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Eggs-ploiting women: a critical feminist analysis of the different principles in transplant and fertility tourism
Reproductive BioMedicine Online (2011) 23, 634– 641
www.sciencedirect.com www.rbmonline.com
SYMPOSIUM: CROSS-BORDER REPRODUCTIVE CARE ARTICLE
Eggs-ploiting women: a critical feminist analysis of the different principles in transplant and fertility tourism Naomi Pfeffer University College London, London, UK E-mail addresses: [email protected], [email protected]. Naomi Pfeffer is Honorary Research Fellow in the Department of Science and Technology Studies, University College London. She is a medical historian and medical sociologist. Her research investigates controversial developments in medicine, specifically reproductive technologies and human tissue collections at the beginning and end of life. She is a member of the Nuffield Council of Bioethics Working Party on Human Bodies in Medicine and Research.
Abstract Intergovernmental agencies have recognized that inconsistencies in the way that nation states regulate commerce in
human kidneys lubricate transplant tourism, and have repeatedly exhorted recalcitrant governments of both organ-importing and organ-exporting nations to criminalize the exchange of cash for kidneys. Yet these same organizations have elected to remain silent on inconsistencies in the regulation of the trade in human eggs that lubricate fertility tourism. This article is a critical feminist analysis of this paradox. Sketches of the histories of regulation of the global markets in human kidneys and human eggs allow attribution of the different approaches to sales of kidneys and eggs to the triumph of neo-liberalism in the 1990s. Neo-liberalism supports the growth of the medical tourism industry and its niche market catering for infertility, and is responsible for exacerbating the relative disadvantage of poor and powerless women in destination countries, thereby creating the conditions for ‘bioavailability’, that is, the willingness to exchange body parts for cash. The paper identifies a disturbing correlation between deeply engrained conservative attitudes to women and a plentiful supply of eggs, and concludes by suggesting that what women need to lift themselves out of poverty and discrimination is secure and dignified work. RBMOnline ª 2011, Reproductive Healthcare Ltd. Published by Elsevier Ltd. All rights reserved. KEYWORDS: fertility tourism, egg market, transplant tourism
Introduction Intergovernmental agencies have recognized that inconsistencies in the way that nation states regulate commerce in human kidneys lubricate transplant tourism, and have
repeatedly exhorted recalcitrant governments of both organ-importing and organ-exporting nations to criminalize the exchange of cash for kidneys. Yet these same organizations have elected to remain silent on inconsistencies in the regulation of the trade in human eggs that lubricate fertility
1472-6483/$ - see front matter ª 2011, Reproductive Healthcare Ltd. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.rbmo.2011.08.005
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tourism. For instance, in Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal of organs, the Council of Europe and United Nations (2009, p. 12) specifically omit embryos and gametes from the analysis. The World Health Organization (WHO) followed suit in its Guiding principles on human cell, tissue and organ transplantation which sets out its objections to commerce in human body parts but specifically excludes gametes, ovarian and testicular tissue (World Health Organization, 2010). These agencies seek to prevent exploitation of people who for reasons of poverty and powerlessness are prepared to sell a kidney in the (vain) hope that somehow cash received will ameliorate the hardships they and their family face. International nongovernmental organizations for medical professionals also oppose the global trade in human kidneys because it threatens to sully the reputation of transplant surgery. As The Declaration of Istanbul on Organ Trafficking and Transplant Tourism, drawn up by the Transplantation Society and the International Society of Nephrology, puts it, ‘The legacy of transplantation must not be the impoverished victims of organ trafficking and transplant tourism but rather a celebration of the gift of health by one individual to another’ (Steering Committee of the Istanbul Summit, 2008). The Report of the Council of Europe and United Nations acknowledges that the bodies of women are more vulnerable than those of men to disaggregation for the global trade in human body parts, yet intriguingly excludes egg vendors from its analysis (Council of Europe and United Nations, 2009, p. 12). Why, then, are different principles allowed in transplant tourism and fertility tourism? This paper turns to recent history for enlightenment and examines the various influences on the development of regulation of both industries. History tends to be written about powerful and visible people. However in the foreground of this paper are the people without whom transplant and fertility tourism could not operate: the poor and powerless prepared to exchange a kidney or eggs for cash. There are no accurate statistics of how many people are involved and there is a paucity of evidence from systematic research of what motivates them, which is why media reports are often a significant resource (Nygren et al., 2010; Shimazono, 2007). However the focus here is not on individuals but on cleavages in national and global social and economic structures. The paper argues that these cleavages began widening following the triumph of neo-liberal economic policies in the 1990s. Its tenets include lowering barriers to global trade, promoting markets, privatizing public services, including health, and pursuing small government and economic deregulation, and have been promoted by international financial institutions such as the World Bank, International Monetary Fund and World Trade Organization. Not only are these tenets responsible for the phenomenal growth of the medical tourism industry, and its niche market catering for infertility, but they comfort enthusiasts of market solutions to a shortage in human eggs and are forcing altruism, hitherto the default principle governing transactions involving human bodily material, on to the back foot. The paper concludes by comparing the influence of neo-liberalism on the routes through which kidneys and eggs
circulate. Anthropologist Scheper-Hughes observed that ‘In general, the circulation of kidneys follows established routes of capital from South to North, from East to West, from poorer to more affluent bodies, from black and brown bodies to white ones, and from female to male or from poor low status men to more affluent men’ (Scheper-Hughes, 2003a, p. 1645). However, there is growing evidence that in undermining public-sector services for the poor, intensifying immiseration and widening inequalities, neoliberalism is having a disproportionately detrimental impact on women; in other words: it is creating pools of ‘bioavailable’ women. Hence, although in many respects the routes through which human eggs circulate share many of the features to those followed by human kidneys, the route followed by human eggs engages with national and transnational valuations of women‘s reproductive bodies.
