National Institutes of Health Awards $1.5 Million for Male Fertility Research at The University of Texas at Austin

"Exposure to low levels of phthalates during the fetal period of testicular development may cause testicular cancer or infertility later in adult life."

Some interesting research pertaining to male infertility will be conducted at UT Austin (where I am currently a graduate student). Click here to read the full article.

"Choice Mom"

Choice Mom - a person who chooses to be a single mother

Considered for the New Oxford American Dictionary 2009 Word of the Year according to this article.

Egg Banking, It's Coming

For the past couple of years, I have monitored the progress of Extend Fertility with great interest. Extend Fertility uses egg freezing technology to offer women the opportunity to preserve their fertility and take control of their reproductive health. The idea, in my mind, is that relatively young women bank their eggs for storage and use later, at a time when their fertility may be compromised by any number of factors.

At the time that I was first exposed to Extend Fertility, it was thought that egg freezing technology was not yet properly understood (or reliably successful) such that serves could be offered commercially with a clear conscious. A couple of years later I sat in on a presentation by an embryologist who described her own success with egg freezing. This presentation was hosted by an egg/surrogacy brokerage clearly indicating their hope that egg freezing could be used to enable donor egg banking.

It looks like donor egg banking is ripe for commercialization (at least in the eyes of some). This article describes Frozen Egg Bank, Inc., located in Orange County, and its efforts to launch egg freezing and thawing services.

In my personal opinion, I'm not sure that I would have taken the steps to donate my eggs to a bank. There was something appropriately and necessarily personal about working with a specific recipient to help build a family. I can't imagine going through all of the appointments and injections without it.

Hiatus

I've been on hiatus as I attempt to make some difficult decisions regarding my professional future, but I hope to return to this blog in short order. Thank you for your patience.

Short Paper 4: PGD

I am currently a student in a course on the bioethics of assisted reproductive technology at my law school. I have not necessarily embraced the ideas I express below. The idea behind these short papers is to engage in assigned reading and explore ideas. By that token, please share your ideas in the comments section.

Should preimplantation genetic diagnosis (“PGD”) be made available as a selection tool for nonmedical characteristics in offspring, i.e., hair and eye color, when the technology becomes available? If Mark Hughes’s assertion in the February 12, 2009, Wall Street Journal article is correct, it is already technologically feasible to pre-select cosmetic traits.[1] Despite the alleged, burgeoning technological capabilities of fertility labs, the participation of labs in the private market for cosmetic trait selection is controversial. Mr. Hughes goes so far as to say that “no legitimate lab would get into [cosmetic trait selection] and, if they did, they’d be ostracized.”

It is not altogether surprising that Fertility Institutes, the lab openly pushing cosmetic trait selection as “cosmetic medicine,” makes its home in Los Angeles.[2] In a place where it is routine for children to receive cosmetic enhancements as birthday or graduation gifts, it is only surprising to me that Fertility Institutes has received so few as “half a dozen” requests for cosmetic trait selection services. I do not believe that hordes of shallow Southern Californians will undertake IVF just to gain access to cosmetic trait selection. But I believe that a person whose only pathway to reproduction involves IVF will be likely to opt to “add on” cosmetic trait selection as long as the price of the service is not prohibitive. Despite the fact that many people would conclude that a parent’s preference for cosmetic traits does not rationally relate to reproductive goals that deserve respect, “appearance is everything” to many people both inside and outside of Southern California. More generally, it can be argued that a preference for cosmetic commonalities between parent and child is not at all superficial, but grounded in a deep-seated parental desire to see aspects of the parent reflected in the child.

The assigned readings imply that a parent’s preference for a child with “perfect pitch” is assumed and accepted by many to be more rationally related to reproductive goals than a parent’s preference for a child bearing certain cosmetic traits. But arguing that we should accept as reasonable a couple that would not reproduce but for the guarantee that the resulting child would have perfect pitch, while rejecting as irrational a couple that would not reproduce but for the guarantee that the resulting child would have a certain hair or eye color does not immediately resonate with me. I understand perfect pitch to be distinct from hair or eye color because perfect pitch gives a child a substantive capacity: the potential to develop an extraordinary musical skill. Hair or eye color, on the other hand, does not give a child a substantive capacity (unless it turns out to be true that blondes have more fun).

