“Sperm ships” are the brainchild of Ole Schou, founder of Cyros International the world’s largest sperm bank.1 The idea is to exploit international shipping legislation to provide healthcare services which are not permitted in a country to citizens of that country. This is achieved by providing these services on a boat anchored in international waters just outside the country’s border. This is legal because in international waters a ship is bound by the laws of the country that it flies the flag of. If these laws are more permissive than the country it is anchored nearby then it could in effect capture the market for certain healthcare services. For example, in the UK anonymous sperm donation services and sex selection services could be provided. This is a financially attractive proposition for companies because in effect they gain a monopoly over the provision of certain healthcare services, and the financial benefits in terms of price structuring that a monopoly brings.

While thus far this notion has mostly been applied to reproductive technology (IVF and abortion most notably) in principle it could apply to any healthcare service that the state has decided either not to supply or to ban as long as the market for the service is likely to be sufficiently large to warrant the investment.i

We will argue that sperm ships show that both the regulation and the discussion of the ethics of novel medical technologies must be carried out in a global arena, or at least within a specified geo-political region such as the European Union. A wide consensus both in terms of regulation and ethics is needed before regulation will prove effective.

There seem to be two distinct cases that might be considered to be viable options for a private company to provide offshore healthcare. The first case is when the government presumably for either economic or perhaps political reasons (for example, a commitment to libertarianism and/or a small government) simply chooses not to supply the particular healthcare technology. The second case is where, presumably for reasons of morality, religion or perhaps prudence, the government not only doesn’t supply a healthcare technology, but bans it either for all or for a particular section of the population.

The efforts of the campaign group Women on Waves to use international shipping legislation to provide abortions for women in countries where it is banned—such as the Republic of Ireland, Poland and Portugal—is perhaps the best example of the latter.2 Whereas the work of “Mercy Ships”,3 in countries such as Sierra Leone and Gambia, is, perhaps, one example of the former.

In cases of mere non-supply the state may actually be grateful for the provision of the healthcare by outside forces. It will relieve political pressure on the government to supply that healthcare, and if it is treatment for the sort of condition which gets worse and then requires state intervention it would save the state some healthcare costs. But unless the provision of private healthcare is banned in the country there seem to be reasonably few reasons to provide healthcare offshore rather than simply within the country. This would only be financially viable in a small number of situations—for example, if labour supply costs or ground rent in the country were very high, if there were some restrictions on pharmaceutical supplies in the country or a high tax on goods or services. Alternatively, it may be, as with the case of Mercy Ships mentioned above, that there are reasons of safety and flexibility that make offshore healthcare provision preferable. It is also likely that the supply of these healthcare technologies is less ethically problematic. While quality control issues and the potential imposition of costs on the state are still possible the provision of this healthcare does not challenge state sovereignty nor does it undermine effective regulation of healthcare technologies, except perhaps in regards to quality controls.

However, if the healthcare service is something which the government is intentionally not providing for ethical or social reasons then the use of international shipping legislation in this way raises serious ethical issues for the state since this poses a serious challenge to a government’s ability to govern its citizens and enforce its rules.

In the specific case of sperm ships, as envisaged by Ole Schou and Cryos International, the initial plan is to offer UK women the opportunity to conceive using anonymous donor sperm, a practice that is now banned under UK legislation.4 Although this is by no means the only reproductive practice that sperm ships could offer:

[Ole] Schou said that other banned practices such as sex selection of the child may also be incorporated into the floating fertility clinic concept.5

This challenge is already posed by the notion of medical tourism where citizens of one more restrictive country go overseas to a more permissive country to seek healthcare treatment.6 Alarm about this notion is being increasingly raised both in regards to controversial treatments such as xenotransplantation but also on the quality of care and the potential flow on costs to the “home” nation.7^–9 However given the potentially lower costs of acquiring healthcare just offshore (since significant travel will not be necessary) and the decreased hassles involved this is likely to be a more popular alternative to medical tourism and thus available to more people.

