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Gamete donation refers to the different methods of reproductive technologies in which the human sperm, the human oocyte, or both are offered by and obtained from an individual and used in various forms of assisted reproduction procedures and research. Gametes can be fresh or stored frozen – or, in the case of eggs, obtained by using a vitriﬁcation procedure. Furthermore, gametes can be donated by the partner when natural reproduction is not possible with the partner’s gamete but it is reasonable to expect that via artiﬁcial insemination or in vitro fertilization with the partner’s gamete it can be still successful. In other cases when this is not possible, then in vitro fertilization is done by an anonymous or non-anonymous donor. Non-anonymous donation means donation is directed to a speciﬁc person provided by law or an agreement. Forms of such donation include egg sharing procedures or recruitment of egg donors. Egg donation can be based on the donation of surplus eggs: those that remained in surplus after an in vitro fertilization procedure. While the term ‘donation’ generally refers to ‘gift,’ that is a form of altruistic giving; the same term is used at private clinics where donation often involves of some forms of payment. Eggs are also donated for research purposes, especially in the ﬁeld of stem cell research.
The complexity of gamete donation raises many bioethical and legal dilemmas. For instance, should it be made possible to receive payment for egg donation? Should gamete donors remain anonymous? Who should be considered the parents of the child when gamete donors participate in an in vitro reproduction process? (Norvin 2010). And what would happen if gamete donors change their minds after the embryo has been developed from their gametes? Who should decide on the further use of these embryos? Should reproductive clinics be allowed to select gamete donors with speciﬁc human traits? Should the recipient be allowed to request certain types of egg and sperm donors? Some of the basic moral questions follow from the notion of human dignity and from the principle of non-commodiﬁcation while some others require a deeper assessment of gender equality and the rethinking of eugenic selection, equality and enhancement in reproduction.
History Of Gamete Donation
In the seventeenth century many scientists still believed that each drop of semen contained a small human being waiting for the nourishment that a human egg could provide. In 1677 Antonie van Leeuwenhoek was the ﬁrst to observe sperms through a microscope, but he described spermatozoa as being animalcules (little animals). He believed in preformationism: that each sperm contained a fully formed albeit miniature human being. The role of the human egg in reproduction was ﬁrst recognized and described by Regnier de Graaf in 1668. From observing pregnancy in rabbits, he concluded that the follicle contained the oocyte. (The mature stage of the ovarian follicle is named the Graaﬁan follicle (Spar 2006)). Nevertheless, understanding the process of human reproduction remained misguided by preformationism. It took 150 years before Karl Ernst von Baer discovered the mammalian ovum in 1827, and again another century before Edgar Allen discovered the human ovum in 1928.
Assisted reproduction started to emerge in 1978 with the birth of the ﬁrst in vitro baby, Louise Brown in the United Kingdom. When the cryopreservation of embryos became possible, the next step in assisted reproduction was the introduction of the technique of intracytoplasmic sperm injection (ICSI), which promised success even in cases of using a limited number of sperm. This technique was developed by Gianpiero Palermo in 1991 at the Vrije Universiteit Brussels, in the Center for Reproductive Medicine headed by Paul Devroey and Andre Van Steirteghem. ICSI is generally performed following a procedure to extract one to several oocytes from a woman. The procedure is done under a microscope using multiple micromanipulation devices. After the procedure, the oocyte is placed into a cell culture and checked on the following day for signs of fertilization.
Scientific Developments In Assisted Reproduction
Gamete donation has become possible as a result of recent advances in reproductive medicine. Reproductive medicine is now capable of in vitro fertilization and the cryopreservation of sperms, eggs, and embryos. The ﬁrst successful implantation of an embryo into the womb changed the ways in which reproduction can be achieved and how gametes are used. The ﬁrst transfer of a fertilized egg from one woman to another that resulted in pregnancy was reported in July 1983 and subsequently led to the announcement of the ﬁrst egg-donation-produced human birth on February 3, 1984. The evolution of assisted reproduction was fostered by the invention of ultrasonography as an ancillary method for controlling hormonal cycles and harvesting of human eggs. As a result of all these developments, by the beginning of the twenty-ﬁrst century the landscape of human reproduction had fundamentally changed in the developed world (Mirkovic 2014).