It is clear that a parent’s interest in creating a substantive capacity will be deemed more rational than a parent’s aesthetic preference, but what if we look to the underlying cause of the parent’s interest in creating a child with perfect pitch? Professor Robertson explains the hypothetical parents’ underlying interest in the perfect pitch trait as driven by a family talent for music or a desire to achieve a degree of sameness between the child and his/her parents.[3] One could liken this desire for sameness to the innate, almost primordial desire of potential parents discussed earlier in the course: to create children that are reflections of themselves as individuals and as a couple—figuratively, as a living embodiment of the couple’s love. On a very literal level, this sameness is manifested by seeing one’s own face, perhaps one’s own eye or hair color, reflected in the face of one’s child. If this desire for sameness is one of the basic, driving forces of human reproduction, it does not immediately seem irrational to me that potential parents might pursue opportunities to exercise cosmetic trait selection or claim that they would not reproduce but for the ability to guarantee that the resulting child would share certain cosmetic traits with his/her parents.

But because children inherently share cosmetic similarities to their parents by virtue of biological relatedness, my above argument may not seem clearly compelling. It is true that children inevitably share cosmetic features with their biological parents, but we also know that ART connects plenty of parents and children in the absence of biological or genetic relatedness. Take, for example, a woman who will only be able to become a mother through the use of donor gametes. It is known to be of great importance for prospective social mothers in these circumstances to choose an egg donor with whom the social mother shares a physical resemblance, in order to create a sense of sameness between the social mother and the child that will result from the donation. A woman using donor sperm, on the other hand, may choose her donor on the basis of phenotypical sameness to her partner or herself, which is presumably why so many cryobanks sort donor profiles primarily by hair and eye color.[4]

Because it is readily acceptable to choose mates and gamete donors on the basis of phenotype, it seems that hair and eye color is rationally related to reproductive goals in a way that already receives respect. It is also worth noting that selection of mates and gamete donors on the basis of phenotype does not harm others in any appreciable way. However, this basis fails as a universally acceptable justification of PGD-based cosmetic trait selection because selection of gamete donors and ordinary mates is distinguished by the fact that it takes place at a point in time before embryos are created. For this reason, I expect strict traditionalists would reject my argument, but I believe that modern traditionalist might possibly embrace my claim because I, arguably, demonstrate that cosmetic trait selection (1) serves a basic reproductive interest and (2) does not harm others.

In conclusion, I agree that cosmetic trait selection is supported by “less essential” parental preferences[5] than those that support medical screening of prospective offspring; but I do not think that parental preference for hair and eye color traits is any less essential than preference for some other non-medical traits, namely, perfect pitch. But the reliance of my argument on the importance of “sameness” to justify cosmetic trait selection assumes that parents will always select for cosmetic traits that mimic their own. This may not always be true. My argument does not reach cases in which parents select for cosmetic traits other than their own and is, therefore, of limited applicability.

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[1] Guatam Naik, A Baby Please. Blond, Freckles – Hold the Colic, Wall Street Journal (Feb. 12, 2009).

[2] Id.

[3] John Robertson, Procreative Liberty in the Era of Genomics, 29 Am. J. of Law & Med. 439, 464 (2003).

[4] Ethnicity, along with hair and eye color, is another trait that appears to be of fundamental importance to donor selection. While ethnicity is relevant to donor selection for more than cosmetic reasons, preference for aesthetic manifestations of ethnicity are related to and important for some of the same reasons as preferences for hair and eye color. The Donor Search page of the California Cryobank website, http://www.cryobank.com/Donor-Search/, provides an example of the use of hair color, eye color, and ethnicity as fundamental, “quick search” characteristics.

