Theor Med Bioeth (2014) 35:421–440 DOI 10.1007/s11017-014-9314-4

Rethinking the moral permissibility of gamete donation Melissa Moschella

Published online: 31 October 2014  Springer Science+Business Media Dordrecht 2014

Abstract The dominant philosophical view of gamete donation as morally permissible (when practiced in the right way) rests on two premises: (1) parental obligations are triggered primarily by playing a causal role (as agent cause) in procreation, not by genetic ties, and (2) those obligations are transferable—that is, they are obligations to make adequate provision for the child’s needs, not necessarily to raise the child oneself. Thus while gamete donors are indeed agent causes of the children that their donation helps to bring into existence, most think that donors’ obligations are discharged insofar as they know that competent others intend to care for those children. In this article, I call into question this dominant view by challenging both of its premises. Challenging the first premise, I argue that genetic parenthood is what primarily triggers parental obligations. Challenging the second premise, I claim that those obligations are non-transferable—i.e., that they are obligations not simply to ensure that someone will raise one’s genetic child, but to raise that child oneself (unless one is incompetent). The implication of my argument is that gamete donation is inherently wrong insofar as it involves acquiring non-transferable obligations that one has no intention of fulfilling. Keywords Reproductive technologies
Parental obligations
Gamete donation
In vitro fertilization
Artificial insemination
Children’s rights
Animalism
Special obligations

Introduction Is there anything inherently wrong with gamete donation, understood as allowing one’s gametes to be used in order to procreate children whom one has no intention M. Moschella (&) School of Philosophy, The Catholic University of America, Aquinas Hall 100, 620 Michigan Ave. NE, Washington, DC 20064, USA e-mail: [email protected]

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of raising oneself? The dominant view among moral philosophers—and in society more generally—is that gamete donation, at least when practiced in the right way, is morally unproblematic.1 This view rests on two premises about the nature and sources of parental obligations: (1) parental obligations are triggered primarily by playing a causal role (as agent cause) in procreation, not by genetic ties,2 and (2) those obligations are transferable—that is, they are obligations to make adequate provision for the child’s needs, not necessarily to raise the child oneself.3 Thus while gamete donors are indeed agent causes of the children that their donation helps to bring into existence,4 most think that donors’ obligations are discharged insofar as they know that competent others intend to care for those children.5 In this article, I call into question this dominant view by challenging both of its premises. Challenging the first premise, I argue that genetic parenthood is what primarily triggers parental obligations. This argument is based upon the claim that 1

The most notable exception is David Velleman, who argues that the obligation to raise one’s biological children is non-transferable because when children are estranged from their ancestry, their ‘‘lives [are] truncated or damaged in ways that seriously affect the prospects for personhood to be fully realized within them’’ [1]. My argument is similar to Velleman’s, though I disagree with his claim that it is agent causality that triggers parental obligations. Rather, I think that progenitors have obligations to their genetic children even in the rare cases where they had no agent causal role in procreation. My case also differs importantly from Velleman’s in that I try to construct an argument from moral principle, whereas Velleman explicitly admits that he is unable to do so. Nelson [2] and Callahan [3] also view gamete donation as morally problematic. Nelson argues that parental obligations are too important to transfer to others, but he does not give a satisfactory explanation of why gamete donors have any greater responsibility than doctors or other proximate agent causes of the child’s existence. Callahan emphasizes the importance of biological fathers, but fails to give an account of why biological parenthood as such triggers non-transferable parental obligations. Alexander Pruss presents an argument for the wrongness of gamete donation which is similar to mine but is primarily theological in nature [4]. 2

While the causal account is not the only one, it seems to be the dominant view. In addition to Velleman [1], Nelson [2], and Callahan [3], see [5–10]. Of course, in some instances, parenting obligations can also be taken on voluntarily by those who did not play a causal role in the child’s existence, as in the case of adoption. Here, I am interested not in the question of who counts as a parent or who has a right to raise a particular child, but rather, in the separate question of who, even in the absence of a desire for parenthood, has obligations to care for a child.

3

Weinberg questions the claim that a sperm donor can transfer parental responsibility, arguing that children need to be loved and that the obligation to love is inherently non-transferable. However, since Weinberg’s underlying account of parental responsibility only shows that sperm donors are initially responsible for the children conceived with their sperm, it is not clear why that responsibility cannot be discharged by ensuring that others will love the child. What is missing in Weinberg’s account is an explanation (such as the one I offer below) of why or in what sense the specific love of the sperm donor himself is important for the child’s well-being [11].

4

Bayne [7] argues that no moral responsibility flows from gamete donors’ causal role because one is only responsible for the gametes that are under one’s control. On this view, since donors alienate control over their gametes, all procreative responsibility falls only on those who use the donated gametes. For a critique of this view, see [10]. My account differs from both because I deny that playing an agent causal role in procreation is the key basis for the acquisition of parental obligations. It also explains why one ought not to alienate control over one’s gametes either directly (through sperm or egg donation) or indirectly (as in the hypothetical case of a gonadal transplant).

5 Benatar [12] and others [2, 10] argue that most donors (most are paid for their ‘‘donation’’) take even this responsibility too lightly, since in most cases, donors do not know whether the would-be social parent or parents of their genetic children are competent to raise a child. I agree with this point, but here, I ask the further question of whether donating gametes would be morally problematic even if one were assured that one’s genetic child would be raised by excellent parents.

