A growing number of couples and individuals use some combination of in vitro fertilization (IVF) clinics, egg donors,1 sperm donors, and gestational surrogates to have children. But these ways of helping the infertile have children have raised moral qualms. Kimberly D. Krawiec’s paper, Gametes: Commodification and The Fertility Industry, offers a concise and persuasive overview of one small part of the debate: moral objections that have been raised to egg donation and payments for egg donation.
As Krawiec notes elsewhere, “[t]he United States is unusual among most jurisdictions in that it permits a legal market in human eggs.”2 And as this paper elaborates, much of the regulation of compensation for egg donors has occurred in an indirect way. The vast majority (as of 2018, 86%) of IVF clinics were members of the Society for Assisted Reproductive Technology (SART) (P. 5). SART, in turn, required its clinic members to follow certain “best practices,” including the guidelines for egg donor compensation set by a different group, the American Society for Reproductive Medicine (ASRM) (P. 5).
For many years, the ASRM guidelines, adopted and applied by SART, created a cap, a maximum amount, that egg donors could be paid. While it is not entirely clear how widely the price cap was followed (P. 5), the cap was eventually challenged by a class action antitrust lawsuit brought by donors, and was ultimately withdrawn as part of the settlement of that lawsuit (Pp. 5-6).
In Gametes: Commodification and The Fertility Industry, Krawiec offers an overview of the history of ARSM’s guidelines, and the moral and policy arguments that have surrounded it. As the paper points out, two questions are salient: (1) Why did ARSM (and other commentators) treat payments for egg donation as raising commodification issues but did not raise comparable questions about sperm donation?3; and (2) Why should high payments be considered morally problematic, and treated as such, regardless of the circumstances of the egg donor?
Regarding the first question, there are salient differences between sperm donors and egg donors: in particular, sperm donors are paid far less than egg donors, and (a related point) egg donors face medical risks from the drugs and minor surgery involved in egg donation that sperm donors do not face (P. 3). While these differences are clearly morally significant for some purposes (e.g., they might justify different views regarding how each form of gamete donation should be regulated), it is not clear how either factor alters the presence or absence of commodification concerns. Sperm and egg donation seem to be comparable for commodification purposes: each involves the sale of body products for use by another person. Additionally, ASRM never explained why payments to donors are “inappropriately commodifying” only above, but not below, the guidelines’ threshold (P. 7).
Regarding the second question, the idea that a large payment is, or at least can be, “coercive” has been controversial for a long time. This is not the place to explore that issue at the depth it warrants,4 but it is sufficient for present purposes to note that many theorists argue that there is coercion only when the person making the threat or offering the opportunity would make the other person (the victim) less well off, relative to that other person’s baseline circumstances if the offer was not taken (“your money or your life” or “accept this job or your family gets thrown out into the streets,” etc.). In the case of potential egg donors considering high compensation, there is no such threat if they simply say “no.” And as Krawiec reminds us, how strong the lure of high payments might be would, of course, depend on the individual circumstances of the potential donor; however, the cap did not distinguish between the more financially desperate among the potential donors and those who might be financially comfortable (P. 8).
The article observes that there are indications that the caps on compensation for egg donation may have been more about business concerns rather than commodification worries. Clinics expressed fears that the costs of high egg donation compensation would have to be passed on to potential clients (P. 4). The clinics did not express similar worries about high fees for doctors paid to conduct the IVF process being passed on to potential clients; this may be a simple matter of class bias. As Krawiec states: “If access to reproductive technologies were really a meaningful concern for fertility centers, then they adopted a particularly poor mechanism for addressing them” (P. 9).
Returning to the moral objection relating to high compensation, doctors (and lawyers and engineers and scientists), as well as potential egg donors, may be “persuaded” to do morally doubtful tasks by the lure of high payment, but no one is suggesting a “cap” on those in the professional class. Of course, egg donation raises physical dangers as well as (arguable) moral issues. But the obvious responses to the problem of medical risks are medical screening of potential egg donors, medical supervision during the process, and the provision of insurance for problems that may arise later. And if a high enough level of danger were present, egg donation should be prohibited entirely or highly restricted; simply being paid less seems an ineffective, paternalistic, and perhaps even cruel response to the medical risks.
None of this is to deny that commodification is a real issue relating to egg donation or other aspects of how we respond to infertility. But it is too often used as a conclusory argument that requires no further analysis. In Gametes: Commodification and The Fertility Industry, as in her other articles,5 Krawiec shows us the errors in quick and sloppy thinking about the moral evaluation of payment practices we currently regulate or prohibit.
- Like Krawiec (P. 1 n.1), I follow the convention of speaking of gamete providers as “donors” even when they are being paid (beyond their expenses).
- Kimberly D. Krawiec, Markets, Morals, and Limits in the Exchange of Human Eggs, 13 Geo. J. of L. and Public Policy 349, 354 (2015).
- As the article reports (Pp. 7-8), ASRM’s most recent set of ethical guidelines also notes this unjustified difference in treatment.
- See, e.g., Alan Wertheimer, Coercion (1988); see also Matt Zwolinski, Benjamin Ferguson & Alan Wertheimer, Exploitation, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman eds., 2022).
- See, e.g., Kimberly D. Krawiec, No Money Allowed, 2022 U. Chi. Legal Forum 221 (2023).