[5] John Robertson, Procreative Liberty in the Era of Genomics, 29 Am. J. of Law & Med. 439, 465 n.120 (2003).

Short Paper 1: Embryo Disposal

I am currently a student in a course on the bioethics of assisted reproductive technology at my law school. I plan to post some of my writing for the course to my blog. My purpose is not to give legal advice. I am not a lawyer and nothing read here should be construed as legal advice. Instead, I am posting my writing here in the hopes of stimulating discussion. I would love to receive any thoughts that readers have on the subject in the comments section.

This first short piece of writing compares two approaches to the disposition of pre-embryos in the context of divorce. It is important to understand that, pursuant to my professor's instruction, only two cases were considered: Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); and A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000).

Ownership and Disposition of Pre-Embryos

The emotional and financial investments required to attempt to create a child through assisted reproductive technology are significant. Consequently, intended parents may find it difficult to make decisions regarding the eventual disposition of the pre-embryos they will work so hard to create. From time to time, partnerships between intended parents buckle and the parties find themselves entrenched in disputes as to the disposition of cryogenically preserved pre-embryos.

How does the law resolve such disputes? Davis v. Davis [1] reasons that disputes regarding the disposition of pre-embryos should be resolved by lending credence, first, to the preference of progenitors; second, to the provisions of prior agreements; and, third, to the weighted relative interests of the parties. On the other hand, A.Z. v. B.Z. [2] reasons that disputes should be resolved by refusal to compel a donor to become a parent over his or her contemporaneous objection. This paper will consider whether Davis or A.Z. provides a better solution to the problem at hand.

The Davis framework emphasizes reliance on prior agreements regarding the disposition of pre-embryos. Under Davis, prior agreements should be carried out when the preferences of progenitors cannot be ascertained or when there is a dispute between progenitors. If no prior agreement exists, the relative interests of the parties are weighed and the party wishing to avoid procreation will typically prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre-embryos in question. The emphasis on prior agreements is sensible in that it avoids the need for litigation, but this dispute resolution scheme is flawed.

If we were to attempt to apply the Davis framework today, we might be stymied at the very first step of the analysis by a seemingly straightforward question: who are the progenitors? In Davis, the progenitors are clearly the husband and wife. But what of a more complicated case where a husband and wife create pre-embryos using donor sperm and donor egg? In this scenario, the donors are the progenitors.[3] It is not clear that the Davis court intends for progenitors who are donors to wield the decision-making authority that it gives to Mary and Junior Davis, progenitors who are intended parents. If donors wield this authority, the Davis framework produces uncertainty. For example, when the anonymous donor progenitor’s preferences cannot be ascertained and there is no prior agreement between the parties, how can a court proceed with the third step of the analysis? It seems impossible to weigh the interests of the parties if some parties are absent.[4] This would result in a failure to resolve the central dispute between the intended parents.[5]

The Davis framework may prove unsatisfactory even in straightforward scenarios because of the expansive language of its final analytical step. The Davis court writes that the party wishing to avoid procreation will prevail, unless the other party lacks a “reasonable possibility of achieving parenthood” by means other than use of the pre-embryos in question. What is a reasonable possibility of achieving parenthood?[6] There are many permutations of parenthood. In the traditional sense, we are the parents of genetically related children that we gestate. Untraditionally, we are also the parent of non-genetically related children that we gestate. We may parent a genetically or non-genetically related child gestated by a surrogate. Parentage is also achieved through adoption or through marriage to a partner who has one or more existing children. Even short-term parenthood is available, in the form of foster parentage. Because of the expansive nature of parenthood, it is difficult to determine whether the Davis carve-out provides much protection for the party that wishes to pursue only a particularized parenthood. On one hand, it could be argued that “parenthood” means the existence of a genetic relationship with a child. Using this narrow definition, there would likely be many cases that would threaten the objecting progenitor’s liberty to not procreate.

