Free market babies and reproductive tourism

As egg sales, IVF and surrogacy become more common and commercial, a conflict arises between social justice and profit.

reproductive research
As reproductive tourism becomes more common, difficult questions are raised about reproductive rights and obligations [GALLO/GETTY]

Does India need a new independence struggle?

The fight this time would not be against British colonialism, but rather against the United Kingdom’s approach to regulating reproductive medicine. At a time when India is considering a sort of match-making service for Western couples seeking to hire Indian surrogate mothers, the UK government has announced the abolition of two leading medical regulatory agencies.

Meanwhile, as these countries move farther down the road to free markets in reproductive medicine, France is debating all of its bioethics laws – and continuing to stand up for a different model – focused on social justice and protection of vulnerable women. There is an alternative simply to letting the market decide, the French Assembly insists.

At some point, many countries are likely to find themselves embroiled in similar debates and controversies over reproductive rights and obligations. So it is necessary to clarify what is at stake in how we regulate – or de-regulate – in vitro fertilisation (IVF), egg sales, and surrogacy.

It may come as a surprise to observers in the US, in particular, that the British approach could be considered “free market”. After all, the UK forbids outright payment for eggs, whereas in the United States, a highly differentiated market has grown up around “consumer demand”. And the UK has a national regulatory agency for IVF, whereas the US has a patchwork of state regulations (or a lack thereof).

But the UK’s Human Fertilisation and Embryology Authority (HFEA) might not be around for much longer. Prime Minister David Cameron’s government announced in July that it intended to abolish the HFEA by 2014, along with the Human Tissue Authority, which deals with non-reproductive tissues. Already, the HFEA appears to be attempting to preempt the government by softening its regulatory touch.

Last month, the HFEA finished a consultation on increasing the level of “expenses” payable for eggs used in IVF. European law forbids outright payment for eggs, but the Authority suggests that increasing “expenses” considerably would not constitute an impermissible inducement. The HFEA is merely “removing disincentives”, not “creating incentives”. You could be forgiven for missing the difference.

Proponents of the Assisted Reproductive Technologies Regulation Bill 2010, now before the Indian Parliament, employ a similar rhetorical twist. They say that the bill actually protects surrogate mothers – for example, by limiting the number of pregnancies they can undergo. But the law would make surrogacy contracts legally binding, requiring the mother to give up the baby even if she changes her mind.

Opponents say that the agencies making the arrangements will be the biggest winners – that the huge profits they reap will dwarf the fees paid by foreign couples to the women bearing their children. As NB Sarojini and Aastha Sharma wrote in the Indian Journal of Medical Ethics, “The Bill actively promotes medical tourism in India for reproductive purposes.”

Reproductive tourism

France, like most European countries, has a problem with reproductive tourism: a yearly shortage of about 700 egg donors sends some couples over the Pyrenees to Spain, where private IVF clinics pay providers more in “expenses” than the UK allows. Even so, the draft bill continues to prohibit payment for eggs.

And it’s not just France’s official ethics committee that takes an anti-commodification stance. The French have recently conducted a series of two-day meetings in several provincial cities. In Rennes, the panel debating reproductive medical issues supported the policy of not paying for eggs or sperm – not even by the back door of increasing the level of “expenses”.

While the HFEA document calls for ethical concerns to be “balanced” against increasing egg supply, French Assembly members insist that law, morality, and progress are compatible. They reject the view that ethics is optional, even though some influential professors, such as Rene Frydman, who helped to create the first French IVF baby, have warned that France will fall behind in the science race unless it abandons its principles. The upper house, the Senate, was much more minded to listen to that view, so the outcome is still uncertain.

France is no Shangri-La, isolated from global markets or the pressures of international research. In the words of Emmanuel Hirsch, professor of medical ethics at the University of Paris-XI, “How long can our bioethical standards continue to resist the rise of other logics – particularly financial ones?”

To be sure, French regulation can be heavy-handed. For example, IVF is restricted to heterosexual couples who are married or in long-term relationships. The official rationale was that eggs and sperm are not commodities, but gifts from a fertile couple to an infertile one.

That is also one reason why the French restricted egg donation to women who had already had at least one baby (though this is being changed).

But the limitation to heterosexual couples was rightly condemned as homophobic by the French public in the consultations. So the draft bill has been amended to allow lesbian women to receive donated eggs. Gay men will still be barred, because they would require a surrogate, and surrogacy remains prohibited.

That sort of responsiveness to popular sentiment in the legislative process gives the lie to the canard that French regulation is inflexible and hopelessly bureaucratic. In fact, the free-market “Anglo-Saxon” attitude sounds like nothing so much as the old prejudices about the French that have been around since the novelist Thackeray told English readers: “The Frenchman has after his soup a dish of vegetables, where you have one of meat. You are a different and superior animal – a French-beating animal.”

Of course, we now know that a diet of bully beef is likely to result in hardening of the arteries, whereas the vegetable-centered Mediterranean diet is much better for human health. Enough said?

Donna Dickenson, Emeritus Professor of Medical Ethics and Humanities at the University of London, won the International Spinoza Lens Award in 2006 for contributions to public debate on ethics. Her latest book is Body Shopping: Converting Body Parts to Profit.

A version of this article was previously published on the Project Syndicate.

The views expressed in this article are the author’s own and do not necessarily represent Al Jazeera’s editorial policy.