Rent vs. Buy: Compensation Related to Womb and Organ Donation

Why is that we permit financial compensation related to renting a womb, but not for donating organs?  A recent article from the New York Times touched on this issue in discussing the insufficient regulation of surrogate parenting relationships.  A few days after the surrogacy article, an essay proposed that the government provide incentives for organ donation, such as a program for providing a tax credit or for contributing to a retirement account in exchange for such donations.  The answer for treating womb and organ donation differently can’t solely be the differential risk to life or health, as pregnancy and delivery, particularly by cesarean section, entail significant risks.  It also doesn’t seem to be that organ donation is less socially valuable than surrogate parenthood. Further, both types of compensated altruism seem just as likely to take advantage of a donor’s economic distress.

Perhaps, in part, it’s the difference between owning and leasing.  We tolerate financial compensation related to surrogate parenting, including sperm and egg donation, as the burden on the donor’s’ body is temporary.  While the ability to replenish and temporal limits on pregnancy reduce the biological impact on the donor in surrogacy, they don’t really alleviate the economic inducement to donate.  Margaret Atwood, in A Handmaid’s Tale, envisioned a future in which the poor would gestate the children of the rich.  While her work of fiction was
rich in hyperbole, the underlying cautionary note is clear:  those in economic distress might be induced to donate in a way that is socially and ethically troubling.

For both organ donation as well as surrogacy arrangements, perhaps financial compensation should be limited to reasonable medical expenses to prevent this harm?  The challenge would be in determining what is “reasonable” and monitoring such compensation arrangements. While limiting financial compensation might prevent a market for wombs or organs, it also raises concerns about paternalism and autonomy. Similarly, requiring informed consent and showing lack of financial duress might address the economic coercion issue. But, such requirements would deny compensation only to those that might benefit most from it.  Is the distinction between renting and owning sufficient to permit compensation for the donation of wombs, but not organs?  Should we reconsider regulations on compensation related to donation in these areas?

Brenda Simon

2 Responses to Rent vs. Buy: Compensation Related to Womb and Organ Donation
  1. Well, I think one part of the difference has to do with political and medical quirks. Organ transplantation is governed by the National Organ Transplant Act (NOTA). Transplants cross state lines and have been regulated since 1984 by federal law. With one federal law, an “ethical” impulse to prohibit sales could be easily imposed on the whole country. And, even in 1984 and the height of the Reagan Administration, the easy thing to do was to agree “no sales of body parts.”

    “Renting wombs” actually is illegal in some states, sometimes by criminal prohibitions or sometimes just through bans on the enforceability of such surrogacy sgreements. (It isn’t clear how often these barriers are effective even in states that have them.) Commercial surrogacy is legal in other states, sometimes with specific regulatory requirements and sometimes without. Many states don’t address it at all. And those state that do address it do so sometimes through legislation and sometimes through judicial decisions.

    There was no overarching federal law into which a ban on commercial surrogacy could easily be inserted. And there was no particular need for a federal solution. I think that’s an important part of the answer, at least in the United States. (And outside the United States, commercial surrogacy is generally more restricted.)

    The more interesting question might be why NOTA excludes eggs and sperm from its ban on the sale of organs. Renewability has something to do with it, as does ease or safety of donation but there is something more. The sperm probably came, at least in part, from the existence of a sperm donation industry, but egg donation was very new at that point and could presumably have been stopped. I think the answer to this question is very complicated but has to do with public and political recognition of the validity (or strength?) of desire for children, plus the difficulty, because of abortion politics, of getting any laws passed about reproduction. What do you think?


  2. Interesting point of view on this case. I really enjoyed reading it. Who knew to ever think of ograns like this. Thanks for sharing.


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