Several bioethicists are aware of the problems inherent in the commercialization of gametes and embryonic and fetal tissue in the new stem cell technologies.962 According to some, commercialization has unwanted effects. For example, Barbara Katz Rothman argues that “such research [on stem cells] is not driven by possible cures for existing diseases, but is driven by the market itself.”963 Others have questioned the view that market forces dictate the rules of stem cell research and use, because it
“presumes that scientists will only conduct research for profit.”964 According to these bioethicists, the aims of stem cell research are respectable. Bioethicists differ in their views on the acceptability of commercialization. However, all are convinced that the issue should be discussed from different
958“The material incorporation of the organ involves a powerful identification or disidentification with the donor, a major adjustment of the self’s composition and structure.” Waldby 2002, 248.
959 Waldby 2002, 239.
960 Waldby 2002, 250. Waldby’s account can be criticized for not being sufficiently nuanced, given the complexities that are involved in gamete donation. However, Waldby’s example shows the mutuality of tissue transfer. Bodily relationships are present. Waldby 2002, 250-251.
961 Waldby 2002, 251-252.
962 Cahill 2000, 131-135; de Lacey 2006, 1662-1667; Dickenson 2001, 205-217; Dickenson 2006, 43-54; Katz Rothman 2006, 15-17;
McLeod & Baylis 2006, 1/11-11/11; Resnik 2001, 1-25.
963 Katz Rothman 2006, 16. See also Holland 2001, 79.
964 de Lacey 2006, 1663.
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perspectives. As bioethicists seek a broader understanding of stem cell research and commercialization, the following questions are relevant: Does commercialization lead to the commodification of human embryos and egg cells? Is the commodification of human eggs and embryos inherently wrong? What are the possible benefits and the harmful consequences of commodification? Does reproduction count as labor and does it, thus, have financial value? Who owns the embryonic and fetal tissue, and thus, who is entitled to any benefits? Lastly, how should the commercialization of stem cell and embryo research be regulated?
According to NordForsk, in today’s market economy, commercialization is said to be necessary for the development and manufacture of stem cell-based therapies. Patenting stem cell-based products and therapies are seen as the strongest incentive for investors to engage in stem cell research, which consumes financial and human resources and whose prospects are not secure. Patents are thought to guarantee investors some profit. Stem cell research is deniably commercialized.965 In contrast to NordForsk, ESF stresses that, instead of the commercial sector, public bodies must finance stem cell research. According to ESF, public financing will guarantee the work of independent scientists.966 In addition to ESF, EGE recommends a strict prohibition on commerce in embryos and fetal tissue. It estimates that commercialization has unwanted effects as it might increase coercive pressure.967 The European Commission Staff Working Paper also emphasizes the prohibition on human tissue and body parts, including embryonic and fetal tissue.968
Feminist writers in particular have addressed the issue of commercialization and commodification as possible results of commercialization.969 They have pointed out that the research on embryos, fetuses, and ova and their therapeutic uses signals an indirect commodification and instrumentalization of human reproduction. Market forces seem to dictate the practices of stem cell research.970 The question of commodification can be framed as follows:
When we commodify something, we take that which is not already a commodity and make it into, or treat it as though it were, a commodity. … [A] commodity is an object of utility.971
In this definition, reproductive tissues have become commodities.
965 NordForsk 2007, 38-39.
966 ESF 2001, 5.
967“The potential for coercive pressure should not be underestimated when there are financial incentives. Embryos as well as cadaveric foetal tissue must not be bought or sold not even offered for sale. Measures should be taken to prevent such commercialization.” EGE Opinion no 15 2000, 18.
968 Commission Staff Working Paper 2003, 36.
969 Cahill 2000, 131-135; de Lacey 2006, 1662-1667; Dickenson 2001, 205-217; Dickenson 2006, 43-54; Katz Rothman 2006, 15-17¸
McLeod & Baylis 2006, 1/11-11/11.