The various forms of infertility treatment and in vitro fertilization procedures provide the possibility to use gametes donated partially or entirely by others than the intending parents (the couple who initiates the reproductive procedure). A husband or partner may donate sperm for artiﬁcial insemination or in vitro fertilization when fertilization cannot be achieved naturally. But a sperm donor may also donate sperm for a couple if they need sperm from someone else. Similarly, a woman may need an egg donor to provide eggs and be fertilized by the partner’s sperm for the purposes of successful reproduction. In the case of mitochondrial diseases a woman may need a mitochondrial donor while keeping the nucleus of their own egg in order to prevent the inheritance of some mitochondrial diseases.
Egg donation has become possible with the widespread use of laparoscopy. The demand for human eggs far exceeds the number of available egg donations. During the reproductive years, a woman loses about 1,000 eggs each month. In the process of assisted reproduction, due to hormonal stimulation, more (often 6–8) eggs are harvested for the success of in vitro fertilization to guarantee the success of the procedure.
In vitro fertilization may be done by anonymous or non-anonymous donor. Non-anonymous donation means donation is directed to a speciﬁc person provided by law or a contractual agreement. (for instance in case of egg donation with the aim to avoid paid donation, the Hungarian law allows the donation to a close relative, speciﬁed in the law). Forms of such donation include egg sharing procedures or recruitment of egg donors. Egg donation can be based on the donation of surplus eggs: those that remained in surplus after an in vitro fertilization procedure. While the term ‘donation’ generally refers to
‘gift’ that is a form of altruistic giving, the same term is used at private clinics where donation often involves some forms of payment. Eggs are also donated for research purposes, especially in the ﬁeld of stem cell research.
Needless to say that gamete donation raises many bioethical and legal questions. For instance, what constitutes commodiﬁcation in the ﬁeld of gamete donation? Who should be considered the parents of the child when gamete donors participate in an in vitro reproduction process? Can gametes be selected based on some desired traits? Could a couple select trait that correspond with their identity? (such as deafness e.g.,) Some of the basic moral questions follow from the notion of human dignity and from the principle of non-commodiﬁcation while some others require a deeper assessment of gender equality and the rethinking of eugenic selection, equality and enhancement in reproduction.
Let us see these questions one by one, starting with the ways gamete donors are recruited. Recruitment of egg donors range from using private egg brokers to altruistic egg donations offered at in vitro clinics. It follows from the principle of autonomy that gamete donation should be voluntary, based on consent and detailed information. For securing health and identity rights of the donor-conceived child, donors must be screened and their data processed, including their physical characteristics, which might involve the creation of proﬁles, sometimes with photos. The selection procedure includes checking basic health parameters and conducting medical tests. The informed consent procedure is very special in the case of egg donation. Information should be given to prospective donors not only on the procedure itself but also on the longer term implications to reproductive health, on data protection, and on the issues of anonymity or on disclosure.
Egg donation is a complicated medical process. It usually consists of two phases: the ovarian stimulation and the egg retrieval. During the stimulation phase donors receive various hormonal drug injections so a greater number of mature eggs are produced. Egg retrieval is a surgical procedure, usually via a transvaginal ultrasound aspiration. Donors have to remain under observation and some side effects may occur in connection with ovarian stimulation. These potential side-effects and broader implications of reproductive health should be also disclosed to the donor.
