Ethical Considerations With Third-Party Reproduction

                         By G. David Adamson, M.D., and Valerie L. Baker, M.D. 

Advances in Assisted Reproductive Technology  (ART) are making healthy babies possible for thousands of couples who would have been unable to conceive in the past. However, these technological advances may raise ethical dilemmas for prospective parents, sperm or egg donors or surrogates, the child, and physicians who care for them. Although it is impossible to cover all issues in this article, we will focus analysis on some of the major ethical considerations in third-party reproduction using the principle-based approach. The principles are autonomy, beneficence (maximizing good), nonmaleficence (minimizing harm), and justice. Potential harms to children may be considered by some to be more important from an ethical standpoint than harms to adults, who are able to make choices.

Forms of third-party reproduction. Third-party reproduction is defined as a reproductive process that involves at least one person other than the intended parent or parents. (Although we certainly recognize that intended parents may be single individuals or couples, we will use the term couple in the remainder of the article.) With gamete (egg or sperm) donation, the individual who provides the egg or sperm is not intending to parent the child. Sperm donation is medically straightforward: the donor collects a sample of sperm which is then typically frozen and quarantined for six months until the donor can be retested for HIV. The sperm can then be used for intrauterine insemination (an office procedure) or for in vitro fertilization (IVF) if this treatment is deemed necessary for other reasons. Egg donation is a more complex process in which the donor takes injections of gonadotropins to mature multiple eggs. The eggs are retrieved via an outpatient procedure and fertilized in an embryology laboratory. In most cases, the resulting embryos are then transferred to the woman who will parent the child. The donor has no legal rights, other than those agreed to beforehand, to see or know the child.

With surrogacy, a woman who is not intending to parent the child will carry the baby for the intended parents. Traditional surrogacy is a process in which a woman is inseminated with the intended father’s sperm and the surrogate gives the baby to the couple who wished to have the child. This procedure is rarely recommended today. More commonly, gestational surrogacy is done. In this process, one woman (usually the intended mother, but in some cases an egg donor) undergoes ovarian stimulation and retrieval of the eggs. The eggs are fertilized in the laboratory and the embryos are transferred to the gestational surrogate who will carry the pregnancy and then give the baby to the intended parents. Gestational surrogacy allows a couple to have a genetic link to their child, an option which is not possible with adoption

Embryo donation is a procedure that most commonly involves cryopreserved embryos created by a previously infertile couple who now wishes to donate them to another couple. The couple donating the embryos most commonly will have completed their family and do not want to discard their embryos or donate them to research. There are currently very few laws and regulations regarding embryo donation, but the situation is most similar to egg donation.

Ethical Considerations

Indication for Treatment. Third-party reproduction is typically considered when there is little or no possibility of pregnancy without the technique. Egg, sperm, or embryo donation may also be chosen if there is risk of transmission of a serious genetic disease and preimplantation genetic diagnosis or second trimester screening is either unavailable or unacceptable. Surrogacy may be used if there is a medical contraindication to pregnancy.

There is the potential that third-party reproduction could also be used for social reasons, such as a woman wants a child but simply doesn’t wish to carry the pregnancy or a couple who wishes to create a “designer child.” The medical risks of the procedures and the costs cannot be justified for nonmedical indications. Furthermore, it is certainly not clear that the best interests of the child are served by these arrangements. The advances in reproductive technology have been so rapid, we may need to consider not just whether we can do a procedure but whether it is ethically sound.        

Compensation to donors or surrogates. Although financial payments are not typically made for the services of a family member or friend, most potential donors or surrogates will be reluctant to undertake the discomforts, time, and risk on behalf of a stranger. Although compensation to donors or surrogates may be ethically justifiable, payment must not be made contingent on the production of a certain number of gametes or a healthy live birth. The eggs, sperm, embryos, or children are not commodities to be sold. Instead, compensation is provided for time and effort, acceptance of risk and discomfort, and in some cases for loss of time from work or other direct expenses.