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genetic parenthood in itself constitutes a personal relationship between genetic parent and child that is the source of special obligations.6 Challenging the second premise, I claim that those obligations are non-transferable—i.e., that they are obligations not simply to ensure that someone will raise one’s genetic child, but to raise that child oneself (unless one is incompetent). The reason why the obligations are non-transferable is that children are personally dependent on their genetic parents for the ideal fulfillment of their developmental needs. The implication of my argument is that gamete donation is inherently wrong insofar as it involves acting in a way that is highly likely to result in the acquisition of a non-transferable obligation to another person, without being willing to fulfill that obligation should it arise. My argument rests on two crucial premises. First, in claiming that the genetic parent–child relationship is itself a personal relationship, I assume that a human embryo is substantially the same entity as the human person into which that embryo will mature (in the normal course of events), and that the person into which the embryo will mature is a human animal. I assume, in other words, the truth of some version of animalism as an account of personal identity.7 Second, in claiming that genetic parents have non-transferable obligations to their genetic children, I assume that personal relationships that create personal dependencies trigger special, nontransferable obligations that correspond to those dependencies. While I cannot undertake a full defense of these premises here, I do offer a brief explanation and defense of them in the first two sections of the article.8 In the remainder of the article, I build on these premises to explain why genetic parents have nontransferable obligations to raise their genetic children, and conclude by applying this analysis to a moral evaluation of gamete donation. Before continuing, I must clarify my definition of genetic parenthood. Genetic Parent: A is a genetic parent of B if (i) A passes on genetic information to B, (ii) A’s physical genome is passed on to B, and (iii) A’s physical genome was reshuffled once (usually mixed with the genome of a different individual) to constitute B.9 6

This view implies that it is possible to acquire parental responsibility even without playing an agent causal role in procreation, as in cases of purloined sperm (several such cases are discussed in Hubin [9]). I accept this implication, and do not consider it implausible, given that injustices can often change one’s moral situation in ways that result in the acquisition of new obligations. If, for instance, I had a 7-year-old sister and all of my family members except for her were murdered, I would acquire prima facie responsibility for my sister’s upbringing. This burden would simply be one aspect of the injustice done to me by the murder of my family members.

7

While the most prominent defense of animalism is Eric Olson’s The Human Animal: Personal Identity Without Psychology [13], in this article, I do not commit myself to any specific version of animalism. Olson’s version, however, would be sufficient for my purposes here. 8

Although it is impossible to fully defend all of one’s premises in any given article, it seems preferable to at least spell out those premises and offer a brief account of them than to proceed as if one’s premises were non-controversially true. Those who argue for the moral permissibility of gamete donation tend to presume the truth of a psychological view of identity and a voluntarist account of moral obligation, usually without ever even identifying—let alone defending—those premises. Thus, my aim in the first two sections of the article is simply to clarify what my premises are and to show that, at the very least, they are no more controversial than those that underlie the opposing view.

9

This definition is a slightly modified version of the one offered by Mertes and Pennings [14].

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The first condition is straightforward. The second and third conditions are necessary because they enable us to explain why the children of one’s identical twin are not one’s own genetic children, even though genetic information identical to one’s own was passed on to them, and why, in the case of twinning, the ‘‘elder’’ twin (the original embryo) that passes on genetic information and a physical genome through fission (thus meeting the first two criteria) is not the parent of the ‘‘younger’’ one [14].

Animalist account of identity My argument relies on several assumptions about personal identity. I assume (1) that a human being is a living animal, (2) that, in the normal case, for at least most of its life, the living human animal is a person, and (3) that the identity conditions of a human being, both over time and at any one time, are the same as the identity conditions of the living animal that human being is—i.e., that continued existence of the same human organism is a necessary and sufficient condition for continuity of identity. The third assumption implies that when, in the normal course of events, a human animal develops to the point of being able to engage in characteristically personal activities like deliberation and conceptual thought, it remains substantially the same entity—the same human animal—that it was prior to acquiring that ability. While some animalists claim that every living human animal is a person [15], the argument in this article requires only the weaker claim that human animals capable of engaging in characteristically personal activities are persons. This claim, together with my account of personal relationships in the next section, is sufficient to ground my argument that in acquiring a relationship of biological causality with the human animal conceived through his or her donation, a gamete donor acquires a relationship with an entity that will become a human person in the normal course of events. A full argument for the animalist account of identity that my overall case relies upon goes beyond the scope of this article, but here, I offer a few considerations in its defense. First, without this view some of the most basic moral judgments cannot be explained. We think that assault is a more serious crime than vandalism (more serious in kind, not just in degree) because it is a crime against oneself, not just one’s property, and that rape is a personal violation, even if the victim is unconscious and never finds out about it later. The best explanation for these judgments is that I and my organism are the same thing. Second, the main alternative to animalism—a psychological view of identity in which personal identity, or at least what matters about personal identity, is based upon psychological features and psychological continuity—has significant flaws even aside from being unable to account for common moral judgments like those mentioned above. Most notably, psychological views face the intractable problem of ‘‘branching’’ cases—cases in which one person is psychologically continuous with two future persons as a result of a brain state transfer, brain bisection operation, or

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some other similar hypothetical scenario.10 In such duplication cases, one person would be identical to two others who are not themselves identical to each other—a clear contradiction.11

Personal relationships, personal dependence, and special obligations Having explained my first premise—that human beings are animals, that the diachronic identity conditions of a human being are the same as the diachronic identity conditions of a human animal, and that most human animals are persons for at least most of their lives—I now move on to my second premise regarding the connection between personal relationships and special obligations. I define relationship as follows. Relationship: union or interconnection with another human being at the intellectual, volitional, emotional and/or bodily levels. The degree of one human being’s relatedness to another depends on the intensity (at any one level) and the comprehensiveness (across levels) of that union. Yet not every relationship—i.e., not every union or connection between persons—is a specifically personal one.12 What makes a relationship specifically personal is that

10 Even in non-branching cases, the psychological view suffers from what Campbell and McMahan [16] call the ‘‘too many subjects’’ problem—i.e., that every conscious state has two subjects: oneself and one’s organism. Campbell and McMahan argue that the psychological view may be able to overcome this problem but that animalism faces an even worse problem—what they call the ‘‘too many organisms’’ problem. Campbell and McMahan believe that this problem occurs in the rare case of cephalopagus conjoined twins, in which there appear to be two bodies (usually partially fused in the torso) and one head. In such cases, the authors argue that there is only one person, but two organisms. Their critique is flawed, however, because they fail to recognize that organisms can be one in some respects and distinct in other respects. Like other types of conjoined twins, despite having real organic unity in some respects, twins conjoined at the head are also individual organisms with an inherent active disposition to complete independence, including the formation of fully independent brains and heads (for more on this point, see Lee and George [15]). Indeed, cephalopagus twins usually have not only their own brain stems and cerebella, but also two distinct faces as well as distinct (but conjoined) cerebra [17]. It is also worth noting, in this regard, that evidence of consciousness has been found in children who have a functional brainstem but lack a functional cerebral cortex [18, 19]. Cephalopagus twins can thus be understood as two distinct human animals who are extremely disabled (and unable to survive long after birth) due to severe developmental abnormalities. The case therefore need not present difficulties for an animalist account of identity. 11 Derek Parfit responds to this problem by arguing that in duplication cases, while I cannot be identical to both of the resulting persons, strictly speaking, I survive in both in every sense that actually matters [20]. Yet is that really true? If I were married prior to the operation, would both (or either) of the persons psychologically continuous with me be married to my husband? Who would have a right to my property, or to my job? Who would be responsible for raising my children? Answering those questions requires determining which (if either) of the resulting persons is actually me. Since Parfit’s view cannot tell us that, it is not satisfactory even as an account of what matters about identity. 12

