Cahn and Carbone on Selling Eggs for Research in California

Naomi Cahn and June Carbone had a very nice op-ed in the L.A. Times on Saturday entitled “Leveling the Field for Human Egg Donors.” Their topic is a bill co-sponsored by four female Democratic legislators that would allow women to sell their eggs for research, just as men can sell their sperm. They largely endorse the bill, but make three interesting recommendations:

1) Better study and tracking of the health implications for donors. The hormones used have been associated with potentially severe reactions, and women undergoing egg retrieval risk infection and bleeding. There are currently no funds for research on the long-term effects, and little government oversight. California should require tracking and follow-up studies to assess the health risks of egg donation, regardless of the purpose for which the eggs are provided.

2) Researcher responsibility for ensuring that recruitment practices do not exploit women. Researchers should have a duty to oversee clinic recruitment practices and to report on their efforts.

3) Research protocol sensitivity to potential competition for a limited supply of donors. Researchers should prioritize efforts to acquire excess eggs rather than solicit new ones. Where recruitment of new donors is necessary, researchers should avoid practices that would limit the supply for reproductive purposes.

As always they are eloquent and thoughtful. On (2) I suspect our views on what counts as exploitation differ (for mine see this article). 

One thing that is interesting about the structure of their argument is it plays on two asymmetries — that between the treatment of sperm sale vs. egg sale and that between the sale of eggs for reproductive purposes vs. research purposes. In Eli Adashi and my recent New England Journal of Medicine article on selling embryos we use a somewhat similar argument structure. One thing Cahn and Carbone’s Op-Ed does not address (and this is not finding fault since the space is so short in these kinds of things) is what to say to someone who accepts the first but not the second assymetry. That person thinks that sperm and egg should be treated similarly for sale purposes, but thinks that sale for reproduction is quite different from sale for research. The argument might be that in one the typical anti-commodificationist evils often raised are overcome by the fact that a good will come out of it in the potential birth of a child; by contrast in the research setting, the result will be a further evil of embryo destruction (again I am channeling this hypothetical voice not my own).

In any event read their great op-ed, and also a nice new paper they have on egg freezing, a topic I have also blogged about before.

I. Glenn Cohen

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

5 thoughts to “Cahn and Carbone on Selling Eggs for Research in California”

  1. Glenn,

    Thanks for calling attention to Naomi Cahn and June Carbone’s insightful L.A. Times op-ed on the new California bill to expand the state’s egg market to include, beyond just procreative purposes, research too. Cahn and Carbone grapple with the complexity of the state’s effort in this way to enhance gender parity between men and women who seek to sell their reproductive material. Ever provocative, you ask in your post on what grounds a person might “think[] that sperm and egg should be treated similarly for sale purposes, but . . . that sale for reproduction is quite different from sale for research.”

    You propose (without endorsing) one possible answer: that the “anti-commodificationist evils” at stake in each context are different. You distinguish, for instance, two claims (signing onto neither) that go something like: (a) sale for reproduction treats the egg as an end in itself, consistent with its potential, in combination with sperm, to become a child, whereas (b) sale for research treats the egg as a means for others (patients) who stand to benefit from the therapies whose development is sought from its destruction. Another example, which Cahn and Carbone attribute to opponents of the bill, is the view that sale for reproduction presents a special risk of placing a fungible and rankable price tag on eggs that come from women of a particular height, educational status, and racial or ethnic background.

    These kinds of “anti-commodificationist” arguments aside, there is another possible way to distinguish the sale of eggs for reproduction from their sale for research. This is the exploitation objection that Cahn and Carbone again credit to critics of the bill, and that you, also, mentioned briefly. Women who sell their eggs for reproduction are characteristically less vulnerable to the sort of unfair bargaining conditions, this argument goes, that would be likely to obtain in California’s proposed market for research eggs. That’s because “[f]ertility clinic clients tend to be picky about egg donors,” as Cahn and Carbone put it, whereas “[r]esearchers just want eggs.”

    Those in search of eggs for procreation usually seek them out at prestigious colleges among students who, if they don’t already come from financially comfortable families, can expect that their own prized credentials will be able to command financial rewards in the job market. Research laboratories, by contrast, have no such independent reason to care whether the eggs they get come from women whose characteristics happen to correlate with, or at least qualify them, for economic security. So the labs “might be more likely than the clinics,” Cahn and Carbone write, “to want — and therefore attract — poorer, more financially desperate women.”