As such the case of sperm ships represents the tip of a potentially much larger iceberg with regard to the regulation of not only new reproductive procedures but also new medical technologies and procedures in general. For example, in 2006 the Guardian10 reported that Advanced Cell Therapeutics was planning to circumvent a ban, imposed on it by the Irish medical board, by using the overnight ferry between Swansea and Cork to administer stem cell injections on paying customers with multiple sclerosis. Further uses of this strategy could apply to any presently or potentially banned medical technology, such as euthanasia, xenotransplantation, nanotechnology, genetic engineering and so on. There is no reason to think that this concept need only be applied to medical care, a similar move could be made for medical research particularly in the area of biotechnology. This would allow the company to access skilled researchers (often a reason for not carrying out research in less regulated countries) but bypass regulations on research (so for example, they could carry out embryonic stem cell or human/animal chimera research). Furthermore they could rid themselves of oversight by research ethics committees this way.

So, what are the potential challenges that sperm ships pose? In this paper we intend to focus on the following four, although we acknowledge that there might be others.

These challenges are:

1. The potential lack of quality controls,

2. The risk of the imposition of healthcare costs on a state,

3. A challenge to the state’s sovereignty over its citizens,

4. The undermining of the effective regulation of healthcare technology.

These challenges are interrelated but raise distinct ethical issues and as such will be discussed separately. In this discussion we will move from the specific example proposed by Cryos International, to the broader question of the potential impact of this strategy to provide regulated medical technologies offshore.

THE POTENTIAL LACK OF QUALITY CONTROLS

As has been noted, sperm ships offer a means by which UK citizens can circumvent those facets of UK infertility regulation, such as non anonymised sperm donations, that they disagree with.1 However, in doing so UK citizens will also be, in effect, circumventing all UK infertility regulations including those rules designed to promote safe and effective clinical treatment and care, both in the NHS and private sector. It should be noted that this is a specific aspect of a more general problem, namely the undermining of the effective regulation of healthcare technology.

This is a worrying feature of “fertility tourism” as a whole and it has already prompted the Human Fertilisation and Embryology Authority (HFEA) to issue a warning. In a recent BBC on-line news article the head of the HFEA, Dame Suzi Leather, expressed the HFEA’s concerns:

“We [the HFEA] have heard of some [foreign] clinics which offer treatment to patients that is so dangerous that it has been banned in the UK—for example, implanting five embryos which significantly raises the chance of multiple pregnancy—the biggest risk of IVF for both mothers and babies”11

Like the HFEA, we are concerned that the likely UK customer base for sperm ships could be potentially exposing themselves to unsafe procedures and dangerous clinical practice, especially in cases where, for example, a sperm ship might fly the flag of a country that has no satisfactory inspection regime or legislation in place to monitor its fertility services.

However, we do acknowledge that customers of sperm ships might be able to seek redress for damages through the legal system of the country from which an individual sperm ship hails. For example, Cryos, the company that is proposing to launch sperm ships, is based in Denmark and so, assuming its sperm ships were operating under a Danish flag, aggrieved customers could presumably seek redress through the Danish courts.

But, the possibility of achieving a legal redress in this manner is no guarantee as any complainant would be reliant upon the fact that the legal system of an individual sperm ship’s home state would recognise their grievances in law and would probably be put off by the costs and difficulties of pursuing a legal case in a potentially very distant country. Likewise a lack of quality controls may mean there is no case to answer if there isn’t an appropriate standard defined then it is difficult to be negligent.

As such, pending a common, and binding, European Union, or more ambitiously a United Nation’s, policy it is a case of caveat emptor. This is clearly problematic, one significant reason to regulate these technologies is that the buyers are often in a desperate situation and willing to try anything. The Swansea ferry example demonstrates this clearly: Advanced Cell Therapeutics had over 400 clients willing to pay £12 000 each for an untested treatment which as it turns out may do more harm than good.10 While people may seek redress for harm done, this is only likely to be a partial redress, since few would trade any amount of money for a significant health condition.

THE RISK OF THE IMPOSITION OF HEALTHCARE COSTS ON THE STATE

We are unsure as to whether or not the use of sperm ships by UK citizens is likely to have a detrimental fiscal outcome for the National Health Service.

Under the current plans issued by Cryos it is likely that the potential customer base for any sperm ship will be drawn from two groups. The first are those who require, or who are seeking, reproductive assistance via artificial insemination by donor and donor sperm but who desire that any donor sperm used be from an anonymous source. The second group is likely to be made up of those who are seeking reproductive aid via artificial insemination by donor and donor sperm but who are unable to access it due to NHS waiting times, funding limits, patient prioritisation and so on.

