Abstract

Excerpted From: Jennifer Meleana Hee, Our Bodies, Our Price: Accepting Commodification and Racial Categorization in Assisted Reproductive Technology, 39 Berkeley Journal of Gender, Law & Justice 56 (2024) (263 Footnotes) (Full Document)

I am a forty-four-year-old childfree woman. During my late twenties and early thirties, I donated my eggs seven times. Two were for the same couple, whom I met prior to donating when my egg broker set us up for drinks in San Francisco. It was like a first date with two men, where procreation was the explicit reason we were meeting, and it was fine to ask about my family history of mental disorders. What was their conversation like on the drive home, evaluating my appearance, my not-quite-quirky awkwardness, the fact that I was a Harvard graduate making $11 an hour cooking in a commercial kitchen? Is this how we want our children to turn out?

I imagine one of the most decisive factors was my mixed ethnicity. One man was Chinese, his husband, English; my father is Chinese, and my mother is English. Any mixture of my genes with either might create children that appear mixed-- double eyelids above almond eyes, and dark, wavy hair against light brown skin.

One's journey as an egg donor does not always begin with talk of depression over drinks, but immediate preparation for egg retrieval is fairly uniform. First, donors inject a synthetic hormone to suppress normal ovarian function. Next, donors begin hormone injections that hyperstimulate follicles to rapidly mature. During this period, I remember frequent blood draws and ultrasounds, as reproductive endocrinologists carefully monitored my follicles, counting and measuring over twenty enlarging dark blobs crowding my ovaries. After eight to fourteen days, a shot of human chorionic gonadotropin (hCG) induces the final stage of egg maturation. Approximately thirty six hours after this injection, egg donors are placed under light anesthesia while doctors retrieve mature follicles via transvaginal ultrasound aspiration. Suitable eggs are then fertilized in a laboratory. Once fertilized, the embryo is implanted in the recipient, either an intended parent or a gestational surrogate. Except for the couple I met and one other family, I have no idea how many lives my donations created, whether follicles containing my DNA remain cryopreserved, able to create humans even if I die.

I knew minor side effects of the initial round of fertility drugs could include:

[H]ot flashes, difficulty with short-term memory, and insomnia ... vaginal dryness, hypertension, formation of blood clots, intestinal bleeding, fluid accumulation in the limbs, swelling of the limbs, numbness of the limbs, fatigue, depression, mood swings, chest pain, bone pain, joint pain, muscle pain, migraines, vision problems, dizziness and blackouts, nausea, vomiting, diarrhea, anemia, and thyroid enlargement.

These did not dissuade me any more than taking any prescription medication. I was afraid of the injections, but I barely felt the miniscule needles, even though my belly was covered in small bruises. I signed consent forms acknowledging the serious risks: ovarian hyperstimulation syndrome (OHSS), ovarian torsion, cancer. For long-term psychological harms, I had to proceed on best guesses. Would I deeply regret bringing humans into this world? Should I meet my genetic offspring one day, would I become attached to them? I was worried about the unknown long-term risks of shutting down my ovaries and then cranking them into overdrive, but these distant physical and psychological concerns just pooled with the many amorphous anxieties for future me. I did not get to sign a waiver for the myriad hazards of existing; at least here I could consent to something more concrete and potentially quantifiable.

I am risk-averse in so many ways--I drive cautiously, do not drink, wear a flashing light vest when I walk my dogs in the dark. Yet I was a donor willing to go beyond the American Society for Reproductive Medicine's (ASRM) recommendation of six cycles, as it is these donors that are most likely to experience severe OHSS, which can lead to kidney failure and even death. Twenty-nine-year-old me likely cognized the possibility of death the same way I do today, as arms-length away from the banal. Egg donation was risky, but so was getting in my car every day. I would not have accepted the risks of donation without compensation, but I recognized them as statistically slim, well worth the relief of paying off my credit cards and traveling to India. After retrievals, I would cramp and bloat, but this discomfort was de minimis, as the cash made living slightly more bearable.

After a few years of traveling from Hawai'i to San Francisco, Los Angeles, Shady Grove, and San Diego for donations, I was done injecting my abdomen with hormones, done with the blood draws and ultrasounds, done going under anesthesia for the retrieval. I had my fallopian tubes plugged with metal coils, an act both symbolic and pragmatic. I had health insurance that would cover the procedure, but it was reassuring to know that I would never become pregnant. I have always been disgusted by the thought of having a fetus growing inside my body, feeding off me. Forcing it into a nonconsensual existence as my child would traumatize us both. I imagined scar tissue weaving around the coils, building miniscule barricades, protecting my body in the way that mattered most.

A. Assisted Reproductive Technologies

One would imagine the language of creating human embryos outside of human bodies to mirror the miracle. Instead, the language of reproductive technology is scientific, disconnecting, overtly sterile. A person who donates their eggs is an “oocyte donor.” Couples or individuals who purchase these oocytes are “intended parents.” The person whom an intended parent might compensate to carry an embryo is the “gestational carrier.” These actors together engage in the most significant act of the “genetic offspring's” life--the offspring's creation--yet the connection between donors and intended parents, and between donors and gestational carriers, remains depersonalized by contractual labels. An act of ineffable profundity becomes obscured by legal and medical jargon.

