Adeline Allen has recently published an excellent piece titled Sperm and Eggs in Consideration of Money: A Pound of Flesh for Three Thousand Ducats? in the Indiana Health Law Review. Cribbing from the abstract:
Donor conception is a practice in which a donor sperm or egg (or both) is used to conceive a child. Usually, the donor sperm or egg is procured in a financial transaction: gametes exchanging hands for money. The “donor” in donor conception is a bit of an oxymoron, for a donation it is not when money—and sometimes big money—is a feature of the practice, not a bug. This Article will show that donor conception is not proper to who human beings are given their nature as embodied beings, with particular attention to the children of donor conception and to the donors. The bargained-for exchange of sperm and eggs for money also does not satisfy the requirement of commutative justice, historically understood to be of paramount importance in the doctrine of consideration in contract law. ... This Article concludes that donor conception, being unjust and not oriented to human flourishing, ought not to be done. A re-orientation of the law toward a proper respect for each person’s embodied nature and toward fostering a posture of gratitude in receiving each child as a gift would be welcome.
The commodification of human persons, which is, after all, what is really going on (no one is simply buying eggs or sperm; they are buying the resulting child), is evident from the pricing of gametes:
Payment to sperm donors is about $75 per specimen and to egg donors ranging from $2,500 to $50,000, depending on the donor’s “qualifications.” (One ad promised payment of $100,000.) So-called “Ivy eggs,” eggs from a woman with an Ivy League college on the résumé, have commanded $50,000. Buyers, on their part, choose the sperm or egg with desired characteristics and qualifications out of the website catalogue: Clean family medical history? Height of at least 5’9”? Blond(e) hair? Jewish? Asian? Indian? White? SAT score of at least 1400? Plays the cello? Does modeling and calligraphy on the side? Or even . . . Nobel Prize winners and Olympic athletes?
So what's the problem?
To be known, raised, and loved by their biological parents are owed to the children. This needed love and relationship, by their very nature grounded in their unique genetic relationship, are not replaceable by other people’s loves, however grand and deep those loves may be. That is to say, the will of those who brought the child into existence in the case of donor conception and are now raising him may very well be accompanied by a generous and genuine love for him, and yet the child’s embodiment, with all its needs and longings, testifies against our notions of bringing forth children as if they were “unencumbered selves,” free of any “unchosen obligations,” who would be alright if they were wanted and loved enough.
Does this make adoption problematic? No, because
Adoptive parents [are] stepping in, picking up, welcoming, and grafting into their families children, not theirs biologically, who come from (already-existing) broken situations. But it is a very different case in donor conception, when the parents who raise you participated in your separation from your biological parent(s). Here, the parents who raise you played a hand in creating that wound, as contrasted with adoptive parents, who care for children who already exist, whose circumstances are already less than ideal. Research supports this painful internalization. Empirical data show that donor-conceived children may suffer from greater psychological harm, and even physical harm, than adopted children. One might observe that whereas adoption serves the child, donor conception serves the parents, not the child.
All in all an excellent piece that I whole-heartedly commend to my readers.
(For earlier posts on Professor Allen's published works go here and here.)
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