In several countries egg donation is regulated, while in the United States it is governed mainly by the market. In Europe the major European legal instrument in this ﬁeld, the Convention on Human Rights and Biomedicine (the Oviedo Convention) provides very general norms applicable to gamete donation. The convention imposes a categorical ban on the commercialization of any part of the human body. Its Article 21 speciﬁcally stipulates that “[t]he human body and its parts shall not, as such, give rise to ﬁnancial gain.” The convention enjoys widespread support in Europe. Several important court cases have elaborated this principle more fully and in different ﬁelds – not solely in organ donation but also in stem-cell research and reproduction. It is especially remarkable that, to date, no European or other signatory country has expressed any reservation about the Oviedo Convention’s categorical ban on ﬁnancial gain despite the fact that, in several contemporary ﬁelds of biotechnological interventions, it is rather difﬁcult to draw any clear distinction between non-commercial and commercial domains of activity.
The other prominent bioethical question is related to reimbursement and payment. One dilemma is whether egg donors can receive payment for donation and if yes, what is the difference between reimbursement of the costs and payment for the eggs, as such. Where payment for the egg is forbidden the further question is whether egg sharing, egg loyalty programs advertised by in vitro clinics are defensible. Furthermore, can eggs be donated to a particular person (directed donation) or egg donation should be anonym? Can egg donors be recruited either for reproductive donation or donating their eggs for purposes of medical research? How many eggs can be retrieved from a woman in one procedure and how many times can someone be an egg donor? Can women donate and cryopreserve their own eggs for themselves for their later use?
The term “donation” per se can be also challenged as donation suggests a gift which would exclude the form of paid donation. The term ‘gamete donation’ applies to the gifting of sperm or eggs (Ragoné 2000) for use in fertility treatment or, for research. Because of donation, those who are unable to conceive without the help of a third party are given the opportunity to have the family they want.
Ethical issues involve the limitation of age of the donor, the nature of payment and anonymity of donation. Although it does not involve direct payment, still it raises ethical questions if some clinics offer egg-sharing programs. Egg sharing involves a woman undertaking fertility treatment who donates some of her eggs to the clinic where she is receiving treatment. In return, the clinic can subsidize her treatment costs. Since egg sharing involves donating some eggs for the use in the treatment of others, the rules regarding donation apply equally to egg sharers. In case of egg sharing the issue of free and voluntary consent, as well as the interpretation of non commodiﬁcation demand ethical analysis.
Anonymity Of Gamete Donors
As the identity rights of children have developed in several countries anonymity of gamete donors were questioned. Sweden already in 1984 eliminated the anonym gamete donation, later Switzerland, Netherlands and United Kingdom and several other countries changed their law, as well (Brigitte Feuillet-Liger et al. 2011). In UK sperm and egg donors could keep their anonymity till 2005, after which date donation is no longer anonym. Further moral question occurs in relation to those cases when gametes were donated prior to the law of disclosure. Should these gamete donors be requested to opt for voluntary disclosure of their identity provided that their genetic children would like to have access to their data? Some donor-conceived individuals insist that they are entitled to know their genetic provenance, not just for practical reasons of medical history but also to address profound difﬁculties of psychology and identity.
Right To Identity
The UN Convention on the Rights of the Child (Adopted and opened for signature, ratiﬁcation and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990) recognizes the right to acquire nationality and identity rights of a child in Article 7 and Article 8 of the Convention. Article 8 states that States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. Identity and welfare of the child continue to a play important role in shaping regulatory framework of new forms of assisted reproduction. But while in earlier regulation heterosexual, nuclear family served as a model in regulation more recent legal frameworks gradually allow new and new groups of childless couples to have access to some form of assisted reproduction (ESHRE Task Force on Ethics and Law, 23).
Gamete Donation Used By Same Sex Couples
Parallel to the development of assisted reproduction, the family model in Western societies also underwent signiﬁcant changes which includes now single-parent families, children from different partners and same sex couples. While homosexual couples often search for gamete donors and surrogate mothers, lesbian couples have other options, such as using their own gametes and request for a sperm from sperm bank or applying a special model of surrogacy that would create a mutual bond with both mothers. In case of the ROPA (Reception of Oocyte from PArtner) both partners in lesbian couples can participate in reproduction. At the technical level, the ROPA does not differ from an oocyte donation, the mere deviation is that both women forming a couple participates in reproduction; one as a genetic mother (giving her oocyte) and the other as a gestational mother. Another alternative process would create also a family resemblance on both sides if sperm donation is requested from one of the mothers’ brother while the other woman would contribute with her egg, in this way both mothers would have a genetic tie with the offspring.