Compensation to egg donors may be given as payment to undergo egg retrieval for the sole purpose of providing donor oocytes. The most common practice is for the donor to be compensated by the intended parents. Less accepted is another form of financial incentive involving oocyte sharing, an arrangement in which a woman is charged a lower fee for IVF in exchange for providing some of her oocytes to another woman. With this arrangement there is concern that the financial incentive is not really reimbursement for time and effort, since the donor would be undergoing the procedure anyway, but instead may be seen as direct payment for the eggs. Another serious potential problem is that the donor may experience added stress if she remains childless while the couple who receives some of her eggs has a child genetically related to her.

The level of compensation appropriate with third-party reproduction is a matter of controversy. Payment should not be so low as to be unfair relative to time and effort, discomfort, risk, and time lost from work. Yet it should not be so high as to become coercive. Furthermore, with very high fees, only the most affluent couples will be able to afford care. In August 2000 the Ethics Committee of the American Society for Reproductive Medicine concluded that there is no consensus on the precise payment that oocyte donors should receive. It was suggested that “sums of $5,000 or more require justification and sums above $10,000 go beyond what is appropriate.” The Committee recommended that in no circumstances should payment be dependent on the successful retrieval of eggs or a certain number of eggs. Sperm donors are typically compensated modestly for the time involved in the screening process and donating a sample because the effort and risk are so much less than with egg donation.

Embryo donors are not paid for the embryo donation, but they are reimbursed by the recipient for specific expenses related to the donation such as additional medical testing, legal fees, and costs for transferring the embryos to the recipient’s clinic.

Family members as gamete donors and surrogates. In November 2003 the Ethics Committee of the American Society for Reproductive Medicine stated that use of family members as donors or surrogates is generally ethically acceptable. This conclusion is consistent with the right of autonomy for the prospective parents, donor, or surrogate, as long as appropriate counseling has virtually eliminated the chance that coercion may be present. Some individuals choose to ask a family member to donate to preserve some genetic connection to the offspring. Involving a family member usually reduces cost because family members typically are not compensated in the same way as anonymous donors or surrogates recruited by agencies. Usually family members truly appreciate the opportunity to help a sister, brother, or cousin and participate for purely altruistic reasons.

Currently, there is no evidence to suggest negative effects for the child of donations by a sibling (e.g. a sister serving as an egg donor). However, transgeneration donation is an especially challenging question because of the difficulty of defining the status of the child within the family. Transgeneration donation is strongly discouraged. For example, it is difficult to know how appropriate it is that a child donates an egg to her mother, making the social sister the genetic mother. The Ethics Committee of the American Society of Reproductive Medicine stated that consanguineous gamete donations from first-degree relatives is unacceptable (e.g. a brother donating sperm to be used for insemination of a sister). This recommendation is made because of genetic risks and because this situation gives an impression of incest.

Confidentiality/Disclosure. Several different rights may be in conflict—the right of privacy of the parents, the right of privacy of the donor or surrogate, and the right of the children to know their biological origins. One controversial area within the field of third-party reproduction is whether or not a child has a right to know the identity of the egg, sperm, or embryo donor, particularly when the donor entered into the agreement with the understanding that he or she would remain anonymous. Currently, potential donors may now be asked whether they are willing to reveal their identity in the future when the child reaches adulthood. With this approach, parents can opt to choose a donor who may wish to be identified or one who prefers to remain anonymous.

A child conceived through egg or embryo donation may have a different medical history, different genotype, and possibly a blood type that would not have been possible given the blood types of the parents. Therefore, it is quite likely that a child will eventually learn of his or her origin. In fact, some individuals are proposing that a donor registry be established in the United States to allow tracking of the donor if a medical need arises. Many mental health professionals argue that disclosure is important to maintaining a trusting family relationship. Others argue that disclosing a child’s origins may lead to social stigma and that the child may be angered or disappointed if he or she is unable to make contact with the donor. Some parents decide to tell their child, but not their family and friends. As this field evolves, experts are looking to collect data to determine what method best promotes the well-being of the child.

