Human Embryo Research: Who Donates the Eggs?

Who donates the eggs?*

In headline news today, scientists have announced a breakthrough in human cloning. Human skin cells and a woman's egg were used to create an early stage embryo that is a copy of the original skin cell. The news is being celebrated largely because of the possibility for this process to develop therapy or cures for many afflictions.

There is also concern however over other implications of the process - principally the spectre of cloning humans themselves. Most responses I've heard on this point so far, have focused on the strict regulation of human cloning for reproduction, and the severe legal penalties for breach.

This is a complex enough issue - weighing the obvious therapeutic benefits for those suffering debilitating diseases and the concerns attendant on the technology taking us down the path of human cloning. However there is another aspect that I've not seen mentioned in the media so far: namely the origin of the 'donated' eggs.

Compensating Organ Donors: Commodification or Freedom?

The Commonwealth government has today announced a ‘grant’ scheme for live organ donors. The scheme will pay live organ donors the minimum wage for six weeks following donation, with the aim of supporting them financially.

Such a decision is likely to ignite the debate over the morality of payment for 'transactions' involving the human body. There are two sides to this debate: the risk of commodification of the human; and the freedom and autonomy of donors to choose how they deal with their body.

Why is Breastfeeding Scary?

Breastfeeding: it's good enough for the Saviour, why not for all?*

Daily morning TV presenter David Koch today told his audience that breastfeeding is something that should be done away from a public area – that women breastfeeding in ‘high traffic areas’ should be a ‘bit discreeter’. He made these comments in response to a report that a woman breastfeeding at a public swimming pool in Queensland was told that she could not do so, and that she should move to another secluded area or leave. 

This request is clearly in breach of s7AA(2) of the Sex Discrimination Act 1984 (Cth) (added to the Act in 2011), in that this woman was treated:

less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not breastfeeding.

This set of circumstances raises three related questions: why the woman may have been asked to leave; why ‘Kochie’ would have agreed that this was appropriate; and why breastfeeding would ever require such legal protection.

Is my body my own?

Sadly, late last month, an Indian woman, Savita Halappanavar, died of septicemia in an Irish hospital.  The source of her infection was her dying foetus.  Yet doctors refused her the termination that would save her life, because the dying foetus still had a heartbeat.  The life of this woman ended because, in accordance with the teachings of the Catholic Church, the 'life' (such as it was) of the foetus was paramount.

While press reports indicate that in Ireland obstetricians have a duty to act in the best interests of the mother, there is apparently a lack of clarity in this jurisdiction as to when the medical profession can intervene lawfully.

This case highlights, yet again, the issue of bodily integrity for women and the extent of State intervention into women's autonomy over themselves.  This concern is not limited to Ireland, but exists around the world.

Property and Procreation: Problematising Sperm

Recently in the US, bills have been sponsored in a number of states providing for personhood for sperm.  One bill, for example, provided that ejaculating anywhere outside a woman's vagina constitutes 'an action against an unborn child'.  These bills were put up in response to legislation regulating women's reproductive rights - curtailing women's access to contraceptives and abortion.

The law in the US (and elsewhere) continues to regulate the reproductive rights of women with wide acceptance that this is appropriate.  In contrast, the 'sperm bills' are considered satirical.  It's OK to regulate women's reproductive rights, but patently ridiculous to regulate men's.

This shows that reproductive rights and regulation of gametes is obviously a complex issue for the law. (See my previous post here)

This complexity is borne out through a comparison of a recent Canadian decision (JCM v ANA), a forthcoming Canadian case (deBlois), and a 2011 Australian decision (Edwards). (I've written about this case here.)  To what extent does the law recognise rights to sperm, in terms of property; procreation; and parenting?

Is Local, Organic Sperm the Next Big Thing?

Findlaw recently reported that the US Food and Drug Administration was seeking to stop Trent Arsenault from donating his sperm on the basis that he was in the business of manufacturing human cells. This apparently is in contravention of US regulations.  While Mr Arsenault has received no payment for his sperm donations, it was his lack of 'sexual intimacy' with any of the recipients that caused him to fall foul of the rules.

The primary concern of the charges against Mr Arsenault (in fact 'his Establishment') is that in failing to screen his sperm for certain agents, he has failed to 'provide adequate protections against the risks of communicable disease transmission'.

To those interested in the question of property in the human body, this case draws attention again to the nature of human cells and the human body itself as an object (rather than a subject) of law.  In deeming Mr Arsenault's gifts of his sperm as 'manufacture', the regulations in question suggest a categorisation of sperm as a thing outside of oneself rather than something that forms part of us (well, as part of Mr Arsenault).  As something considered under the regulations to be independent of a human, the sperm arguably then become capable of being the subject of property rights and interests - in spite of a long-term reluctance of the common law, including US law, to find a property interest in the human body (though exceptions do exist).

