or of a healthy, athletic availability. In principle, they should receive the man to undertake professional high-risk contact sport scheduled payment even if their sperm are found on such as boxing, is patronizing and insulting. The analysis to be unsuitable for use in reproduction due, argument that their choice is not freely made because for instance, to a genetic deficiency or viral infection.
of the pressure of poverty scarcely provides an ethical In the same way that health care professionals are justification for further denying their choice. The claim ethically entitled to charge conscionable fees for their that their choice may not be adequately informed, for services, gamete and embryo donors may claim that it instance‚ because they have not been able to consider is not unlawful or unethical that they should receive or gain access to feasible options, provides a basis payments that are proportionate to their inconven- for affording them additional, realistic information or ience in donation. For instance, in the UK, the Human opportunities rather than denying them the choice of Organ Transplants Act 1989 provides in section 1 (1) acting on the information they possess. The objection that a person commits an offence if (s)he “makes or Ethical issues arising from the use of assisted reproductive technologies receives any payment for the supply of, or for an offer and an entirely free market is the ethical preference of to supply, an organ”‚ but section 1 (3) states that a regulated market. This is shown in the UK, where “payment” means “payment in money or money’s the HFEA monitors ART developments, licenses ART worth but does not include any payment for defraying centres according to their capacities of equipment and or reimbursing … (b) any expenses or loss of earnings personnel, enforces a Code of Practice, gathers incurred by a person so far as reasonably and directly relevant data and informs the public in general and attributable to his supplying an organ from his body” prospective users of services in particular of where (46). Organs cannot be traded, but those supplying they may receive treatment and how successfully them can recover the reasonable costs of that service.
particular treatments, and treatment centres, work. The Ethical concern that it is inconsistent to allow HFEA monitors research initiatives, storage and payment for the service of donation but not for the disposal of embryos, and compliance with legal donated product may be addressed, in part, by requirements. The Authority also determines which recognition that service costs are more measurable in payments are acceptable and which are not, deciding equitable market terms, and less open to the charge in 1998, for instance, that it is tolerable for a patient’s of people turning their bodies into “things”.
in vitro fertilization (IVF) treatment to be subsidized Rates for the supply of gametes and embryos in return for the donation of some of her ova (50).
could be independently set or approved under The HFEA’s observance of the law has also cast regulations of an appropriate public or publicly illumination on “reproductive tourism”. This is often accountable agency. This would unlink buying from discredited by association with sex tourism, the selling, preclude private barter, and prevent wealthier condemned practice of people, overwhelmingly men, patients from outbidding less wealthy applicants for going to usually poor foreign countries to have sexual infertility treatment. Payments could be made by an encounters with local residents that are unlawful in independent agency rather than by, for instance, a for- their own countries, such as with legal minors. In 1997, profit clinic, and donations be allocated among clinics the English Court of Appeal ruled that the HFEA according to an equitable formula. This would address correctly applied legislation of 1990 in denying a an ethical objection to commodification of gametes widow permission to be inseminated with sperm and embryos, namely‚ that it unfairly privileges the recovered without his consent from her comatose wealthy through their superior means of purchase.
dying husband (51). The Court noted, however, that Both banning commerce in gametes and embryos the widow was entitled to seek lawful services in and permitting their availability according to market countries of the European Community that were principles are ethically problematic. Bans risk exclusion unlawful in the UK, and she subsequently was of legitimate benefits, and injustice in light of what else successfully inseminated in Belgium. Accordingly, so- societies permit to be traded, and free operation of called reproductive tourism need not be regarded only market forces risks indignity and indefensible as a devious way to avoid the restrictions of national exploitation. In principle, markets may be believed to laws, but may be an ethical means to achieve personal solve problems of inadequate and surplus supply and, reproductive goals compatibly with the different for instance, of quality control, but these concepts standards of one’s own country and of another where seem inappropriate and offensive to common services are lawfully available. Instead of using the sentiment where human reproduction is concerned.
pejorative description of “reproductive tourism”‚ with Even in the USA, where supply of health services is its implications of flawed morality or leisure-time widely believed best undertaken through private triviality, it may pay ethical respect to those who seek agencies, there are legal prohibitions of commerce in to have children to employ a description such as organs, children and, for instance, surrogate mother- resort to “transnational services”.
hood services (47). The logical virtues of marketdiscipline are subordinated to moral repugnance (48).
