The Donor Who Dared To Say Don't

http://www.canada.com/ottawacitizen/news/opinion/story.html?id=11086f39-9913-4ca1-a6c5-4122ed4d41a3

[b]Mother and sister, mother and grandmother
Now that human eggs can be frozen, the effects of gamete donation on the resulting children are the subject of an overdue debate[/b]

Margaret Somerville, Citizen Special
Published: Friday, April 27, 2007

Last week it was announced that a Montreal woman, Melanie Boivin, had undergone ovarian stimulation and had her ova (eggs) frozen for possible future use by her daughter, Flavie, who has Turner's syndrome and who will be infertile as a result. While Melanie's action was done entirely out of love for her child, if Flavie uses those ova she would give birth to her half-brother or half-sister, and the child would be the son or daughter and grandchild of Melanie.

The media reported this case on two fronts: The scientific focus was the recent "breakthrough" of being able to freeze human ova.

The ethical issues this raises was the other focus. Leaving aside for the moment the most fundamental question of whether any gamete donation is ethical, here's a sampling of some ethics questions I've been asked in the past few days.

If a young man is infertile and his wife fertile and they belong to a cultural group in which genetic relationship is very important, is it acceptable for the man's father to donate sperm to inseminate his son's wife? This would result in the same genetic relationship on the male side as would result on the female side in the Boivin case.

I would argue that both are ethically unacceptable, but if the male donation is seen as acceptable, consistency seems to require, at least at first glance, that the female donation be treated in the same way.

Is one problem here that it's a parent donating to a child? What about the other way around -- a daughter donating ova to her mother who has experienced premature menopause? If we accept that gamete donation can be ethical in some circumstances, would it be ethical for a brother to donate sperm to a brother, or a sister donate ova to a sister? Or is any donation between close relatives unethical?

An obvious case of such ethical unacceptability would be a brother donating sperm for his sister's use. This would not be incest, because that requires sexual intercourse, but the vast majority of people would see it as ethically wrong, quite apart from the genetic risk involved for the resulting child. But how should we view these other "related donor" cases and do they all raise the same ethical issues?

For instance, is a man donating sperm for his son's use ethically different from a woman donating ova for her daughter's use? The wider question that raises is: Are there ethically relevant differences between male and female donation of gametes? And the even wider one: Is gamete donation itself ethically acceptable?

Let's start with the last question, whether gamete donation, in general, is ethically acceptable.

"Anticipated consent" is an emerging doctrine in ethics. It requires us to ask whether we can reasonably anticipate that the persons most affected by what we plan to do would, were they able to decide, be reasonably likely to give their consent. The answer we are now getting from many people conceived through gamete donation is that they would not have consented.

They believe that an ethical wrong was done to them -- especially if the donation was anonymous -- and that society was complicit in that wrong by providing its resources to make their conception through gamete donation possible. Some people respond that many children conceived naturally don't know who their father is or are reared in a family where their mother's husband is not their genetic father, so why is sperm donation an ethical problem?

The reason is society's intentional involvement in their conception in that way. This complicity requires society to ethically justify the outcome for the child. Because ova donation can never occur naturally and always requires technological intervention, unlike "private" sperm donation, society will necessarily be complicit in it, and therefore must ensure such ethical justification is present.

That being said, might there be differences between sperm donation and ova donation that are ethically relevant? Children conceived through sperm donation have life handed on to them through the natural process of conception and birth. That is not true of ova donation, because the gestational mother is not the biological mother, a situation that could never occur naturally.

Usually, the nearer we are to the natural in using the new science, the fewer ethical difficulties we are likely to encounter. This distinction is sometimes summed up as the difference between repairing nature when it fails and doing what is impossible in nature.

In a broad sense, all children are conceived by "sperm donation," which might explain why we have not analysed the ethics of such donation as closely as perhaps we should have. Sometimes, further scientific developments cause us to revisit practices that we have regarded as ethically settled and identify further ethical questions that need to be addressed.

I believe ova donation is doing that in relation to sperm donation, at least regarding the conditions under which it should be allowed. For instance, there is a growing international consensus that anonymous gamete donation is unethical and should be prohibited. To the contrary, the Canadian Assisted Human Reproduction Act makes it a crime, with heavy penalties, to disclose the identity of gamete donors without their informed consent.

The fertility industry -- a $5-billion (U.S.) per year business in the United States -- is strongly opposed to prohibiting either anonymous gamete donation or payment of gamete donors, because such prohibitions can decrease access to gametes. Yet, strikingly, altruism is used as a major marketing tool to recruit donors. I suggest that emphasis helps to suppress moral intuitions donors may experience about the ethics of what they are doing in relation to their resulting child. What is clear is that without payment, whether in cash or kind, many people -- in particular, women -- are not willing to donate.

Other, more general, questions I was asked in relation to freezing ova included whether women would now store ova as teenagers in order to attain their career goals before having babies in their 50s. The companion comment was invariably, "If men in their 70s can father a child (and usually Charlie Chaplin and Pierre Elliott Trudeau were mentioned as examples), what's wrong with a woman being a new mother at that age? Isn't preventing women from freezing their ova to use at any time during their lives, discrimination on the basis of sex and age?"

I would argue, again, that there is a difference ethically between that which happens naturally (old-age fatherhood) and that which is impossible naturally and requires a technological intervention to do an end run around nature (old-age motherhood).

Sometimes scientific advances solve some ethical problems rather than -- or, as well as -- creating new ones, and that is true of freezing ova. Just as we've been able to freeze sperm for young men whose fertility is threatened by cancer treatment, we can now freeze ova for young women in the same circumstances. That will avoid the ethically troublesome situation of having to create an embryo in order to preserve a young woman's opportunity to have her own genetic child and heartbreaking situations such as that of the British woman who stored embryos created with her partner's sperm before cancer treatment that left her infertile. Her partner later withdrew his consent for her use of the embryos and the European Court of Human Rights, the final court of appeal, consistent with all the other courts which heard the case, has just ordered them destroyed.

Ova freezing is just one more example that raises the broad question: How should we deal ethically with scientific advances in reproductive technologies? I propose that all these technologies must be ethically evaluated primarily through the lens of the children who will result from their use.

That lens requires that, at the very least, we first do no harm to those children; that we respect their fundamental human rights to come into being from natural biological origins; and that we act in their "best interests," in particular, in preserving their natural genetic relationships.

Except for concern about physical risks to children from using reproductive technologies, the focus up to now has been almost entirely on the rights of adults, who want to have a child, to use these technologies -- that is, only the adult lens has been used. That has caused a failure to consider, in the depth and breath required, both what ethics requires with respect to the children conceived through the use of reproductive technologies and the fundamental human rights of those children with respect to their coming into being.

Margaret Somerville is founding director of the McGill Centre for Medicine, Ethics and Law. Her recent book is The Ethical Imagination:

Journeys of the Human Spirit (Anansi, 2006).