J7ournal of Medical Ethics 1998;24:388-393

The commodification ofhumanreproductive materialsDavid B Resnik East Carolina University School of Medicine, Greeniville, North Carolinia, USA

AbstractThis essay develops a framiezeork for thinking aboutthe miioral basis for the commnodijfication of hunanreproductive nmaterials. It arguies that selling anidbuyinlg ga"letes and genes i's niorally acceptablealthough there should niot be a niarket for zygotes,emnbryos, or geniomles. Also a miiarket in gamletes andgenes shouild be regutlated in order- to address conicernisabout the adverse social consequences ofconmmodificationl.(Journ-ial of Medical Ethics 1998;24:388-393)Keywords: Commodification; markets; gametes; zygotes;embryos; genomes; genes

IntroductionThe burgeoning reproductive assistance industryhas created an uneasy tension between individualeconomic interests and human dignity. On the onehand, people who donate sperm or eggs claim tohave a right to remuneration for goods andservices. If a person has a right to sell blood orhair, then that person should have a right to sellgametes. On the other hand, the commodificationof tissues which have the potential to becomeadult human beings threatens human dignity andother moral values. Matters become even morecomplicated when we consider ownership ofhuman genomes, since genomes are not simplypieces of tissue, but are blueprints for making andregulating organisms.

This essay develops a framework for thinkingabout the moral basis for a market in humanreproductive materials. It argues that the com-modification of gametes and genes is morallyacceptable although there should not be a marketfor zygotes, embryos, or genomes. This positionmay be at odds with current property laws ofmany countries, which forbid the buying and sell-ing of bodies and body parts, but the paper is con-cerned with moral, not legal issues. However, thisessay may have some bearing on the morality ofcurrent or pending statutes, regulations, or courtdecisions.

The moral basis for commodifying bodypartsBefore turning to this paper's main topic, it will beuseful discuss the moral basis for the commodifi-cation of body parts in general. Commodificationis a social practice for treating things as commodi-ties, ie as properties that can be bought, sold, orrented. Since commodities are alienable theycan be sold it is possible to regard something asa form of property but not as a commodity. Forexample, we might view voting rights as a type ofproperty but not as a type of commodity, sincevoting rights may be acquired, lost, or owned, butnot sold.Even ifwe treat a thing as a commodity, we may

impose restrictions on its commerce for moral,social, economic, or political reasons. For exam-ple, condominiums are commodities that arebought, sold, and rented with various restrictionspertaining to redecorating, pets, sub-leasing, pric-ing, etc. Thus, one may distinguish between twoforms of commodification: complete commodifi-cation (commodification with no restrictions) andincomplete commodification (commodificationwith restrictions).' This distinction allows us tofocus more clearly on this paper's main question:should human reproductive materials be treatedas complete commodities, incomplete commodi-ties, or not as commodities at all?The moral basis for treating these body parts or

products as commodities stems from the body-as-property view found in libertarian politicalthought, which holds that the body and its partsmay be bought, sold, and rented. This philosophytraces its conceptual ancestry to the seventeenthcentury philosopher John Locke, who argued thateach individual's body belongs to that individual,and that individuals can acquire other propertiesby appropriating them from nature and mixingtheir labour with those things.2 This positionimplies that individuals also own their body partsand products. Locke's views on property still playan important role in contemporary debates, andmodern libertarians have refined his position.'

In the bioethics literature, several writers havedefended the body-as-property view.4 According

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to Andrews, the principle of autonomy provides abasis for treating the body as property.4 Most ofour autonomous choices presuppose some controlover our own bodies. If we think of ownership ofan object as a collection of rights to control the useof that object, then autonomous individuals owntheir bodies, body parts, and body products. Manyof the most important standards in medical ethicsalso reflect this viewpoint. For example, invasivemedical procedures require ethical justification.The very notion of an invasion of the body drawson the body-as-property image, since an invasionis an intrusion into a territory. The doctrine ofinformed consent also draws on the body-as-property view. Informed consent holds that com-petent individuals have a right to exclusive controlover their bodies, and exclusive control over anobject is a characteristic of ownership.For the purposes of this essay, I will accept the

body-as-property view. I realise that this is a con-troversial position, but I will not defend it fullyhere. (I refer the reader to other authors forfurther discussion.7) Instead of defending thisview, I will consider some arguments against com-modification and use them to argue for incom-plete commodification of the living body (Iinclude the word "living" here to indicate that thisdiscussion does not apply to cadavers, unless indi-cated otherwise.)Why might one regard the body as commodity

but resist its complete commodification? Toanswer this question it will be useful to addresstwo important moral arguments against com-modification. The first argument appeals to Kan-tian concerns about human dignity and person-hood; the second examines the socialconsequences of ownership practices, attitudes,and policies. I will discuss these arguments in dif-ferent contexts throughout this essay.