Conflicts of interest
Nevertheless, the ethics committee of the AmericanSociety for Reproductive Medicine has recommendedlimiting payment to the last few years’ “marketplace Conflict in reality or in appearance
norm” of US$ 5000 per completed cycle for donatedova (49).
In ethics as in law, conflicts of interest clearly arise Between the ethical hazards of a prohibited market when those who induce others to depend on their integrity and good faith place their own interests instance, may pay staff members, who may also be above those of such dependants. Accountability for proprietors, inflated salaries, and function to cover conflict of interest goes far beyond this, however, their costs, which are boosted by paying such salaries.
because it also arises when those in whom others are Although these clinics may accordingly be non-profit, encouraged to trust are in a position to favour their they may be sources of considerable personal own interests, whether or not they actually succumb to the temptation of self-interest. Practitioners in Conflicts may appear in the options and advice health care professions, on whose specialized that practitioners offer patients on preservation and knowledge and training lay people must necessarily disposal of their gametes and embryos. If clinics make depend for the services they feel they need, are almost profits from storage, or storage fees contribute to pay invariably enmeshed in multiple functions and the costs of storage facilities, clinic personnel may commitments that require an exercise of choice among have an apparent interest to recommend or offer options, some of which might appear more favourable preservation, reinforced by the incentive this may give to themselves than others, and some of which might donors to remain in treatment programmes. It has been appear less favourable to the interests of patients to reported, for instance, that a facility in New York whom they have conscientious duties. Conflict of charges $ 500 for three months’ storage of embryos interest arises not just from the actual prioritization (53). As against this, however, patients’ compliance of self-interest, but also from an appearance that self- with requests or recommendations that patients interest might be indulged at the cost of a reliant should make surplus ova and/or embryos available for patient. For many reproductive health care practi- donation to other patients, may provide clinics with tioners, in publicly funded facilities as well as in access to scarce materials through which treatments private, for-profit centres, conflict of interest created can be offered to additional patients, and with by the appearance of conflict of interest, is in- incentives to super-ovulate women patients in ways that may be contrary to their health interests and Conflict is more obvious in some cases, of course, reproductive options. The HFEA in the UK accepted than in others. Professional fee-splitting is considered transfer of ova for fees or as part-payment in kind for conflictual because it risks dissipation of the practi- infertility treatment late in 1998 (50), and has now tioner’s allegiance to the patient (52). Practitioners allowed similar donation of embryos (42). Practi- who are also owners or financial shareholders in for- tioners’ interests in preserving and employing profit clinics, who advise clinic patients to take more patients’ gametes and embryos in these ways are not costly or prolonged treatments than appear indicated, necessarily contrary to patients’ interests, but are vulnerable to the suspicion of conflict. So equally, opportunities for clinics’ and practitioners’ own however, are practitioners on fixed salaries in publicly advantage exist from which conflict may appear.
funded services, who advise patients whose carewould be costly of material resources and/or care- The definition of “infertility” and “genetic risk”
givers’ time that their prospects of successfultreatment are poor, and that they should reconcile Particular difficulty arises from different, legitimate themselves to clinical failure and perhaps pursue an definitions of what constitutes infertility, and from alternative such as adoption. When practitioners what outcomes of natural reproduction present serving fee-paying patients with the same medical prospective children with genetic risks. In Canada, for characteristics advise them that further treatment is instance, the Royal Commission on New Reproductive worthwhile because it may succeed, it may appear that Technologies, following the practice of the World the former practitioners are unethically serving goals Health Organization, conservatively defined infertility of institutional economy, contrary to their patients’ as a failure to conceive following 24 months of normally interests, that the latter practitioners are unethically frequent unprotected sexual intercourse ( 2 9 ) , profiteering or serving futile extravagance, at their whereas clinics often admit applicants on the basis of 12 months’ failure. Clearly, more couples are infertile Practitioners therefore need not be employed in by a 12-month test than by a 24-month test. This raises for-profit clinics to fall under suspicion of being in a the concern of whether clinics are being aggressively conflict of interest. Private clinics that genuinely can entrepreneurial and self-serving in admitting appli- present themselves as non-profit institutions, for cants of normal fertility or slight subfertility, claiming Ethical issues arising from the use of assisted reproductive technologies credit for pregnancies during the following 12 months of their own values and biases, and to exercise the self- that occurred or would have occurred naturally, or restraint to suppress any tendencies to impose their even applying procedures that obstruct pregnancies own preferences that may be in conflict with those of that would have happened without their interventions.