Do Gamete Donors Have Equal Rights?
The question of how to deal with an in vitro human embryo when the egg donor and sperm donor change their mind and have different opinion on parenthood has been raised in several judicial cases. The European Court of Human Rights had faced these questions in the Evans v. the United Kingdom case (ECtHR, application no. 6339/05, judgment of March 7, 2006), where the applicant claimed that her privacy rights were infringed by granting a legal possibility to destroy her embryos based on the partner’s request. While access to many forms of in vitro fertilization is accepted as a rule, the issue here was the conﬂict between the rights of the prospective mother and the male producer of the embryo. It is the in vitro procedure and ex utero storage that creates disruption between the phases of human reproduction.
As the Evans case shows, the procreative liberties recognized as negative liberties (so women should not be prevented to carry on their pregnancy), however, this liberty is not guaranteed in cases of in vitro treatment when the court recognized that here the fathers’ right not to become a parent should prevail over her interest to become a mother. This case may have many different interpretations. The Court took into account the assessment of the new reproductive technologies when it recognized the disruption of procreation and pregnancy in case of the in vitro treatment. However, what kind of ethical theory it used it is not clear, showing that the logic of bioethics is not directly transferred into law which relies on traditional forms of rights and interests. Elsewhere the ECtHR stated that moral considerations are not in themselves sufﬁcient reasons for a complete ban on a speciﬁc artiﬁcial procreation technique such as ova donation. (S. H. and Others v. Austria; ECHtR, application no. 57813/00, judgment of November 3, 2011.)
The main ethical dilemma of the Evans case therefore was whether biological differences in gamete donation could be taken into account in assessing rights of the male and female donors. Furthermore, the court missed the opportunity to recognize the difference between preventing someone to become a parent and the denial of the right to change opinion on biological parenthood (Judit Sándor 2012).
In the case of Dickson v. the United Kingdom the ECtHR had to examine Article 8. the refusal of facilities for artiﬁcial insemination to the applicants, a prisoner and his wife, the Court found that Article 8 was applicable as the Article encompasses the respect for the individual’ s decision to become genetic parents. In the case of S. H. and Others v. Austria on the prohibition of ova donation for in vitro fertilization adopted by the Austrian legislature, the Court took into consideration medical/scientiﬁc certainty as a condition for reproductive rights. Since IVF treatment gives rise to sensitive moral issues in the context of a fast moving medical and scientiﬁc ﬁeld, and since there is no common ground amongst the Member states, the Court was in the view that wide margin of appreciation should be afforded to Member States. The legal contradiction here is while assisted reproduction was developed with the aim of helping to ensure rights of the infertile and to grant them privacy and health service that would eliminate the pain of being childless, the disruption of the procedure created an opportunity to invade privacy and right to family life then in the regular cases of reproduction. In S. H. and Others v. Austria the European Court of Human Rights had to examine a case in which two couples, both in need of gamete donation challenged the Austrian law on preventing gamete donation inconsistently. The applicants complained that the prohibition of heterologous artiﬁcial procreation techniques for in vitro fertilization laid down by section 3(1) and 3(2) of the Artiﬁcial Procreation Act had violated their rights under Article 8 of the Convention. It was apparent that the Austrian legislature was guided by the idea that medically assisted procreation should take place similarly to natural procreation, and in particular that the basic principle of civil law – mater semper certaest – should be maintained by avoiding the possibility that two persons could claim to be the biological mother of the same child and to avoid disputes between a biological and a genetic mother in the wider sense. The Court concluded that neither in respect of the prohibition of ovum donation for the purposes of artiﬁcial procreation nor in respect of the prohibition of sperm donation for in vitro fertilization under section 3 of the Artiﬁcial Procreation Act, the Austrian legislature, at the relevant time, exceeded the margin of appreciation. (discretion of national authorities). As a result, the Court stated that there had been no breach of Article 8 (respect for private and family life) to of the Convention as regards all of the applicants. However, the Court also noted that the Austrian parliament has not, undertaken a thorough assessment of the rules governing artiﬁcial procreation, taking into account the dynamic developments in science and society. The Court also noted that the Austrian Constitutional Court, when ﬁnding that the legislature had complied with the principle of proportionality under Article 8(2) of the Convention, added that the principle adopted by the legislature to permit homologous (by the partner’s gamete) methods of artiﬁcial procreation as a main rule and insemination using donor sperm as an exception reﬂected the then current state of medical science and the consensus in society. This, however, did not mean that these criteria would not be subject to developments which the legislature would have to take into account in the future.