Unconditional valueAccording to the Kantian argument, commodifi-cation of the human body treats people as thingsthat can be bought and sold. If human beings canbe bought and sold, then they have a market valueand can be treated as mere objects by themselvesor other people. According to Kant, it is alwayswrong to treat people as mere objects, sincehuman beings have inherent moral worth anddignity.8 Although objects can be treated as com-modities and can be assigned a market value,human beings should not be treated as commodi-ties and should not be assigned a market value.Human beings have an unconditional or absolutevalue. Thus, commodification of human beings isinherently wrong because it violates humandignity and worth.9

I accept this Kantian position. However, I thinkit is possible to treat human bodies as commodi-ties without violating human dignity and worth.Although Kant uses the term "humanity" indescribing our moral obligations, it is clear fromreading his work that this term refers to therational nature in human beings, ie "persons" or"rational agents". Kant recognised that the bodyhouses many elements, such as emotions, physicaldesires, and so on, that are distinct from thebody's rational nature. Ifwe accept this separationof person and body, then one might commodifythe body without treating a person as a commod-ity. Thus, bodies that do not contain persons, suchas anencephalic newborns, bodies in a persistentvegetative state (PVS), or cadavers, could be com-modified without violating the dignity or worth ofpersons.

Unrealistic portraitHowever, this argument paints an unrealisticportrait of the connection between persons andbodies. The body is not like a coat that we can wearor a tool that we can use. Although it is possible todistinguish between the person and the body, thesetwo entities are intimately connected in humanbeings.'" Selling a living human body is virtually thesame thing as selling a person, and having exclusivecontrol over someone else's body is tantamount toslavery. Only those who maintain a rigid mind/bodydualism will not concede that there is an intimaterelationship between the mind and body.

Yet this close connection only holds betweenthe whole body and the person; it does not holdbetween parts (or products) of the body and theperson. Although we think of persons as beingconnected to whole bodies, we do not think ofpersons as being tied to particular body parts orproducts. One does not lose a part of one's self bycutting one's hair, urinating, or donating blood.Thus, it is important to distinguish between awhole human body and its parts or products.Doing something to a part of the body does notimply doing something to the whole body, andselling a part (or product) of the body need notimply selling a whole body. Hence, one may com-modify a part or product of the body withoutcommodifying the whole body. (Some people viewtheir personal identity as being closely connectedto certain parts, such as the brain or heart, but thisobservation does not undermine my generalpoint.)With this distinction in mind, one might hold

that parts of the body may be commodified even ifthe whole body should not be. Since the wholebody is intimately connected to the person, itshould not be viewed as alienable property.4 5

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390 The commodification of human reproductive materials

Hence, the whole body should not be treated as acomplete commodity. But we can treat parts ofthebody as alienable even if the whole body shouldnot be treated this way. Thus, one may hold thatselling a whole body is immoral but regardcommerce in human tissue as morally acceptable.However, there still may be some good reasons forregulating the sale ofbody parts. For instance, onemight hold that it is immoral to sell body partsthat are essential to the body's proper functioningbecause this form of commerce would imply mur-der, suicide, or other forms of killing. People maysell one kidney but not two kidneys, since humanbodies cannot function without two kidneys. (Aperson might still give away his or her second kid-ney, but I will not address that question here.)Some organs, such as the heart and brain, may notbe sold, given our current medical limitations andphilosophical views about the connection betweenthe person and the brain.The second argument against treating bodies as

