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Rethinking the moral permissibility of gamete donation

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Abstract

The dominant philosophical view of gamete donation as morally permissible (when practiced in the right way) rests on two premises: (1) parental obligations are triggered primarily by playing a causal role (as agent cause) in procreation, not by genetic ties, and (2) those obligations are transferable—that is, they are obligations to make adequate provision for the child’s needs, not necessarily to raise the child oneself. Thus while gamete donors are indeed agent causes of the children that their donation helps to bring into existence, most think that donors’ obligations are discharged insofar as they know that competent others intend to care for those children. In this article, I call into question this dominant view by challenging both of its premises. Challenging the first premise, I argue that genetic parenthood is what primarily triggers parental obligations. Challenging the second premise, I claim that those obligations are non-transferable—i.e., that they are obligations not simply to ensure that someone will raise one’s genetic child, but to raise that child oneself (unless one is incompetent). The implication of my argument is that gamete donation is inherently wrong insofar as it involves acquiring non-transferable obligations that one has no intention of fulfilling.

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Notes

  1. The most notable exception is David Velleman, who argues that the obligation to raise one’s biological children is non-transferable because when children are estranged from their ancestry, their “lives [are] truncated or damaged in ways that seriously affect the prospects for personhood to be fully realized within them” [1]. My argument is similar to Velleman’s, though I disagree with his claim that it is agent causality that triggers parental obligations. Rather, I think that progenitors have obligations to their genetic children even in the rare cases where they had no agent causal role in procreation. My case also differs importantly from Velleman’s in that I try to construct an argument from moral principle, whereas Velleman explicitly admits that he is unable to do so. Nelson [2] and Callahan [3] also view gamete donation as morally problematic. Nelson argues that parental obligations are too important to transfer to others, but he does not give a satisfactory explanation of why gamete donors have any greater responsibility than doctors or other proximate agent causes of the child’s existence. Callahan emphasizes the importance of biological fathers, but fails to give an account of why biological parenthood as such triggers non-transferable parental obligations. Alexander Pruss presents an argument for the wrongness of gamete donation which is similar to mine but is primarily theological in nature [4].

  2. While the causal account is not the only one, it seems to be the dominant view. In addition to Velleman [1], Nelson [2], and Callahan [3], see [510]. Of course, in some instances, parenting obligations can also be taken on voluntarily by those who did not play a causal role in the child’s existence, as in the case of adoption. Here, I am interested not in the question of who counts as a parent or who has a right to raise a particular child, but rather, in the separate question of who, even in the absence of a desire for parenthood, has obligations to care for a child.

  3. Weinberg questions the claim that a sperm donor can transfer parental responsibility, arguing that children need to be loved and that the obligation to love is inherently non-transferable. However, since Weinberg’s underlying account of parental responsibility only shows that sperm donors are initially responsible for the children conceived with their sperm, it is not clear why that responsibility cannot be discharged by ensuring that others will love the child. What is missing in Weinberg’s account is an explanation (such as the one I offer below) of why or in what sense the specific love of the sperm donor himself is important for the child’s well-being [11].

  4. Bayne [7] argues that no moral responsibility flows from gamete donors’ causal role because one is only responsible for the gametes that are under one’s control. On this view, since donors alienate control over their gametes, all procreative responsibility falls only on those who use the donated gametes. For a critique of this view, see [10]. My account differs from both because I deny that playing an agent causal role in procreation is the key basis for the acquisition of parental obligations. It also explains why one ought not to alienate control over one’s gametes either directly (through sperm or egg donation) or indirectly (as in the hypothetical case of a gonadal transplant).

  5. Benatar [12] and others [2, 10] argue that most donors (most are paid for their “donation”) take even this responsibility too lightly, since in most cases, donors do not know whether the would-be social parent or parents of their genetic children are competent to raise a child. I agree with this point, but here, I ask the further question of whether donating gametes would be morally problematic even if one were assured that one’s genetic child would be raised by excellent parents.

