Sperm and Eggs in Consideration of Money: A Pound of Flesh for Three Thousand Ducats?

Abstract

Donor conception is a practice in which a donor sperm or egg (or both) is used to conceive a child. Usually, the donor sperm or egg is procured in a financial transaction: gametes exchanging hands for money. The “donor” in donor conception is a bit of an oxymoron, for a donation it is not when money—and sometimes big money—is a feature of the practice, not a bug. This Article will show that donor conception is not proper to who human beings are given their nature as embodied beings, with particular attention to the children of donor conception and to the donors. The bargained-for exchange of sperm and eggs for money also does not satisfy the requirement of commutative justice, historically understood to be of paramount importance in the doctrine of consideration in contract law. Further, the aspects of both the embodied nature of the person and the impropriety of trading on the body present in donor conception are considered in light of William Shakespeare’s play The Merchant of Venice. This Article concludes that donor conception, being unjust and not oriented to human flourishing, ought not to be done. A re-orientation of the law toward a
proper respect for each person’s embodied nature and toward fostering a posture of gratitude in receiving each child as a gift would be welcome.