commodities addresses slippery slope concerns:although it is not inherently wrong to sell bodyparts or products, the acceptance of this practicewill lead to adverse social consequences as we movetoward complete commodification of the body.'According to Kass, if we allow body parts or prod-ucts to be sold, then we will start to view the wholebody as an object or commodity. This attitude willlead to the dehumanisation and objectification ofpeople.9 Our downward slide might start with theselling ofbody parts, but it will lead to trade in chil-dren, anencephalic babies, cadavers, and PVSpatients. Eventually we will sell adults into slavery.To preserve our belief in the inherent worth ofhuman life and dignity, we must not view any partof the body as having commercial value.While I appreciate the force of this argument, I

think that we can avoid these adverse socialconsequences by regulating the market in bodyparts or products.4 We could forbid the sale ofthings whose commercialisation would have anadverse impact on our respect for human life anddignity, such as human cadavers, PVS bodies,anencephalic newborns, and so on. Informedconsent would also seem to be a wise restrictionon any commerce in body parts or products. Byrequiring that sellers and buyers give informedconsent before a transaction takes place, we maybe able to avoid many pitfalls. One of the biggestthreats from a market in body parts comes whenother people are allowed to treat a person's bodyas a commodity without that person's consent.4

Other writers object to commodification on thegrounds that it undermines the gift relationshipthat currently exists between donors and recipi-ents ofhuman organs. A market in body parts and

products will eventually destroy this relationshipby transforming it into an economic transaction."I do not find this argument very convincing sincemany commodities that are routinely bought andsold are also given as gifts, such as clothing, land,cars, and labour. People will always have reasonsand motives for giving gifts, even when those giftshave commercial value. The mere fact that anobject can be bought or sold need not destroy ourability to transfer that object as a gift.Some writers have pointed out that commodify-

ing parts of the body might lead to a practicewhere people are required to sell body parts orproducts to pay outstanding debts or to meet thedemands of retributive justice. Thus the phrase"it cost me an arm and a leg" would be too real toinvoke laughter. However, I think we can avoidthese disturbing consequences if we enact somerestrictions on the transference of body parts orproducts. For instance, we could make it illegal totake body parts or products to pay debts oradminister punishments.

Finally, one might argue that the selling of bodyproducts could lead to the exploitation of the eco-nomically worse-off members of our society. Peo-ple might sell their kidneys out of economichardship.' ' But why would we think it is wrong tosell body parts out of economic need? After all,people take on many dangerous and degradingoccupations for economic reasons. If it is wrong tosell kidneys out of economic need, then it is alsowrong to work in a coal mine or deliver pizzas indangerous neighbourhoods. The problem withworking under these conditions is not theeconomic transaction itself; it is the fairness of thetransaction. We have laws that protect people fromexploitation and regulate working conditions.Similar laws could also apply to a market in bodyparts and products.The preceding arguments against commodifi-

cation all suggest a common response: body partsand products, but not the whole body, should beregarded as incomplete commodities. In order toanswer Kantians' concerns about the objectifica-tion of people, we should not permit a market inwhole, living, human bodies; in order to addressthe slippery slope argument, we should regulatethe market in body parts and products. I will nowapply this analysis to the commodification ofhuman reproductive materials, paying specialattention to the two main arguments against com-modification.

The commodification of reproductivematerialsIs it immoral to buy and sell sperm, eggs, zygotes,embryos, or genomes? Before answering this

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question, it will be useful to distinguish betweenthe sale of reproductive services (which is usuallylegal), and the sale of the reproductive materialsthemselves (which is often illegal). In the debateabout surrogate mothering, some authors haveargued that contracts with gestational surrogatesare not baby-selling because these women are onlyselling the use of their wombs.'2 Although I thinkthis is an interesting distinction, I do not think itmakes much sense for the issues that are the topicof this paper, since we are not dealing with formsof commodification that can be easily treated asmere services. Carrying a child in a womb isclearly a valuable service, but how is ejaculation aservice? A donor who does not provide sperm willnot be paid. The same point holds for otherreproductive materials. Thus, this essay will focusonly on the sale of reproductive materials.

