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The Missouri Cloning Initiative’s Illusory Limits on Paying Inducements to Women to Donate Human Eggs
James S. Cole, Esq.*
The so-called Missouri Stem Cell Research and Cures Initiative offers students of language many examples of double-talk. The idea is to state a general principle that can be quoted in advertising to encourage a favorable attitude toward the Initiative, while incorporating exceptions to the principle that, as a practical matter, nullify it. This is the tactic that the drafters used when they wrote section 2(4) of the Initiative, which says in relevant part, “No person may, for valuable consideration, purchase or sell human blastocysts or eggs. . . .”
This good principle is eviscerated by the definition of “valuable consideration” that appears in section 6(17) of the Initiative. The ban on purchasing or selling depends on whether “valuable consideration” is given, so what counts as “valuable consideration” will determine whether the ban applies. Section 6(17) reads as follows:
‘Valuable consideration’ means financial gain or advantage, but does not include reimbursement for reasonable costs incurred in connection with the removal, processing, disposal, preservation, quality control, storage, transfer, or donation of human eggs, sperm, or blastocysts, including lost wages of the donor. Valuable consideration also does not include the consideration paid to a donor of human eggs or sperm by a fertilization clinic or sperm bank, as well as any other consideration expressly allowed by federal law.
This language excepts from the term “valuable consideration” any reimbursement for “reasonable costs.” What do such costs include? They include any costs “incurred in connection with the . . . donation . . .” It is clear that the costs of the massive doses of certain hormones over the time needed to induce a woman to release multiple eggs for harvesting are covered, as are mileage and other transportation costs incurred by a woman to go to the clinic. (Whether this language covers the costs of treating the medical problems that often ensue is not so clear.) Moreover, the woman who donates eggs will be paid lost wages for the time spent in the donation process.
Payments for blastocysts will be covered by these rules, too. (Blastocysts are human beings of a week or less in age who have not yet become implanted in a womb.) The Initiative will, to this extent, allow for the buying and selling of human beings.
The definition quoted above explicitly excludes from the term “valuable consideration” any money paid to a woman for her eggs by a fertilization clinic. The loophole that this exclusion opens is so wide that a truck can drive through, for IVF clinics are offering thousands of dollars to women for egg donations. The Bloomberg Report recently said that clinics are offering as much as $100,000. (See www.bloomberg.com/apps/news?pid=10000103-&sid=aTU0i_Rql_A4&refer=us, dated 4/13/06.) Cloners in Massachusetts reported paying $4,000-7,000 per donor for their research projects several years ago. Id.
The practices of IVF clinics make it obvious that the cloners will be able to evade the ban on paying for human eggs by buying them from the clinics. The cloners may enter into supply contracts for human eggs with IVF clinics, so that the clinics will advertise to buy women’s eggs even more aggressively than they do now and then resell them to the cloners. In this way, the evasion of the rule against purchasing eggs in the Initiative is so easy that there might as well be no such rule at all.
The ability to pay money to obtain egg cells is of great importance to the cloners, for they will need a vast number of eggs in order to accomplish the goals for which they claim to be working. They say they want to have a clone available for each patient to solve the problem of rejection of transplanted tissue. The body will not reject tissue that is genetically the same as the body itself. How many eggs will be needed? The numbers of patients with diseases that the cloners say they want to cure (e.g., diabetes, Parkinson’s Disease, spinal injuries, etc.) are startling--16 million for diabetes alone. Each one requires a clone to avoid the rejection problem. In sheep and other mammals that have been successfully cloned, it takes 100 or more eggs to result in a single clone. “Only about 1 to 2% of cloned animals make it to live birth. And you can’t even extrapolate that number to humans, because cows and sheep get pregnant much more easily than do women.” (“The Facts and Fiction of Cloning,” WebMD, www.medmutual.com/global/webmd/WebMDArticle.aspx?-id=1738_52013&aType=Senior, undated, quoting Dr. Harry Griffin, assistant director of the Roslin Institute, where Dolly the cloned sheep was created in 1997.) Thus, assuming with scientific progress that only 50 eggs will be needed for each clone, experts calculate that 800 million eggs will be needed to use cloning (SCNT) to treat all diabetic patients. (Dr. David A. Prentice, Ph.D., Professor of Life Sciences, Indiana University School of Medicine, Stem Cells and Cloning (Michael A. Palladino, ed.), p. 26 (Benjamin-Cummings/Pearson Education, San Francisco, 2002); Joe Carter, Center for Bioethics and Human Dignity, Testimony Before Human Services Committee, Illinois General Assembly, 1/13/2006, found at www.cbhd.org/resources/-cloning/carter_2006-01-13.htm.) Many more will be needed to treat other diseases, too. It will be imperative to pay women for their eggs to obtain even a fraction of the vast number needed.
Clearly, the Initiative’s language banning the purchase of human eggs is swallowed by the exceptions that have been written into the Initiative. If the Initiative is adopted, it will incorporate into the Missouri Constitution the purchase and sale of human eggs without leaving the State Legislature any ability to enact reasonable laws and regulations to prevent abuses.
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*James S. Cole, J.D. Harvard Law School, is a practicing attorney in St. Louis and serves as General Counsel for Missouri Right to Life.