Blue Ribbon Gamete Selection: Is There Any Right To Choose A Child With Specific Traits?
Selecting and screening have been taken other forms, such as the selection of ‘super’ sperm and ‘super’ egg donors in assisted reproduction in the twenty-ﬁrst century. The unspeciﬁed desire ‘to have children’ was associated with the woman’s wish or – in traditional societies – with the one and only aim of women’s lives (Karsjens 2002). Selecting speciﬁed characteristics of the child (gender and other desirable features of the offspring) was regarded as a method for establishing public control over the individual’s (mainly the woman’s) desire to have children. This distinction between an individual’s desire to have children and public expectations to have a child with certain, speciﬁed characteristics (such as being an only child, a male child, an intelligent child, a physically strong child, a perfect child, etc.) has become much less clear. Borrowing the term from Habermas, liberal eugenics is based on free and individual choices, and not on coercive social expectations. Nevertheless, a preference still exists for the selection of a healthy, strong and intelligent child, and this preference obviously reﬂects a commitment to unspoken eugenic purposes.
Due to the lower birth rate in many postindustrial societies, there is a signiﬁcant incentive towards selective reproduction. And this, of course, puts more burden on women as they are the ones who face the physical and emotional consequences of the hormone therapy, implantation and spontaneous abortions, embryo selection, reduction, pre-natal testing etc. Therefore, their privacy rights, physical integrity and reproduction rights need to be respected. In the philosophical debate of the topic, a counterargument along the lines of Habermas (Habermas 2003) was presented according to which the pre-natal or pre-implantation selection of the embryo that meets the parents’ wishes may actually affect the personal autonomy of the future child. This element of the debate, however, relates more to the eugenic type embryo selection rather than the genetic test aimed at preliminary screening of certain disease types.
Donation For Research Purposes
Should gamete donation be assessed differently in case the intention of the donor is to contribute to scientiﬁc success? In the Parrillo v. Italy [application no. (46470/11)] case in front of the European Court of Human Rights the applicant wanted to donate her eggs with the aim of assisting in stem cell research. Interesting element of the case that the in relation of egg donation for scientiﬁc purposes, the applicant referred to wide range of rights, including her privacy rights, her right to peaceful possession of her property (with her oocytes she wanted to contribute to the development of science). She also referred to freedom of expression. The Court looked at the relevant Italian law and on the basis of the material in the case ﬁle and held that it was not in a position to rule on the admissibility.
Gamete donation for research purposes raised ethical concerns in several other parts of the world, as well. Since egg retrieval is an invasive procedure and has an impact on the reproductive health of the donor, it follows that human oocytes cannot be used as mere raw materials for research. Since the Hwang scandal (of stem cell research fraud) the Korean Bioethics and Safety Act Bioethics and Safety Act [Revised as of June 5, 2008] included four guidelines that regulate egg donation. The ﬁrst one includes that the health of the donor must be evaluated and must meet a standard of health. The second one states that the number of donations is restricted. (A woman can donate oocytes only three times during her entire lifetime and the interval between donations should be longer than 6 months.) Third principle states that woman can receive reasonable compensation for the donation procedure to cover medical costs, recovery, transportation expenses, etc. And ﬁnally, persons providing sperm or ovum solely for ﬁnancial gain or other consideration should be punished by imprisonment for not more than 3 years.