For instance, in the broad sense, I have a relationship with everyone who shares my view that gamete donation is morally impermissible because that shared conviction constitutes a union at the intellectual level. But there is nothing specifically personal about such a relationship because that conviction is not in itself a unique characteristic.

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the ties that bind one person to another are unique characteristics, things about the parties that are not equally true of others. Personal relationship: a relationship in which the parties relate as unique and irreplaceable individuals, not merely fulfilling a function which anyone with the relevant competencies could fulfill.13 My relationship with a bank teller as such, for instance, is not personal insofar as it is not based on any unique characteristics of that person, and any other equally competent teller (or a well-functioning automatic teller machine) could meet my needs equally well. By contrast, my relationship with a friend is personal insofar as it is based on unique personal characteristics proper to that person, which means that there are things that person, and only that person, can ‘‘do’’ for me (in the broad sense of the term). Because in personal relationships individuals are bound together based in part on unique personal characteristics, it is proper to these relationships that they involve personal dependence because they create needs that can only be fulfilled by the person in relation with whom those needs arose. The reason they create such needs is that when and insofar as Person A and Person B have a personal relationship, the contribution that A and B make to each other’s lives is, by definition, unique and irreplaceable. Of course, the level of personal dependence that exists in any given personal relationship varies according to the nature and circumstances of the relationship. A casual friendship involves a much lower level of personal dependence than a marriage. To illustrate more concretely the connection between personal relationships and personal dependence, I analyze a simple example that will serve as a paradigm for understanding the general features of personal relationships and how they trigger special obligations. That example involves a confidante-confider relationship: Amy is the only person in whom Clare has confided about a number of sensitive personal matters. Clare is therefore personally dependent upon Amy with regard to needs related to those matters: the need for privacy, for advice related to those matters, for encouragement in dealing with them, and so forth. Note that while Clare’s need for advice and encouragement exists independently of her relationship to Amy, the fact that Amy is now uniquely capable of helping Clare is what makes the dependence personal. There could also be other unique characteristics of Amy—for instance, that she has proven her trustworthiness to Clare through her loyalty on previous occasions, or that she is a particularly good listener—that make their relationship genuinely personal (based on unique personal characteristics) and that make Clare personally dependent on Amy. (For the sake of simplicity, I only consider one side of the relationship in this case.) Of course, human relationships are usually based on a mix of unique and nonunique, or at least not completely unique, traits and characteristics. Thus Clare appreciates, trusts, and relies upon Amy in part because Amy is a good listener—a not fully unique characteristic—and in part because of fully unique characteristics, 13 Hugh LaFollette offers a similar characterization of personal relationships in Personal Relationships: Love, Identity and Morality [21].

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like the shared experiences in which Amy has proven her loyalty. It is the latter, and the unique blend of the latter with the former, that make the relationship properly personal, and that make Clare personally dependent on Amy. The fact that Amy is Clare’s confidante, and that Clare is personally dependent on her as a result, creates a special, personal obligation on Amy’s part to meet the needs that have arisen out of this relationship. By qualifying the obligation as ‘‘special,’’ I mean that it is a specification of Amy’s general obligation to foster the well-being of others, giving her a reason to prioritize Clare’s well-being over the well-being of others toward whom her obligations are weaker or less important.14 By qualifying the obligation as ‘‘personal,’’ I mean that it is non-transferable—it must be carried out personally. When Clare wants advice about the subject of her confidences, she wants advice from Amy, not from some third party that Amy sends on her behalf. If my analysis is correct, then it is a general feature of personal relationships that each person in that relationship will have special, non-transferable obligations to meet the needs of the other insofar as those needs have arisen out of the personal relationship as such. This obligation is, of course, only a prima facie one which may be overridden by other, weightier obligations. Some needs may arise in the context of a personal relationship that do not arise out of the personal relationship as such. For example, imagine that after a long consultation with Amy, Clare is hungry. The fact that Amy has a personal relationship with Clare does give her a greater responsibility to alleviate Clare’s hunger than to alleviate the hunger of a stranger (all other things being equal). However, Clare’s hunger is not a need that arises out of their personal relationship as such; Clare has no specific need for Amy to alleviate her hunger, and therefore, while Amy has a special obligation to contribute to Clare’s well-being in general, her obligation to attend to this particular need is transferable, meaning that she does not have to do so personally. As long as Amy has reason to believe that Clare has the means by which to get herself something to eat, she need not get directly involved in the matter. It is important to note that while Amy’s relationship to Clare at least to some extent involves the voluntary assumption of commitment on Amy’s part, as well as an extended history of interaction between Amy and Clare, the relationship’s nature and weight and Amy’s obligations to Clare do not essentially depend on either of these features of their relationship. Rather, on my account, it is the mere fact that Clare is personally dependent upon Amy—i.e., that there are benefits that Amy is uniquely capable of providing for Clare—that is the source of Amy’s personal (nontransferable) obligation. Likewise, it is the mere fact that Amy has a relationship 14 Assuming that the needs of others always have some general moral claim on us, there must be some way of distributing the work of caring for those in need, of determining whose needs we are primarily responsible for attending to, by establishing an order of moral priority among the competing claims that the neediness of all human beings makes upon us. In other words, there has to be a way to specify the general obligation to contribute to the good of others. One’s degree of responsibility for another’s wellbeing depends on the extent to which one has a morally relevant connection with that person [15, p. 147]. One way of establishing such a connection to another person could be through consent or some other voluntary act—for example, making a promise or establishing a contract. Here, however, I argue that even non-voluntary relationships can trigger special obligations.