970 Cahill 2000, 133; Holland 2001; Katz Rothman 2006, 16.
971 McLeod & Baylis 2006, 2/11.
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Commodification has been discussed most openly in relation to the commerce on gametes, especially eggs. The decisive question is whether the commodification of human eggs is inherently wrong. On the one hand, the commodification of human eggs and embryos has been opposed on the grounds that it threatens human dignity. It is thought that commodification threatens the respect owed to human embryos as discussed above. Furthermore, all human body parts – including human egg cells – have a derivative dignity. Accordingly, the commodification of ova is wrong.972 On the other hand, the commodification of human eggs has been justified on the grounds that, when well-regulated, it protects individual freedom and benefits both donors and recipients.973 Therefore, commodification can either be morally permissible or impermissible. The moral nature of commodification depends upon:
(1) whether the thing commodified has intrinsic value that is incompatible with its being either fully or even partly commodified; (2) whether moral constraints exist on the alienability of the thing from persons; or (3) whether the consequences of making the thing alienable and of commodifying it are, or are not, favorable.974
The first point is widely discussed; it has been argued that human eggs do not have intrinsic value. For example, the bioethicist David Resnik maintains that human eggs do not have an inherent value. Consequently, the commodification of human eggs is not inherently wrong.975 The latter two points are less often discussed in bioethics. However, Carolyn McLeod and Francoise Baylis discuss the commodification of human eggs and embryos in relation to alienability and personhood. They argue that commodification is morally permissible if commodities are separable from or, in other words alien to us.
Feminist perspectives on personhood emphasize its relational nature. Persons are relational beings, that is, they are embedded in social relations. Consequently, persons would suffer intense alienation if they were disconnected from others. Others help persons to understand and give
972 McLeod & Baylis 2006, 5/11; Resnik 2001, 5.
973 Resnik 2001, 5.
974 McLeod & Baylis 2006, 2/11. See also Resnik (2001, 5) who maintains that “the most plausible way of showing that the commodification of human oocytes is inherently wrong is to prove that human oocytes have inherent (intrinsic) moral value”
975Resnik (2001, 5-9) presents counterarguments for the inherent value of human eggs: A Kantian or deontological perspective; a developmental perspective; and a symbolic or potentiality perspective. According to Resnik’s analysis of the deontological perspective, human eggs have inherent dignity and moral worth. Accordingly, the commodification of human eggs would be wrong. According to the developmental perspective, the human egg must be protected, since it develops into a human being. According to Resnik’s analysis of the symbolic or potentiality argument, human gametes have the potential of becoming a human being or the gametes serve as symbols for human life. Resnik presents several counter-arguments. One is that human egg cells cannot have intrinsic value, since they are products of a moral agent. Furthermore, Resnik claims that the deontological view is problematic because it implies that human egg cells have the same moral status as adult human beings. Resnik argues that the deontological argument is not viable, because unfertilized egg cells do not have the genetic material required to develop into human beings. Furthermore, even if fertilized eggs do not develop into children unless implanted into a woman’s uterus, the potential of human egg cells is dependent upon natural processes and human actions, not an inner quality of the cells. According to Resnik, some have argued that human egg cells do not have the same moral status as born human beings, but rather a symbolic value. He argues, however, that even if human egg cells had a symbolic value as symbols of human life, the value is not intrinsic, but extrinsic. Resnik therefore concludes that human eggs do not have intrinsic value.
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meanings to their experiences. In addition, the political contexts in which persons are rooted are important for the development of personhood and autonomy.976 The development of autonomy is further affected by embodiment. The body influences who persons become and what they can become.
Consequently, bodies and body parts are important aspects of personhood.977 Body parts are inalienable to persons insofar as they “instantiate the self, facilitate autonomous action, or promote bodily integrity.”978 However, not all body parts are constitutive of the self. Therefore, it is not clear that the inalienable status is always true for reproductive tissue. Embryos and ova, however, can have an inalienable status in relation to some persons and in some cases.979 According to McLeod and Baylis,
“embryos express what is distinctive about us and allow us to fulfill important ends in terms of reproduction and having biological relations with others.”980 This idea is compatible with the feminist understanding of persons as relational beings. Accordingly, feminists do not consider embryos and fetuses individual entities, but either as part of women’s bodies (in vivo) or originating from women’s bodies (ex vivo or in vitro). Feminists emphasize, however, that even if embryos may be inalienable, they may not always be persons themselves. Embryos do not have the moral status of a person. The inalienability of embryos may explain why some donors retain a connection to their embryos and object to the commodification of their embryos. Some donors cannot completely separate themselves from their embryos. 981
It should be emphasized that embryos are not inalienable to all persons or even to all women (although to some). Reproductive tissue is not inseparable from all women. Some women do not wish to consider ova, embryos, and fetuses as constitutive parts of themselves. The idea that embryos are inalienable to all persons is incompatible with the feminist conception of relational personhood and also with the feminist political concern for women’s reproductive autonomy.982 For this reason, the commodification of human reproductive tissue needs to be evaluated from a perspective other than the inalienability of embryos and ova. Special attention should be paid to the consequences of commodification. It is important to “constrain and direct this process so that it does not cause social
976“The key condition here for personhood is that one is politically situated within society such that one has the opportunity to develop other key conditions for personhood, such as autonomy.” McLeod & Baylis 2006, 2/11-3/11.