A brief and partial history of regulation of global trade in human kidneys The Hippocractic principle of nonmaleficence or ‘do no harm’ (primum non nocere) bound the hands of pioneers of human kidney transplantation when they began experimenting shortly after the Second World War (Tilney, nd). Kidneys used in experimental transplants were recovered either from someone who had just died – in France, those of a guillotined prisoner were used – or on a few occasions from a living relative. Indeed, in the 1950s, the only occasion on which a transplant ‘worked’ for an extended period involved identical twin brothers. Failure seemed inevitable until the early 1960s, when innovations in the science of immunology allowed rejection of foreign tissue to be delayed and encouraged experimental transplant activity. However the principle of nonmaleficence continued to apply and kidneys almost always were recovered from the warm corpse of someone who recently had suffered cardiac death in or close to a hospital where experiments in transplant surgery were taking place. In 1968, in the USA, ‘brain death’, a new understanding of death organized around neurological criteria, was proposed. ‘Brain death’ allowed healthy people (preferably young) who had suffered a drastic brain injury to be added to the pool of potential cadaver donors (Giacomini, 1997). But it is a controversial understanding of what counts as death and is still not always accepted (Lock, 2001; President’s Council on Bioethics, 2008). Furthermore, living people remain the only source of a kidney in places where technology capable of supporting the vital functions of brain-dead people prior to organ recovery is scarce or absent, or where cultural norms prohibit the use of cadaver organs. In 1983, cyclosporine, a powerful substance capable of suppressing the human body‘s rejection of foreign cells was approved for use. The drug greatly improved transplant success rates (Fox and Swazey, 1992, pp. 3–8). Kidney transplantation ceased to be an experimental procedure performed in university medical centres and began to be offered by less visible private institutions in both poor countries and affluent Western nations (Tilney, nd, p. 19). As transplant surgeon Tilney put it, ‘Like air rushing into a vacuum, opportunists moved quickly to exploit the need’ (Tilney, nd, p. 19). Clinical groups began advertising for
636 wealthy patients, often from other countries, guaranteeing them prompt and successful transplantation with cadaver-donor kidneys. Some cadaver kidneys were exported from one country to another where they were sold. Altruistic donations fell dramatically (Tilney, nd, p. 20). In encouraging both legitimate and illegitimate transplant activity, cyclosporine greatly exacerbated the ‘organ shortage’, a development which, as sociologists Fox and Swazey observed, played an important part in ending some of the taboos that had restricted live organ donation (Fox and Swazey, 1992, p. xvii). Evidence began to be cited that, in skilled hands, the risks to a living donor are of negligible proportions and, furthermore, claims began to be made that the moral imperative of beneficence (to do good acts) overrode that of nonmaleficence because in general a kidney recovered from a healthy living donor produces an outcome better than that of a cadaver kidney and the potential benefit to a sick recipient greatly outweighs potential harm to the source. Concerns about coercion were countered with assurances that only donors who were competent, autonomous and motivated by altruism would be accepted. Arguments in support of monetary solutions to the shortage of human kidneys were also rehearsed (Satel, 2008). Enthusiasts claimed that offers of cash in exchange for kidneys would increase supply more effectively than a reliance on altruism. Furthermore, in obtaining more kidneys for transplantation, the utilitarian goal of maximizing happiness would be achieved: the health and wellbeing of many more people suffering from end-stage renal disease would improve and, because in the long term transplantation is cheaper than dialysis, financial savings to the taxpayer would be significant. During the 1980s, the wisdom of allowing a market solution to the kidney shortage was discredited by scandals about brokerage and trafficking of kidney vendors. For instance, in the USA, Dr H Barry Jacobs established The International Kidney Exchange, a brokerage scheme for importing citizens of Third World countries into the USA, where one of their kidneys would be sold at an agreed-upon price. Jacobs maintained that despite their inability to read, write and understand English, foreign kidney vendors were capable of informed consent and their agreement would be tape-recorded as proof (Schwartz, 1983). The United States Congress responded by passing the National Organ Transplant Act 1984 (NOTA), which prohibits the sale of human organs within its borders (the definition of ‘organ’ in the Act includes skin, bone and cornea). In 1989, the British Parliament passed the Human Organ Transplants Act (HOTA), which created a criminal offence of commercial dealings in human organs. HOTA was the government‘s response to media outrage about the discovery that a British surgeon had recruited Turkish peasants as living vendors of kidneys, which were removed and transplanted into fee-paying foreign patients in a private hospital in London (Choudhry et al., 2003). In prohibiting the sale of human kidneys within national borders, legislation such as NOTA and HOTA reversed the direction of travel of transplant tourism from high-income to middle- and low-income nations where physicians, hospital administrators and government officials were prepared to pursue dubious strategies for obtaining kidneys, such as buying them in India and using those of executed prisoners
N Pfeffer in China, and where the procedure cost substantially below that of Western medical centres (Rothman et al., 1997). In response to media stories about exploitation of impoverished and powerless people, intergovernmental and international nongovernmental organizations began pressing for the introduction of measures that would outlaw transplant tourism (Rothman et al., 1997). In September 1985, The Council of the Transplantation Society published stringent guidelines for recovery of kidneys from both cadavers and living people, which included a reminder to surgeons that altruistic donation of an organ is a gift of extraordinary magnitude that they held in trust for society and a warning that any member found in contravention of this principle would be expelled. The following month, the 37th World Medical Assembly, the supreme governing body of the WHO, adopted a statement condemning export of kidneys from underdeveloped countries to Europe and the USA. Two years later, the Assembly agreed that markets in human organs were inconsistent with the most basic human values, contravened the Universal Declaration of Human Rights and the spirit of the WHO and enjoined physicians not to transplant organs if they had reason to believe that the organs concerned had been the subject of commercial transactions. In the same year, the Council of Arab Ministers of Health published a draft law prohibiting trade in organs and the Council of Europe agreed to prohibit commercialization of human organs (Fluss, 1991). These principles have been reiterated several times most recently in 2008 when the Transplantation Society and the International Society of Nephrology published the Declaration of Istanbul on Organ Trafficking and Transplant Tourism, which reminds clinicians of their duty to protect people vulnerable to exploitation and of the importance of ensuring equitable access to and distribution of transplantable organs (Steering Committee of the Istanbul Summit, 2008). It claims to have been influential. For instance, since it was agreed upon, the once-thriving kidney bazaars in Pakistan have been closed and the Philippine government has introduced regulations aimed at preventing the country from becoming a destination of transplant tourism (Declaration of Istanbul on Organ Trafficking and Transplant Tourism, nd). Currently, transplant tourism operates underground where it risks detection by Interpol which co-ordinates cross-border investigations and by local police. For instance, in November 2010, Netcare KwaZulu (NKZ), South Africa‘s biggest private hospital group, pleaded guilty to receiving money from an illegal kidney transplant scam which operated in St Augustine’s Hospital, Durban. Kidney vendors recruited by brokers were Romanians and Brazilians prepared to accept US$6000 for a kidney, far less than the price demanded by Israelis, the initial source. Most of the recipients were Israeli and each had paid US$20,000 for the procedure (Smith, 2010a,b).
A brief and partial history of regulation of global trade in human eggs In July 1978, Louise Brown, the first baby conceived by IVF, was born in a hospital in Oldham, a small town in northern England. IVF, or assisted reproductive technology, as the
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techniques became known, made pregnancy with another woman‘s egg feasible. The technical difficulties of egg donation proved far easier to surmount than those of kidney transplantation. Six years later, the first recorded donor-egg conceived child was born in Long Beach, California. The egg had been provided by the recipient’s sister, that is, the donation was directed and altruistic. At this stage, the Hippocratic principle of ‘do no harm’ impeded egg donation. However, there are only two ways of obtaining eggs without exposing a woman to physical risks attached to ovarian stimulation and egg recovery, and both are unreliable. One is finding a mature egg during surgery such as a hysterectomy but the chances of this happening are few (Mundy, 2007, pp. 47–53). So-called egg sharing is the other way: eggs are provided by women undergoing ovarian stimulation as part of their treatment. At this stage of its history, egg sharing was motivated by altruism: women granted their ‘spare’ eggs the ‘right to life’, albeit with other women and confronted the real possibility of recipients conceiving whilst they remained childless. Young healthy women tend to respond more positively to ovarian stimulation than women undergoing the procedure as part of their treatment of infertility. This was one of the arguments advanced in support of relaxation of the principle of ‘do no harm’. Initially the proposal was confined to directed altruistic egg donation, which has the additional virtue of allowing expressions of sympathy and solidarity for a sister or woman friend. However nondirected donation is the only option for involuntarily childless women unwilling or unable to call upon a sister or woman friend. In the late 1980s, a technical innovation provided further support for those in favour of relaxing the principle. Guided by ultrasound, eggs are retrieved through the vaginal wall in a matter of minutes, and because the procedure requires only light anaesthesia it is less risky than the established surgical method. It emboldened Paulson, chief of the fertility clinic at the University of Southern California medical school, to recruit a group of women as formal egg donors (Mundy, 2007, p. 49). In order to be accepted into the programme, women had to have proven fertility and to have completed their own family because it was unknown whether the procedure might damage their fertility. Another rule was that donors were not paid, or not much, because financial inducement seemed coercive. Ultrasound-guided egg retrieval released clinicians from their dependence on the hospital operating theatre and lowered the cost of entry into the infertility industry; as an American journalist put it, ‘suddenly any doc with a lab and the right equipment could set up shop’ (Orenstein, 2007). Coincidentally, it was established that the uterus of women approaching and past menopause could be made to carry a pregnancy to term. Eggs which hitherto had been sought for youngish women who had experienced an early menopause or who suffered from iatrogenic infertility were now required for would-be ‘late-in-life moms’. An acute shortage of human eggs rapidly emerged and greatly impeded the growth of the fertility industry. By this stage, statutes or guidelines regulating the practice of assisted reproduction were in place in many countries, but globally there was great variation in what could and could not be done, to whom and by whom, which body had oversight and the penalties for violation that could