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with Clare that gives Amy a special obligation to prioritize Clare’s needs over those of others toward whom her special obligations are weaker. In this case the relationship clearly includes a volitional dimension, but it is possible for a relationship to exist in which that dimension is absent at least initially.15 This point will become important later when examining the genetic parent–child relationship.16 These reflections point to three key features about the connection between personal relationships and obligations. First, having a personal relationship with someone grounds a special obligation to promote that person’s well-being in general, an obligation which lasts as long as the relationship continues. Second, the weight of that special obligation depends on the closeness (in terms of intensity and comprehensiveness) of the relationship, and the importance of the need that one is obligated to meet. Since many relationships are asymmetrical in terms of both closeness and neediness, it is important to point out that it is the closeness of Person B to Person A and the importance of Person B’s needs that determine the weight of Person A’s special obligations to Person B, and vice versa. Third, there is a special personal (non-transferable) obligation to meet the needs that arise from the personal relationship as such, which are needs that, by definition, cannot be met by anyone else. While only a sketch, this account of special obligations offers a principled way of prioritizing our obligations to others in a way that makes sense of many common intuitions and practices. It explains, for instance, why most people consider it not only acceptable but obligatory to use a greater proportion of their limited resources for the benefit of their family members and close friends than for the benefit of strangers, but also why meeting the dire need of a stranger (stopping to help a stranger who was hit by a car) can take priority over meeting a less important or urgent need of a family member (as when stopping to help the stranger makes one arrive late to a daughter’s soccer game). It also explains why we think that there is no injustice to the students involved when a professor asks another professor to proctor an exam in her stead (assuming that there is no reason to think that her students will need her there to clarify what the questions mean), but that there is an injustice to students if the professor asks another professor to fill in for her at advising meetings. The differences in the weight and type (transferable or nontransferable) of one’s obligations in each of these circumstances is not explainable with reference to voluntary actions and commitments alone, but rather, is based primarily on the closeness of each relationship, the importance of the need in 15 Though my non-voluntarist associativist approach to obligation has some elements in common with that of Belliotti [22], my focus is less on the point that our relationships (including biological relationships) are partially constitutive of who we are, but more on the personal dependencies that personal relationships create. In this way my account avoids some of the shortcomings of Belliotti’s while still explaining (in ways that other theorists have not yet done) the common sense belief that biological relationships create some form of special obligation. For a critique of Belliotti’s view, see Jeske [23]. Jeske believes that the parent–child biological relationship in and of itself generates no special obligations. 16 This point is important for the claim that genetic relationships as such (even in the absence of agent causality) trigger non-transferable parental obligations. However, in the standard gamete donor case, the donor does in fact do something voluntary that leads to the initiation of the relationship.

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question, and the extent to which that need is one that cannot be met by anyone else because it arises out of a personal relationship.

Genetic parents have special, non-transferable obligations to their genetic children In this section, I build on both premises outlined above to show that the genetic parent–child relationship is in itself a personal relationship, and then analyze the characteristics of that relationship to determine the strength of the special obligations that flow from it, and the extent to which those obligations are nontransferable. Assuming that a living human organism is or was or will be (in most cases) a human person in the sense I explained earlier, and that a personal relationship is one in which the individuals are related based on unique personal characteristics, it follows that a genetic relationship is in itself a personal relationship (when both parties are persons), because it is indeed a relationship, and this relationship is based on unique characteristics. The genetic parent–child relationship is a relationship because it involves an interconnection of individuals on the biological/bodily17 dimension of their being.18 This claim sounds counterintuitive when applied to the case of a gamete donor because it is rare for a human relationship to be merely biological. Yet, the claim that even merely biological relationships are truly relationships is not so strange if one considers that actions like seeking out lost relatives or trying to get to know a particular set of people rather than another just because they are one’s relatives are intuitively intelligible at least to most people.19 It could be argued that we do these things and find them intelligible for cultural reasons, yet the persistence of such attitudes and behaviors across times and cultures gives reason to be skeptical of a purely cultural explanation. Not only do genetic parents have a relationship to their children, but that relationship is personal because the interconnection of genetic parents and children is based on unique characteristics. Genetic parents (via their combined gametes) relate to their children as biological causes20 of their existence and identity. The zygote is the union of the genetic parents’ gametes. All of the biological material that initially make up the zygote come from the parents’ gametes, and the biological information contained in the combined gametes, especially in the genome that 17

I use the word ‘‘body’’ in this article to refer only to a living body.

18

Even if the initial relationship is established with a human organism that is not yet a person, that does not matter for my account; all that is necessary for my account is that a relationship be established with a human organism who will foreseeably become a person. 19

Note that I am using this example simply to show the plausibility of a factual premise—that genetic relationships are personal relationships—not to make any direct claim about obligations. The nature and degree of one’s obligations to any particular person (relative or not) will depend on the criteria laid out in the previous section. It seems plausible, however, that one would be obligated to respond in a more courteous and welcoming manner to a phone call from a lost relative than to a similar call from a complete stranger. 20 I use the term ‘‘biological cause,’’ as distinct from efficient cause, to indicate a combination of material and formal causality in the Aristotelian sense.

