In Human Rights

Fertility clinics are creating a new class of dispossessed human beings, says a British philosopher.

Baby manufacture is already big business. Recent ads targeting women college students in America have offered them free holidays in India in exchange for parting with their eggs during their visit, with Indian women teamed to become paid surrogates and return the product – the student’s child – to those who commissioned it. Do other jurisdictions want to follow this precedent and should Americans be more concerned about what is done in their name? The selling of slaves was considered offensive – should selling babies be OK?

A special moral objection has long been attached to the sale of human genetic material and a number of declarations by international bodies have explicitly ruled out commerce in human embryos. These include UNESCO (United Nations Educational, Scientific and Cultural Organization) which has ruled that the transfer of human embryos can never be a commercial transaction and the European Union, which has insisted that the prohibition on making the human body and its parts a source of financial gain must be respected. (Article 21 of the Convention on Human Rights and Biomedicine.)

Individual countries, too, have adopted stringent laws on the matter: Sweden threatens up to two years imprisonment for anyone who seeks to profit from the transfer of biological material from a living or a dead human or tissue from an aborted fetus. Switzerland prohibits the gift of embryos and any commercial transaction involving human germinal material and any resulting products from embryos.

The case of Australia, though, may be more typical of what can happen in practice. While it is an offence there to intentionally give or receive value for the supply of human eggs, sperm, or embryos, and a 10-year jail sentence may be imposed for trading commercially in human eggs or embryo, Australians may bypass the law by travelling to the US to achieve what they cannot access in their home-country.

There are, however, a number of different reasons for challenging this.

First, there is a general objection to the “instrumentalisation” of the human body that applies, as well, to the sale of organs and tissue. It would be odd to object to the sale of kidneys but to have a laissez-faire approach to the sale of ova, sperm and embryos.

Second, there is a well-founded fear that financially vulnerable individuals could be exploited. This already happens in the case of kidneys, and countries which permit women to sell their eggs are likely to find that the same is true of many of the women who decide to go through the unpleasant and risky process necessary to provide these eggs. In the UK, for example, there have been cases of brain damage and up to six deaths reported in relation to the egg retrieval process.

Finally, there is a general judgement that the sale of human eggs, sperm or embryos is contrary to human dignity. Whatever the child-friendly goals of the practice, it evokes distant echoes of the sale of human beings in slavery. It is offensive to conceptions of the value of human life that it has taken millennia to establish and which we sometimes claim, even if a degree of self-deception is involved, as the foundation of our 21st century civilisation.

But is it so different to be bartered and shipped before birth rather than afterwards? It may seem an excessive response to see today’s global international commerce in genetic material in this way, but where the overt or covert sale of gametes or embryos is involved, it is possible to see the resulting children as the victims of a similar kind of deliberate alienation from their ethnic and cultural roots.

It is worth remembering, perhaps, that at least one of the wrongs involved in the historic slave-trade, apart from the condition of slavery itself, was that tens of millions of inhabitants of West and Central Africa were taken to the Americas, and so deprived of their genetic and cultural inheritance. Generations later, some black Americans still feel a need to seek their personal roots in Africa.

(There are also other historical cases which, while they may lack that degree of exploitation, and may even have been inspired by humanitarian motives, had comparable effects: for example, the “Stolen Generation” of aboriginal children in Australia who were placed with European families, or the children shipped to Australia from Britain and Ireland around the time of the Second World War who never saw their birth families or place of origin again.)

It would be unreasonable to stretch these comparisons too far. Nevertheless, whatever the arguments often deployed in relation to other issues concerning the status of the embryo, equity in the preservation of personal identity has not received as much attention as the rights of adults to fertility treatment. The new controllers of the necessary ingredients of reproduction may well consider that their own responsibility ends with a pregnancy. But resulting from these global transactions are children who, abstracted from their genetic roots, have become the new dispossessed.

Some of these will not be troubled by this, but others may come to feel, as they themselves reach adult life, that rights they consider important, and that other people enjoy, were taken away from them by actions and decisions made by other people before they were born.

Brenda Almond is Emeritus Professor of Moral and Social Philosophy at the University of Hull and President of the Philosophical Society of England. Her article is reprinted by permission from

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