Clinics may justify a 12-month test, however, on rational and compassionate grounds. Their clients, or Resolution of conflicts of interest
patients, tend not to be young, newly married couples,but couples in which the female partners are approach- In an idealized clinical setting for ART, conflicts of ing, at or a little beyond so-described advanced interest would be avoided. Although real settings are maternal age, meaning about 35 years of age or above.
frequently far from ideal, the ethical principles of They may be in second or later marriages, perhaps beneficence, nonmaleficence and perhaps justice having had children in earlier relationships but wanting compel practitioners’ efforts to minimize the incidence to have families in their new marriages. When and extent of conflicts. For instance, clinicians should women’s capacity to achieve pregnancy is in natural not ask their patients to volunteer to be subjects of decline, clinics are reluctant to require that they wait research studies of which they are the principal a further year or more to become eligible for treatment.
investigators, lest they unethically abuse their Further, with a rising risk of abnormality in a later- patients’ dependency on them for their own interests conceived child, particularly Down syndrome, delay (54). Similarly, clinicians should not accept or be in access to ART may be clinically contraindicated.
required to be gatekeepers of departmental or other Accordingly, clinics’ apparent haste in admitting collective resources on which treatment of their applicants to treatment on an assessment of their individual patients must draw, lest they may favour infertility may not be clinically suspect or unethical.
their patients to the disadvantage of colleagues’ Assessments of genetic or dysgenic risks to patients, or violate their ethical duty of allegiance by future children that may induce couples to forgo sacrificing their patients’ interests to a perception of natural reproduction and turn to gamete or embryo departmental, institutional or other extraneous donation, or to IVF with their own gametes and priorities. As departmental or institutional gate- preimplantation genetic diagnosis (PGD), may become keepers, they are unethically compromised in more refined with advances in genetic understanding.
discharge of duties owed to individual patients who However, questions are likely to remain of calculations rely on their disinterested judgment, clinical integrity of genetic risk, how prospective children’s pre- and capacity for supportive advocacy of their dispositions or susceptibilities to illness or injury due interests. In many legal systems, these ethical to genetic inheritance are explained to prospective responsibilities to patients are reinforced by the law.
parents, and what inherited conditions or abnormali- Because conflicts of interest consist in appearance ties render a child’s nonexistence preferable to its as well as reality, they are frequently inescapable. They existence, in its own interests, those of its prospective may then be ethically resolved by due disclosure.
parents or those of others such as existing children Disclosures should be to those at risk of suffering of the family. A background concern is the qualifica- disadvantage from a conflicted exercise of choice, or tion a practitioner or counsellor has to undertake at least to a superior officer whose duty is to ensure genetic counselling of ill-informed and perhaps ethical management of conflicts, and that those that apprehensive applicants for ART. Considerable room consist in appearance do not evolve to consist in exists, by choice of language, emphasis, nuance, reality too; that is, that an apparent conflict is confined contrast or analogy, which may be deliberate or to the superficial level of mere appearance. In the unconscious, to control or influence patients’ doctor–patient setting, the doctor’s conflict should decisions. Eugenic and aesthetic themes may infiltrate in principle be disclosed to the patient. For instance, discussions, on practitioners’ or counsellors’ initia- doctors with financial interests in the profits of drug tives. Their preferences for children of particular companies whose products they are inclined to stature, appearance and propensity can distort prescribe, or for instance‚ in clinical laboratories to prospective parents’ exercise of the choices that, which they propose to refer their patients for the ethically, they should be informed and empowered to testing of their biological samples, should so inform make. Practitioners and genetic counsellors must the patients, and provide them with alternative drug show that they can be relied upon to be self-conscious or laboratory options in which they are disinterested.