 Confidentiality between the donor or surrogate and the physician must be maintained. Intended parents may have access to the donor or surrogate’s medical information only with her consent. If potentially sensitive information (such as HIV positive status) is uncovered about a donor or surrogate, the recommendation would be made that the potential parents should not proceed for medical reasons, especially if the identity of the donor or surrogate is known to the prospective parents. If the parents may need to know the medical information to make an informed choice about working with a potential donor or surrogate (e.g. the donor is a carrier for a genetic disease), permission to disclose is requested. If the donor or surrogate is unwilling to grant permission, the process would not go forward with that donor.

Oocyte Donation to Women Beyond the Expected Age of Menopause. Most people agree that a woman who experiences premature ovarian failure should be offered the option of egg donation, a procedure which is highly successful for these women. But pregnancy rates for egg donation remain quite high regardless of a woman’s advancing age. The controversy arises when considering age limits for women receiving embryos via egg donation. For example, a 55-year-old postmenopausal woman who loses her only child or who remarries may seek to start a family. Should there be an age limit for egg donation?

Older women certainly face increased risks of pregnancy, but most outcomes could be expected to be good for healthy women. If the woman’s partner is over 50 years of age, there are genetic risks related to the sperm to consider. But the most important ethical issue is whether the interests of the child are served by this technology. Our practice currently recommends that a woman receive embryos from egg donation up to the average age of menopause (51 years). It is important to try to avoid these children becoming parentless at an early age.

Approaches to Addressing Ethical Challenges

Informed consent regarding medical and psychological risks. Serious complications from egg donation are very rare, but no medical procedure can be completely risk free. The medical risks to the recipient from egg, sperm, or embryo donation include a theoretical risk of infection and the risks of pregnancy itself. The risks of pregnancy to a surrogate are greater than the risks experienced by an egg donor. The risks to the child include the possibility of transmission of genetic disease from a donor and the potential psychological issues that may surround third-party reproduction. Medical screening cannot eliminate risk, but it in many cases may be minimized by medical screening. Furthermore, there is a paucity of data regarding the long-term psychological risks and benefits of third-party reproduction.

In June 2002 the American Society for Reproductive Medicine published guidelines for gamete and embryo donation. The guidelines include recommendations about indications for treatment, psychological assessment, and medical screening. Our practice follows these guidelines and asks the donor or surrogate recruitment agencies with which we work to sign a statement that they practice within the guidelines established by the American Society of Reproductive Medicine.

Egg donors should be made aware of possible choices that the prospective parents could make, including issues such as disposition of embryos that are not transferred and pregnancy reduction. For a surrogate, expectations regarding health-related behavior, plans for prenatal diagnosis of genetic or structural abnormalities, plans (if any) regarding possible circumstances for pregnancy termination or reduction, and plan if there is a birth of an infant with a disability. The American College of Obstetricians and Gynecologists has stated that the pregnant surrogate should be the sole source of consent regarding management of the pregnancy, labor, and delivery. Obstetric care for a surrogate should be by a physician who is not involved with the intended parents. A thorough discussion of potential scenarios before the arrangement begins may help to obviate some disagreements. Informed consent for all parties is a lengthy process in third-party reproduction.

Psychological counseling. Psychological counseling before initiation of the process for all parties is important. The counselor explores possible long-term consequences of participation. Counseling includes focus on the interests and welfare of the future child. Counselors initially meet with the couple and prospective donor or surrogate separately. If a prospective donor or surrogate has a partner, this individual is also involved in the process. If the intended parents and donor or surrogate are not anonymous (i.e. if they are relatives or friends), then a third counseling session takes place with all parties present. Our practice is currently participating in studies examining the long-term outcomes for children conceived through gamete donation.

Independent legal representation for all parties. The intentions and concerns of all parties need to be explicitly delineated before any third-party reproductive process begins. Contingency plans should be made for circumstances that may arise during the pregnancy such as death of an intended parent or dissolution of the couple’s marriage.

Conclusion

There are numerous ethical issues raised by egg donation, sperm donation, embryo donation, and surrogacy. There is not total consensus regarding all issues. However, careful screening, counseling, and medical care can allow these treatments to be done with focus on the welfare of the child and benefit for all parties involved. 

Dr. Adamson and Dr. Baker practice reproductive endocrinology and gynecology as Fertility Physicians of Northern California in Palo Alto and San Jose.