Commodification of gametesIf it is morally acceptable to commodify bodyparts of products, then gametes may be boughtand sold, since gametes are body products. Ifindividuals can buy and sell blood, hair, or tissue,then they should also be allowed buy and sellgametes.'3 However, the two arguments againstcommodification pertain to the sale of gametes.First, one might object to the commodification ofgametes on the grounds that gametes are unlikeother cells and tissues. Sperm and eggs containhalf a human genome and can unite to form azygote. A zygote can become a child if it implantsin a uterus and develops normally. Thus, sellinggametes is dangerously close to selling persons,since gametes can become persons. Although Iagree that gametes (germ cells) are unlike otherbody cells (somatic cells), I do not find this argu-ment very persuasive. Selling gametes is not thesame thing as selling persons or zygotes, sincegametes are not even potential persons. A gameteis more like half of a blueprint for making a house(person) than a whole blueprint (zygote) or housethat is under construction (fetus or child).

Second, one might argue that the commodifica-tion of gametes will have adverse effects on othersocial values, such as our respect for human lifeand dignity. The commodification of gametescould create a market in children or adults, or itcould lead to the exploitation of poor women fortheir eggs. For example, suppose that sperm aresold in fertility clinics and are advertised in maga-zines and newspapers. The market could set aprice for gametes and those people with the "best"qualities could demand the highest prices for theirreproductive materials. I think this type ofdevelopment could threaten our notions ofhumandignity and worth; hence, we may need to regulate

the market in gametes. Since the selling ofgametes has not yet invaded our popular culture,this situation bears watching. In any case, thisargument only shows that gametes should betreated as incomplete commodities.

The commodification of zygotes andembryosOne might also argue that zygotes and embryos(henceforth just zygotes) can be commodified onthe grounds that they are simply body products. Ifgametes can be bought and sold, then zygotes canalso be bought and sold. To make full sense of theobjections to this argument, we must say some-thing about when a human organism becomes aperson, since the Kantian view forbids a market inpersons but not a market in bodies, as such. If wefollow the Kantian account of personhood, then ahuman being does not become a person until heor she can understand and follow moral impera-tives. Thus, zygotes and other later stages ofdevelopment are not persons. Kantian concernsabout the objectification of persons therefore havelittle bearing on the selling of zygotes.However, zygotes are potential persons. Zy-

gotes, unlike gametes, have a complete set ofgenetic instructions and normally also have theirown genetic identity. Although human develop-ment depends on many different environmentalfactors and gene-environment interactions, zy-gotes are much more like adult human beings thangametes. As potential persons, zygotes merit spe-cial moral concern.'4 Potential persons merit spe-cial moral concern because the way we treat thesebeings can have a profound effect on the way wetreat actual persons. A society that allows babies tobe bought and sold is more likely to allow adults tobe bought and sold than one that does not. Like-wise, a society that allows zygotes to be boughtand sold is more likely to accept a market for chil-dren and adults than one that does not. Moreover,this is not a problem that can be handled simplythrough regulation, since a market in zygoteswould imply a profound change in our under-standing of human beings and could lead to thecommodification and objectification of childrenand adults. Since even a limited market for zygotescan create this dangerous slippery slope, zygotesshould not be commodified. As an aside, this dis-cussion has some bearing on disputes betweencouples over the use of frozen embryos. In onecase, a woman wanted to implant a frozen embryothat she had produced with her estrangedhusband, but he refused to let her do this.1' Sincefrozen embryos should not be treated as com-modities, this man should not be able to sell his

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392 The conninodification of hiinian reproductive mlaterials

rights to the embryo. Embryos also should not betraded for other items in divorce settlements.Although my view does not imply that embryosshould not be treated as property, the slipperyslope argument I have considered in this essaysuggests that even allowing embryos to be treatedas property could have some adverse conse-quences that we would want to avoid, such asbaby-selling and the objectification of people. Toavoid these consequences, the courts should treatembryos like children, not like commodities orother forms of property. The embryo's best inter-ests, not market concerns or property rights,should play the deciding role in settling thesecases.

