Harvesting Human Eggs and Informed Consent Legislation

“Tacit qui consentire videtur” is the legal principle of “silence implies consent.” When the law is silent on a matter, the law considers the matter legal since the law does not prohibit the action. In many respects this principle is applicable when it comes to the subject of assisted reproductive technology and the law. Many refer to it as the “wild west” precisely because there is so little regulation and, seemingly, anything goes. Examples range from cases like the “Octomom” from 2008 to the October 2017 surrogacy and custody case the US Supreme Court refused to hear. As a result, the assisted reproductive technology field is ripe with problems that are becoming more apparent with each passing year.

One such abuse could really be called a form of human gamete trafficking; specifically the exploitation of young women as farms for human eggs. Yet little is heard about this exploitation and, seemingly, many of the organizations that should be handling such topics are eerily quiet. Consider the following statement from the Center for Bioethics and Culture Network, “In addition, those seeking eggs often target young women at elite universities with high SAT scores, good looks, athletic and artistic talents, and preferred ethnic/racial backgrounds. When eggs are sought for stem cell research, the floodgates open to exploitation of low income and poor women, largely from communities of color. Competition for human eggs is a reality while awareness of or concern for the young women supplying them is generally nonexistent.” In addition to this, one must also understand the coercion that is taking place as well. In some cases, as the Center for Bioethics and Culture Network further reports, a woman can receive anywhere from $5,000 to $100,000 per extraction. For those low-income women or those who owe college debt, this must seem like a goldmine, not only to mention that many women who have their own eggs harvested believe they are giving these eggs for altruistic reasons by helping an infertile couple.

This is a highly invasive process and there are many risks that can result. Firstly, it begins with the injection of hormones that cause superovulation. This is a process where the ovaries release many more eggs (it can be over a dozen) than the average one or two per month. This, of course, can put tremendous stress on the ovaries. According to the Center for Bioethics and Culture Network the known physical risks include “ovarian hyperstimulation syndrome (OHSS), loss of fertility, ovarian torsion, blood clots, kidney disease, premature menopause, ovarian cysts, chronic pelvic pain, stroke, reproductive cancers, and in some cases, death.” In essence, the egg provider might suffer from some serious consequences if she undergoes the process.

Not surprisingly, little information is given to women who need to know the risks of this procedure since there is a conflict of interest between the egg provider and the company that receives the eggs. Because of this dilemma one can see the moral need for informed consent legislation. Much like the abortion industry, it would seem that those in the assisted reproductive technology industry do not want to give women the necessary facts in order to give informed consent. Nor does it seem that a waiting period is mandatory for the women to consider the associated risks. This, of course, is a problem.

While, at bare minimum, women should be given information on the risks associated with the procedure, there should be other considerations within a proper informed consent bill as well. At present, Americans United for Life offers model legislation to address this dilemma called The Egg Provider Protection Act. If enacted, it would mandate that women be informed of all the known risks, the potential for eggs to be used for human cloning, and the potential her eggs may be used for destructive embryonic research. This bill is certainly a step toward a Culture of Life since it not only gives the women needed information, but it also gives her the knowledge that this industry is associated with the Culture of Death. With this knowledge, the woman will hopefully choose what is in favor for the Culture of Life.

While The Egg Provider Protection Act is a good first step, there are some notable absences within the bill. In addition to receiving the information listed above, women should also be informed about how it is possible that their biological children could be subject to selective reduction, an abortion procedure done in order to reduce the number of unborn children within a pregnant mother. There can be little doubt that some egg providers would have a moral problem with abortion. Furthermore, it would seem reasonable if the woman who is providing the eggs have a mandatory waiting period in order to properly digest the information she has been given. When it comes to informed consent and abortion, the waiting period is a necessary part of such legislation. And typically the minimum wait time is recommended to be at least 24 hours prior to the abortion procedure. This seems to be a reasonable amount of time as well for the egg provider considering that there are very clear risks and potential consequences she must face when undergoing this drawn out process.

But the fundamental question is this, how does such incremental legislation like The Egg Provider Protection Act help promote a Culture of Life? It clearly does not ban the providing of human eggs for assisted reproduction, nor does it ban in vitro fertilization or surrogacy. So how exactly will it accomplish such a task? While typically used to address the morality of incrementally passing legislation that chips away at the legality of abortion, the principle of incrementalism can also be used in this case as well. For the uninitiated, the principle may be found in St. Pope John Paul II’s encyclical, Evangelium Vitae (no. 73). Firstly, it should be noted that as it was stated in the beginning of this article, when it comes to the legality of assisted reproduction there is little regulation. As a result, these sorts of actions can take place. In this particular instance the evil law that is in effect is the permissiveness because of the silence of the law. The law’s tacit approval allows the evil to take place. But how is the harm limited? As explained above, the previously uninformed woman can now be informed and make a decision based upon all relevant facts. Furthermore, the law, as a great teacher, begins to show the need to treat women with dignity; that they are greater than the sum of their parts. As it stands now, women who are given little information are merely seen as a commodity that can be potentially harvested for wanted genetic material. But interestingly enough, it can also have the potential to show just how problematic the assisted reproductive technology industry is; that it is an industry associated with the Culture of Death in many ways. For many Christians, it can show just how important the conjugal act and the beginning of life should be within the confines of marriage as well.

It is this final point that is most intriguing. The assisted reproductive technology industry does much to exploit women beyond harvesting eggs. Surrogacy is also an issue where women are merely seen as “wombs for rent”. At times they are forced to abort one or more of the children they are carrying because of the whims of the contractual parents without respect to what could happen to her physically, psychologically, or spiritually. Children become commodities as well in this industry. If they are not perfect, they can be destroyed. Or if the parents do not want them they can be abandoned to the surrogate. It is obvious that an industry which treats human beings as commodities is not a part of the Culture of Life. It is time to stop these travesties of justice and The Egg Provider Protection Act is great step forward.

Joe Kral has been involved in the pro-life movement since he has been in college.  His MA in Theology was completed at the University of St. Thomas where he specialized in bioethics.  From 1996-2003 he was the Legislative Director for Texas Right to Life.  During that time he was also a lobbyist for the Department of Medical Ethics at National Right to Life.  From 2004-2007 he consulted the Texas Catholic Conference on pro-life legislative initiatives.   In 2006 he was awarded the “Bishop’s Pro-Life Award for Civic Action” from the Respect Life Ministry in the Diocese of Dallas.  He currently serves as a voluntary legislative advisor to Texas Alliance for Life, is a member of the Fellowship of Catholic Scholars, taught as an adjunct professor of Theology at the University of St. Thomas, teaches as a Forward Toward Christian Ministry instructor for the Archdiocese of Galveston-Houston, is a member of the Knights of Columbus, and is doing doctoral studies at Harrison Middleton University where he is specializing in the ethical and legal theory of St. Thomas Aquinas. He has been married to his wife, Melissa, since 2004 and they have 2 children together. They attend St. Theresa’s Catholic Church in Sugar Land.
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