be imposed on rule breakers (International Federation of Fertility Societies, 2010). In general these regulations had been introduced in response to local religious and cultural objections to the manipulation in vitro and destruction of fertilized human eggs and in order to constrain the capacity of assisted reproductive technology to create novel families. However different values held sway when the global shortage of human eggs emerged: neo-liberal pro-market political theory had triumphed and was forcing altruism, which hitherto had been the ethical default position in transactions involving human material, on to the back foot. Although neo-liberal theories were not new, they had achieved dominance following the demise of the Soviet Union and the fall of communism. Consumption (rather than production) became the vehicle for freedom, power and happiness, and restrictions of the purchaser‘s ability to choose, acquire, use and enjoy material objects and experiences were understood as an offence against human rights and a detriment to democracy (Gabriel and Lang, 1995). The rhetoric of freedom to contract in the market meshes easily with the language of reproductive autonomy which lies at the heart of arguments to permit and legitimate assisted reproductive technology (Ertman, 2010; Spar, 2010). Nowhere is this development more evident than in the USA, where the exchange of kidneys for valuable consideration is a criminal offence and where there is heated opposition to in-vitro manipulation and destruction of fertilized human eggs (and to abortion and embryonic stem cell science), and where, since the early 1990s, a market in human eggs has flourished (Almeling, 2007; Covington and Gibbons, 2006; Krawiec, 2010; Orenstein, 2007). Transactions are arranged by assisted reproduction clinics and independent egg brokers, and the often high cost of eggs is passed on to the recipient/consumer (Spar, 2006). The American human-egg market has matured into what has been called the ‘commercial pre-natal enhancement’ market where each egg is valued according to the phenotype and social standing of its female source (Fox, 2008). Elsewhere, the market in human eggs evades prosecution by hiding behind terminology which suggests that substantial sums of money paid to egg vendors are compensation for inconvenience and not valuable consideration which is prohibited in law. For instance, this happens in Spain where women currently receive around €1000 for each cycle, despite its government having entrenched into national law the European Union Tissue and Cell Directive (EUTCD; 2004/23/EC), which recommends that member states adhere to and promote the principle of voluntary and unpaid donations of human tissue and cells. Another approach to skirting the prohibition of the sale of human body parts is so-called ‘egg sharing’ where following ovarian stimulation women exchange some of their eggs for cheaper or free assisted reproduction treatment which otherwise would be denied them for reason of financial disadvantage (Heng, 2008). Egg-sharing transactions, effectively payment in kind of a substantial amount, are permitted in the UK, another signatory to the EUTCD, and allow commercial providers of assisted reproductive technology to exploit the failure of the UK’s national health service, the nation’s publicly funded provider of health care, to provide adequately for involuntarily childless people.
638 Prosecutions for trading in human eggs are possible where the necessary legislation is in place. For instance, in 2009, two Israeli physicians who ran a fertility clinic in Bucharest catering to fertility tourists were prosecuted under a 3-year-old Romanian law prohibiting the exchange of cash for human eggs (Eyadat et al., 2009). Turkey is an exception in prohibiting by law partaking in or facilitating travel for the purpose of buying eggs (Gu ¨rtin-Broadbent, 2010). However, neither intergovernmental agencies nor international nongovernmental organizations are campaigning for the eradication of inconsistencies in national regulations on egg sales, perhaps because in an era of deregulation and promotion of small government it would fall mostly on deaf ears. In 2002, the Taskforce on Ethics and Law of the European Society of Human Reproduction and Embryology (ESHRE), issued guidelines on gamete and embryo donation which included a reminder of the principle that there should be no payment for donation of biological material, that reasonable compensation should not mean inordinate profit and that excessive payment seriously challenges the very notion of informed consent by the donor (ESHRE Taskforce on Ethics and Law, 2002). However, this advice is absent from ESHRE’s good practice guide for cross-border reproductive care published in 2011, although the susceptibility of vulnerable women to exploitation is acknowledged. The guidance warns against using intermediaries as this might lead to trafficking of women and suggests minimizing the health risk of repeated ‘donation’ and ensuring aftercare is available for egg vendors (Shenfield et al., 2011). The report of the proceedings of International Forum on Cross-border Reproductive Care, the first of its kind, which met in January 2009 and was attended by, amongst others, representatives of the WHO and the European Commission, does not mention the welfare of egg vendors but focuses on how to ensure clinics in destination countries offer safe and appropriate care to their clients (Collins and Cook, 2010; Mainland and Wilson, 2010).
First world care at third world prices ‘Fertility tourism’ is a controversial term. Objectors claim that it confuses what are in practice uncomfortable medical procedures undertaken in order to procreate with relaxation and enjoyment in sun, sea and sand, and furthermore stigmatizes people forced to travel overseas because their own medical system refuses to cater for their needs or discriminates against them on the grounds of marital status, sexuality, age and other social factors, which is why the alternative of ‘fertility exile’ is considered more appropriate (Matorras, 2005; Pennings, 2005). ‘Reproductive traveller’ has also been suggested as an alternative (Whittaker and Speier, 2010). However, there is little debate on what to call egg vendors; in general they are euphemistically called ‘donors’, including those who are not resident in but travel to clinics in destination countries (Heng, 2005, 2007). ‘Fertility tourism’ is used throughout this paper in order to emphasize that clinics in destination countries are motivated by profit and furthermore are part of the multibillion dollar medical tourism industry (Connell, 2006; Turner, 2007; Whittaker et al., 2010). Fertility tourists are
N Pfeffer mobilized for reasons similar to those of most other medical tourists such as affordability – destination countries offer treatments at prices which look like bargains when compared with those of departure countries – and ‘queue jumping’ which motivates citizens of countries where health care is provided free at the point of delivery and where rationing is implemented through waiting lists, as happens for instance in the UK and Canada. Of course, fertility tourism caters for specific needs, but so do the various other niche markets of the global medical tourism industry such as orthopaedic, cardiac and cosmetic surgery and dentistry. Whilst a variety of factors in departure countries are propelling people across international borders in order to undergo treatment, governments of destination countries are eager to attract medical tourists for economic reasons. Conditions for the industry‘s growth were created by the neo-liberal policies of intergovernmental organizations which, amongst other things, require governments to open their markets to global trade. The most important of these is the World Trade Organization’s General Agreement on Trade in Services (GATS), agreed in 1995, which, amongst other things, encouraged governments to treat medical services as an export industry capable of promoting local economic development, boosting reserves of foreign currencies and creating a more favourable balance-of-trade position. Governments of former Eastern bloc countries and middle- and low-income developing countries are encouraging the development of the infrastructure of medical tourism by offering subsidies, tax breaks and land deals. At the same time, the market-fundamentalist programmes of international financial institutions such as the International Monetary Fund and the World Bank are requiring these governments to curtail or eliminate subsidized or free basic health care for local populations, run down or privatize state-sponsored healthcare facilities, impose user fees, introduce private insurance and allow market forces to determine medical-care prices (World Bank, 1987, 1993). Indeed, commentators have observed that by the mid-1990s, international financial institutions had superseded the WHO as the primary driver of global health policy (Pfeiffer and Chapman, 2010). A two-tier system has emerged in destination countries, with one tier providing excellent treatment in technologically sophisticated modern hospitals catering to foreigners and local elites, whilst, despite their many and pressing problems, large sections of the rest of the population are unable to access or afford the basic health care provided at a price by the other tier (Pfeiffer and Chapman, 2010; Whittaker et al., 2010). Public Citizen, a civil society organization based in Washington DC, captures the combined impact of the growth of medical tourism and privatization of health care to the local populations in the phrase ‘islands of medical excellence in a sea of medical neglect’ (Public Citizen, 2006).