As such, the likely customer base for sperm ships could, conceivably, be a large one. Indeed if the laws of the country whose flag a sperm ship carries are significantly more permissive as to who can receive fertility treatment than those of the home state then this could add to the size of any potential customer base.

Subsequently it could be argued that such a large group could, in the first instance, have a financial impact upon the NHS by increasing demand for pre and post natal services. In the second instance, create financial planning and budgetary problems for the NHS both at the national and local level.

However, we believe that there might be a number of factors that could conceivably influence whether or not sperm ships are likely to have a detrimental fiscal outcome on the NHS.

The two most important factors are likely to be cost and availability. In terms of availability the number of people able to make use of sperm ships is likely to be limited by the number of ships and the number of patients a sperm ship can process. As an aside we predict that it is unlikely that there will be a large number of sperm ships deployed initially as Cryos, or any other equivalent company, is likely to be cautious at first while the financial viability of the project and potential customer bases are assessed.

With regard to cost, if the price of pursuing private treatment on board a sperm ship is high then this is likely to serve as a limiting factor on the size of the potential customer base. Indeed if the cost is suitably high then sperm ships could simply end up competing with other private fertility providers within the UK for the same restricted customer base. Therefore, it might be a case of “business as usual” for the NHS irrespective of whether there are sperm ships offshore or not.

The likely customer base of sperm ships might also, in some respects, provide a limiting factor. As was noted before, for some the option of using a sperm ship is likely to be motivated by a desire to obtain fertility aid whilst avoiding NHS waiting lists. If this is subsequently combined with indifference with regard to whether or not the sperm used is from an anonymous donor then, again, sperm ships might simply end up competing with other private fertility providers.

Finally, even if sperm ships do attract a large client base, how that client base is dispersed nationwide might also have a mitigating effect on the potential for sperm ships to have a detrimental financial effect on the NHS. As the users of sperm ships are likely to come from different regions within the UK so the cost of providing pre and post natal services is likely to be dispersed throughout the UK. As such, at the local level customers of sperm ships might be so small, relative to the total number of NHS service users in a given regional health authority, that they are unlikely to make any real fiscal impact upon the NHS.

Yet while we are undecided as to whether or not sperm ships will have a detrimental fiscal effect upon the NHS we believe that if the strategy of using medical ships is expanded to introduce radical and not currently provided medical technology such as xenotransplantation, or high risk strategies such as the implantation of five embryos then this could well lead to the imposition of increased healthcare costs for the state. To take just xenotransplantation as an example, concerns about zoonosis and the need for monitoring, as well as responding to rejection could conceivably require a significant outlay.12 13

However, it is a further question whether an increased cost for national health services is ethically problematic. In one sense it is clearly problematic from the point view of a government trying to manage its scarce healthcare resources. In another sense there are plenty of other activities that citizens both inside and outside a country that are likely to increase healthcare costs. While some of these (smoking, drinking etc) are regulated others (sports, exercise etc) are not. As such, while the imposition of additional healthcare costs would be worrisome, especially if they are large, it doesn’t necessarily mean that sperm ships should be banned.

