John Robertson on Cohen and Adashi on Made-to-Order Embryos for Sale

By John Robertson

Glenn Cohen and Eli Adashi have an interesting Sounding Board piece in the latest NEJM[i] on made-to-order embryos for sale.  A California clinic offering this option has garnered enormous publicity.  It might, however, have stimulated more bioethical thinking than actual demand for its services.

On the bioethical side, Glenn and Eli survey the relevant issues and conclude that what is most “new and unique here is the lack of clear legal guidance as to the parentage of the embryos in question.”[ii]  My impression is different– existing laws give sufficient support about parentage, if anyone wants to use them.  The clinic creating the embryos from separate gamete donations will have dispositional control of them, but no parenting questions arise until the embryos are gestated and brought to term.  True, there are few state laws on embryo donation as such. But in states with no specific embryo donation laws, those who have commissioned gestation will most likely have rearing rights and duties once a child is born until they arrange for an adoption.[iii]

Nor would the gamete donors in such states be able to claim rearing rights or be subject to rearing duties after such a birth.   Most states recognize gamete donor relinquishment of rearing rights and duties in resulting children with their consent to donation.  After the birth of a child, the gamete donors ordinarily would have no right to change their mind and acquire rearing rights or be subject to rearing duties, whether the donation was of sperm or egg separately or both combined into an embryo.

One aspect of this transaction that is ethically unique is that divvying up embryos created from the same egg and sperm donor would lead to different recipients giving birth to full rather than half siblings, as is the usual situation with gamete donation (it could happen with excess embryos donated after successful IVF by an infertile couple, but that is rarer). Whether it creates a higher risk of full sibling consanguinity would depend on clinic practices in distributing embryos from the same batch to different recipients.  As Glenn and Eli note, donor registries might solve this problem, but none yet exist in the United States.

On the demand side, might not the growing acceptance of egg freezing obviate the need for ready-made embryos?  The California clinic’s business model seems aimed at those relatively few couples who lack both egg and sperm but can gestate.  Such persons could recruit separate egg and sperm donors and then have them combined, but obtaining the embryos already made might be easier and less costly.  The economic constraint for such clinics is the investment in obtaining the gametes necessary to produce embryos.  Having made that investment for one couple, they will probably want to sell the remainder before creating a new batch.

Since a greater number of  infertile couples will lack either viable egg or sperm but not both, 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. The demand pool here is greater, and reserves more choice over the sperm source.  Legal parentage is somewhat more certain than with donor embryos (though the difference might not be great), and there is less likelihood of laws banning sale of donor eggs than read-made embryos .

As interesting as the idea of bespoke or ready-made embryo banks are, the move to egg banking is likely to induce a much greater demand.   It could supply donor eggs in a more efficient and less costly way (but at a greater profit for the clinic), store eggs of women going through IVF who don’t want all eggs to be fertilized, and enable women to buy a biologic insurance policy against future gametic infertility.

[i] I Glenn Cohen and Eli Y. Adashi, Made-to-Order Embryos for Sale—A Brave New World?, April 10, 2013 DOI: 10.1056/NEJMasb1215894

[ii] Id.

[iii]  Buzzanca v. Buzzanca, 72 Cal.Rptr.2d 280 (Cal.App. 4 Dist. 1998).

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