‘Bioavailability’ ‘Bioavailability’, a term originating in pharmacology, was appropriated by anthropologist Cohen to describe the condition of people who for reasons of poverty and powerlessness are susceptible to an offer of cash in exchange for a kidney (Cohen, 2005). Women and men can both sell a kidney, but
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the circumstances through which they become bioavailable differ. For instance, rural kidney sellers are primarily men, often small-scale farmers faced with high levels of indebtedness, whereas urban kidney sellers are primarily women, often forced to sell a kidney because of their husband‘s unemployment, migration and, in some cases, alcoholism (Cohen, 2002, p. 20; Goyal et al., 2002; Rothman, 2002). The same policies encouraging and supporting the growth of fertility tourism are responsible for creating bioavailable women eager to sell their eggs for what might look like modest compensation for inconveniences but which in their country of residence commands considerable purchasing power. Whereas inability to afford or access healthcare cuts across gender, class and other community divisions, feminist theorists have argued that these developments are having a disproportionately deleterious effect on women and girls (Gill and Bakker, 2003; Pfeiffer and Chapman, 2010). This is especially the case in communities where women are relatively powerless for reasons of gender discrimination, little household income is expended on them and violence is an everyday reality. India, the world capital of commercial surrogacy, is a noteworthy example: one in every 70 women dies each year from pregnancy-related problems – and the rate of maternal mortality in India is 57 times higher than in the USA (Meghani, 2011; Saha and Saha, 2010; Sengupta, 2011). In post-communist nations, which are major hubs of fertility tourism, poverty and unemployment have increased for everyone but many more women than men have left the labour force following cuts in what were largely feminized public services (Pollert, 2003). Universal health care under the USSR contributed to women‘s wellbeing but since the collapse of the USSR centrally planned health services have been replaced with a free and unregulated market, and health care as a percentage of GDP has almost halved. Furthermore, although significant gender equality was achieved under communism, it was politically imposed and did little to challenge deeply engrained conservative gender attitudes which have resurfaced. As mentioned in the introduction, Scheper-Hughes found that, in relation to transplant tourism the circulation of kidneys follows established routes of capital (Scheper-Hughes, 2003a, p. 1645). The routes through which human eggs circulate share many of these features but in addition have much in common with those of ‘stratified reproduction’, shorthand for national and transnational inequalities in the valuation of women‘s reproductive capacity and role as mother (Colen, 1995). The concept of stratified reproduction emerged out of an analysis of the relationship of relatively wealthy New York women and the migrant Jamaican women whom they employ to care for their children whilst out at work. Much of the Jamaican women‘s pay is remitted to support their own children. In effect, the Jamaican women endure separation from their own children in order to provide the financial wherewithal for their upbringing by another woman. Of course, women choose to migrate for domestic or care work but they choose it because economic pressures all but coerce them to: indeed, the yawning gap between rich and poor countries is a form of coercion. Both migrant worker and her employer’s decision to leave their children in the care of others are represented as a ‘personal choice’
(Hochschild, 2003, p. 27). Both women’s ideas about motherhood are influenced by ideologies of reproduction: however, whereas New York women’s are informed by marketized media representations, Jamaican women are confronted by the legacy of slavery. Although both occupy the female underside of globalization, selling human eggs differs from migrant childcare in transferring genetic material from poor to rich parts of the world. Furthermore, the global market in human eggs exploits patriarchal claims over women‘s reproductive organs (Petchesky, 1995). For instance, it is ironic that the rhetoric of reproductive autonomy supporting the freedom to travel across borders in search of eggs in some instances is a beneficiary of the legacy of illiberal policies on abortion. Under Ceausescu’s pronatalist and totalitarian regime, Romanian women were denied authority over their fertility and forced to regard their wombs not as theirs but that of the state. In effectively ceding the state‘s authority over their ovaries to the market, Romanian women have facilitated the emergence of Romania as a centre of fertility tourism (Kligman, 1995; Nahman, 2008). Spanish women were once ‘abortion tourists’ forced to travel overseas by the profoundly Catholic anti-abortion policies pursued by Franco‘s totalitarian regime (Spanish Women’s Abortion Support Group, 1988). In the 1980s, a progressive Spanish legislature, eager to modernize medicine and challenge traditional family structures, introduced a permissive regulatory framework for assisted reproductive technology thereby laying the groundwork for the emergence of Spain as a leading hub of fertility tourism well provided with human eggs (Idiakez, 2006).
‘Unhonoured’ work Cohen described the exchange of a human kidney for cash as a human sacrifice of self-mutilation disguised as a ‘donation’ because many vendors sell to support loved ones, particularly in conditions of everyday or extraordinary debt. As he puts it, ‘The violence, if it is that, done to their bodies is the cost of love for the poor and marginal, and for them this violence and this love is indeed and obviously sacrificial’ (Cohen, 2005, p. 82). Fertility tourism is responsible for a new and unpalatable irony of childless women establishing the relationship of mother and child as a result of an egg vendor‘s love for her own children. As yet, there is no systematic evidence of the social and economic consequences of egg selling. However, something of the fate of kidney vendors is known: cash is quickly spent, and poverty and indebtedness are exacerbated because paid work becomes scarce: on seeing the tell-tale scar employers believe, sometimes with good reason, that kidney vendors lack physical stamina (Goyal et al., 2002; Scheper-Hughes, 2003b). Vendors suffer poor physical health, depression, regret and discrimination: in some places kidney selling is stigmatized and viewed as a kind of prostitution. The consequences of selling a kidney or eggs might be detrimental but both are less risky activities than other kinds of work such as the military and mining, which are legal. This argument is rehearsed by opponents of the criminalization of a market in human body parts (RadcliffeRichards et al., 1998; Taylor and Simmerling, 2008). All
640 forms of work involve the human body in some capacity. Indeed, Nussbaum identified the following similarities in her work as a professor of philosophy and that of a prostitute: both provide bodily services in areas that are generally thought to be especially intimate and definitive of selfhood; both perform skilled work involving interaction with others; and neither has complete control over the form the interaction takes (Nussbaum, 1999). A professor‘s remuneration is likely to exceed that of a prostitute, but if that is the case, she is exceptional: women in most parts of the world are likely to be stuck at a low level of the occupational hierarchy where they have little say over working conditions and pay. The prostitute’s work is more dangerous than that of the philosophy professor, but less risky than many other kinds of work. Examined in this light, it is difficult to cite the risks attached to ovarian stimulation and egg retrieval as justification of a prohibition of a market in eggs. However, as Nussbaum goes on to argue, the work itself should not concern us, but women‘s options and opportunities should. She echoes Nobel Laureate economist Amartya Sen in his analysis of why women shoulder most of the burdens and enjoy few of the benefits of economic, medical and social progress (Sen, 1990, 1992). Sen traced women’s disadvantage to their lack of entitlement to resources both within and outwith the household. Women themselves may not perceive this as injustice, and this misperception is of pervasive importance in sustaining gender inequality, even in richer countries but it is a particularly powerful influence in poorer countries. Sen joins many others in claiming that a pre-condition of women‘s empowerment is recognition that their work is productive, not ‘unhonoured’ (Sen, 1992). By no stretch of the imagination is selling eggs a dignified source of income. It is an unpleasant, short-term expedient of women faced with no other circuit of survival or for whom the alternatives are worse than egg selling. What women need is paid employment with legal protection which enhances their social standing and makes them less dependent on others. There is a disturbing correlation between deeply engrained conservative attitudes to women and a plentiful supply of eggs. There is no good reason why the language of reproductive autonomy applies only to relatively wealthy childless women.
