Egg donation

Is ROPA a case of egg donation? If it is, it differs from other donations because it takes place between partners. In the field of medically assisted reproduction, a transfer between partners is not seen as donation. The term ‘partner donation’ first came into the field through the European Tissues and Cells Directive 2004/23/EG. This Directive was originally designed to regulate organ and blood donation, not gametes. The Directive 2006/17/GG, annex III, stipulates that for partner donation biological screening should be performed at the moment of donation.4 A man who gives sperm to his female partner is a donor. This is a rather strange way of framing things. In general, the term ‘donor’ in the assisted reproductive technology (ART) context is preserved for a third party who provides gametes or embryos, meaning someone outside the parental project. According to this definition, ROPA is not donation since the woman who provides the eggs intends to use them for her own reproduction, that is, to have a child with her gestating partner. Moreover, contrary to standard egg donation, the burden and risks are not shifted to a woman who does not benefit in any way from the procedure. In this regard, ROPA more resembles mirror donation and egg sharing.5 ,6

The terminology used to speak of ROPA may be important for practical reasons. If ROPA is seen as egg donation, serological and genetic screening of partners (including partners who have a sexual relationship) will have to be the same as for donors. Other restrictions on donors, such as an age limit, may also render things more complicated. Depending on the country in which the transaction takes place, there may be legal consequences. In some countries, gamete donation has to be anonymous. ROPA would simply not be allowed if the partner is considered as a donor. The partner who provides the eggs should not be registered as a donor because in most countries that allow gamete donation, a donor cannot claim legal parenthood. The legal consequences of the procedure would have to be considered in each country. When the couple separates, things may get complicated. Only last year, the Court of Appeal from Portsmouth County judged a case of ROPA where the partner gave her eggs after several unsuccessful attempts by the other partner.7 However, after a few years the couple separated and the legal mother (the woman who gave birth to the twins) took the children with her. The genetic mother then wanted to obtain parental responsibility through the court.

Embryo donation

Strictly speaking, the recipient woman receives an embryo since the egg donated by her partner is in vitro fertilised with donor sperm. The Swedish National Council on Medical Ethics favours this view.6 Although the Council discusses ROPA as a form of embryo donation for lesbian couples, it argues that only donation of surplus embryos after IVF should be legalised. The reasons for this position are unclear.6 Moreover, embryo donation has a fully different psychological meaning from gamete donation.8 Still, embryo donation may be the right analogy in specific circumstances. If one partner underwent an IVF treatment within a previous parental project and has embryos in storage, she may ask the clinic to replace these embryos in her new partner. These embryos were then originally made for the woman's own reproduction and only later used in a modified plan. But even in those cases, the partner would, just like in the case of the egg transfer, be pregnant with the genetic child of her partner.

Surrogacy

The practice does also have similarities with surrogacy. The most obvious dissimilarity, however, is that the ‘surrogate’ in ROPA carries the child for herself. When surrogacy is taken as the analogy to judge ROPA, the distinction between medical and non-medical reasons becomes relevant too. It is generally accepted (although doubts can be raised about the obviousness of this rule) that surrogacy is an ultimum remedium: it is only allowed if a pregnancy for the intended mother is impossible or would hold a high risk for her life. These are very strict conditions that will rarely apply in the case of ROPA. However, in lesbian families, it is not unusual that one partner has no pregnancy wish.9 If ROPA is considered as a form of surrogacy, the absence of a pregnancy wish cannot justify performing ROPA. On the contrary, the clinic should reject the request. However, the situation of two lesbians cannot really be compared with the case of a heterosexual couple where the woman has no pregnancy wish and wants to use a surrogate for that reason. The surrogate here is not a surrogate in the sense of a third party who is exposed to certain risks in order to carry the child of someone else. One of the partners will have to take the risk of the pregnancy anyway. Moreover, the absence of a pregnancy wish of one partner will usually be combined with other reasons such as the wish to create a child of both of them.

Mitochondrial replacement

Suppose that tomorrow a lesbian couple visits the clinic and asks to take an egg from one partner and to transfer its nucleus to an egg of the other partner. Velte considered this application long before it even existed and concluded, not hampered by any awareness of possible risks, that this ‘should be seen as a valid method of family formation’.10 This wish would be closer to the wish from heterosexual couples to combine their genetic material. Moreover, this wish could be combined with the ROPA procedure; the eggs of the woman who donated the nucleus could be placed in the partner who only provided the mitochondria. Still, there are a number of important differences. First, while we recognise the value of gestation and genetics as criteria for parenthood, we have no such role for mitochondrial DNA. On the contrary, many people find the idea of a two-mother child highly misleading.11 The lack of acceptance of mitochondrial DNA to make someone a parent makes this a highly idiosyncratic wish. Second, the risks involved in mitochondrial replacement are, at least in theory, much higher since the procedure is experimental. The risks of egg donation are low (see further). So even if we would accept the idea that this too would be a form of ‘making a child together’, the safety risk would be sufficient to reject the request.

