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TOPIC: – Reproductive Technology
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Adrienne Asch and rebecca Marmor, “Assisted reproduction,” in From
Birth to Death and Bench to Clinic: The Hastings Center Bioethics Briefing
Book for Journalists, Policymakers, and Campaigns, ed. Mary crowley
(Garrison, nY: the Hastings center, 2008), 5-10.
©2008, the Hastings center
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tHE HAStInGS cEntEr
for Journalists, Policymakers, and campaigns
Bioethics Briefing Book
from Birth to death and Bench to clinic
ASSISTEd REpRodUcTIon 5
n Assisted reproductive technologies—such
as fertility-enhancing drugs, in vitro fertiliza-
tion, and intracytoplasmic sperm injection—
can be used to circumvent fertility problems
while preserving a genetic connection.
n Ethical issues arise around the creation,
selection, and disposal of embryos, as well
as around cost, coverage, access, and
n Assisted reproductive technologies can
also require the use of sperm, eggs, or
wombs from third parties who are not
expected to play a role in raising the child.
n Ethical issues around third-party assisted
reproduction are complex and involve the
selection and sale of reproductive materials
and services, regulation, and the rights and
responsibilities of collaborators.
n In contrast to virtually every other devel-
oped nation, U.S. jurisdictions have enact-
ed only piecemeal legislation to deal with
Framing the Issue
Although it accounted for just over 1% of U.S. births in 2005,
assisted reproduction has fascinated the media and public. It has
received less attention from lawmakers. In contrast to virtually
every other developed nation, U.S. jurisdictions have enacted
only piecemeal legislation to deal with assisted reproduction.
There are two significant respects in which assisted reproduc-
tive technologies (ARTs) differ from standard medical interven-
tions. First, for the most part, ARTs do not treat the biological
problems that give rise to infertility but circumvent them—most
ARTs offer ways to create children despite underlying fertility
problems. Second, ARTs sometimes require the use of reproduc-
tive resources—sperm, eggs, or wombs—from third parties who
are not expected to play a role in raising the resulting children.
Third party assistance is sometimes required by the infertile het-
erosexual couples whom ARTs were developed to serve. But they
have also enabled same-sex couples and single people to have
children to whom they have a biological connection.
The more limited use of ARTs to help infertile couples have
children with their own reproductive resources poses ethical
issues. These are compounded by the more difficult and complex
problems raised by the expansive uses of ARTs: to enable any
prospective parents, regardless of age, sexual orientation, or mari-
tal status, to have genetically or biologically connected children.
Infertility and Two-Party Assisted Reproduction
Infertility is commonly defined as the inability to conceive
after 12 months of unprotected sexual intercourse. It also refers
to an inability to sustain a pregnancy, which is demonstrated by
repeat miscarriages. Approximately 7.3 million women and their
partners (about 12% of the reproductive-age population) is infer-
tile. Infertility affects men and women in equal numbers.
Both men’s and women’s fertility is affected by workplace and
environmental toxins. Two leading causes of women’s infertility
are delayed childbearing and blocked fallopian tubes (often due
to untreated pelvic inflammatory disease). Delayed childbearing
is more prevalent among white women than among Hispanic and
African American women, whereas tubal impairment is more
prevalent among Hispanic and African American women than
by Adrienne Asch and Rebecca Marmor
Adrienne Asch, PhD, a Hastings Center Fellow, is director of the Center for
Ethics and the Edward and Robin Milstein Professor of Bioethics at Yeshiva
University, and Rebecca Marmor, formerly a research and program assistant at
the Center for Ethics at Yeshiva, is a medical student who is also pursuing an MA
in bioethics at Case Western Reserve University.
H I G H L I G H T S
Adrienne Asch, PhD, Director, Center for
Ethics, and Edward and Robin Milstein
Professor of Bioethics, Yeshiva University •
Rebecca Marmor, Student of Medicine and
Bioethics, Case Western Reserve
University • email@example.com,
Josephine Johnston, LLB, MBHL,
Research Scholar and Director of Research
Operations, The Hastings Center •
Thomas H. Murray, PhD, President, The
Hastings Center • murrayt@thehastings-
center.org, 845-424-4040, x201
6 THE HASTInGS cEnTER bIoETHIcS bRIEFInG book
When partners expecting to become parents dis-
cover that one or both of them have fertility prob-
lems, they confront a variety of options to bring a
child into their lives. They may try to adopt, or
they may choose from an array of medical tech-
nologies. They must decide whether they prefer
the uncertainties and complexities of the adoption
process or of the medical response to infertility.