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Krawiec, K.D., 2010. Price and pretense in the baby market. In: Goodwin, M.B. (Ed.), Baby Markets: Money and the New Politics of Creating Families. Cambridge University Press, Cambridge, pp. 41–55. Lock, M., 2001. Twice Dead: Organ Transplants and the Reinvention of Death. University of California Press, Berkeley. Mainland, L., Wilson, E., 2010. Principles of establishment of the First International Forum on Cross-border Reproductive Care. Fertil. Steril. 94, e1–e3. Matorras, R., 2005. Reproductive exile versus reproductive tourism. Hum. Reprod. 20, 3571. Meghani, Z., 2011. A robust, particularist, ethical assessment of medical tourism. Dev. World Bioeth. 11, 16–29. Mundy, L., 2007. Everything Conceivable: How Assisted Reproduction is Changing Men, Women and the World. Penguin Books, London. Nahman, M., 2008. Nodes of desire: Romanian egg sellers, ‘dignity’, and feminist alliances in transnational ova exchanges. Eur. J. Women Stud. 15, 65–82. Nussbaum, M.C., 1999. Sex and Social Justice. Oxford University Press, Oxford. Nygren, K.D., Adamson, F., Zegers-Hochschild, F., de Mouzon, J., 2010. Cross-border fertility care – International Committee Monitoring Assisted Reproductive Technologies global survey: 2006 data and estimates. Fertil. Steril. 94, e4–e10. Orenstein, P., 2007. Your Gamete, Yourself. The New York Times, July 15. Available from: http://www.nytimes.com/2007/ 07/15/magazine/15egg.html?th = and emc = th and pagewanted. Pennings, G., 2005. Reply to reproductive exile versus reproductive tourism. Hum. Reprod. 20, 3571–3572. Petchesky, R.P., 1995. The body as property. In: Ginsburg, F.D., Rapp, R. (Eds.), Conceiving the New World Order. University of California Press, Berkeley, pp. 387–406. Pfeiffer, J., Chapman, R., 2010. Anthropological perspectives on structural adjustment and public health. Annu. Rev. Anthropol. 39, 149–165. Pollert, A., 2003. Women, work and equal opportunities in post-communist transition. Work Employment Soc. 17, 331–357. President’s Council on Bioethics, 2008. Controversies in the Determination of Death: A White Paper, President’s Council on Bioethics, Washington, DC. Available from:
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SYMPOSIUM: CROSS-BORDER REPRODUCTIVE CARE ARTICLE
Eggs-ploiting women: a critical feminist analysis of the different principles in transplant and fertility tourism Naomi Pfeffer University College London, London, UK E-mail addresses: [email protected], [email protected]. Naomi Pfeffer is Honorary Research Fellow in the Department of Science and Technology Studies, University College London. She is a medical historian and medical sociologist. Her research investigates controversial developments in medicine, specifically reproductive technologies and human tissue collections at the beginning and end of life. She is a member of the Nuffield Council of Bioethics Working Party on Human Bodies in Medicine and Research.
Abstract Intergovernmental agencies have recognized that inconsistencies in the way that nation states regulate commerce in
human kidneys lubricate transplant tourism, and have repeatedly exhorted recalcitrant governments of both organ-importing and organ-exporting nations to criminalize the exchange of cash for kidneys. Yet these same organizations have elected to remain silent on inconsistencies in the regulation of the trade in human eggs that lubricate fertility tourism. This article is a critical feminist analysis of this paradox. Sketches of the histories of regulation of the global markets in human kidneys and human eggs allow attribution of the different approaches to sales of kidneys and eggs to the triumph of neo-liberalism in the 1990s. Neo-liberalism supports the growth of the medical tourism industry and its niche market catering for infertility, and is responsible for exacerbating the relative disadvantage of poor and powerless women in destination countries, thereby creating the conditions for ‘bioavailability’, that is, the willingness to exchange body parts for cash. The paper identifies a disturbing correlation between deeply engrained conservative attitudes to women and a plentiful supply of eggs, and concludes by suggesting that what women need to lift themselves out of poverty and discrimination is secure and dignified work. RBMOnline ª 2011, Reproductive Healthcare Ltd. Published by Elsevier Ltd. All rights reserved. KEYWORDS: fertility tourism, egg market, transplant tourism
Introduction Intergovernmental agencies have recognized that inconsistencies in the way that nation states regulate commerce in human kidneys lubricate transplant tourism, and have
repeatedly exhorted recalcitrant governments of both organ-importing and organ-exporting nations to criminalize the exchange of cash for kidneys. Yet these same organizations have elected to remain silent on inconsistencies in the regulation of the trade in human eggs that lubricate fertility
1472-6483/$ - see front matter ª 2011, Reproductive Healthcare Ltd. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.rbmo.2011.08.005
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tourism. For instance, in Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal of organs, the Council of Europe and United Nations (2009, p. 12) specifically omit embryos and gametes from the analysis. The World Health Organization (WHO) followed suit in its Guiding principles on human cell, tissue and organ transplantation which sets out its objections to commerce in human body parts but specifically excludes gametes, ovarian and testicular tissue (World Health Organization, 2010). These agencies seek to prevent exploitation of people who for reasons of poverty and powerlessness are prepared to sell a kidney in the (vain) hope that somehow cash received will ameliorate the hardships they and their family face. International nongovernmental organizations for medical professionals also oppose the global trade in human kidneys because it threatens to sully the reputation of transplant surgery. As The Declaration of Istanbul on Organ Trafficking and Transplant Tourism, drawn up by the Transplantation Society and the International Society of Nephrology, puts it, ‘The legacy of transplantation must not be the impoverished victims of organ trafficking and transplant tourism but rather a celebration of the gift of health by one individual to another’ (Steering Committee of the Istanbul Summit, 2008). The Report of the Council of Europe and United Nations acknowledges that the bodies of women are more vulnerable than those of men to disaggregation for the global trade in human body parts, yet intriguingly excludes egg vendors from its analysis (Council of Europe and United Nations, 2009, p. 12). Why, then, are different principles allowed in transplant tourism and fertility tourism? This paper turns to recent history for enlightenment and examines the various influences on the development of regulation of both industries. History tends to be written about powerful and visible people. However in the foreground of this paper are the people without whom transplant and fertility tourism could not operate: the poor and powerless prepared to exchange a kidney or eggs for cash. There are no accurate statistics of how many people are involved and there is a paucity of evidence from systematic research of what motivates them, which is why media reports are often a significant resource (Nygren et al., 2010; Shimazono, 2007). However the focus here is not on individuals but on cleavages in national and global social and economic structures. The paper argues that these cleavages began widening following the triumph of neo-liberal economic policies in the 1990s. Its tenets include lowering barriers to global trade, promoting markets, privatizing public services, including health, and pursuing small government and economic deregulation, and have been promoted by international financial institutions such as the World Bank, International Monetary Fund and World Trade Organization. Not only are these tenets responsible for the phenomenal growth of the medical tourism industry, and its niche market catering for infertility, but they comfort enthusiasts of market solutions to a shortage in human eggs and are forcing altruism, hitherto the default principle governing transactions involving human bodily material, on to the back foot. The paper concludes by comparing the influence of neo-liberalism on the routes through which kidneys and eggs
circulate. Anthropologist Scheper-Hughes observed that ‘In general, the circulation of kidneys follows established routes of capital from South to North, from East to West, from poorer to more affluent bodies, from black and brown bodies to white ones, and from female to male or from poor low status men to more affluent men’ (Scheper-Hughes, 2003a, p. 1645). However, there is growing evidence that in undermining public-sector services for the poor, intensifying immiseration and widening inequalities, neoliberalism is having a disproportionately detrimental impact on women; in other words: it is creating pools of ‘bioavailable’ women. Hence, although in many respects the routes through which human eggs circulate share many of the features to those followed by human kidneys, the route followed by human eggs engages with national and transnational valuations of women‘s reproductive bodies.
