Following a paper published in Fertility and Sterility, the New York Times weighs in with this: As Demand for Donor Eggs Soars, High Prices Stir Ethical Concern.
The surprise for me was how Hastings Center ethicist Josephine Johnston characterized the problem: she thinks the lure of a big payment can cloud informed consent.
The real issue is whether the money can cloud someone’s judgment… We hear about egg donors being paid enormous amounts of money, $50,000 or $60,000… How much is that person actually giving informed consent about the medical procedure and really listening and thinking as it’s being described and its risks are explained?
Informed consent can’t happen when a lot of money is involved? Johnston’s assumption needs empirical evidence to back it up. Is it true that women are so tempted by money they become incapable of making an informed decision?
Informed consent is a legal concept, so its meaning varies by jurisdiction. However, at its core it involves the subject of a medical intervention only agreeing to the procedure after considering its purpose, risks, benefits and uncertainties – and the availability of alternatives.
It’s something you’ll almost never see in medical dramas like House, where doctors – not patients – make the decisions.
There are occasions when people are believed to be incapable of providing or withholding informed consent. This happens when patients are unable to make judgements about their care, either because of immaturity, cognitive infirmity or duress.
Since youth and mental health are not at issue, perhaps Johnston is thinking about duress. But since when is a profit incentive equivalent to duress? Where are the women held to ransom by student loans, who feel bad about selling eggs but do it anyways?
While it may be common for us to think that decisions we would not make signal an inability to make informed judgements, the question of a patient’s capacity to consent should have nothing to do with whether or not we think the decision is a good one.
A principled approach also recognizes the type of procedure should make no difference at all to the measurement of a person’s capacity to give informed consent. This just means that if a person is capable of giving informed consent for one medical procedure, they are capable of doing so for any. The stakes don’t matter. A woman who can give informed consent for a vaccination can give or withhold informed consent for a kidney donation, sex change, blood transfusion, or for-profit fertility treatment.
Also, why shouldn’t people consider facts external to the medical merits of a procedure? How does this threaten informed consent? Consider the following examples:
- When a person worries that they might lose their job if they don’t undergo a procedure, does this mean they lose the capacity to make informed consent?
- When a person is worried they might lose weeks of work if they undergo a procedure, does this mean they lose the capacity to withhold informed consent and refuse treatment?
Keeping in mind the second example, consider how nobody would question a woman’s capacity to consent if a she decided to not donate her eggs because it cost her too much time and money.
How can it be that women lose the capacity to make or withhold informed consent when they think about monetary advantages, but keep their ability to decide when they think about monetary disadvantages?
The lesson we should take away from this is simple: the capacity to give or withhold informed consent doesn’t go away when a person has access to extra information about incentives and disincentives.
If there are good objections to the sale of human eggs, they don’t have anything to do with informed consent.
(Hat tip to Pure Pedantry for mention of the NYT article. However, he is wrong about the law in Canada and the UK. In both jurisdictions, egg sales are illegal. In Canada, it is a serious criminal offense to buy human eggs. In the UK, while egg sales are illegal, donation with some compensation is permitted.)
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