Medical responses run the gamut from noninvasive
to highly invasive. All carry significant risks for
both the mother and fetus. They may also be
expensive, and many of the more invasive tech-
niques are not covered by insurance policies. The
three primary means of assisted reproduction are:
n Medication. Drugs such as Clomid,
Serophene, and Pergonal can be used to stimu-
late ovulation and increase a woman’s chances
of conceiving. These drugs can also increase
the likelihood that the woman will have multi-
ple births, which is potentially risky for both
the woman and the fetuses.
n In vitro fertilization (IVF). IVF, which was
first offered in the United States in 1981, is
perhaps the most well known method of
assisted reproduction. It has resulted in the
birth of more than 500,000 children between
the years of 1985 and 2006. With IVF, a woman
takes fertility drugs to produce more eggs. The
physician then retrieves one or more eggs by
laparoscopy or by passing a needle through
the vaginal wall. The partner’s sperm is then
mixed with the eggs in a petri dish, and fertil-
ization may take place.
n Intracytoplasmic sperm insertion (ICSI).
ICSI is a technique in which a single sperm is
injected into the egg. It can be combined with
IVF technology to help men with low sperm
counts contribute genetically to a child. If fer-
tilization occurs, the embryo is allowed to
develop outside the womb for a few days and
is then implanted in the lining of the woman’s
uterus with a small plastic tube. Most centers
now place two to four embryos in the womb
in the hope that one will burrow into the lin-
ing and begin to develop normally.
Ethical Issues with Two-Party Assisted
Although the use of IVF by heterosexual couples
has gained wide acceptance, it nonetheless raises
vexing questions concerning embryo creation,
selection, and disposition; cost, coverage and
access; and resource allocation.
Embryo creation, selection, and disposition.
Not only do the expense and lack of insurance cov-
erage deter many infertile couples from pursuing
treatment, these financial disincentives encourage
the practices of implanting multiple embryos at
one time and creating more embryos than the cou-
ple will ever need. Patients reduce their costs by
fertilizing many eggs at once and implanting sever-
al embryos in the hopes that at least one will be
carried to term. Multiple implantation increases
the chance of multiple births; in 2005, 11.2% of
ART cycles resulted in multiple-fetus pregnancies.
IVF practice raises questions about how many
embryos should be created and stored for future
use, what to do when couples disagree on the dis-
position of unused embryos, and when or whether
it is appropriate to use preimplantation genetic
diagnosis (PGD) as a means of selecting character-
istics of the embryos to implant. These concerns
are heightened in a country vexed by the moral sta-
tus of embryos (see box, “Lack of Oversight”).
Cost, coverage, and access. The 422 infertility
clinics in the United States operate without any
regulation of cost, access, or scope and quality of
treatments. The average cost of an IVF cycle in the
United States is $12,400. However, it can often take
multiple cycles for a couple to achieve pregnancy
and birth. The specific laws concerning coverage of
infertility treatment vary widely from state to state.
Currently, 15 states have laws that require insurers
L A C K O F O V E R S I G H T
The American Society for Reproductive Medicine (ASRM) has
created guidelines for practitioners about how many embryos
to implant in any in vitro fertilization cycle and about treating
people whose medical conditions may complicate the typical
course of IVF (such as those who are HIV-positive). However,
the ASRM lacks the ability to enforce these guidelines.
Without governmental oversight, clinicians may practice medi-
cine in accordance with their own beliefs. Variability in the
beliefs of different practitioners permits most patients turned
down by one clinic to find another where practitioners will feel
comfortable treating them.
nevertheless, the lack of regulation and practitioner vari-
ability means that individual decisions about eligibility for
ARTs may be arbitrary, biased, and inconsistent, shielding
practitioner prejudices, subjecting prospective parents to
great uncertainty, and avoiding public discussion of difficult
policy issues in reproductive policy.
ASSISTEd REpRodUcTIon 7
to cover some form of infertility diagnosis and
treatment. These cost concerns affect access.
Poorer women and those without health insurance
are less likely to go to a doctor for fertility assis-
tance. This trend demands that our society con-
front the question: should we mandate that insur-
ance companies provide coverage for infertility
treatment? Mandatory coverage could suggest that
conceiving a biologically connected child is prefer-
able to adoption—there is no standard coverage for
the expenses incurred in typical adoptions. If cov-
erage is not mandatory, however, the disparity in
access to infertility treatments will likely persist.