A brief and partial history of regulation of global trade in human kidneys The Hippocractic principle of nonmaleficence or ‘do no harm’ (primum non nocere) bound the hands of pioneers of human kidney transplantation when they began experimenting shortly after the Second World War (Tilney, nd). Kidneys used in experimental transplants were recovered either from someone who had just died – in France, those of a guillotined prisoner were used – or on a few occasions from a living relative. Indeed, in the 1950s, the only occasion on which a transplant ‘worked’ for an extended period involved identical twin brothers. Failure seemed inevitable until the early 1960s, when innovations in the science of immunology allowed rejection of foreign tissue to be delayed and encouraged experimental transplant activity. However the principle of nonmaleficence continued to apply and kidneys almost always were recovered from the warm corpse of someone who recently had suffered cardiac death in or close to a hospital where experiments in transplant surgery were taking place. In 1968, in the USA, ‘brain death’, a new understanding of death organized around neurological criteria, was proposed. ‘Brain death’ allowed healthy people (preferably young) who had suffered a drastic brain injury to be added to the pool of potential cadaver donors (Giacomini, 1997). But it is a controversial understanding of what counts as death and is still not always accepted (Lock, 2001; President’s Council on Bioethics, 2008). Furthermore, living people remain the only source of a kidney in places where technology capable of supporting the vital functions of brain-dead people prior to organ recovery is scarce or absent, or where cultural norms prohibit the use of cadaver organs. In 1983, cyclosporine, a powerful substance capable of suppressing the human body‘s rejection of foreign cells was approved for use. The drug greatly improved transplant success rates (Fox and Swazey, 1992, pp. 3–8). Kidney transplantation ceased to be an experimental procedure performed in university medical centres and began to be offered by less visible private institutions in both poor countries and affluent Western nations (Tilney, nd, p. 19). As transplant surgeon Tilney put it, ‘Like air rushing into a vacuum, opportunists moved quickly to exploit the need’ (Tilney, nd, p. 19). Clinical groups began advertising for
636 wealthy patients, often from other countries, guaranteeing them prompt and successful transplantation with cadaver-donor kidneys. Some cadaver kidneys were exported from one country to another where they were sold. Altruistic donations fell dramatically (Tilney, nd, p. 20). In encouraging both legitimate and illegitimate transplant activity, cyclosporine greatly exacerbated the ‘organ shortage’, a development which, as sociologists Fox and Swazey observed, played an important part in ending some of the taboos that had restricted live organ donation (Fox and Swazey, 1992, p. xvii). Evidence began to be cited that, in skilled hands, the risks to a living donor are of negligible proportions and, furthermore, claims began to be made that the moral imperative of beneficence (to do good acts) overrode that of nonmaleficence because in general a kidney recovered from a healthy living donor produces an outcome better than that of a cadaver kidney and the potential benefit to a sick recipient greatly outweighs potential harm to the source. Concerns about coercion were countered with assurances that only donors who were competent, autonomous and motivated by altruism would be accepted. Arguments in support of monetary solutions to the shortage of human kidneys were also rehearsed (Satel, 2008). Enthusiasts claimed that offers of cash in exchange for kidneys would increase supply more effectively than a reliance on altruism. Furthermore, in obtaining more kidneys for transplantation, the utilitarian goal of maximizing happiness would be achieved: the health and wellbeing of many more people suffering from end-stage renal disease would improve and, because in the long term transplantation is cheaper than dialysis, financial savings to the taxpayer would be significant. During the 1980s, the wisdom of allowing a market solution to the kidney shortage was discredited by scandals about brokerage and trafficking of kidney vendors. For instance, in the USA, Dr H Barry Jacobs established The International Kidney Exchange, a brokerage scheme for importing citizens of Third World countries into the USA, where one of their kidneys would be sold at an agreed-upon price. Jacobs maintained that despite their inability to read, write and understand English, foreign kidney vendors were capable of informed consent and their agreement would be tape-recorded as proof (Schwartz, 1983). The United States Congress responded by passing the National Organ Transplant Act 1984 (NOTA), which prohibits the sale of human organs within its borders (the definition of ‘organ’ in the Act includes skin, bone and cornea). In 1989, the British Parliament passed the Human Organ Transplants Act (HOTA), which created a criminal offence of commercial dealings in human organs. HOTA was the government‘s response to media outrage about the discovery that a British surgeon had recruited Turkish peasants as living vendors of kidneys, which were removed and transplanted into fee-paying foreign patients in a private hospital in London (Choudhry et al., 2003). In prohibiting the sale of human kidneys within national borders, legislation such as NOTA and HOTA reversed the direction of travel of transplant tourism from high-income to middle- and low-income nations where physicians, hospital administrators and government officials were prepared to pursue dubious strategies for obtaining kidneys, such as buying them in India and using those of executed prisoners
N Pfeffer in China, and where the procedure cost substantially below that of Western medical centres (Rothman et al., 1997). In response to media stories about exploitation of impoverished and powerless people, intergovernmental and international nongovernmental organizations began pressing for the introduction of measures that would outlaw transplant tourism (Rothman et al., 1997). In September 1985, The Council of the Transplantation Society published stringent guidelines for recovery of kidneys from both cadavers and living people, which included a reminder to surgeons that altruistic donation of an organ is a gift of extraordinary magnitude that they held in trust for society and a warning that any member found in contravention of this principle would be expelled. The following month, the 37th World Medical Assembly, the supreme governing body of the WHO, adopted a statement condemning export of kidneys from underdeveloped countries to Europe and the USA. Two years later, the Assembly agreed that markets in human organs were inconsistent with the most basic human values, contravened the Universal Declaration of Human Rights and the spirit of the WHO and enjoined physicians not to transplant organs if they had reason to believe that the organs concerned had been the subject of commercial transactions. In the same year, the Council of Arab Ministers of Health published a draft law prohibiting trade in organs and the Council of Europe agreed to prohibit commercialization of human organs (Fluss, 1991). These principles have been reiterated several times most recently in 2008 when the Transplantation Society and the International Society of Nephrology published the Declaration of Istanbul on Organ Trafficking and Transplant Tourism, which reminds clinicians of their duty to protect people vulnerable to exploitation and of the importance of ensuring equitable access to and distribution of transplantable organs (Steering Committee of the Istanbul Summit, 2008). It claims to have been influential. For instance, since it was agreed upon, the once-thriving kidney bazaars in Pakistan have been closed and the Philippine government has introduced regulations aimed at preventing the country from becoming a destination of transplant tourism (Declaration of Istanbul on Organ Trafficking and Transplant Tourism, nd). Currently, transplant tourism operates underground where it risks detection by Interpol which co-ordinates cross-border investigations and by local police. For instance, in November 2010, Netcare KwaZulu (NKZ), South Africa‘s biggest private hospital group, pleaded guilty to receiving money from an illegal kidney transplant scam which operated in St Augustine’s Hospital, Durban. Kidney vendors recruited by brokers were Romanians and Brazilians prepared to accept US$6000 for a kidney, far less than the price demanded by Israelis, the initial source. Most of the recipients were Israeli and each had paid US$20,000 for the procedure (Smith, 2010a,b).