In public debates on ethics, artiﬁcial fertilization through mitochondrial replacement is called a “three-parent procedure” involving ‘two mothers.’ The mitochondrion is primarily responsible for the energy supply of cells. Mitochondria have their own DNA indicated as mtDNA. The biological background to the question why the mitochondrion involved in the process is called the ‘second mother’ is that mitochondrial DNA is inherited in a linear fashion, i.e., the genetic data originates either from the mother’s or the father’s side within a single generation. True, the overwhelming majority of genetic data is stored in the cell nucleus and only one percent in the mitochondrion. Even so, the fertilization procedure that involves the replacement of the mitochondrion has resulted in terms like “three-parent embryo” or “three-parent reproduction.”
Often the term ‘two mothers’ is used in public debates in United Kingdom as well as in the international press on whether to legalize or ban mitochondrial replacement in cases of mitochondrial diseases. In short, the procedure involves the replacement of the mitochondrion of the person diagnosed with the disease with that of another person free from that particular disease. This, however, is not the ﬁrst debate in this topic. In 2012 the Nufﬁeld Council conducted a 6-month public survey about the moral implications of mitochondrial replacement designed to prevent genetic diseases. As a result, in August 2012, a total of 1,000 people representing various social groups were interviewed at 175 randomly selected locations. The objective of the study was to explore public opinion on the genetic therapy of mitochondrial diseases. As a result of the subsequent parliamentary debate in 2015, mitochondrial donation was permitted ﬁrst time in the history of assisted reproduction in the United Kingdom. (The Human Fertilisation and Embryology Mitochondrial Donation Regulations 2015 No. 572).
Mitochondrial diseases are severe genetic diseases that can be cured with mitochondrial replacement. However, a number of ethical counter-arguments, similar to those on cloning (replacement of the nucleus), have been presented in opposition to this procedure. One of the strongest counter-arguments is that due to the mitochondrial replacement not two but actually “three parents” are involved in the procedure. This argument is problematic in many ways. For instance one should not reduce parenthood for mitochondrion, furthermore in several forms of assisted reproduction other than intending parents are already involved. (gamete donors, surrogate mother).
If, however, we examine these cases from the aspect of mitochondrial diseases that account for a number of infant and child deaths and miscarriages, the guest mitochondrion is more of a therapeutic tool than a peer parent. Lately, it has been proposed that biologists perhaps underestimate the role played by the mitochondria, which, of course, can reshape ethical analysis.
It was only in the late twentieth century that the issue of cell nucleus transfer, i.e., when the nucleus of the egg involved in artiﬁcial fertilization is replanted, was ﬁrst raised. It is perhaps too early to access all ethical and safety issues involved in this technology.
The other counterargument is commercialization. True enough, commercialization has been an issue in virtually all reproductive methods. And where an egg from a third person is needed, even the issue of exploitation is raised if someone is forced to ‘donate’ eggs under grave ﬁnancial coercion.
As we have seen, gamete donation poses dynamically changing questions parallel to the development of reproduction technology and to the transformation of family. One can see that the application of reproductive technologies has already gone beyond the original use of helping infertile heterosexual couples. New groups of individuals, such as single people or same sex couples, have now access to reproductive technologies and, in addition, gamete donation has become also a therapeutic option to many families in cases of certain heritable conditions. Consequently, diverse ethical principles are applicable in this domain, such as human dignity; reproductive rights; reproductive health; rights of the child; personal autonomy; and principle of non-commodiﬁcation of the human body. These principles shape now the contours of the global ethical and legal framework.
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