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results from the parents’ combined genetic material, is the source of the zygote’s integrated organic functioning. The genetic parent–child relationship is therefore one in which the persons are connected to each other as unique individuals—to have different parents is, necessarily, to be a different person. If, as I have argued above, our identity conditions are identical to the identity conditions of the organisms that we are, then genetic parents and their genetic children have an extremely intimate personal relationship,21 even if their only ‘‘interaction’’ is via the gametes of the genetic parents.22 Given the premise that personal relationships create special obligations, the fact that the genetic parent–child relationship is itself a personal relationship already implies that genetic parents have a special obligation to their genetic children. More needs to be said, however, to determine the strength of the obligation and the extent to which it is non-transferable. As discussed earlier, the weightiness of a special obligation depends on the closeness of the relationship that gives rise to it, as well as the importance of the need that one has the obligation to meet. The nontransferability of an obligation depends on the extent to which that obligation arises from a personal dependence created by the personal relationship. To determine the weightiness of genetic parents’ special obligation to their genetic children, one needs to know how close the relationship is from the child’s perspective, as well as the importance and degree of the child’s neediness. The child-genetic parent relationship is initially the most intense and comprehensive— and therefore the closest—of that child’s human relationships. This gives us reason to think that the special obligations of parents to their genetic children are among the strongest of any human relationship, particularly considering the extreme neediness of human beings in the early years of life and (as I will argue below) the unique capacity of genetic parents to meet their children’s developmental needs fully. Another important feature of the genetic parent–child relationship is its permanence. The relationship is permanent in the sense that, unlike relationships based on circumstantial or changeable characteristics (of which the relationship between Amy and Clare would be one example), the genetic parent–child relationship is based on essential identity-constituting characteristics. It is a permanent and identifying feature of my being that I came to be through the union of my genetic parents’ gametes. Not to be related to my genetic parents in this regard is, simply, not to be me—indeed, it is not to exist at all. I am and always will be the genetic child of my genetic parents, and my genetic parents are and always will be my genetic parents, regardless of what happens to our relationship at the affective, volitional, and intellectual levels. 21

In this section, I use the term ‘‘personal relationship’’ in a loose sense to include relationships between human organisms in which one or both of the parties to the relationship may not (yet or currently) be a person. My account of the wrongness of gamete donation only requires that the donor have a personal relationship with a genetic child who in the normal course of events will become a person. 22

To be more precise, from the child’s perspective, the relationship is intimate and comprehensive, whereas from the parent’s perspective, the relationship is intimate but not comprehensive. In other words, the child, not the parents, comes to be through the relationship with her genetic parents, and the child, not the parents, receives her genetic and initial overall biological identity through that relationship.

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Since, therefore, the special obligation of genetic parents to their genetic children is based on a personal relationship that is permanent by its very nature, the special obligation is itself likewise permanent. For as long as they and their genetic children are alive, genetic parents have a special obligation for the well-being of those children. The weight of the obligation will vary, of course, as children gradually become more independent and as they form intimate relationships with others. But since initially (at conception)23 the genetic parents are the ones with the closest relationship to that child, they are the ones with the strongest special obligation to ensure that the child’s developmental needs (including developmental needs in utero) are met.24 As I have not yet established the non-transferability of this obligation, though, what I have said so far shows only that genetic parents initially have the strongest obligation to make sure the child’s needs are met by someone. And if others become the child’s primary caregivers, those social parents will likely form a personal relationship with the child that is closer, overall, than the relationship of merely genetic parents to their children. Still, the permanence of the child-genetic parent relationship means that the genetic parents always have some level of special obligation to their genetic children, and that is incompatible with completely washing their hands of the child’s fate once others take on primary parenting responsibilities.25 I will come back to this later, as it is the basis for the weak version of my conclusion. First, though, it is necessary to consider to what extent that initially very weighty special obligation of genetic parents to their children is non-transferable. In the example of Amy and Clare, while Amy has a special obligation for Clare’s wellbeing in general, she only has a non-transferable obligation to meet the needs that arose from the personal relationship—that is, to provide the benefits that only she is able to provide. So, to determine the content of genetic parents’ non-transferable obligations to their children, one needs to determine which of the children’s needs flow from their personal relationship to their genetic parents; that is, one needs to determine which are the benefits that can be provided only by the genetic parents themselves.26 23

‘‘Initially’’ means ‘‘at conception,’’ since this is when a new human organism begins to exist.

24

In cases of gestational surrogacy, the emotional bonds that the fetus forms with the gestational mother in utero also create a close relationship that rivals the closeness of the child’s relationship with her genetic mother. Here, I remain agnostic about which relationship is closer, although the genetic bond is more permanent. For an analysis of the moral relevance of gestational parenthood, see Gheaus [24]. However, since one’s special obligations to one’s genetic children begin as soon as those children begin to exist, the (prima facie) obligation to raise one’s genetic children would arguably include the obligation to gestate the child and/or support the mother who is gestating the child. 25 Imagine that teenage parents incompetent to raise their genetic child give that child up for adoption, and that closed adoption is the best or only possibility in the circumstances. On my view, the genetic parents should nonetheless maintain a life-long concern for that child’s well-being such that if, for example, one of them unexpectedly became extremely wealthy, he or she would have a prima facie obligation to use some of that wealth for the child’s benefit (assuming it is possible and not prejudicial to weightier obligations). 26

A gamete donor (as opposed to cases in which gametes were procured or used without permission) is, additionally, an agent cause of the child’s coming into existence in a state of neediness, though as agent cause, his or her relationship to the child is less unique and personal, and thus, the relationship of agent causality is not what specifies gamete donors’ obligations to their genetic children as non-transferable.