On the other hand, it could be argued that “parenthood” means a rearing relationship with a child via marriage (i.e., as a step-parent to your partner’s children). Because marriage to a partner with existing children is probably a reasonable alternative for nearly all people, the objecting progenitor’s liberty to not procreate will almost invariably be protected, using this broad definition. It is possible that this ambiguity is built into the Davis opinion by design, giving the court flexibility to respond to the inevitable variety factual circumstances surrounding the party that wishes to pursue parenthood. In any event, the ambiguity of this final analytical step does not sufficiently protect an individual’s liberty interest in avoiding procreation.[7]

Where Davis is pliable, A.Z. is not. A.Z. provides that unambiguous agreements between husbands and wives regarding the disposition of frozen pre-embryos will not be enforced, if doing so would compel one donor to become a parent against his or her will. This reasoning is justified by the principle that enforcement of prior agreements regarding procreation and future family relationships run contrary to public policy. In A.Z., an individual’s right not to procreate trumps all other considerations.

A.Z.’s emphasis on the donor’s present objection creates interesting outcomes when the pre-embryos in question are the result of third-party gamete donations. Consider a dispute over pre-embryos created using the gametes of the intended mother and donor sperm. Because the reasoning in A.Z. hinges on compelling parentage or family relationships, I do not think that A.Z. would apply to a dispute between intended parents in this context (given the absence of a future parentage or familial relationship between the objecting ex-husband and any children that may result from use of the implantation of non-genetically related pre-embryos). But if the pre-embryos had been created from the ex-husband’s gametes and a donor egg, the ex-husband’s objection would hold. A solution which neglects the role of the non-genetically related intended parent fails to provide a complete solution to the problem at hand.[8]

There are certain problems that neither Davis nor A.Z. resolve. Both cases limit themselves to deciding whether or not pre-embryos can be implanted. There is no guidance regarding resolution when the parties’ liberty to not procreate is absent from the dispute. If faced by a dispute between divorcees over whether pre-embryos should be frozen perpetually or used for research, neither Davis no A.Z. offers a resolution. I conclude that while the decisions before us offer inadequate solutions to disputes regarding pre-embryo disposal, A.Z. provides the better solution because it guarantees an individual’s liberty avoid procreation, where Davis does not.

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[1] 842 S.W.2d 588 (Tenn. 1992).

[2] 725 N.E.2d 1051 (Mass. 2000).

[3] I assume that progenitor means gamete donor. This assumption is supported by the court’s argument in Part IV of the opinion, in which Justice Daughtrey writes that Mary Sue Davis and Junior Davis’ decision-making authority concerning the disposition of the pre-embryos flows from their special status as the persons who have provided the gametes. Davis, 842 S.W.2d at 597.

[4] This difficulty may also be encountered when a known progenitor has died without commemorating their wishes regarding pre-embryo disposal in a prior agreement.

[5] My personal experience as an egg donor indicates that is more likely that the donor will have executed an agreement relinquishing the right to determine the disposal of the pre-embryos to the intended parents. The existence of such a prior agreement provides a way to work around the challenge of ascertaining an absent anonymous donor progenitor’s preference.

[6] The problematic scope of “parenthood” in the context of the Davis framework is explored in J.B. v. M.B., 783 A.2d 797, 720 (N.J. 2001).

[7] The failure to protect an individual’s liberty to not procreate also has practical ramifications in that it deepens the dispute between intended parents: e.g., will a progenitor forced to procreate also be forced to financially support the resulting child?

[8] In this paragraph, I assume for the sake of simplicity that third-party donors’ right to object has been waived, but I am not clear whether such a right can be contracted away. I am also uncertain whether the right to object, if waived by, e.g., the egg donor, is then transferred to the intended mother.

What will Happen to my Fertility?

Today, I received a thoughtful e-mail from a prospective egg donor who is concerned about the long-term affect of egg donation on the fertility of donors. She asked me whether I was aware of any credible studies. This is how I answered:

I have not found any longitudinal studies on the effect of fertility drugs on a donor's fertility. I am fairly confident that they do not exist.

