The Globe and Mail, 

Friday, October 29, 1999 

Putting a price on life 

Auctioning ova, designer babies, sex selection and commercial surrogacy are just the tip of the ethical iceberg, says Maureen McTeer 

By Maureen McTeer Ottawa 

-- The story this week about the American photographer who, through his Web site, is offering the ova of beautiful models for sale has scandalized many people on both sides of the Canada-U.S. border. Depending on who is doing the criticizing, the auction is either unethical or in very bad taste. 

It is not, however, illegal. 

There are no laws in Canada that ban the sale of human eggs and sperm, and the jury is still out on selling human embryos. 

There are few restrictions on what can be sold on the Internet, and even if there were real sanctions it would be tough to police this new tool of mass communication. Individual rights, the hallmark of the American legal system and increasingly of our own, have made us masters of our bodies, to do with as we please. 

Organs and tissue cannot be sold; nor can we legally buy children for adoption. However, in the absence of federal or provincial laws that ban the other practices, no one should be surprised that the promise of a beautiful child and the freedom of the market to offer it to the highest bidder have brought us to this point. 

For years, in an unlikely alliance, women's and religious groups have warned about the growing commodification of the human body -- especially the female body. When the body, its parts and processes become no more than commodities, can their commercialization be far behind? 

If this week's story is any indication (and there is some question whether the offer of models' ova is genuine or merely a ruse to increase traffic to the Web site), we can assume that the answer is that commerce has finally crossed the last real frontier. Society's taboo that until now tried to prevent the dealing in human life and body parts for profit has been dealt a severe blow. The only good news in the latest story is that, for once, the woman supplying their ova get to keep the entire profit, with the agent limited to a smaller fee. 

Again, Canada has no law against this. 

While we cannot sell our organs, there is no law that bans the sale of human reproductive material, be it ova, sperm or reproductive capacity (as in surrogacy). 

Couples are paying $2,500 and up for a healthy ovum, and we have finessed the definition of this payment by referring to it as a normal cost for the female donor's time and inconvenience. This is similar to the payment made to men for donating sperm, which has always been accepted; that payment too is said to be for the man's time and inconvenience. (The sum paid to women is greater, as an ovum donation usually requires taking superovulatory drugs and surgical interventions to retrieve the egg.) It is unclear what sanctions would apply if someone sold human embryos and described the payment as being for the couple's time and inconvenience. 

Although the federal government's 1995 moratorium on several reproductive practices included the sale of embryos, the ban is voluntary, with no sanctions for failure to comply. As the law stands, we do not recognize any property rights in the human body, and our laws reject the treatment of human beings as personal or private property. (They do allow for a quasi-legal control over human bodies in specific situations; for instance, they establish responsibility for the disposal of cadavers and provide legal options for their use for medical scientific research.) 

Traditionally, we have felt that, as humans, we should be treated differently from real estate, furniture or even other animals. We have considered ownership of human life as a denial of our principles of human rights and equality, and a fundamental breach of the moral value of our shared humanity. 

In all cases, human bodies and organs cannot be bought and sold in either Canada or the United States. This principle has begun to be eroded, though, as American courts begin to declare property rights in the genetically engineered "products" created from our bodies -- from genes to cell lines. 

Genetically altered human embryos will be the next big commercial "products" we can expect to offered for sale. 

It is this notion that human life can be bought, sold, bartered, mortgaged and even patented that most Canadians find repugnant. In the recent past in Canada, we seem to have moved away from the principle of the collective or public good in favour of the more self-centred principle of individual rights. Some attribute this change to the introduction of the Charter of Rights and Freedoms, but I think it was but one element of our modern society's decision to choose the American value system as more useful than our own. 

This movement coincided with other massive changes in approach, including a dynamic focus on profit, the trivialization of the role and purpose of government and the entrenchment of the language and definitions of commerce and globalization. This blurring of the lines between public and private action and responsibility contributed to the attitude that everything had a price. 

This is at the heart of the argument that if we own our bodies, we should be able to do with them as we want, as long as no one is hurt along the way. In this situation, the interests of the children to be created do not exist. 

What can we do to be sure that commerce keeps its hands off our bodies? How can we guard against treating human life as we would a piece of real estate? 

While the federal government has been promising action on these questions for years, its only attempt (Bill C-47 in 1997) died on the order paper when the election was called, and has not been reintroduced. The recent Speech from the Throne suggested there may be action early next year. 

What should we be looking for in any proposed law? First, we need a large, representative and efficient licensing authority, with the mandate to regulate and accredit all clinics and facilities that practise reproductive and genetic technologies. This authority must have enough money to provide Canadians with the kind of information we need to make informed decisions about which practices will be allowed and which should not. 

As a priority, we have to know more about how all these things build one upon the other and tie in to each other. That requires a real activist approach, even if it means controversy, which governments normally try to avoid. 

Why the urgency? Because these practices are occurring right now, and even more troubling ones are coming down the pipe: use of the tissue from aborted fetuses for research and reproduction, patents on human life forms, the use of gametes (ova and sperm) from cadavers, and the use of embryos for stem cell research. 

We have to assume that what science and medicine can do will be tried. 

That is not necessarily a bad thing, but it does require each of us to be better informed about what is happening. 

The speed of these new developments is breathtaking. Since the Royal Commission on New Reproductive Technologies reported in 1993, the world of science has revolutionized human research and reproduction. It is foolish to try to chase the technologies; we will never catch up with them, let alone control them. What we need to do is put in place a process for daily reflection and timely reaction to some of the most exciting, troubling and controversial issues we will ever face. 

How can we start? In answering this question, I willingly show my bias. 

Reproductive and genetic technologies give us the unprecedented power to create, manipulate and alter human life in the laboratory. That power has to be tempered by key restraints. 

I offer two principles that should be in our laws and guidelines to ensure that our values and collective interests are served. First, our laws must state clearly that the human body, its parts and processes are not property or objects of commerce and cannot be bought and sold. 

Second, in any situation where a new human life is to be created, the interests of the future child must be paramount. Action by the federal and provincial governments cannot come too soon. 

Not a day goes by without some new discovery or questionable reproductive or genetic practice. 

Auctioning ova, designer babies, sex selection and commercial surrogacy are just the tip of the iceberg. We need a way to look at these issues every day, and a mechanism to both protect the public and ensure that society's best interests are respected. 

Maureen McTeer is a lawyer and the author of Tough Choices: Living and Dying in the 21st Century (Irwin Law), to be released in November. She was a member of the federal Royal Commission on New Reproductive Technologies. Copyright 2000 | The Globe and Mail