977 McLeod & Baylis 2006, 3/11-4/11.
978 McLeod & Baylis 2006, 4/11.
979 McLeod & Baylis 2006, 4/11.
980 Mcleod & Baylis 2006, 5/11.
981 McLeod & Baylis 2006, 6/11.
982 McLeod & Baylis 2006, 7/11-8/11. Furthermore, to say that embryos and fetuses are inalienable to all persons is to say that killing embryos is wrong. According to McLeod and Baylis, this is against the feminist perspective on abortion and thus a threat to women’s reproductive freedom.
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harms, in particular the exploitation and oppression of women.”983 Accordingly, a wider perspective is needed for the ethical evaluation of commercialization of stem cell research and use.984
Feminist bioethicists have indicated that the commercialization of eggs might lead to the exploitation of women especially.985 These feminist bioethicists do not define exploitation. However, they provide an example. Certain groups of women are vulnerable and not properly protected as egg donors.
Feminist bioethicists maintain that there are alarming signs of egg donors’ bodies and bodily products being evaluated according to the women’s ethnic background, social class, and status. For example, in the U.S. two groups of women donate eggs: those who donate eggs for research and those who donate eggs for reproduction. Feminists claim that the women who sell eggs for reproduction are usually white and well-educated, while the women who sell eggs for research are most often non-white and less affluent. Furthermore, feminists are alarmed by signs of unequal payment, depending on whether women donate ova for reproductive or for research purposes. Market forces dictate that the price for eggs used in reproduction is higher than the price of eggs used for research. It seems that commercial forces pit two groups of women against each other.986
The eggs of well-educated Caucasians at Ivy League universities are obviously worth considerably more on the reproductive-fertility market than eggs of non-Caucasian, less educated, nonaffluent women. Might the eggs of these less valued women become a future source of research-only oocytes in the private sector? Eggs destined for laboratory research could be viewed as disposable and therefore likely to command far less than eggs used for implantation.987
Since there is no federal oversight of private research laboratories or infertility clinics, market forces dictate the price for ova and the rules of commerce.988 Feminist bioethicists suggest that the lack of public control over private infertility clinics heightens the possibilities for the exploitation of women and infertile couples as embryo donors.
The question of exploitation is worth a deeper consideration. In order to examine exploitation in the context of stem cell research, we must distinguish between exploitation, unfair exploitation, and commercial exploitation. Exploitation simply means to take advantage of some
983 McLeod & Baylis 2006, 8/11. Emphasis added.
984Resnik (2001, 10) makes a similar argument: “Although the commodification of human oocytes is not inherently immoral, we must still consider the possible harmful consequences of this practice.” Resnik (2001, 13-14) describes different possible harmful consequences of the commodification of human eggs. He claims that one of the commonly presented arguments against commodification of human eggs is that the commodification of eggs strengthens our view of the whole human body as a commodity. According to Resnik, this consequentialist argument rests on speculation. We do not know how much the commodification of human eggs would in fact contribute to the commodification of the human body. Commerce in human eggs is by no means the only way Western societies assign economic value to the human body or body parts. People sell their hair for wigs, insure their body parts (e.g. a surgeon’s hands, a dancer’s legs), and market their faces and bodies. Instead of the consequentialist argument, Resnik cites to medical, psychological, and socioeconomic arguments as the best arguments against commodification.
985 Dickenson 2006, 44; Katz Rothman 2006, 16.
986 Holland 2001, 80-81; Katz Rothman 2006, 15-16.
987 Holland 2001, 80-81.
988 Holland 2001, 80-81; Katz Rothman 2006, 15-16.
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resources (mere utilization). Unfair exploitation, on the other hand, means to take advantage of certain resources in an inappropriate way. Unfair exploitation involves the idea of a wrongful use.989 It does not, however, include commercial or financial transactions. Commercial exploitation, by contrast, involves “the idea of some disparity in the value of exchange of goods or services.”990 Sometimes the latter two elements of exploitation (unfairness and financial transaction) are simultaneously present.