A CHALLENGE TO THE STATE’S SOVEREIGNTY OVER ITS CITIZENS

Government sovereignty depends, for better or worse, on its ability to exercise some control over its citizens, particularly in areas perceived as the state’s purvey. While healthcare is not universally provided by states it is often seen as an area where they have special responsibility.14 One of the more worrisome issues raised by sperm ships is the challenge that they pose to governments in the effective management and governance of their citizens. This is unlikely to be seen as problematic when ships are only providing already available services or non-banned but unavailable services. However, if they are providing services that have been banned or regulated either because of moral objections (such as abortion, euthanasia, sex selection, reproductive cloning etc) or because they are deemed to involve too high a risk (perhaps xenotransplantation, some applications of nanotechnology etc) then this challenge is worrisome, at least for governments. There are two varieties of this worry, the first relating to the regulation of technology strictly on the grounds of safety, the second on moral grounds. The first variety is less controversial it is likely most people will agree both that this is needed and that governments have the right to do this. However the regulation of technology on the grounds of morality is more controversial on traditional liberal grounds. As such the use of sperm ships might be seen as good if we are considering the provision of technologies that we personally see as morally acceptable. The provision of abortion services by Women on Waves may serve as an example of this for many,2 since the ships in this case could be seen as allowing a minority to escape what we may see as an oppressive moralistic regime. However just as one person’s “freedom fighter” is another’s “terrorist”, we may well think that when our society outlaws, for example, reproductive cloning, it is right to do so.ii Likewise the regulation of untried (and potentially dangerous) stem cell treatments alluded to in the Swansea ferry case seems unquestionably desirable.10 In other words, most of us want some regulation of new biotechnology (even if this is only control over the speed or scope of its introduction) and there is no guarantee that sperm ships will only be used to undermine those regulations that we feel are wrong headed. The key concern here is that sperm ships would allow someone to live in one country, but live by the rules of another country. Insofar as we value countries having sovereigntyiii or at least the effective ability to regulate the availability of medical technology we ought to resist the introduction of sperm ships. There are two aspects which may be of some concern. Firstly, the philosophical point that we typically consider countries (at least of certain sorts) to have rights to regulate some of the behaviour of their citizens. Secondly, the pragmatic point, that this regulation may protect and benefit citizens by ensuring that treatments are reasonably safe and effective. It might be pointed out that at least technically there is no challenge to a nation’s sovereignty because the actual intervention will be outside the country’s border. Likewise it may be argued that this is no different in principle than the situation that countries which border other countries—such as Ireland and Northern Ireland—face in controlling their citizens access to medical technologies. Both of these points are correct, but they both miss the point. While sperm ships don’t technically challenge a nation’s sovereignty they do challenge its ability to effectively regulate the healthcare technologies available to its citizens. And this challenge makes a mockery of the notion that states can regulate these technologies. This challenge is similarly posed by medical tourism, especially that across close borders. But sperm ships accentuate this challenge both by expanding the range of countries that face this sort of challenge, and by potentially bringing together more disparate views. In regards to this last point existing problems of just across the border medical tourism are mediated because to some degree bordering countries often (although not always) share a common history, culture and set of moral views. This makes it less likely that there will be significant differences in terms of regulation on moral grounds. Sperm ships though make the world much smaller in this regard. A ship off the coast of Britain could fly a Papua New Guinean flag, making it much more likely that there will be cultural moral differences. In effect, while countries that are bordered on land by other countries face this challenge it is a reasonably discrete one, it only applies to the number of countries that the country borders, which is far easier to harmonise. In contrast the possibility of sperm ships means that every country which has a border to the ocean borders every other country with an ocean border, making the possibility of harmonisation far more distant. While this may not be regarded as a challenge to sovereignty by some, it at least must be acknowledged that it seems to undermine the effective regulation of healthcare technology.

THE UNDERMINING OF THE EFFECTIVE REGULATION OF HEALTHCARE TECHNOLOGY

What seems particularly problematic about the above challenge to nations’ sovereignty is that the effective regulation of healthcare technology is undermined. Healthcare technology may be regulated for several reasons. Firstly there may be concerns about the moral acceptability of the technology (abortion, euthanasia, reproductive cloning etc). Secondly we may be concerned about the justice of allowing/using the technology (this may apply to various technologies that could be used for human enhancement, in particular germ-line genetic alteration, since these changes could conceivably exacerbate existing inequalities). Finally as discussed about the safety of the technology (xenotransplantation, nanotechnology, germ-line genetic alteration) either for the user, or perhaps more importantly for others, could be the justification for regulation. This regulation can take place at a national (via legislation), regional (via for example European Union regulations) or, rarely, at global level (via the United Nations). The existence of sperm ships primarily undermines nations’ abilities to effectively regulate although it also may provide a challenge to regional regulation as well. Where there is global consensus on the need to regulate a technology (a rare happenstance) then this will not be challenged by sperm ships. However, where global consensus is lacking or is not explicitly expressed by treaties then it is likely that differences between countries’ laws can be exploited using the sperm ship idea. Furthermore there are powerful incentives for nations, particularly small or poverty stricken nations to behave as “rogue nations” and sell their flags and/or national identity. Potentially they may modify their laws to gain an income flow through the taxation of sperm ships flying their flag, the initial sale of the national identity and perhaps even a pay off for allowing this all to happen. Small Pacific nations, for example, already sell their flag and nationality for shipping purposes.16 17

RESPONSES

There seem to be three different sorts of solutions to this problem, firstly using legal measures to prevent sperm ships, secondly using legal measures to decrease the likelihood of sperm ships and finally using diplomatic means to seek a global consensus about particularly contentious technologies.

