Comments on: Rent vs. Buy: Compensation Related to Womb and Organ Donation http://blogs.law.stanford.edu/lawandbiosciences/2009/12/29/rent-vs-buy-compensation-related-to-womb-and-organ-donation/ Wed, 15 May 2013 21:56:51 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: hgreely http://blogs.law.stanford.edu/lawandbiosciences/2009/12/29/rent-vs-buy-compensation-related-to-womb-and-organ-donation/comment-page-1/#comment-157 hgreely Sun, 03 Jan 2010 22:03:14 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=878#comment-157 Well, I think one part of the difference has to do with political and medical quirks. Organ transplantation is governed by the National Organ Transplant Act (NOTA). Transplants cross state lines and have been regulated since 1984 by federal law. With one federal law, an "ethical" impulse to prohibit sales could be easily imposed on the whole country. And, even in 1984 and the height of the Reagan Administration, the easy thing to do was to agree "no sales of body parts." "Renting wombs" actually is illegal in some states, sometimes by criminal prohibitions or sometimes just through bans on the enforceability of such surrogacy sgreements. (It isn't clear how often these barriers are effective even in states that have them.) Commercial surrogacy is legal in other states, sometimes with specific regulatory requirements and sometimes without. Many states don't address it at all. And those state that do address it do so sometimes through legislation and sometimes through judicial decisions. There was no overarching federal law into which a ban on commercial surrogacy could easily be inserted. And there was no particular need for a federal solution. I think that's an important part of the answer, at least in the United States. (And outside the United States, commercial surrogacy is generally more restricted.) The more interesting question might be why NOTA excludes eggs and sperm from its ban on the sale of organs. Renewability has something to do with it, as does ease or safety of donation but there is something more. The sperm probably came, at least in part, from the existence of a sperm donation industry, but egg donation was very new at that point and could presumably have been stopped. I think the answer to this question is very complicated but has to do with public and political recognition of the validity (or strength?) of desire for children, plus the difficulty, because of abortion politics, of getting any laws passed about reproduction. What do you think? Well, I think one part of the difference has to do with political and medical quirks. Organ transplantation is governed by the National Organ Transplant Act (NOTA). Transplants cross state lines and have been regulated since 1984 by federal law. With one federal law, an “ethical” impulse to prohibit sales could be easily imposed on the whole country. And, even in 1984 and the height of the Reagan Administration, the easy thing to do was to agree “no sales of body parts.”

“Renting wombs” actually is illegal in some states, sometimes by criminal prohibitions or sometimes just through bans on the enforceability of such surrogacy sgreements. (It isn’t clear how often these barriers are effective even in states that have them.) Commercial surrogacy is legal in other states, sometimes with specific regulatory requirements and sometimes without. Many states don’t address it at all. And those state that do address it do so sometimes through legislation and sometimes through judicial decisions.

There was no overarching federal law into which a ban on commercial surrogacy could easily be inserted. And there was no particular need for a federal solution. I think that’s an important part of the answer, at least in the United States. (And outside the United States, commercial surrogacy is generally more restricted.)

The more interesting question might be why NOTA excludes eggs and sperm from its ban on the sale of organs. Renewability has something to do with it, as does ease or safety of donation but there is something more. The sperm probably came, at least in part, from the existence of a sperm donation industry, but egg donation was very new at that point and could presumably have been stopped. I think the answer to this question is very complicated but has to do with public and political recognition of the validity (or strength?) of desire for children, plus the difficulty, because of abortion politics, of getting any laws passed about reproduction. What do you think?

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