  6. This view implies that it is possible to acquire parental responsibility even without playing an agent causal role in procreation, as in cases of purloined sperm (several such cases are discussed in Hubin [9]). I accept this implication, and do not consider it implausible, given that injustices can often change one’s moral situation in ways that result in the acquisition of new obligations. If, for instance, I had a 7-year-old sister and all of my family members except for her were murdered, I would acquire prima facie responsibility for my sister’s upbringing. This burden would simply be one aspect of the injustice done to me by the murder of my family members.

  7. While the most prominent defense of animalism is Eric Olson’s The Human Animal: Personal Identity Without Psychology [13], in this article, I do not commit myself to any specific version of animalism. Olson’s version, however, would be sufficient for my purposes here.

  8. Although it is impossible to fully defend all of one’s premises in any given article, it seems preferable to at least spell out those premises and offer a brief account of them than to proceed as if one’s premises were non-controversially true. Those who argue for the moral permissibility of gamete donation tend to presume the truth of a psychological view of identity and a voluntarist account of moral obligation, usually without ever even identifying—let alone defending—those premises. Thus, my aim in the first two sections of the article is simply to clarify what my premises are and to show that, at the very least, they are no more controversial than those that underlie the opposing view.

  9. This definition is a slightly modified version of the one offered by Mertes and Pennings [14].

  10. Even in non-branching cases, the psychological view suffers from what Campbell and McMahan [16] call the “too many subjects” problem—i.e., that every conscious state has two subjects: oneself and one’s organism. Campbell and McMahan argue that the psychological view may be able to overcome this problem but that animalism faces an even worse problem—what they call the “too many organisms” problem. Campbell and McMahan believe that this problem occurs in the rare case of cephalopagus conjoined twins, in which there appear to be two bodies (usually partially fused in the torso) and one head. In such cases, the authors argue that there is only one person, but two organisms. Their critique is flawed, however, because they fail to recognize that organisms can be one in some respects and distinct in other respects. Like other types of conjoined twins, despite having real organic unity in some respects, twins conjoined at the head are also individual organisms with an inherent active disposition to complete independence, including the formation of fully independent brains and heads (for more on this point, see Lee and George [15]). Indeed, cephalopagus twins usually have not only their own brain stems and cerebella, but also two distinct faces as well as distinct (but conjoined) cerebra [17]. It is also worth noting, in this regard, that evidence of consciousness has been found in children who have a functional brainstem but lack a functional cerebral cortex [18, 19]. Cephalopagus twins can thus be understood as two distinct human animals who are extremely disabled (and unable to survive long after birth) due to severe developmental abnormalities. The case therefore need not present difficulties for an animalist account of identity.

  11. Derek Parfit responds to this problem by arguing that in duplication cases, while I cannot be identical to both of the resulting persons, strictly speaking, I survive in both in every sense that actually matters [20]. Yet is that really true? If I were married prior to the operation, would both (or either) of the persons psychologically continuous with me be married to my husband? Who would have a right to my property, or to my job? Who would be responsible for raising my children? Answering those questions requires determining which (if either) of the resulting persons is actually me. Since Parfit’s view cannot tell us that, it is not satisfactory even as an account of what matters about identity.

  12. For instance, in the broad sense, I have a relationship with everyone who shares my view that gamete donation is morally impermissible because that shared conviction constitutes a union at the intellectual level. But there is nothing specifically personal about such a relationship because that conviction is not in itself a unique characteristic.

  13. Hugh LaFollette offers a similar characterization of personal relationships in Personal Relationships: Love, Identity and Morality [21].

  14. Assuming that the needs of others always have some general moral claim on us, there must be some way of distributing the work of caring for those in need, of determining whose needs we are primarily responsible for attending to, by establishing an order of moral priority among the competing claims that the neediness of all human beings makes upon us. In other words, there has to be a way to specify the general obligation to contribute to the good of others. One’s degree of responsibility for another’s well-being depends on the extent to which one has a morally relevant connection with that person [15, p. 147]. One way of establishing such a connection to another person could be through consent or some other voluntary act—for example, making a promise or establishing a contract. Here, however, I argue that even non-voluntary relationships can trigger special obligations.