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This is difficult because the genetic parent–child relationship is sui generis. It is the only human relationship in which one party is related to the other as biological cause of that person’s very existence and identity. Given the nature of the genetic parent–child relationship, it would seem that all of a child’s initial set of developmental needs flow from that child’s (potentially) personal relationship with his genetic parents, insofar as the child’s very existence flows from that relationship. I say ‘‘potentially’’ personal because in this article, I remain agnostic about exactly when a human being becomes a person.27 As will become clearer in the next section, the potentially personal nature of the relationship is sufficient to ground a non-transferable obligation. If I am right that needs that flow from a personal relationship as such are needs that can be fully met only by the person in relation with whom those needs arose, then only genetic parents can be28 fully competent to meet their children’s developmental needs because, as explained below, there are benefits that only they can provide. It would mean, in other words, that only genetic parents can be fully competent to raise their children, and thus have a nontransferable obligation to do so. Obviously, though, the word ‘‘fully’’ is an extremely important qualifier here. In the case of Amy and Clare, the claim that only Amy could fully meet Clare’s need for advice does not mean that in a situation when she cannot get a hold of Amy, Clare could not call on Jane, another trusted person, quickly filling her in on the essential background information. Since no one knows all of the relevant background as well as Amy, Jane would be less than ideal, but in a bind, she could meet Clare’s need for advice reasonably well. Further, it might even turn out that, given some relevant expertise that Jane happens to have, Jane actually does an all-things-considered better job of helping Clare in this situation. Likewise, when genetic parents cannot or will not raise their children, others can step in and do an excellent job, even an all-things-considered better job than the genetic parents would have done.29 Nonetheless, just as Amy could fail in fulfilling her non-transferable special obligation to Clare by, for instance, deliberately ignoring a message from Clare indicating that Clare urgently needed her advice, and this would be a failure to fulfill her obligation even if Jane ended up giving better advice than Amy could have. Likewise, genetic parents can fail in their non-transferable special obligation to raise their children even if others end up doing an all-things-considered better job. In both instances, the wrongness of such failures would depend on whether or not there were sufficiently weighty countervailing reasons for not fulfilling the obligation in question. Here, however, my point is simply that recognizing the ability of nongenetic parents to raise children successfully is perfectly compatible with my claim 27 As will become clearer in the next section, the potentially personal nature of the relationship is sufficient to ground a non-transferable obligation. 28 Obviously, being a genetic parent is not a sufficient condition for being a fully competent parent. A parent who is ideal in other ways may, all-things-considered, be a better parent than a genetic parent, but there is still some objective loss to the child in not being raised by his genetic parents, as explained below. 29

Strictly speaking, no transfer of parental obligations is involved in such cases. Rather, the genetic parents leave their obligations unfulfilled, but a third party in need of care remains, and others voluntarily assume the obligation to meet that need.

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that genetic parents have a non-transferable obligation to raise their genetic children themselves.

How are children personally dependent on their genetic parents? It is this point in my argument—the non-transferability of genetic parents’ obligations based on the personal dependence of children on their genetic parents— that is likely to meet with the most skepticism, particularly given my admission that non-genetic parents can indeed raise children very well. In the relationship between Amy and Clare, the connection between Amy’s non-transferable obligations and Clare’s personal dependence on Amy, though limited, was obvious. The specifically personal nature of child–genetic parent dependence, however, is less obvious because the unique benefits that genetic parents, and only genetic parents, can provide for their children are less obvious. Empirical evidence does indicate that, in comparison with any other family structure, children tend to fare best when raised by their own genetic parents.30 Yet though this evidence helps to make plausible my claim that there are unique and important benefits to children in being raised by their genetic parents, such evidence is inherently limited. It only shows that by and large and in general children do best when their genetic parents raise them, and it can only establish correlation, not causation. Perhaps, as Sally Haslanger has argued, there is a specific benefit to children in being raised by their genetic parents only or primarily because that situation is viewed as normal in our current cultural context [29]. Nonetheless, there is at least one unique and important benefit that, regardless of cultural context, genetic parents and only genetic parents can give to their children. That benefit is the benefit of being loved in a special way—in a way that takes 30 A research brief prepared by Child Trends, for instance, concludes: ‘‘Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes.’’ The brief emphasizes that ‘‘it is not simply the presence of two parents … but the presence of two biological parents that seems to support children’s development’’ [25]. While it may be argued that the problems with stepparents are due to factors other than the lack of a biological connection to the child—the fact that the stepparent did not choose to have the child, or that the child is a reminder of one’s spouse’s previous relationship—these factors are not sufficient to explain the well-documented phenomenon of discriminative parental solicitude, also known as the ‘‘Cinderella effect’’ [26, 27]. The fact that the stepparent did not choose to have the child does not seem to be a sufficient explanation for the (on average) lower levels of parental solicitude in stepparents, since stepparents do choose to become parents when they choose to marry someone with a child from a former relationship, and this is often a more deliberate choice to become a parent (particularly on the part of the father) than the choice of many biological parents who find themselves with an unplanned pregnancy. It is also true that the child is a constant reminder of the previous relationship of the partner, and that this is a partial explanation of the ‘‘Cinderella effect,’’ but in cases of donor conception, for the non-genetic parent, the child is a constant reminder of his/her own infertility, which can be extremely painful. Research also shows that, particularly for men, parental investment depends in part on resemblance, which makes perfect sense from an evolutionary perspective because it is only men who deal with the issue of uncertain parentage. These studies therefore lend further plausibility to the evolutionary theory of discriminate parental solicitude based on genetic relatedness [28].

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priority over most other loves—by one’s genetic parents, by those who are the biological causes of one’s existence and identity, and to have the opportunity to respond to that love. Further, since love requires knowledge, the ability of children to love and be loved by their genetic parents also implies the ability to know and be known by them. Knowing one’s genetic parents (and the larger genetic family that one usually has access to via one’s parents) is itself an important benefit for children insofar as it facilitates their own self-knowledge [1], but since it is possible to provide one’s genetic children with that knowledge at least in part without raising those children oneself, I do not focus on this benefit here. Most fundamentally, then, what genetic parents, and only genetic parents, can provide for their children is to know and love their children themselves, and to let their children know and love them. No one else can love my genetic children for me, or receive their love in my stead. Others can, of course, love those children very deeply, and be loved by them very deeply in return. But no amount of love from others can replace my love for them, and no one else, no matter how lovable, can replace me as a specific object of my children’s love. It is because genetic parents stand in a unique and intimate relationship to their children as biological cause of those children’s biological existence and identity that they are irreplaceable to their children in this way. Of course, strictly speaking, everyone’s love and care is irreplaceable to everyone else, but the lack of any particular person’s love and care is only harmful to the extent that one has a personal relationship with that person. Thus an adopted or donor conceived child that attempts to contact her genetic father is likely to be hurt if he responds rudely or refuses to speak to her, much more than if similarly rebuffed by a complete stranger. Since love has many different meanings, most of which involve a strong emotional component, I should note that I use the word here in the primarily nonemotional sense in which Aristotle uses it when speaking of philia (love of friendship, of which Aristotle considers family relationships to be a special case) to denote a high-priority personal commitment to the well-being of another. In other words, in saying that children need to be loved by their parents in order to flourish, I mean that children need to experience their well-being as a priority to their parents, and they experience this through frequent interactions in which parents are reliably sensitive and responsive to their genuine needs. While loving feelings cannot be obligatory because they cannot be directly commanded (although they can be fostered), loving actions, or the care for another that is an essential aspect of love, can be commanded, regardless of how one feels. Thus, a mother with postpartum depression who does not feel affection—and who may even feel hostility—for her child can nonetheless love her child in this respect. In this sense, Matthew Liao is correct to claim that being loved is a ‘‘primarily essential condition’’ for children to lead a good life [30].31 I agree with Liao that what is essential for children’s wellbeing is that they be loved in this way by someone, and that children can lead a good life without being loved by their genetic parents. Yet, the absence of genetic 31

He cites extensive empirical research to support this claim. Liao does not consider whether there might be a unique benefit to children in being loved by their genetic parents. Since, unlike Liao’s, my own argument does not rely on an emotional conception of love, Mhairi Cowden’s critique of Liao’s view does not apply to my account [31].