Assisted Reproductive Technology (ART) makes “collaborative reproduction” possible. Any fertility treatment that involves eggs or embryos falls under the umbrella of ART, an ever-advancing industry. The law, meanwhile, lags behind not only because of rapid scientific developments but also because of the complex ethical issues implicated by ART, ranging from the commodification of human tissue to eugenics to procreative rights.

The American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) emerged to self-police the industry, determining the policy for collaborative reproduction in the United States via nonbinding guidelines. On one hand, the nonexistent federal and limited state statutes that govern reproductive technology seem preferable--why should families requiring assisted reproduction by no fault of their own be burdened with regulations, when those not requiring assistance are essentially free to procreate? On the other hand, assisted reproduction involves third parties and donor-conceived children, whose health and interests may require protection. Between 2016 and 2017, there were 49,193 donor egg retrievals in the United States.

The lack of regulation has led to considerable scholarly debate on the many aspects and market participants involved in ART. Some scholars have suggested regulating egg donation in the same way organ donation is regulated, but in such a scenario there would be increased oversight without compensation. The fertility industry, its pockets likely only deepening as technology advances, will likely resist regulation akin to organ procurement. While human aversion to organ selling is a long-held sentiment, ART is a modern development that has advanced into a booming industry despite any existential “yuck” factor. Other avenues for regulation include scholar Dov Fox's suggestion the government impose a commercial ban on sperm bank “race-attentive and race-exclusive” advertising; Michele Goodwin's proposal that ART be regulated via tort law; and Douglas NeJaime's urgent recommendation that state legislatures and judicial decisions reform parentage law to resolve the persistent inequalities in legal treatment of queer parents, many of whom are nonbiological parents to their ART-created children. These proposals are not mutually exclusive, and only demonstrate the complexity of regulating an industry that generates human life. As reproductive rights are increasingly curtailed, perhaps it is preferable “to allow non-legal institutions such as 'science’ or 'medicine’ to be the primary forum for policy debate and resolution.”

This paper explores current issues at the intersection of race and reproductive technology in the United States. First, I introduce the broad social justice issues implicated by the fertility industry. Next, I explain the industry's problematic donor compensation structure. Third, I review racial disparities in the use of reproductive technologies. Next, I explain how fertility clinics employ racial selection and categorization. Lastly, I argue that people with oocytes from historically marginalized groups must affirmatively disrupt the whiteness of the fertility industry by pushing back against the donation framework, becoming savvy sellers of their valuable genetic material.

[. . .]

Despite scholarly speculation and concern with white women choosing to use ART and Black women choosing not to, Dorothy E. Roberts wrote that “[e]vidence is hard to come by.” The lack of information is shocking. Women have been undergoing egg donations and IVF for forty years now, yet there remains a lack of longitudinal information on the impacts of hyperstimulating hormones. There are no studies comparing “mixed-race children born of assisted reproduction to black parents as opposed to white ones” that could dissuade those who argue same-race gamete selection results in better social or psychological adjustment for donor-conceived children. There is as scarce information on Indigenous people and ART as there are Indigenous donors.

Once we are aware of the inequities in reproductive justice, “we must shift our focus from identifying disparities to dismantling them.” One path to this dismantling is for people with oocytes openly embrace commodification and leverage the power they possess as market scarcities in an industry dominated by whiteness. While this places an onus on individuals to provide an avenue for social change, these individuals can aptly cognize the potential physical and psychological harms of donation and determine a price for assuming such risks.

In writing this piece, I re-read a magazine article I wrote at thirty-two, as I finished my final donation. Over a decade later, cancer and COVID-19 have taken the lives of friends who never explicitly chose a medical procedure for cash. It is hard for me to engage with the risks of my oocyte donations because they seem far more remote compared to the “risks” I see family and friends knowingly engaging in daily: smoking cigarettes or eating red meat and highly processed foods. In the balancing test of life, bodily autonomy means determining our own self-care calculus.

In 2012, I wrote:

I am an egg donor, and my role in the lives of the couples I donate to ends the moment my last ova hits the aspirator. What I go through medically and psychologically is not easy, but, at the end, we exchange dreams: the Intended Parents get families, I get freedom. The freedom to work a little less so I can do what I love a lot more: garden, rock climb, create, cook for loved ones, write and travel ... I will never be a mother, but I worry for what becomes of my eggs, for all the unborn and the Pandora's box of agonies that life unbounds for them, but, eventually, out of ovary, out of mind.

Instead of being out of mind, they have entered existence, entered mine. Much like society's apprehension over the commodification of body parts, when I was an egg donor, my anxieties were abstract: my genetic offspring would suffer by being, and I was complicit. Harms are still possible: commodification may injure personhood; fertility hormones may cause my cells to become cancerous; the heaviest of griefs may make the lives of my gametes feel less worth living. But the tethered truth is that I did not spend enough time imagining the rewards. Now I have met the people formerly known as Intended Fathers #5510A and #5510B. My genetic offspring are their children. Clichés abound: I gave them eggs, but gay men gave my life meaning. We are all indebted, and I am forever grateful.

University of Hawai'i William S. Richardson School of Law, J.D., 2023.