Legal solutions that attempt to prevent sperm ships would be difficult to instantiate. One route would be changing international law to either increase the size of territorial waters, or more radically making it such that in international waters ships are ruled by the laws of the closest country. However it is unlikely that these changes are feasible because of the effects they would have on nations’ sovereignty and authority. International legislation, based on long standing treaties is not easy to shift. Another legal solution would be individual countries passing laws to punish/ban medical tourism, either by banning people coming in for healthcare (this can be seen, for example, in Iran’s laws on organ transplantation) or by banning people going overseas for healthcare.18 Ignoring the obvious but easily resolved problem of emergency care needs while on holiday this measure still suffers from two key faults. The first of which is the unusual extension of sovereignty that would occur with this sort of law since we don’t usually regulate the behaviour of our citizens abroad. Secondly there is a general legal principle that laws ought to be enforceable. Clearly enforcing laws regulating the behaviour of citizens in other countries is going to be difficult, given the absence of an enforcement body and the difficulty of determining that citizens have actually broken the law while being overseas.

Further measures might be aimed at making sperm ships economically unsound. This could be done in a couple of ways. Firstly increasing the size of territorial waters would make sperm ships less viable by increasing both the cost and the hassle for patients seeking treatment offshore.iv However as with other changes to international law this would be difficult to achieve given the global significance in terms of sovereignty over particular waters and taxation. A more promising route would be to impose a tax on medical tourism, both as a disincentive but also as a means of recouping the costs that, as we discussed above, may be imposed by medical tourism.20 However this still suffers from the issues discussed above in regards to extended sovereignty and unenforceability. In other cases political pressure or investigation of necessary links might be sufficient. This was effective in the Swansea stem cell ferry case, the ferry company itself having heard the news, decided it didn’t approve and so gave orders to its crew to prevent such actions.

It seems the most likely to be viable response to the existence of sperm ships is seeking regulation of medical technologies at the regional or global level, rather than at a national level. Achieving this for a wide range of technologies is going to be difficult to say the least. We will finally suggest two possible strategies to improve the likelihood of achieving this. It should be noted that these strategies are tentative suggestions rather than full blown solutions.

OVERLAPPING CONSENSUS

Perhaps some hope can be found in the Rawlsian notion of a modus vivendi and an overlapping consensus where different groups come together not because of shared beliefs but instead due to shared mutually desired outcomes.21 A consensus might be sought to ban a technology or some aspects of a technology globally not because all countries agree that the technology is morally problematic or unjust or risky but because some think it is morally unsound, some think it is unjust and others feel it is risky. It is still unlikely that a global consensus, as opposed to a wide consensus, will actually be reached.7 However perhaps, some form of incentives to comply with global opinions may be used to minimise outliers and rogue nations.

UMBRELLA SPECIES

Environmental activists often use the notion of umbrella species to protect a whole range of other species and habitat.22 In effect an umbrella species is one chosen for its suitability as a poster animal for the environmental campaign, a cute fluffy animal that will engender emotive responses, and the protection of their environment will protect many more species which live in their environment. The essence of the idea is by protecting one species, many other species will also be protected. Likewise several technologies may work as building blocks for other more worrisome technologies, so regulating these technologies might in effect regulate a whole raft of different techniques and technologies. So, for example, banning germ-line genetic modification of humans may prevent several contestable uses of medical technologies. Thus focusing on these umbrella technologies might provide a way of minimising the need for regulations. The essence of the idea is by regulating one technology, many other technologies will also be regulated.

CONCLUSIONS

Sperm ships present significant ethical concerns, similar to but stronger than those presented by medical tourism. To mitigate these concerns global consensus on significant technologies needs to be sought. While this is not always going to be viable, the attempt to find overlapping consensus and the use of umbrella technologies may to some degree mitigate the challenges to regulation of medical technologies posed by sperm ships.