Bioethicists have frequently discussed the question of what makes a situation unfairly exploitative.991 For present purposes I will focus on two answers that are especially connected to stem cell ethics and feminists’ responses to the debate, namely, vulnerability and financial interests. As presented in the above chapters on donation, my analysis is that some feminist bioethicists are implicitly claiming that women are vulnerable or weak because of certain motivational structures, which explains their willingness to donate reproductive tissue. The motivation can either be financial inducements or the social pressure to have genetic offspring. In this view, women are easy objects for exploitation.
Some ethicists, such as Henrik Kjeldgaard Joergensen, maintain that unfair exploitation threatens the vulnerable. Although Kjeldgaard Joergensen’s account of exploitation does not explicitly recognize the difference between exploitation and unfair exploitation, it valorizes the idea of how vulnerability could be linked to unfair exploitation. Kjeldgaard Joergensen defines exploitation as a situation in which
A (the exploiter) takes advantage of a situation involving B (the exploited) in an unfair or inappropriate way, which is made possible because A is in some way in a superior position.992 A has an advantage in the situation and is not entitled to the advantage because of the situation’s inappropriateness. An inappropriate situation is one in which B is weak or vulnerable, and B is in need of special care or protection.993
The idea that vulnerability defines exploitation and that the vulnerable should be protected against exploitation is appealing. For example, Jacob Dahl Rendtorff and Peter Kemp propose that vulnerability should be adopted as one of four basic ethical principles in bioethics and biolaw in Europe.
The other basic principles should be autonomy, dignity, and integrity.994 Vulnerability is “ontologically prior to the other principles”,995 and describes a human being who is mortal and whose integrity can be threatened. In other words, vulnerability expresses the “finitude of the human condition”.996 According to
989 Harris 1992, 98-99, 120-121.
990 Harris 1992, 120.
991 See, for example, Harris 1992; Kjeldgaard Joergensen 2000; Wertheimer 2008.
992 Kjeldgaard Joergensen 2000, 39-40.
993 Kjeldgaard Joergensen 2000, 39-40.
994 Rendtorff & Kemp 2000, 17-19.
995 Rendtorff & Kemp 2000, 46.
996 Rendtorff & Kemp 2000, 46.
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Rendtorff and Kemp, vulnerability is both descriptive and normative. In a pluralistic society, vulnerability can bind individuals together by bringing about mutual respect between human beings.997 Making reference to Jürgen Habermas, Rendtorff and Kemp maintain that
vulnerability of the other person is extreme, it imposes an appeal for the protection of the human person and for justice between all individuals in the cultural and social world. Therefore
vulnerability is important as the foundation of the notions of care, responsibility and empathy with the other, it motivates ethical concern for the fragility of the other. Profound vulnerability is the basis of ethics.998
Rendtorff and Kemp’s principle of vulnerability rightly focuses on the importance of mutual recognition and respect. Furthermore, it reminds us of the limitations of human beings and thereby of the limits of medicine and biotechnologies. For these reasons, vulnerability is an important theme in bioethics and should be integrated into the field.
However, a closer look reveals the problematic nature of vulnerability, both as an ethical principle (Rendtorff and Kemp) and as a condition for exploitation (Kjeldgaard Joergensen). As to the criticism of vulnerability as an ethical principle, it should be emphasized that ethical principles should guide action. Although Rendtorff and Kemp discuss how each of the four principles, including vulnerability, should direct decision making and actions in bioethics and biolaw, they fail to distinguish exactly who is vulnerable in their account. Because of this omission, the principle of vulnerability loses some of its force as an ethical principle. The general definition given to vulnerability indicates that all human beings are vulnerable. Although this may well be true, Rendtorff and Kemp end up in a situation in which they eventually have to decide who is the most vulnerable. After all, in a concrete decision-making situation, it is unhelpful to maintain that all people are equally vulnerable. The need to decide who is the most vulnerable is evident in the closing paragraph on the definition of the principle of vulnerability in which the writers indicate that it is important to identify the poorest and the weakest in a society:
In biomedicine today it is the task of the legal regulation of biomedical issues to protect the weakest and the poorest in society against discrimination, manipulation and destruction from other social groups. Therefore the principle of vulnerability belongs to the most essential principles in bioethics and biolaw.999
Rendtorff and Kemp try to resolve the question of who is vulnerable or the most vulnerable on a case-by-case basis. They present sets of different bioethical problems and discuss how the principle of vulnerability should be employed in each.1000 From a feminist perspective a case-by-case – or
Rendtorff and Kemp try to resolve the question of who is vulnerable or the most vulnerable on a case-by-case basis. They present sets of different bioethical problems and discuss how the principle of vulnerability should be employed in each.1000 From a feminist perspective a case-by-case – or