  15. Though my non-voluntarist associativist approach to obligation has some elements in common with that of Belliotti [22], my focus is less on the point that our relationships (including biological relationships) are partially constitutive of who we are, but more on the personal dependencies that personal relationships create. In this way my account avoids some of the shortcomings of Belliotti’s while still explaining (in ways that other theorists have not yet done) the common sense belief that biological relationships create some form of special obligation. For a critique of Belliotti’s view, see Jeske [23]. Jeske believes that the parent–child biological relationship in and of itself generates no special obligations.

  16. This point is important for the claim that genetic relationships as such (even in the absence of agent causality) trigger non-transferable parental obligations. However, in the standard gamete donor case, the donor does in fact do something voluntary that leads to the initiation of the relationship.

  17. I use the word “body” in this article to refer only to a living body.

  18. Even if the initial relationship is established with a human organism that is not yet a person, that does not matter for my account; all that is necessary for my account is that a relationship be established with a human organism who will foreseeably become a person.

  19. Note that I am using this example simply to show the plausibility of a factual premise—that genetic relationships are personal relationships—not to make any direct claim about obligations. The nature and degree of one’s obligations to any particular person (relative or not) will depend on the criteria laid out in the previous section. It seems plausible, however, that one would be obligated to respond in a more courteous and welcoming manner to a phone call from a lost relative than to a similar call from a complete stranger.

  20. I use the term “biological cause,” as distinct from efficient cause, to indicate a combination of material and formal causality in the Aristotelian sense.

  21. In this section, I use the term “personal relationship” in a loose sense to include relationships between human organisms in which one or both of the parties to the relationship may not (yet or currently) be a person. My account of the wrongness of gamete donation only requires that the donor have a personal relationship with a genetic child who in the normal course of events will become a person.

  22. To be more precise, from the child’s perspective, the relationship is intimate and comprehensive, whereas from the parent’s perspective, the relationship is intimate but not comprehensive. In other words, the child, not the parents, comes to be through the relationship with her genetic parents, and the child, not the parents, receives her genetic and initial overall biological identity through that relationship.

  23. “Initially” means “at conception,” since this is when a new human organism begins to exist.

  24. In cases of gestational surrogacy, the emotional bonds that the fetus forms with the gestational mother in utero also create a close relationship that rivals the closeness of the child’s relationship with her genetic mother. Here, I remain agnostic about which relationship is closer, although the genetic bond is more permanent. For an analysis of the moral relevance of gestational parenthood, see Gheaus [24]. However, since one’s special obligations to one’s genetic children begin as soon as those children begin to exist, the (prima facie) obligation to raise one’s genetic children would arguably include the obligation to gestate the child and/or support the mother who is gestating the child.

  25. Imagine that teenage parents incompetent to raise their genetic child give that child up for adoption, and that closed adoption is the best or only possibility in the circumstances. On my view, the genetic parents should nonetheless maintain a life-long concern for that child’s well-being such that if, for example, one of them unexpectedly became extremely wealthy, he or she would have a prima facie obligation to use some of that wealth for the child’s benefit (assuming it is possible and not prejudicial to weightier obligations).

  26. A gamete donor (as opposed to cases in which gametes were procured or used without permission) is, additionally, an agent cause of the child’s coming into existence in a state of neediness, though as agent cause, his or her relationship to the child is less unique and personal, and thus, the relationship of agent causality is not what specifies gamete donors’ obligations to their genetic children as non-transferable.

  27. As will become clearer in the next section, the potentially personal nature of the relationship is sufficient to ground a non-transferable obligation.

  28. Obviously, being a genetic parent is not a sufficient condition for being a fully competent parent. A parent who is ideal in other ways may, all-things-considered, be a better parent than a genetic parent, but there is still some objective loss to the child in not being raised by his genetic parents, as explained below.