A brief and partial history of regulation of global trade in human eggs In July 1978, Louise Brown, the first baby conceived by IVF, was born in a hospital in Oldham, a small town in northern England. IVF, or assisted reproductive technology, as the
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techniques became known, made pregnancy with another woman‘s egg feasible. The technical difficulties of egg donation proved far easier to surmount than those of kidney transplantation. Six years later, the first recorded donor-egg conceived child was born in Long Beach, California. The egg had been provided by the recipient’s sister, that is, the donation was directed and altruistic. At this stage, the Hippocratic principle of ‘do no harm’ impeded egg donation. However, there are only two ways of obtaining eggs without exposing a woman to physical risks attached to ovarian stimulation and egg recovery, and both are unreliable. One is finding a mature egg during surgery such as a hysterectomy but the chances of this happening are few (Mundy, 2007, pp. 47–53). So-called egg sharing is the other way: eggs are provided by women undergoing ovarian stimulation as part of their treatment. At this stage of its history, egg sharing was motivated by altruism: women granted their ‘spare’ eggs the ‘right to life’, albeit with other women and confronted the real possibility of recipients conceiving whilst they remained childless. Young healthy women tend to respond more positively to ovarian stimulation than women undergoing the procedure as part of their treatment of infertility. This was one of the arguments advanced in support of relaxation of the principle of ‘do no harm’. Initially the proposal was confined to directed altruistic egg donation, which has the additional virtue of allowing expressions of sympathy and solidarity for a sister or woman friend. However nondirected donation is the only option for involuntarily childless women unwilling or unable to call upon a sister or woman friend. In the late 1980s, a technical innovation provided further support for those in favour of relaxing the principle. Guided by ultrasound, eggs are retrieved through the vaginal wall in a matter of minutes, and because the procedure requires only light anaesthesia it is less risky than the established surgical method. It emboldened Paulson, chief of the fertility clinic at the University of Southern California medical school, to recruit a group of women as formal egg donors (Mundy, 2007, p. 49). In order to be accepted into the programme, women had to have proven fertility and to have completed their own family because it was unknown whether the procedure might damage their fertility. Another rule was that donors were not paid, or not much, because financial inducement seemed coercive. Ultrasound-guided egg retrieval released clinicians from their dependence on the hospital operating theatre and lowered the cost of entry into the infertility industry; as an American journalist put it, ‘suddenly any doc with a lab and the right equipment could set up shop’ (Orenstein, 2007). Coincidentally, it was established that the uterus of women approaching and past menopause could be made to carry a pregnancy to term. Eggs which hitherto had been sought for youngish women who had experienced an early menopause or who suffered from iatrogenic infertility were now required for would-be ‘late-in-life moms’. An acute shortage of human eggs rapidly emerged and greatly impeded the growth of the fertility industry. By this stage, statutes or guidelines regulating the practice of assisted reproduction were in place in many countries, but globally there was great variation in what could and could not be done, to whom and by whom, which body had oversight and the penalties for violation that could
be imposed on rule breakers (International Federation of Fertility Societies, 2010). In general these regulations had been introduced in response to local religious and cultural objections to the manipulation in vitro and destruction of fertilized human eggs and in order to constrain the capacity of assisted reproductive technology to create novel families. However different values held sway when the global shortage of human eggs emerged: neo-liberal pro-market political theory had triumphed and was forcing altruism, which hitherto had been the ethical default position in transactions involving human material, on to the back foot. Although neo-liberal theories were not new, they had achieved dominance following the demise of the Soviet Union and the fall of communism. Consumption (rather than production) became the vehicle for freedom, power and happiness, and restrictions of the purchaser‘s ability to choose, acquire, use and enjoy material objects and experiences were understood as an offence against human rights and a detriment to democracy (Gabriel and Lang, 1995). The rhetoric of freedom to contract in the market meshes easily with the language of reproductive autonomy which lies at the heart of arguments to permit and legitimate assisted reproductive technology (Ertman, 2010; Spar, 2010). Nowhere is this development more evident than in the USA, where the exchange of kidneys for valuable consideration is a criminal offence and where there is heated opposition to in-vitro manipulation and destruction of fertilized human eggs (and to abortion and embryonic stem cell science), and where, since the early 1990s, a market in human eggs has flourished (Almeling, 2007; Covington and Gibbons, 2006; Krawiec, 2010; Orenstein, 2007). Transactions are arranged by assisted reproduction clinics and independent egg brokers, and the often high cost of eggs is passed on to the recipient/consumer (Spar, 2006). The American human-egg market has matured into what has been called the ‘commercial pre-natal enhancement’ market where each egg is valued according to the phenotype and social standing of its female source (Fox, 2008). Elsewhere, the market in human eggs evades prosecution by hiding behind terminology which suggests that substantial sums of money paid to egg vendors are compensation for inconvenience and not valuable consideration which is prohibited in law. For instance, this happens in Spain where women currently receive around €1000 for each cycle, despite its government having entrenched into national law the European Union Tissue and Cell Directive (EUTCD; 2004/23/EC), which recommends that member states adhere to and promote the principle of voluntary and unpaid donations of human tissue and cells. Another approach to skirting the prohibition of the sale of human body parts is so-called ‘egg sharing’ where following ovarian stimulation women exchange some of their eggs for cheaper or free assisted reproduction treatment which otherwise would be denied them for reason of financial disadvantage (Heng, 2008). Egg-sharing transactions, effectively payment in kind of a substantial amount, are permitted in the UK, another signatory to the EUTCD, and allow commercial providers of assisted reproductive technology to exploit the failure of the UK’s national health service, the nation’s publicly funded provider of health care, to provide adequately for involuntarily childless people.
638 Prosecutions for trading in human eggs are possible where the necessary legislation is in place. For instance, in 2009, two Israeli physicians who ran a fertility clinic in Bucharest catering to fertility tourists were prosecuted under a 3-year-old Romanian law prohibiting the exchange of cash for human eggs (Eyadat et al., 2009). Turkey is an exception in prohibiting by law partaking in or facilitating travel for the purpose of buying eggs (Gu ¨rtin-Broadbent, 2010). However, neither intergovernmental agencies nor international nongovernmental organizations are campaigning for the eradication of inconsistencies in national regulations on egg sales, perhaps because in an era of deregulation and promotion of small government it would fall mostly on deaf ears. In 2002, the Taskforce on Ethics and Law of the European Society of Human Reproduction and Embryology (ESHRE), issued guidelines on gamete and embryo donation which included a reminder of the principle that there should be no payment for donation of biological material, that reasonable compensation should not mean inordinate profit and that excessive payment seriously challenges the very notion of informed consent by the donor (ESHRE Taskforce on Ethics and Law, 2002). However, this advice is absent from ESHRE’s good practice guide for cross-border reproductive care published in 2011, although the susceptibility of vulnerable women to exploitation is acknowledged. The guidance warns against using intermediaries as this might lead to trafficking of women and suggests minimizing the health risk of repeated ‘donation’ and ensuring aftercare is available for egg vendors (Shenfield et al., 2011). The report of the proceedings of International Forum on Cross-border Reproductive Care, the first of its kind, which met in January 2009 and was attended by, amongst others, representatives of the WHO and the European Commission, does not mention the welfare of egg vendors but focuses on how to ensure clinics in destination countries offer safe and appropriate care to their clients (Collins and Cook, 2010; Mainland and Wilson, 2010).
First world care at third world prices ‘Fertility tourism’ is a controversial term. Objectors claim that it confuses what are in practice uncomfortable medical procedures undertaken in order to procreate with relaxation and enjoyment in sun, sea and sand, and furthermore stigmatizes people forced to travel overseas because their own medical system refuses to cater for their needs or discriminates against them on the grounds of marital status, sexuality, age and other social factors, which is why the alternative of ‘fertility exile’ is considered more appropriate (Matorras, 2005; Pennings, 2005). ‘Reproductive traveller’ has also been suggested as an alternative (Whittaker and Speier, 2010). However, there is little debate on what to call egg vendors; in general they are euphemistically called ‘donors’, including those who are not resident in but travel to clinics in destination countries (Heng, 2005, 2007). ‘Fertility tourism’ is used throughout this paper in order to emphasize that clinics in destination countries are motivated by profit and furthermore are part of the multibillion dollar medical tourism industry (Connell, 2006; Turner, 2007; Whittaker et al., 2010). Fertility tourists are
N Pfeffer mobilized for reasons similar to those of most other medical tourists such as affordability – destination countries offer treatments at prices which look like bargains when compared with those of departure countries – and ‘queue jumping’ which motivates citizens of countries where health care is provided free at the point of delivery and where rationing is implemented through waiting lists, as happens for instance in the UK and Canada. Of course, fertility tourism caters for specific needs, but so do the various other niche markets of the global medical tourism industry such as orthopaedic, cardiac and cosmetic surgery and dentistry. Whilst a variety of factors in departure countries are propelling people across international borders in order to undergo treatment, governments of destination countries are eager to attract medical tourists for economic reasons. Conditions for the industry‘s growth were created by the neo-liberal policies of intergovernmental organizations which, amongst other things, require governments to open their markets to global trade. The most important of these is the World Trade Organization’s General Agreement on Trade in Services (GATS), agreed in 1995, which, amongst other things, encouraged governments to treat medical services as an export industry capable of promoting local economic development, boosting reserves of foreign currencies and creating a more favourable balance-of-trade position. Governments of former Eastern bloc countries and middle- and low-income developing countries are encouraging the development of the infrastructure of medical tourism by offering subsidies, tax breaks and land deals. At the same time, the market-fundamentalist programmes of international financial institutions such as the International Monetary Fund and the World Bank are requiring these governments to curtail or eliminate subsidized or free basic health care for local populations, run down or privatize state-sponsored healthcare facilities, impose user fees, introduce private insurance and allow market forces to determine medical-care prices (World Bank, 1987, 1993). Indeed, commentators have observed that by the mid-1990s, international financial institutions had superseded the WHO as the primary driver of global health policy (Pfeiffer and Chapman, 2010). A two-tier system has emerged in destination countries, with one tier providing excellent treatment in technologically sophisticated modern hospitals catering to foreigners and local elites, whilst, despite their many and pressing problems, large sections of the rest of the population are unable to access or afford the basic health care provided at a price by the other tier (Pfeiffer and Chapman, 2010; Whittaker et al., 2010). Public Citizen, a civil society organization based in Washington DC, captures the combined impact of the growth of medical tourism and privatization of health care to the local populations in the phrase ‘islands of medical excellence in a sea of medical neglect’ (Public Citizen, 2006).