It is not suggested that sperm donation be free of regulation - though there does appear to be inconsistency in US regulation of sperm donation that needs to be resolved.  It is however interesting to note that the framework of regulation of 'recovery' and distribution of sperm (and other human cells) adopts the language of manufacture within an 'establishment'.  This gives the appearance of an economic enterprise, presupposing the production of goods, or personal property.  This raises questions such as: can the FDA confiscate Mr Arnault's sperm?  At what point in the 'production' process do his sperm become contraband, or unlawful?  These questions highlight the problematic nature of considering ejaculation and conception as a manufacturing process.

Some argue in favour of investing the human body with the characteristics of property, and others argue against.  In either case, any regulatory framework needs to be clear and consistent in its purpose, and to use language appropriate to the unique character of the human body and its component parts.

(The title is a reference to an article in the Daily Mail Online.)

The Husband, his Widow, his Sperm and the Court...

A recent decision in the New South Wales Supreme Court found that Ms Edwards, the wife of a deceased man had a possessory interest in his sperm, removed after his untimely death.  The decision is interesting to property lawyers for a number of reasons.  First, it discusses at some length the nature of the interest found to vest in the applicant wife.  Secondly, it highlights the challenges involved in identifying rights in the human body, or parts of it, in favour of third parties.

The case again affirmed the turn of the (20th) century Australian decision in Doodeward v Spence, which held that there was no property in the human body unless the so called 'work and skill' exception applied:

'...when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it...'

Doodeward v Spence is one in a long line of cases that demonstrates the courts' reluctance to find property in the human body - dead or alive - or in parts of the human body.  In one sense, the recent NSW decision does likewise.
The court identified that Ms Edwards held a right to possess her deceased husband's sperm.  The Court referred to a High Court decision:

"Property" is a comprehensive term which is used in the law to describe many different kinds of relationship between a person and a subject-matter; the term is employed to describe a range of legal and equitable estates and interests, corporeal and incorporeal. Accordingly, to characterise something as a proprietary right (and, a fortiori, a quasi-proprietary right) is not to say that it has all the indicia of other things called proprietary rights. Nor is it to say "how far or against what sort of invasions the [right] shall be protected, because the protection given to property rights varies with the nature of the right". (Citations omitted).

This wide and inclusive definition of 'property' has been identified as problematic in relation to genetic material.  A 2003 Law Reform Commission Report, for example, recommended against regarding genetic material (which would include sperm) as property.  To do so may imply its suitability for transfer sale and management.  Possession however would be appropriate.

In the Edwards case, the Court therefore had the task of identifying what kind of right might vest in the sperm.  It found that this right whether property or not, amounted only to possession.  It seems though that even this possessory right was limited.

While it was clear that Ms Edwards would seek to use the sperm for the purposes of IVF, the Court was not in a position to award possession for this purpose.  Indeed the Court was asked 'to put aside any consideration of what she might do with it as a result of such possession' - legislation in New South Wales forbids the use of gametes for IVF where the gamete provider is deceased and there is no (written) consent.

In finding even this limited possessory right, the Court had to overcome a number of obstacles in identifying Ms Edwards herself as the party entitled to that possession.  First, was it Mr Edwards who had an interest in his own sperm?  If this were the case, then the right to the sperm would vest in his administrator (Ms Edwards) as property. The Court found that he did not - he did not have an interest in his sperm before death, so he did not have one afterwards.

Secondly, applying the 'work and skill' exception to no property in the human body, did the doctors who removed the sperm post mortem have property in the sperm?  Again, the Court found that they did not.  In this case, they undertook this work on behalf of Ms Edwards and for her benefit.

Thirdly, if Ms Edwards as administrator of the estate has a 'quasi' property right to the body of the deceased, did she have 'quasi' property in the sperm?  This right is limited to possession for the purpose of burial, not for the extraction and possession of sperm from the deceased.  Ms Edwards' role as administrator though was relevant in influencing the Court's discretion as to possession of the sperm:

"Ms Edwards is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that Ms Edwards is entitled to possession of the sperm." 

The Court in this case, in citing the Law Reform Commission Report, acknowledged the appropriateness of a case by case approach - an approach that will weigh up the public interest and private rights at stake in each set of circumstances.  The outcome of this decision is instructive of the challenge of the public private divide in determining which rights exist and which are at stake.

This case was resolved in terms of property interests in sperm.  While the Court accepted that the sperm would be capable of being subject to a property right, it nonetheless exercised caution in finding a possessory interest.  This represents the caution exhibited by the Courts in such cases, where they seek to avoid opening the possibility of creating property and therefore a market in human body or tissue.

On the other hand, the private interest of Ms Edwards in having a child with her late husband and the consequences for a possible child create a matrix of considerations that weigh in against the wider public interest of maintaining the dignity of human life.  In light of these complex questions, it remains to be seen as to whether dealing with human gametes in terms of proprietary (via possessory) interests is of any value or whether an alternative framework of thinking might provide a less problematic answer.