  29. Strictly speaking, no transfer of parental obligations is involved in such cases. Rather, the genetic parents leave their obligations unfulfilled, but a third party in need of care remains, and others voluntarily assume the obligation to meet that need.

  30. A research brief prepared by Child Trends, for instance, concludes: “Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low‐conflict marriage. Children in single‐parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes.” The brief emphasizes that “it is not simply the presence of two parents … but the presence of two biological parents that seems to support children’s development” [25]. While it may be argued that the problems with stepparents are due to factors other than the lack of a biological connection to the child—the fact that the stepparent did not choose to have the child, or that the child is a reminder of one’s spouse’s previous relationship—these factors are not sufficient to explain the well-documented phenomenon of discriminative parental solicitude, also known as the “Cinderella effect” [26, 27]. The fact that the stepparent did not choose to have the child does not seem to be a sufficient explanation for the (on average) lower levels of parental solicitude in stepparents, since stepparents do choose to become parents when they choose to marry someone with a child from a former relationship, and this is often a more deliberate choice to become a parent (particularly on the part of the father) than the choice of many biological parents who find themselves with an unplanned pregnancy. It is also true that the child is a constant reminder of the previous relationship of the partner, and that this is a partial explanation of the “Cinderella effect,” but in cases of donor conception, for the non-genetic parent, the child is a constant reminder of his/her own infertility, which can be extremely painful. Research also shows that, particularly for men, parental investment depends in part on resemblance, which makes perfect sense from an evolutionary perspective because it is only men who deal with the issue of uncertain parentage. These studies therefore lend further plausibility to the evolutionary theory of discriminate parental solicitude based on genetic relatedness [28].

  31. He cites extensive empirical research to support this claim. Liao does not consider whether there might be a unique benefit to children in being loved by their genetic parents. Since, unlike Liao’s, my own argument does not rely on an emotional conception of love, Mhairi Cowden’s critique of Liao’s view does not apply to my account [31].

  32. In fact, according to the largest study that has so far been conducted on donor conceived children, comparing a representative sample of over 500 donor conceived persons to about the same number of adopted persons and persons raised by their biological parents, donor conception may in some respects involve even greater psychological risks to children than adoption. The study found, for instance, that “nearly half of donor offspring (48 percent) compared to about a fifth of adopted adults (19 percent) agree, ‘When I see friends with their biological fathers and mothers, it makes me feel sad.’” Similarly, more than half of donor offspring (53 percent, compared to 29 percent of the adopted adults) agree, “It hurts when I hear other people talk about their genealogical background” [35, p. 8].

  33. It might be objected that my view implies that it would be better if donor-conceived children did not exist. Yet, the same objection could be made against anyone trying to prevent teenage pregnancy. Such objections confuse the wrongness of an action with the goodness or badness of its effects.

  34. Note that on my account, it is not agent causality but the existence of a personal relationship that is the source of the non-transferable obligation. It is obviously not always wrong to play an agent causal role in the procreation of a child whom one has no intention of raising—doctors, nurses, and many others rightfully do so all the time. What is wrong is to perform an action that will foreseeably lead one to become a genetic parent when one is not ready or willing to raise one’s genetic child.

  35. This is why, for the purposes of the current argument, it does not matter whether or not every human organism is a person. The conditional willingness to harm requires only the reasonable possibility, not the certainty, that (1) a new human organism will in fact come to exist as a result of the donation, and (2) that organism will be a person at least at some point in her life.

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Acknowledgments

I am grateful to Princeton’s James Madison Program in American Ideals and Institutions for the post-doctoral fellowship during which I began working on this article, and to the James Madison fellows, along with Robert George and members of Princeton’s Philosophy Department, who offered helpful feedback at my presentation of an early draft. I would also like to thank Michael Gorman for his assistance in reworking the first section of the article, as well as two referees for their detailed comments on the penultimate draft.

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Moschella, M. Rethinking the moral permissibility of gamete donation. Theor Med Bioeth 35, 421–440 (2014). https://doi.org/10.1007/s11017-014-9314-4

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