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parents’ love is still a significant loss to children because once children begin to understand the facts of how they came into the world, they can miss the specific love of their genetic parents, and the absence of that love can harm them. Children do not miss being loved by those with whom they have no personal relationship, but with their genetic parents, they do and always will have a personal relationship. Children can therefore be hurt by their genetic parents’ failure to love them, even when they are well-loved by their social parents, just as being spurned or ignored by a friend can harm one even if one has many other friends who are appropriately attentive to one’s needs. Psychological research shows that this does in fact happen, and that the resulting wounds can run very deep. It is a constant theme in studies on adoption outcomes that those not raised by their genetic parents often suffer from feelings of rejection or abandonment. According to psychologist James Garbarino, the ‘‘inevitable, often silent question’’ of those not raised by their genetic parents is, ‘‘What’s wrong with me that my parents don’t want me?’’ Garbarino goes on to observe that ‘‘adults who were adopted as young children often cannot even ask this question without the aid of counseling’’ [32–34]. Further, this question, and the hurt that it expresses, would still be intelligible, though perhaps less acute, even in a society where it is normal for children not to be raised by their genetic parents, because the intelligibility of the question is based not on cultural factors, but on the fact that children come into existence through their relationship (at the bodily level) to their genetic parents. One may question the parallel between donor conception and adoption, arguing that feelings of abandonment are not present in the context of donor conception. Yet, adopted children feel abandoned or rejected not only by their birthmothers, with whom they formed a psychological bond in utero, but also by their biological fathers who may have never actually seen them. Knowing that my genetic father decided ex ante that he would not raise me even before taking steps to bring about my conception seems no better than knowing that he made that decision after the fact (indeed, the former seems worse, since at least in the latter case I could think that it was not indifference, but rather, a desire to give me a better future, that led my biological father to choose not to raise me himself).32 Assuming, then, that knowing themselves to be loved by their genetic parents is, at the very least, a more-than-trivial benefit that only genetic parents can give their children, and thus that genetic parents do have a non-transferable obligation to provide that benefit, I now consider whether genetic parents can love their children adequately without actually raising those children themselves. It is important to remember, in this regard, that the love genetic parents owe to their children is a love that is special and prioritary. To say this is simply to rephrase, in the language of 32 In fact, according to the largest study that has so far been conducted on donor conceived children, comparing a representative sample of over 500 donor conceived persons to about the same number of adopted persons and persons raised by their biological parents, donor conception may in some respects involve even greater psychological risks to children than adoption. The study found, for instance, that ‘‘nearly half of donor offspring (48 percent) compared to about a fifth of adopted adults (19 percent) agree, ‘When I see friends with their biological fathers and mothers, it makes me feel sad.’’’ Similarly, more than half of donor offspring (53 percent, compared to 29 percent of the adopted adults) agree, ‘‘It hurts when I hear other people talk about their genealogical background’’ [35, p. 8].

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love, the claim that genetic parents have uniquely weighty special obligations to their children, obligations which take priority over most other obligations. For genetic parents to appropriately prioritize their love for their genetic children, they need to situate themselves in the best position (within the limitations of possibility and competing obligations) to love their children. To cede that ‘‘best position’’ to someone else is to fail to do what their special obligation requires. Due to their physical and psychological proximity, those who actually raise a child are the ones best placed to love that child. Therefore, genetic parents can only love their genetic children adequately by raising those children themselves. The exception to this is the case in which the choice to cede that ‘‘best position’’ is made for the sake of the child’s well-being—i.e., the case of genuine incompetence. The test of such a case is whether or not the genetic parents could later say honestly to that child, ‘‘It was because we loved you that we let others raise you instead of raising you ourselves,’’ and provide an explanation of why they judged themselves incompetent that can pass muster in the child’s own reasonable judgment of the matter even as he or she matures. In such a situation, the genetic parents can love their genetic child in a special and prioritary way without raising the child themselves. They can thus at least fulfill the most strictly non-transferable aspect of their special obligation. Further, given the permanence of their special obligation more generally, insofar as possible, they would ideally continue to develop their relationship with that child to some degree, albeit in a limited way since others have taken on the direct and primary responsibility for raising the child. Indeed, research indicates that ‘‘open adoption’’ is a viable model with significant benefits for the children, among which is the benefit of being able to come to understand that their genetic parents do love them and that the decision to give them up for adoption was motivated precisely by love, rather than rejection or indifference [34]. Note, however, that a necessary feature of such cases is that the decision of the genetic parents to allow others to raise their genetic child is made after the child exists. The ex ante intention to conceive a child (or contribute to a child’s conception) that one has no intention of raising is clearly incompatible with the special and prioritary love that one will owe to that child, even if one in fact happens to be incompetent to raise the child. This is, of course, precisely the situation of the gamete donor. The decision to act in a way that will foreseeably lead to one’s becoming a genetic parent, and to do so precisely on the condition that one will not be called upon to raise one’s genetic child, is not the sort of decision that can later be explained to the child as an expression of special and prioritary love. One might counter this claim by arguing that bringing the child into existence is itself such a great benefit to the child that donors’ special love for their children is sufficiently shown precisely by making the child’s existence possible, or that the unique benefit donors intend to withhold from their genetic children—the benefit of their parental love—is much less important than the benefit of existence itself.33 Yet, bringing a 33 It might be objected that my view implies that it would be better if donor-conceived children did not exist. Yet, the same objection could be made against anyone trying to prevent teenage pregnancy. Such objections confuse the wrongness of an action with the goodness or badness of its effects.