The medical risks and costs of IUI versus IVF

IVF is necessary for oocyte transfer. Without ROPA, the couple would use IUI (intrauterine insemination) with donor sperm. Are the risks and costs involved in IVF compared with IUI balanced? It seems that the differences are fairly limited. First, there is an ongoing discussion about the cost-effectiveness of IUI compared with IVF. This argument is important especially when the costs are carried by society through public funding. Several studies demonstrate the cost-effectiveness of IUI as a first-line treatment compared with IVF.12 One recommends to go for a number of IUI cycles first and to only shift to IVF after a number of failed cycles. This conclusion does not take into account, however, the specifics of the situation in the lesbian couple and their particular wish. The sequence nevertheless shows that there is no categorical separation between IVF and IUI: IVF is the logical next step if IUI does not work. Moreover, if the costs of IVF were indeed that much higher than for IUI, clinics should not offer IVF to an infertile woman in a lesbian relationship before having checked whether the other woman could become pregnant through IUI and this is not the actual practice in clinics.13 Finally, research has shown in the Netherlands that clinics know the guidelines but still propose IVF as a first-line treatment.14 Apparently, the objections against the unnecessary use of IVF are used highly selectively.

A major argument against ROPA is the fact that the egg donation, and the IVF cycle that is needed for that, is completely medically unnecessary. The partner who receives the eggs presumably has good eggs of her own. This introduces the distinction between medical and non-medical forms of ROPA. It will be hard to reject ROPA when there are medical reasons because of the stronger resemblance with accepted practices.13 There are three large groups of medical arguments: the donating partner has a medical reason not to become pregnant, the receiving partner has a known higher genetic risk and the chances of success are lower if the eggs of the receiving partner would be used. A pregnancy risk is the main argument to justify surrogacy. In case of a genetic risk, gamete donation is considered a valuable alternative. That leaves us with a lower success rate. Is there a medical reason to perform ROPA when the partner who intends to become pregnant is 37 and the other partner is 32? As for most issues in which the distinction between medical and non-medical applications is used, there will be a discussion on what can count as a medical reason and how high the risk or benefit in terms of avoidance of health risks or success rate should be.

In general, most people will value lower genetic risks and higher chances of success. However, other values by the patients may override these concerns. The more difficult requests are those where couples opt for the procedure that is more risky and/or less likely to be successful. They may choose to use the eggs of the oldest partner or may decide to use the eggs of the partner with a known genetic risk.3 Obviously, the higher these ‘costs’ and extra disadvantages are, the more likely that the clinic will deny them the treatment.

Although IVF is a more risky intervention than IUI, the risk is still small and leads to no objection against offering IVF to women also in circumstances where this could be avoided. The most evident example is IVF for male infertility. The woman in that case is unnecessarily subjected to IVF because donor insemination could be used. Moreover, most IVF clinics offer IVF to couples who have a high chance (up to 25%) of getting pregnant spontaneously within the year.15 So, if the extra risk is a real concern, clinics should increase the waiting time for these patients, as recommended by some institutes.16

Finally, ROPA does entail the same increased risk for both mother and child as normal egg donation. Egg donation holds a higher risk of complications (pregnancy hypertension, pre-eclampsia) during the pregnancy.17 Also negative effects on the health of children (low birth weight) have been reported.18 These risks are important but their evaluation depends on the reference point. The risk is increased compared with non-egg donation cycles but it is negligible when compared with the risks for mother and child in case of multiple pregnancies. ART is responsible for many multiple pregnancies that could perfectly well be avoided in the overwhelming majority of cases.

Medical risk versus psychosocial benefits

Both IVF and egg donation increase the risk for mother and child. This increased risk should be balanced against the psychosocial benefits the couple wants to obtain. So what are the intended psychosocial benefits? The main point seems to be that they intend to make a child together. Instead of doing this in the genetic sense of combining the gametes of both partners, they do it through a combination of a genetic and a biological link. Society generally recognises the value of both gestation and the genetic link in many applications of medically assisted reproduction. Pregnancy is an important element that gives a woman parental status and the right to be seen as the mother even when she uses donor eggs. In case of surrogacy, the genetic contribution is emphasised. Both genetics and gestation have a high value and can serve as criteria for attributing parenthood. One may regret the fact that people feel the need for a genetic link to establish shared parenthood but that objection can be used against many applications of ART. If one intends to use it here, one has to explain why it should not equally apply to other situations such as the use of IVF–intracytoplasmic sperm injection in case of male infertility where donor insemination would be an easier solution. Nevertheless, even if one accepts this construction, it can still be argued that the combination of genetic and biological contribution does not have the same value as the shared genetic bond. Lesbians still need the contribution of a sperm donor and so although they can create a child together, they cannot do it alone. A couple in which the man has a serious sperm problem could avoid the complications and costs of IVF by using donor sperm but, when they are successful, they are the genetic and biological parents of the child without a contribution from a third party. That child would be completely theirs and theirs alone.

The literature shows the importance of equality in the lesbian ideal relationship.9 After birth, this equality may be lost due to the unequal link with the child. Couples can then adopt strategies to restore equality by increasing the status of the social mother.19 One strategy is for instance to induce lactation in the social mother so that both women can breastfeed and bond with the child.20 They can intentionally select a donor who resembles the social mother.2 ,21 These are symbolic actions to maintain equality. ROPA can be seen as not only symbolically but also physically creating an equal contribution: one partner becomes the birth mother, and the other the genetic mother. It avoids asymmetrical relationships of the mothers with the child.22 This construction can prevent feelings of jealousy in cases where both partners desire to give birth.9 The procedure can assuage possible psychological problems and promote better rearing conditions for the child. It seems that these advantages are sufficient to compensate for the extra risks of IVF.