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Egg donation, a relatively recent medical procedure, enables women to conceive by replacing their nonviable eggs with donated eggs. (1) Young fertile women donate their eggs. The available supply of potential donors is far less than the demand for them. Many recipients report that they have been waiting for years to get a donor and are on waiting lists of several clinics.
Getting a donor depends upon many factors: the financial resources of the recipient, insurance guidelines, state mandates for age limitations, and place of residence. Many medical practices match recipients with donors on a "first come first served" basis. Recently, recipients have tried to take some control by seeking the services of a donor broker.
The time has come to begin developing a justice calculus for the allocation of this scarce resource. The purpose of this Article is to present cases that illustrate equity issues, to discuss those issues in greater detail, to embed those issues within an archetypical framework, to present some of our own decision making processes, and to invite readers to join with us in an effort to develop a justice calculus for the allocation of scarce resources.
II. HISTORY OF EGG DONATION
Egg donation is a relatively new procedure. The first documented egg donor pregnancy was in 1984. In its early stages, egg donation was done in two ways. The first attempts at egg donation involved a procedure called a lavage, (2) which means washing. During a lavage procedure, a woman, who provided the eggs, was inseminated with the recipient husband's sperm. Several days later the embryos were washed out of her uterus and placed into the uterus of the recipient. Needless to say, this procedure was fraught with difficulties. Often, instead of washing out the embryos, the donor stayed pregnant. Or, because the lavage needed to occur so early in the pregnancy, the procedure took place needlessly, because fertilization had not occurred. Neither outcome was the desired one, since the recipient rarely became pregnant.
The next stage in the development of the modern egg donation procedure occurred just as In Vitro Fertilization (IVF) centers expanded but before freezing techniques had become widespread. IVF patients, who had cycled previously and were known to produce many eggs, donated their "excess" eggs to another couple, usually for a reduced cost for their own cycle. Because synchronization was fairly unpredictable (before Lupron became available), several couples were often "on stand-by" in the hope that one woman might be mid-cycle at the same time as the woman who was donating her eggs. However, success rates for egg donation remained low, and once clinics could provide couples with the chance to freeze their embryos, this source all but dried up.
Two new developments in IVF technology changed the procedure of egg donation and allowed it to develop into such a major procedure. One was the use of Lupron that helped prevent luteinizing hormone (LH) surges in IVF patients. This same medication allowed doctors to synchronize cycles between recipients and donors. Also, once eggs were retrieved vaginally with IV sedation, as opposed to through a laparoscopy, donors could volunteer to undergo this procedure without the risks of general anesthesia. As a result of these two new developments, the number of egg donation procedures has increased each year. (3) According to our analysis of the most recent available statistics from the Centers for Disease Control and Prevention, those referring to cycles initiated in 2002, a total of 6636 donor egg babies were born from fresh embryos. (4) Of that number, 2719 were singletons, 3225 were twins, and 492 were triplets. (5)
III. EQUITY ISSUES IN DONOR/RECIPIENT MATCHING: EIGHT CASES THAT ILLUSTRATE EQUITY ISSUES (6)
Every Monday we meet three to five recipient couples. We invite them to tell us what they are looking for in the characteristics of the donor and what their expectations are for their future child. We also tell them about the population of donors available to us and how the matching process works. We tell them that they will receive one donor profile at a time for consideration. After they receive the profile, they can call us to discuss the profile in greater detail. Then they can decide whether to accept the donor or wait for another profile. We have done this for the past thirteen years. Each couple's story is unique but contains one or more of the equity issues to be discussed later. The following cases have been pared down to the essential issues that need to be considered. Focusing on these issues helps us determine the priority we should give to each couple in allocating a scarce resource.
1. Heather Has Two Daddies
David and Bobby are a gay couple who want to have a child. David is an attorney and Bobby is a social worker. They have been together for about ten years. In the last several years, David and Bobby talked about having a child. They decided that they preferred not to adopt because they wanted to use Bobby's sperm to make the baby. They also decided that traditional surrogacy did not seem right for them because they worried that the surrogate would bond with the baby and be reluctant to give it up. They decided that they wanted to use an egg donor, a gestational carrier, and Bobby's sperm to make their baby. They came to see us to discuss egg donation.
David and Bobby are in a stable, long-term relationship and can therefore provide a consistent parental environment for their child. (7) Because Bobby will provide the sperm for the procedure, the child will be biologically related to one of her parents. David and Bobby need to use two scarce resources: an egg donor and a gestational carrier. Should David and Bobby be given lower priority because they are a nontraditional couple? Should David and Bobby be given lower priority because they are taking a surrogate away from a woman who, for example, had cancer and is unable to use her uterus? Or should they be given very high priority in getting a donor (a repeat donor who has had a very good response to medication) because so many people are involved, so much financial investment is riding on this procedure (more than $60,000), and so many time-critical elements must fall into place?
2. Shannon's Baby Brother Died
Mark and Nancy have a four-year-old daughter, Shannon, who was conceived without difficulty. Nancy and Mark were eager to have a second child immediately. A year and a half later Nancy used IVF to conceive her second pregnancy. Unfortunately, the baby boy was stillborn.
After the stillbirth, Nancy attempted IVF twice more and did not conceive. The couple had hoped to have at least three children spaced two and a half years apart. Since the doctors could not explain the reason why Nancy was unable to conceive, they offered egg donation as an option.
Nancy and Mark were so eager to become pregnant that they were excited by the odds provided by egg donation. We believed that they had not really explored the implications of using an egg donor to conceive their second child. They also had not yet grieved for the loss of Shannon's baby brother. Nancy said to us, "I know that this new baby will not be just like Shannon or a replacement for little Conner, but we just want a baby right now."
Clearly Mark and Nancy are typical of the age group of couples having babies. On the one hand, they are wonderful parents; they are young and want a larger family. These reasons suggest that they should be high on the list of priority. Also, they suffered a terrible tragedy that should count towards increasing their priority for a scarce resource.
On the downside, Nancy seems to be in such a hurry. It may be that her eggs are of poor quality because of the stress she is experiencing from the still birth and the two failed IVFs. Also, the couple seems unaware of the family-dynamic implications of using a donor. Compared to Shannon, the new baby might be seen as a "second class citizen." We often suggest to couples like Mark and Nancy that they try using their own eggs before turning to a donor. It is not that we would not give them a donor; we would just give them lower priority.
3. I Wanted to Have It All
When Lucy, a corporate executive officer, and Michael, an investment banker, got married, Lucy was forty-two years old. One month after the marriage, they began trying to have a baby. In the first year of their marriage they tried two inseminations and one IVF procedure. Because of her age, Lucy did not respond well to the medications. Her doctor advised her to consider using an egg donor.
Lucy and Michael came to …