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child into existence cannot be intended as a benefit to the child because before the child existed, there was no child to benefit. The donor, therefore, can only be acting for the benefit of someone other than the child—perhaps for his or her own benefit (monetary or otherwise) or for the benefit of an infertile couple. In that situation the child-to-be can only be looked upon with indifference or as a mere means to the benefit of someone else. Yet, both indifference and treating as a mere means are incompatible with love.

Conclusion My argument offers reasons to rethink the dominant moral approval of gamete donation because it calls into question the premises upon which that approval rests. I have shown that genetic parenthood in itself gives rise to parental obligations and that those obligations are non-transferable. I have done so by showing that the genetic parent–child relationship is, in itself, an intimate personal relationship that grounds weighty and permanent special obligations to one’s genetic children. Further, I have argued that genetic parents have a non-transferable obligation to raise their genetic children because those children are personally dependent on them for the fulfillment of important developmental needs, especially the need to know themselves loved in a prioritary way by those who are the biological cause of their existence and identity. Gamete donors, therefore, cannot discharge their parental obligations simply by ensuring that others will provide their genetic children with adequate care.34 This conclusion follows both from the permanence of genetic parents’ special obligation to their genetic children—which is incompatible with taking no interest at all in how those children are faring—and also from the fact that, barring situations of incompetence, genetic parents cannot love their children adequately without raising those children themselves. Thus the conclusion has both strong and weak versions. The weak version is based only on the permanence of genetic parents’ special obligation, which—even apart from my claim about children’s need to be loved by their genetic parents—is in itself sufficient for establishing the wrongness of gamete donation in almost all instances. The rare exception would be the case in which the donor plans to have some involvement in the child’s life, and has made arrangements for this with the infertile couple that will use his or her gametes to conceive. This arrangement, of course, would have its own difficulties and tensions analogous to open adoption situations, the tensions inherent in negotiating the relative authority and influence over the child of the custodial parents versus the non-custodial genetic parent(s). Open adoption is importantly different, however, because this non-ideal arrangement is not intended ex ante, but as the best that can be done for the child in an already non-ideal situation. I think that intending such an arrangement ex ante 34 Note that on my account, it is not agent causality but the existence of a personal relationship that is the source of the non-transferable obligation. It is obviously not always wrong to play an agent causal role in the procreation of a child whom one has no intention of raising—doctors, nurses, and many others rightfully do so all the time. What is wrong is to perform an action that will foreseeably lead one to become a genetic parent when one is not ready or willing to raise one’s genetic child.

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would in itself be morally problematic, but further argument would be required in order to defend that claim. Thus the weak conclusion of my argument is that the permanence of genetic parents’ special obligation to promote the well-being of their genetic children makes it impermissible to donate one’s gametes unless one is willing to maintain some degree of contact with one’s genetic children and does something to ensure that this will happen. Other considerations—such as the interest children have in knowing their genetic family as a source of important medical information and of self-knowledge more generally—would likewise support this weaker conclusion [1]. The strong conclusion of my argument is that gamete donation is inherently wrong, and thus always morally impermissible, because it necessarily constitutes an injustice with respect to the child that one’s donation helps to bring into existence. It does so because there is a strictly non-transferable obligation to love one’s genetic children, which, except in cases of incompetence, cannot be adequately fulfilled without raising those children oneself. One could object that if, as I argued earlier, bringing into existence as such cannot be a benefit, then it cannot be a harm either. How, then, could it constitute an injustice? The injustice of gamete donation, however, does not lie in helping to bring the child into existence as such. The injustice is not even, initially, an injustice to the child. Initially, the injustice lies in an inadequate respect for the value of persons in general, shown in one’s willingness to perform an action that will foreseeably result in the acquisition of a nontransferable obligation to another person, without at the same time intending to fulfill that obligation should it arise. Thus the act of gamete donation is unjust even if a child is never actually conceived with one’s gametes, just as (in a more minor way) it would be unjust for one to agree to meet someone for lunch while having no intention at all of showing up, even if it turns out that the other person cancels the plan at the last minute.35 It is unjust because it involves a conditional plan not to fulfill one’s non-transferable obligations. And since a conditional plan to leave one’s non-transferable obligations unfulfilled is equivalent to a conditional plan to harm that person by depriving him or her of a benefit that one is obligated to provide, the specific injustice of gamete donation lies in a conditional plan to harm one’s genetic child. The seriousness of the injustice depends on the seriousness of the harm that will foreseeably result from one’s failure to fulfill the obligation in question, as well as on the strength of one’s special obligation for that person’s well-being more generally. In gamete donation, the seriousness of the harm is at least partially a debatable empirical question, but the experiences of adopted children, as well as other research indicating that children fare best when raised by both of their genetic parents, makes it plausible to claim that the harm is, at the very least, not a trivial one. With regard to the strength of genetic parents’ special obligation to promote their children’s well-being, my analysis shows that it is one of the strongest special obligations a person can have because of the uniquely intimate nature of the 35

This is why, for the purposes of the current argument, it does not matter whether or not every human organism is a person. The conditional willingness to harm requires only the reasonable possibility, not the certainty, that (1) a new human organism will in fact come to exist as a result of the donation, and (2) that organism will be a person at least at some point in her life.

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relationship from which it flows. Thus having a conditional plan to harm one’s genetic child is much more seriously wrong than a conditional plan to harm a stranger. Gamete donation, therefore, is inherently wrong, and seriously so, because it involves a conditional plan to harm another person, and not just any person, but one’s own genetic child. Acknowledgments I am grateful to Princeton’s James Madison Program in American Ideals and Institutions for the post-doctoral fellowship during which I began working on this article, and to the James Madison fellows, along with Robert George and members of Princeton’s Philosophy Department, who offered helpful feedback at my presentation of an early draft. I would also like to thank Michael Gorman for his assistance in reworking the first section of the article, as well as two referees for their detailed comments on the penultimate draft.

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