Physicians’ interests in these regards are not powerful parties not to benefit themselves at the cost necessarily unethical. They may be based on a of those they induce to depend on their superior genuine conviction that these companies or labora- tories provide superior products and services or, for A particular conflict that may affect ART clinics instance, on the conviction that, as interest-holders, is how they report and advertise their treatment the physicians can ensure maintenance or improve- outcome data. Independent monitoring systems, such ment of their products or standards. If these convic- as in Sweden‚ may provide the public with reliable tions are sincerely held, indeed, it may be unethical data. Similarly, governmental agencies in, for instance, for a physician to seek to avoid the appearance of the UK and USA, require clinics to submit annual conflict of interest by prescribing inferior products or reports of their practices, including numbers of referring patients to inferior services; disclosure may patients and conditions treated, procedures under- be the ethical ideal for patients’ informed choice.
taken and results. The Centers for Disease Control and It has been seen that a conflict arises when a Prevention (CDC) in the USA (57), and the HFEA in person who wants therapeutic care from a clinician is the UK (58,59) publish quite detailed aggregated asked by that clinician, or by a colleague on his or her annual data reports, and include warning that the data behalf, to consider entering a study that the clinician do not allow reliable comparisons among clinics, for is proposing to conduct. The proposal requires that instance‚ because they will have treated different the person be clearly informed that treatment under types of patients with different severities of reproduc- the study is not intended primarily as therapy, and tive disorders. Nevertheless, the news media have at that, if the study design includes randomization times publicized the data in the form of a table that between an unproven intervention and a placebo, it ranks clinics in order of their performance, or, as the may include no proven medical treatment at all.
CDC report is entitled, their “success rates”.
Disclosure to the person seeking care is ethically The conflict of interest, arising at both micro- necessary, but not sufficient, because those asking ethical and macroethical levels, is that clinics can physicians for care often accept the so-called influence their success rates by the choice of patients “therapeutic fallacy” that the medical treatment they they accept and how they treat them. They can achieve are offered in research studies is intended for their higher success rates by accepting only patients below personal well-being. Accordingly, proposed investi- certain age levels, who are more subfertile than gators must also submit their study designs, including infertile, and whose conditions afford greatest details of how subjects are to be recruited and prospects of successful treatment. Clinics that, as a informed, to independent ethics review committees.
matter of social justice and commitment, or of research These committees will address how adequately interest to advance care, accept patients who have prospective subjects are informed that the studies are less promise of success and who are more difficult to primarily intended to advance scientific knowledge treat, are liable to appear lower in rankings of success.
rather than their personal therapy, and how capable Clinics operated for profit, that promote their services such subjects are to decline involvement in studies by commercial advertisement, have an incentive to and instead to obtain the therapy they seek.
boost their competitive status by screening out A modern classic of unethically resolved conflict applicants with poorer prospects of reproductive of interest arose in the much-discussed legal case of success, and admitting those of borderline infertility.
Moore versus Regents of the University of California Clinic success rates may be achieved at a loss of social (55). A patient whose cells were found to have unusually valuable genetic properties was asked to A more immediate ethical concern is whether provide additional tissues so that investigators, clinics recommend more traditional infertility treat- presenting themselves only as his therapists, could ments before recourse to ART, even when their use patent and trade in a cell line they biotechnologically might compromise later ART, or whether ART will be developed from them. The Supreme Court of California first recommended when more traditional, less dismissed his claims based on his property interest in expensive procedures might succeed. Recommended his cells or the cell-line, but allowed it to proceed for care should be based on practitioners’ clinical his lack of informed consent and the investigators’ judgement directed to each patient’s conscientiously breach of the fiduciary duty they owed him. This is assessed best interests. An incentive to achieve a the way courts may reinforce the ethical duty of more clinic’s financial success or an impressive publishable Ethical issues arising from the use of assisted reproductive technologies success rate may present a practitioner with an ways of making babies: the case of egg donation. unethical conflict of interest. Disclosure of the profit- Bloomington, University of Indiana Press, 1996:89–91.
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