The Commodification of Gametes: Why Prohibiting Untrammelled Commercialization Matters
in Trudo Lemmens, Andrew F. Martin, Cheryl Milne & Ian B. Lee, eds, Regulating Creation: The Law, Ethics, and Policy of Assisted Human Reproduction (Toronto: University of Toronto Press, 2017), 415-460.
56 Pages Posted: 20 Mar 2016 Last revised: 2 Jun 2017
Date Written: March 17, 2016
Abstract
This chapter discusses why a prohibition on the commercial sale of gametes is both desirable as well as reconcilable with fundamental rights and freedoms. The chapter takes as a starting point a Canadian Supreme Court decision which invalidated some provisions of the Canadian Assisted Human Reproduction Act, but left in place provisions that allow the government to introduce regulations for the reimbursement of gamete donors and surrogates. Building on Margaret Jane Radin’s seminal work on Contested Commodities, the author suggests that criminal sanctions prohibiting the commercialization of gametes are legitimate and aim at confirming a richer concept of individual autonomy and at protecting human dignity. The author further discusses why, regardless of changes in how we value assisted human reproduction itself, reproductive goods should continue to be awarded special status outside of the commercial market. To justify the claim for a prohibitory approach, the author emphasizes in particular the inherently relational nature of reproductive goods, the profound link to identity and personhood, and equity concerns related to market-driven selection of essential human traits. The author further argues that the criminal prohibition of market-oriented sale can be reconciled with an enabling state-regulated reimbursement scheme. The chapter also engages with the arguments that restricting commercial sale could violate fundamental rights and freedoms, particularly the right to security of the person and equality rights. The chapter discusses why these arguments ignore the significant more long-term impact of untrammelled commercialization on human personhood and on widely shared societal values.
Introduction is available at: https://ssrn.com/abstract=2971737
Keywords: Assisted Human Reproduction; health law; criminal law; reproductive rights; exploitation; equality; security of the person; human dignity; gamete donation; surrogacy
Suggested Citation: Suggested Citation