Psst! Hey buddy, wanna buy an embryo?

When we think of selling some things, we think of a shady character on a street corner hustling counterfeit or ill-gotten merchandise.  For most of us, the possibility of selling made-to-order human embryos on the open market would fit in that category of forbidden commodities.

But California Conceptions, a fertility clinic in Davis, has begun offering off-the-shelf embryos, and some 200 patients have already used their services, according to the Los Angeles Times. 

Dr. Ernest Zeringue was looking for a niche in the cutthroat industry of fertility treatments.

He seized on price, a huge obstacle for many patients, and in late 2010 began advertising a deal at his Davis, Calif., clinic unheard of anywhere else:  Pregnancy for $9,800 or your money back.

That’s about half the price for in vitro fertilization at many other clinics, which do not include money-back guarantees. Typically, insurance coverage is limited and patients pay again and again until they give birth — or give up.

Those patients use their own eggs and sperm — or carefully select donors when necessary — and the two are combined in a petri dish to create a batch of embryos. Usually one or two are then transferred to the womb. Any embryos left over are the property of the customers.

Zeringue sharply cuts costs by creating a single batch of embryos from one egg donor and one sperm donor, then divvying it up among several patients. The clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.

People buying this option from Zeringue must accept concessions: They have no genetic connection to their children, and those children will probably have full biological siblings born to other parents.

Dr. Zeringue’s market strategy has created a fire storm of controversy, both inside and outside the fertility industry.  Writing on his own blog, The Spin Doctor, the LA fertility lawyer Andrew Vorizmer weighed in with this analysis.

[W]hen I was contacted for comment about this article [in the Los Angeles Times], it was well understood in the community that the medical facility and its embryo program, California Conceptions, was creating embryos from donor gametes with no specific recipient parent in mind. In other words, they were creating a bank of the most commercially desirable embryos to be “sold” to patients with a money-back guarantee.

Make no mistake, this is commodification. These are not donated embryos. Rather, they are embryos created from donors hand-selected by California Conceptions. It is one step removed from a mail order catalog. The only difference is that the product being sold is nascent human life.

There is no shortage of unwanted human embryos in the United States. The best estimates indicate that there are more than 500,000 unwanted cryopreserved embryos currently being stored in fertility clinics across America. Many of these embryos would be available for donation to a financially-strapped couple looking to begin a family. Then again, donated embryos do not make for a very profitable business model.

Beyond the despicable commercialization aspects of this program is the potential underlying harm to the resulting children and their families. Many will have genetic siblings they will never know. Further, patients who use this money-back program will likely be unable to have children who are genetically related to each other as any desire for a sibling will likely result in a brother or sister with no genetic connection to the first child.

I am an unapologetic advocate for access to assisted reproduction. But this program has pushed the ethical envelope beyond anything that can be morally or even pragmatically justified. There is simply no credible basis to justify a program that not only wrests the decision making from an infertility patient, but allows a physician to intentionally create the most commercially marketable embryos for potential sale in the future. We build houses on spec. We shouldn’t be condoning a practice that creates children on spec.

The attorney and bioethics commentator Wesley Smith is in full agreement.  But Smith goes even farther:  “Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research.”

By contrast, an article in the April 10 edition of the New England Journal of Medicine is in sympathy with selling off-the-shelf embryos:  “Made-to-Order Embryos for Sale — A Brave New World?”  The authors, attorney I. Glenn Cohen and Dr. Eli Y. Adashi, have only one concern.

What is new and unique here is the lack of clear legal guidance as to the parentage of the embryos in question. Joint efforts by state legislatures and professional organizations will be required to forge appropriate legislation if made-to-order embryos for sale are to become a practicable reality.

But the young researcher Jessica Cussins at the Center for Genetics and Society is not consoled by the prospects of legal guidelines.  Her retort, “You want to sell what?!”  Jessica’s excellent summary was picked up by Genetic Crossroads, a column at Psychology Today.

California Conceptions markets their service as cheaper than using third-party eggs and IVF, and less time consuming than adoption. But it’s important to note that along with the heightened element of commodification, an additional imperative for “design” has seeped into their approach. To offset their costs, they have to produce embryos that multiple couples will find desirable as products. Cohen and Adashi may not find these “eugenic overtones” worrying, but acknowledging their existence is telling enough.

There is no federal law governing the sale of embryos and Cohen and Adashi note that it “appears to be legal in all but two states.” Indeed, this was the justification offered by Jennalee Ryan, who gained notoriety several years ago after advertising “the world’s First Human Embryo Bank” online. That turned out to be a failed business plan, run from her living room, but as she explained, “You know how it works? If there is no law against it, it’s legal.”

It’s one thing for eccentric business entrepreneurs to try to exploit a poorly regulated system. The fact that established scholars have made the case that we should accept selling embryos as ethical is much more troubling.