‘Bioavailability’ ‘Bioavailability’, a term originating in pharmacology, was appropriated by anthropologist Cohen to describe the condition of people who for reasons of poverty and powerlessness are susceptible to an offer of cash in exchange for a kidney (Cohen, 2005). Women and men can both sell a kidney, but
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the circumstances through which they become bioavailable differ. For instance, rural kidney sellers are primarily men, often small-scale farmers faced with high levels of indebtedness, whereas urban kidney sellers are primarily women, often forced to sell a kidney because of their husband‘s unemployment, migration and, in some cases, alcoholism (Cohen, 2002, p. 20; Goyal et al., 2002; Rothman, 2002). The same policies encouraging and supporting the growth of fertility tourism are responsible for creating bioavailable women eager to sell their eggs for what might look like modest compensation for inconveniences but which in their country of residence commands considerable purchasing power. Whereas inability to afford or access healthcare cuts across gender, class and other community divisions, feminist theorists have argued that these developments are having a disproportionately deleterious effect on women and girls (Gill and Bakker, 2003; Pfeiffer and Chapman, 2010). This is especially the case in communities where women are relatively powerless for reasons of gender discrimination, little household income is expended on them and violence is an everyday reality. India, the world capital of commercial surrogacy, is a noteworthy example: one in every 70 women dies each year from pregnancy-related problems – and the rate of maternal mortality in India is 57 times higher than in the USA (Meghani, 2011; Saha and Saha, 2010; Sengupta, 2011). In post-communist nations, which are major hubs of fertility tourism, poverty and unemployment have increased for everyone but many more women than men have left the labour force following cuts in what were largely feminized public services (Pollert, 2003). Universal health care under the USSR contributed to women‘s wellbeing but since the collapse of the USSR centrally planned health services have been replaced with a free and unregulated market, and health care as a percentage of GDP has almost halved. Furthermore, although significant gender equality was achieved under communism, it was politically imposed and did little to challenge deeply engrained conservative gender attitudes which have resurfaced. As mentioned in the introduction, Scheper-Hughes found that, in relation to transplant tourism the circulation of kidneys follows established routes of capital (Scheper-Hughes, 2003a, p. 1645). The routes through which human eggs circulate share many of these features but in addition have much in common with those of ‘stratified reproduction’, shorthand for national and transnational inequalities in the valuation of women‘s reproductive capacity and role as mother (Colen, 1995). The concept of stratified reproduction emerged out of an analysis of the relationship of relatively wealthy New York women and the migrant Jamaican women whom they employ to care for their children whilst out at work. Much of the Jamaican women‘s pay is remitted to support their own children. In effect, the Jamaican women endure separation from their own children in order to provide the financial wherewithal for their upbringing by another woman. Of course, women choose to migrate for domestic or care work but they choose it because economic pressures all but coerce them to: indeed, the yawning gap between rich and poor countries is a form of coercion. Both migrant worker and her employer’s decision to leave their children in the care of others are represented as a ‘personal choice’
(Hochschild, 2003, p. 27). Both women’s ideas about motherhood are influenced by ideologies of reproduction: however, whereas New York women’s are informed by marketized media representations, Jamaican women are confronted by the legacy of slavery. Although both occupy the female underside of globalization, selling human eggs differs from migrant childcare in transferring genetic material from poor to rich parts of the world. Furthermore, the global market in human eggs exploits patriarchal claims over women‘s reproductive organs (Petchesky, 1995). For instance, it is ironic that the rhetoric of reproductive autonomy supporting the freedom to travel across borders in search of eggs in some instances is a beneficiary of the legacy of illiberal policies on abortion. Under Ceausescu’s pronatalist and totalitarian regime, Romanian women were denied authority over their fertility and forced to regard their wombs not as theirs but that of the state. In effectively ceding the state‘s authority over their ovaries to the market, Romanian women have facilitated the emergence of Romania as a centre of fertility tourism (Kligman, 1995; Nahman, 2008). Spanish women were once ‘abortion tourists’ forced to travel overseas by the profoundly Catholic anti-abortion policies pursued by Franco‘s totalitarian regime (Spanish Women’s Abortion Support Group, 1988). In the 1980s, a progressive Spanish legislature, eager to modernize medicine and challenge traditional family structures, introduced a permissive regulatory framework for assisted reproductive technology thereby laying the groundwork for the emergence of Spain as a leading hub of fertility tourism well provided with human eggs (Idiakez, 2006).
‘Unhonoured’ work Cohen described the exchange of a human kidney for cash as a human sacrifice of self-mutilation disguised as a ‘donation’ because many vendors sell to support loved ones, particularly in conditions of everyday or extraordinary debt. As he puts it, ‘The violence, if it is that, done to their bodies is the cost of love for the poor and marginal, and for them this violence and this love is indeed and obviously sacrificial’ (Cohen, 2005, p. 82). Fertility tourism is responsible for a new and unpalatable irony of childless women establishing the relationship of mother and child as a result of an egg vendor‘s love for her own children. As yet, there is no systematic evidence of the social and economic consequences of egg selling. However, something of the fate of kidney vendors is known: cash is quickly spent, and poverty and indebtedness are exacerbated because paid work becomes scarce: on seeing the tell-tale scar employers believe, sometimes with good reason, that kidney vendors lack physical stamina (Goyal et al., 2002; Scheper-Hughes, 2003b). Vendors suffer poor physical health, depression, regret and discrimination: in some places kidney selling is stigmatized and viewed as a kind of prostitution. The consequences of selling a kidney or eggs might be detrimental but both are less risky activities than other kinds of work such as the military and mining, which are legal. This argument is rehearsed by opponents of the criminalization of a market in human body parts (RadcliffeRichards et al., 1998; Taylor and Simmerling, 2008). All
640 forms of work involve the human body in some capacity. Indeed, Nussbaum identified the following similarities in her work as a professor of philosophy and that of a prostitute: both provide bodily services in areas that are generally thought to be especially intimate and definitive of selfhood; both perform skilled work involving interaction with others; and neither has complete control over the form the interaction takes (Nussbaum, 1999). A professor‘s remuneration is likely to exceed that of a prostitute, but if that is the case, she is exceptional: women in most parts of the world are likely to be stuck at a low level of the occupational hierarchy where they have little say over working conditions and pay. The prostitute’s work is more dangerous than that of the philosophy professor, but less risky than many other kinds of work. Examined in this light, it is difficult to cite the risks attached to ovarian stimulation and egg retrieval as justification of a prohibition of a market in eggs. However, as Nussbaum goes on to argue, the work itself should not concern us, but women‘s options and opportunities should. She echoes Nobel Laureate economist Amartya Sen in his analysis of why women shoulder most of the burdens and enjoy few of the benefits of economic, medical and social progress (Sen, 1990, 1992). Sen traced women’s disadvantage to their lack of entitlement to resources both within and outwith the household. Women themselves may not perceive this as injustice, and this misperception is of pervasive importance in sustaining gender inequality, even in richer countries but it is a particularly powerful influence in poorer countries. Sen joins many others in claiming that a pre-condition of women‘s empowerment is recognition that their work is productive, not ‘unhonoured’ (Sen, 1992). By no stretch of the imagination is selling eggs a dignified source of income. It is an unpleasant, short-term expedient of women faced with no other circuit of survival or for whom the alternatives are worse than egg selling. What women need is paid employment with legal protection which enhances their social standing and makes them less dependent on others. There is a disturbing correlation between deeply engrained conservative attitudes to women and a plentiful supply of eggs. There is no good reason why the language of reproductive autonomy applies only to relatively wealthy childless women.
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