    I wanted in this reply only to note this other kind of answer to the question that you posed. I’ve explored these and other questions in greater detail in an article in the Journal of Medical Ethics called Paying for Particulars in People-to-be, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1072147. So I won’t here analyze how I think these considerations play out in the California bill that Cahn and Carbone have examined with care. Their op-ed is well worth the read!

    Dov

  2. Thanks Dov. I would include “exploitation” concerns in the broader “anti-commodificationist” (as opposed to narrower “corruption”) rubric as I did in that blog post I linked to. The point you make about preferences for egg donors for reproduction as opposed to research is an interesting one.
    First off, as I am sure you will appreciate given your own work, it might be turned on its head and one might say that the “eugenic” (to use the strongest term possible, perhaps too strong) preferences of those seeking eggs for reproduction worsen the other anti-commodificationist problems more so that in the research context. Second, one might wonder whether the preferences of egg recipient track the “resistance to exploitation” characteristics or not, it sounds plausible but we would need to be more precise. Third, one might worry that women are more likely to be exploited because they are more trusting of researchers in that context then they are in the more openly market-oriented reproductive context. Further, as Kim Krawiec has written in her work on antitrust and egg markets, the price paid for eggs is highly visible and fairly uniform in reproduction so it is pretty easy to figure out if one is paid at or below market. By contrast, it seems much harder to know what the prevailing prices will be in the research context. Again that is just an open question, not a conclusion, we need more research. As always, every great thought you generates three more in my head, why I love reading your stuff!

  3. Thanks Dov. I would include “exploitation” concerns in the broader “anti-commodificationist” (as opposed to narrower “corruption”) rubric as I did in that blog post I linked to. The point you make about preferences for egg donors for reproduction as opposed to research is an interesting one.
    First off, as I am sure you will appreciate given your own work, it might be turned on its head and one might say that the “eugenic” (to use the strongest term possible, perhaps too strong) preferences of those seeking eggs for reproduction worsen the other anti-commodificationist problems more so that in the research context. Second, one might wonder whether the preferences of egg recipient track the “resistance to exploitation” characteristics or not, it sounds plausible but we would need to be more precise. Third, one might worry that women are more likely to be exploited because they are more trusting of researchers in that context then they are in the more openly market-oriented reproductive context. Further, as Kim Krawiec has written in her work on antitrust and egg markets, the price paid for eggs is highly visible and fairly uniform in reproduction so it is pretty easy to figure out if one is paid at or below market. By contrast, it seems much harder to know what the prevailing prices will be in the research context. Again that is just an open question, not a conclusion, we need more research. As always, every great thought you generates three more in my head, why I love reading your stuff!

  4. Glenn,

    Each of your reflections strikes me as spot on. I’m sympathetic to your suggestion that concerns about the social meaning of offspring design play a role in whether the sale of egg to have children perniciously “corrupts” or “commodifies.” Such moral concerns about the potential egalitarian or parental norms at stake in the reproductive context resonate more with me than you, I suspect, based on the careful, skeptical reflections you’ve developed over a number of law review articles including, for example, “Intentional Diminishment,” “Regulating Reproduction,” and “Beyond Best Interests.”

    Your insights about price visibility, authority dynamics, and informed consent complicate considerably the tentative, incomplete, and perhaps ultimately unwarranted faith that I suggested in the relative consumer-sophistication of the elite class of women (Cahn and Carbone distinguish students at “Stanford” and “San Francisco State”) who sell their eggs for reproduction. A further complexity may lie in Rene Almeling’s convincing account in her book, Sex Cells, of the gendered understanding of egg selling (at least for reproduction) as a “gift”
    (by contrast to the “job” of selling sperm).

    Dov

  5. Glenn,

    Each of your reflections strikes me as spot on. I’m sympathetic to your suggestion that concerns about the social meaning of offspring design play a role in whether the sale of egg to have children perniciously “corrupts” or “commodifies.” Such moral concerns about the potential egalitarian or parental norms at stake in the reproductive context resonate more with me than you, I suspect, based on the careful, skeptical reflections you’ve developed over a number of law review articles including, for example, “Intentional Diminishment,” “Regulating Reproduction,” and “Beyond Best Interests.”

    Your insights about price visibility, authority dynamics, and informed consent complicate considerably the tentative, incomplete, and perhaps ultimately unwarranted faith that I suggested in the relative consumer-sophistication of the elite class of women (Cahn and Carbone distinguish students at “Stanford” and “San Francisco State”) who sell their eggs for reproduction. A further complexity may lie in Rene Almeling’s convincing account in her book, Sex Cells, of the gendered understanding of egg selling (at least for reproduction) as a “gift”
    (by contrast to the “job” of selling sperm).

    Dov

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