The infertility community just doesn't seem that interested in taking the time to really get to know (i) who donors are and (ii) what risks donors take to help fertility doctors and donor agencies make money, and fertility patients make babies. The CDC, which produces a comprehensive report on the success rates of fertility clinics each year, doesn't do anything to keep track of egg donors (in their report, they explicitly state that they do not collect information about donors and only assume that egg donors come from a certain age demographic due to protocols). In my conversations with clinic staff or recipients, I have found that they tend to summarily dismiss concerns regarding long-term risks to the donor's fertility. I have been told, on occasion, that because there is "no risk" to IVF patients that we should assume there will be no risk to donors who take similar fertility drugs.

I think that this assumption is fundamentally flawed. First of all, how has the effect of the use of ovarian stimulation drug therapy to IVF patients been studied? I would only be convinced that a study demonstrates that ovarian stimulation drug therapy does not compromise long-term fertility, if that study were able to show that IVF patients later achieved natural pregnancies. But, if an IVF patient's fertility is compromised in the first place, how can the effect of ovarian stimulation drug therapy to their fertility be measured? By their very nature (typically older, typically unable to conceive naturally with their partner), it is impossible to reliably compare IVF patients to donors. Even if the IVF patient is undergoing ovarian stimulation due solely to male-factor infertility, it is unlikely that there would be an opportunity to study whether ovarian stimulation drug therapy has compromised the IVF patients long-term fertility (because the number of IVF patients who would go on to conceive naturally with other partners is probably extremely small, too small to provide a sufficient sample for any statistical study).

I am willing to accept the argument that, because IVF patients have not experienced other health effects in numbers significant enough to attribute the mal-effects to fertility drugs, that we should assume that donors will probably not experience detrimental health effects, with the important exception of unknown effects to a donor's reproductive systems. To test the long-term impact on donor's reproductive abilities, we need a study that tracks donors and whether they are later able to achieve natural pregnancies in numbers comparable to the general, non-donor female population. Since this type of study does not exist, we can't really say what long-term fertility risks a young woman assumes when she agrees to donate her eggs.

This is consistent with the advice that an attorney involved in an egg donation is likely to provide or, at least, it is consistent with the advice my attorneys provided when I agreed to become an egg donor. As a footnote to the issue of the "unknown risk" warnings that you will likely receive when/if you sign a donor contract, you will often read/hear proponents of egg donation say that the attorneys and clinics are just trying to scare you because they don't want to be subject to lawsuits down the road. I do not endorse the view that the clinics or attorneys are unduly "scaring" donors (in fact, I think this is a self-serving view most often offered by recipients). At the moment when you sign your donor agreement, a legal document, full disclosure is finally made. It is my feeling that the professionals, who tell you that the risk to your future fertility is unknown, are the ones that are being the most honest with you.

So, you are absolutley right to be anxious about long-term effects to your reproductive capacities. I also worried about this when I decided to become a donor. In the end, I concluded that I need not be worried so much about my short-term fertility. What I was (and still am) worried about is that this will shorten my fertility horizon and possible cause the early onset of menopause. Only time will tell. To be frank, I think it's a gamble. For personal reasons, it was a gamble I was willing to take. If it is any help to you, I'll mention that I have gotten pregnant (naturally and, might I add, without actively trying) since my donation.

To answer your initial question, I became a donor because I was deeply touched by the infertility struggle of a woman who was a close friend. Imagining my own future, I saw that I could very easily end up in this woman's shoes (delaying pregnancy because of a legal career only to have trouble becoming pregnant when I would finally be ready) and I wanted to do something to help similarly situated women. In an abstract sense, I suppose I felt a certain sisterhood with the women that I helped: I was helping another woman achieve pregnancy through collaborative reproduction in a way that I hoped another woman might help me in the future, if needed.

If you are reading and happen to know of such a study or have thoughts on the above, please comment. I am interested in hearing other views on this subject.