Infertility treatment is seen by many as a luxury,
not a medical necessity. Several theorists, however,
argue that procreation and parenting are of such
central importance to an individual’s identity and
life goals that medical insurance should pay for
Resource allocation. Because the creation of
genetically related children for infertile couples has
been viewed as a medical issue, the laws, policies,
and practices bearing on ARTs have developed sep-
arately from the state and national child welfare
systems. In a country concerned about ever-
increasing health care costs, unregulated infertility
medicine results in expensive treatments for diffi-
cult pregnancies with multiple fetuses—treatments
that might have been avoided by more conservative
implantation practices and by efforts to alleviate
the conditions that give rise to infertility in the first
Third-Party Assisted Reproduction
ARTs are increasingly sought by those who can-
not reproduce using only their own genetic and
biological capacities. Heterosexual and same-sex
couples and single women and men who seek to
have biologically connected children frequently
turn to clinics and agencies for “donors” who pro-
vide sperm, eggs, or gestational services, usually
for a fee.
Twelve percent of IVF cycles in 2005 used
“donor” eggs, most often for women in their forties
who discovered that they could not achieve preg-
nancy using their own eggs. Although the develop-
ment of ICSI has reduced the number of heterosex-
ual couples requesting sperm donation, IVF is still
sought by those who cannot produce sperm at all,
as well as by lesbian couples and single women
seeking a child genetically connected to at least
one rearing parent. If about 52,000 infants were
born through IVF cycles in 2005, it is possible that
some 6,200 children were born through “donor”
eggs; numbers of births through donor insemina-
tion are not reported in data on ARTs, but it, too, is
R E S O U R C E S
• www.asrm.org – The American Society for Reproductive
Medicine. Includes topic index, news, publications, FAQs,
and a section for the media.
• www.womenshealth.gov – The U.S. department of Health
and Human Services’ source for women’s health informa-
tion. Includes an infertility FAQs and helpful links.
• www.cdc.gov/reproductivehealth – The centers for
disease control and prevention’s reproductive health
gateway page. Includes data and statistics, publications
and products, a glossary, and related links.
• Amelia Gentleman, “India nurtures business of Surrogate
Motherhood,” New York Times, March 10, 2008.
• Michael Winerip, “My Sister, My Surrogate,” New York
Times, december 23, 2007.
• Sharon Guynup, “Scientists Try to build a better Womb for
IVF,” Boston Globe, october 22, 2007.
• kevin Slack, “Her Embryos or His?” Los Angeles Times,
May 30, 2007.
• Rob Stein, “Women Hedge bets banking Their Eggs,”
Washington Post, May 13, 2007.
• osagie k. obasogie, “Wal-Martization of Embryos,” Boston
Globe, February 1, 2007.
• Susan Markens, Surrogate Motherhood and the Politics of
Reproduction, University of california press, 2007.
• The centers for disease control and prevention, ART
Success Rates: National Summary and Fertility Clinic
Reports, 2005. This and previous reports available at
• president’s council on bioethics, Reproduction and
Responsibility: The Regulation of New Technologies,
March 2004. Report available at www.bioethics.gov.
• The Ethics committee of the American Society for
Reproductive Medicine, “Human Immunodeficiency Virus
and Infertility Treatment,” Fertility and Sterility, February
• Anne T. Fidler and Judith bernstein, “Infertility: From a
personal to a public Health problem,” Public Health
Reports, november-december 1999.
See legislation appendix.
• How should law and policy recognize
and weigh the significance of genes
and gestation, as well as post-birth
rearing, in establishing parental rights
• How should law and policy protect col-
laborators from exploitation?
• on what basis, if any, should individual
states or the nation restrict who may
benefit from third-party reproduction?
• Should individual practitioners remain
free to deny services to would-be par-
ents based on marital status, sexual
orientation, age, or assessed child-rear-
• Should clinics operate on a medical or
a social service model?
• Is a single man or woman or a same-
sex couple entitled to the same insur-
ance benefits even when the need for
third-party assistance arises from social
and not medical reasons?
Q U E S T I O N S R A I S E D B Y T H I R D – P A R T Y A S S I S T E D R E P R O D U C T I O N
n Selection and sale of gamete
• Should the United States adopt the
approach of countries that permit only
true donation of reproductive services?
• If the nation is going to leave reproduc-
tion to the market, should it make any
attempt to regulate how much can be
paid for participation in the creation of
• once people purchase gamete and ges-
tation from others, how much trait selec-
tivity is permissible?
• Should the heterosexual couple seeking
an egg donor try to find one whose
appearance, interests, and background
resemble the infertile partner who will
become the gestational and rearing
mother, or is it acceptable to purchase
eggs from someone with very different
n Rights and duties of collaborators
• Should the young people who will be
the preponderant gamete donors—
most of whom have not yet started their
own families—be required to undergo
psychological screening or counseling?
• Should the United States adopt
Sweden’s requirement that only people
willing to be found will be accepted as
collaborators, or should it take France’s
position that all collaboration be anony-
• Should the states take no position on
parental secrecy or donor anonymity,
but require practitioners to keep
records so that children can trace
genetic and gestational parents?
• does telling about genetic origins foster
the conviction that biology is as—or
more—important to the child’s identity
than the social reality of day-to-day life
with his rearing parents?
8 THE HASTInGS cEnTER bIoETHIcS bRIEFInG book
probably responsible for several thousands of chil-
The last, least used, but perhaps most controver-
sial form of third-party reproduction is known as
surrogate, or contract, motherhood. It is typically
employed by heterosexual couples in which the
woman can produce her own eggs but cannot carry
a pregnancy to term. The partners contract with a
woman to carry the fetus formed from their
gametes. Some heterosexual couples, single men,
or gay male couples achieve parenthood using the
services of a woman who provides both genes and
gestation and then surrenders the baby upon birth
to those who intend to raise the child. Only 571
surrogacy contracts were reported in 2001, account-
ing at that time for less than 1% of known ARTs.
But the recruiting and hiring of women who will
gestate children for pay and then turn them over to
others has occasioned intense legal and ethical con-
troversy. Few states now accept surrogate mother-
hood or gestational carrier arrangements. Many
states ban them outright; others refuse to enforce
contracts if disputes arise among the parties. In
contrast, for several decades all 50 states have had
laws ensuring that sperm donors who follow pre-
scribed procedures remain anonymous and free of
parental rights and duties. Those laws have been
readily adapted to cover egg donation.
In an effort to avoid confusing state regulations
in the United States and the high cost of surrogacy,
couples are seeking aid overseas; the president of
PlanetHospital, a “medical tourism” agency in
California, expects to send at least 100 couples to
India this year for surrogacy, up from 25 in 2007.
In contrast to the estimated $50,000 spent in the
United States, surrogacy in India can typically be
done for $10,000–$12,000.
The variety of options available to prospective
parents now enables as many as five people to play
some sort of role in the conception, birth, and rais-
ing of a child. A sperm and egg donor can each
supply gamete that can be fused and then implant-
ed in a surrogate, who will carry the fetus. Upon
birth, one or two more individuals can take custody
of the baby and raise her. Law and policy have still
not grappled adequately with the relationships,
roles, and responsibilities in these collaborative
arrangements that create children with several peo-
ple who could claim some parental involvement in
their births. The number of people that can now be
involved biologically and socially in the creation of
a child raises difficult issues about which sorts of
reproductive collaboration will be permitted, who
can participate in third-party reproduction as a
provider or recipient, how the market in reproduc-
tive services should be regulated, and what rights
and duties should be recognized for collaborators
with respect to the children that result.
For example, a number of difficult questions are
raised by the marketing of reproductive material
and services and the selectivity it permits.
Although the United States prohibits sale of kid-
neys or bone marrow, it has taken no position on
markets in sperm, eggs, or wombs, thus tolerating a
flourishing market in genetic material and repro-
ductive services. Sperm, eggs, and gestational serv-
ices command different prices from one another;
their cost also varies based on the traits of the indi-
viduals who offer them. For example, an egg from a
Harvard-educated, five-foot-nine pianist might very
well cost more than an egg from someone without
a college education or without musical or athletic
Legislators and policymakers confront a plethora
of difficult questions about the creation of children
and families through ARTs (see box, “Questions
Raised by Third-Party Assisted Reproduction”).
Perhaps the use of reproductive technologies is best
left to the choice of individuals and the vagaries of
the market. But if so, that is a decision that should
be arrived at by vigorous public debate, not by
The authors would like to thank David
Wasserman for discussion and editing of this
ASSISTEd REpRodUcTIon 9