The commodification of genomesThe last issue I would like to consider is the own-ership of human genomes. To understand issuespertaining to the commodification of genomesand their parts (ie genes or gene fragments), it isimportant to realise that there is a fundamentaldifference between genomes, gametes, and zy-gotes. Gametes and zygotes are physical entitiesthat can be produced, destroyed, corrupted,stored, or harvested; genomes and genes, on theother hand, are not mere physical entities.Gametes and zygotes have spatial-temporalboundaries; genomes and genes cannot be locatedin any particular time or place. Genomes andgenes are essentially information for making andregulating organisms." As information, they con-stitute abstract objects that can be realised in bio-chemical structures or represented by linguisticsymbols. They are more like software thanhardware. In legalistic terms, genomes (andgenes) are best viewed as intellectual property.'Viewing the genome as intellectual property has

important implications for moral arguments forand against its commodification. Western intellec-tual property laws distinguish between items thatcan belong to individuals and items that cannot beowned. For example, people cannot own scientificlaws or concepts, though they may have copyrightsover works that express those laws or concepts.People also cannot own natural phenomena, suchas benzene, but they may patent processes formaking benzene. The general thrust of these lawsis to distinguish between ideas (or abstractobjects) and tangible expressions or applicationsof those ideas. Ideas are common resources andcannot be owned by individuals, although particu-lar expressions or applications of ideas canbecome personal property."' Thus, these lawsassume that only tangible expressions of ideas canbe commodified.

There are two moral arguments for distinguish-ing between ideas and their expressions orapplications. If we think of ideas as naturalresources, then Locke's views on property implythat ideas can be treated as common resources.People may own things that result from addinglabour to those ideas, for example, inventions ororiginal works, but they may not own the ideasthemselves. According to the utilitarian approachto intellectual property, intellectual property lawsshould promote social utility through encouragingscientific and technological progress. The mosteffective way to promote this kind of progress is toencourage the sharing of ideas, data, and theorieswhile allowing scientists and inventors to profitfrom and receive credit for their works. Thus,there is a solid moral basis for laws that treat ideasas common resources but allow the ownership ofparticular expressions or applications of ideas."'

I believe that the preceding discussion of intel-lectual property can provide us with some insightsinto the commodification of human genomes. Ifwe treat genomes as intellectual property, thengenomes are natural phenomena. As such, theyare common resources that may not be owned,although individuals may own particular expres-sions or applications of genomes. If I invent atechnique for analysing, sequencing, or cloning agenome (or one of its parts), then I may patentthat invention; if I create an original work describ-ing a genome (or one of its parts), then I may havecopyrights that govern the reproduction of thatwork. Hence, people may buy and sell inventionsand original works pertaining to the genome orgenes, but they may not buy or sell naturallyoccurring genomes or genes.Having said this much in favour ofsome form of

ownership of the genome, I would like to addressthe two objections to commodification discussedpreviously. We can imagine some objectionableforms of ownership pertaining to the genome. Forexample, biotechnology companies have patentedgenetically engineered mice. What if a companyattempted to patent a genetically engineeredhuman being? Since patents govern the buying,selling, and production of inventions, this form ofownership would entail the ownership of persons,since the patent would allow the company to con-trol the production and marketing of wholehuman bodies. Copyrights on the whole genomecould result in similar problems. A person whocopyrighted an entire genome would be able tosell these copyrights to interested buyers. Al-though this form of commerce would notconstitute commodification of a whole humanbody, it could threaten our respect for human lifeand human dignity: a society that allows copies of

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genomes to be bought and sold is more likely toallow human beings to be bought and sold thanone that does not."7 Selling copyrights to an entiregenome is very much like selling a zygote, sincegenomes can be used to make zygotes.On the other hand, patents and copyrights on

parts of the genome would not entail thecommodification of whole human bodies andprobably would not threaten our respect forhuman life and human dignity. Patents orcopyrights on individual genes would be no morepernicious than patents or copyrights on artificialbody parts, such as artificial skin, blood, or heartvalves. Thus, copyrights and patents can beextended to parts of the genome, but they shouldnot be applied to the whole genome. However,there may be some good reasons to regulate themarket in gene patents and copyrights in order toprevent slippery slope effects. For instance, wemight choose to restrict the marketing of humangenes used for the sole purpose of geneticengineering; we might forbid people or companiesfrom acquiring a whole genome; we might takesteps to prevent companies from obtainingmonopolies on human genes, and so on. Hence,the entire human genome should not be regardedas a commodity, although parts of the genomemay be regarded as incomplete commodities.

ConclusionIn this essay, I have argued that gametes and genesmay be treated as incomplete commodities, whilewhole genomes, zygotes, and embryos should notbe commodified at all. Markets in gametes andgenes should also be regulated in order to preventpotential threats to human dignity and othermoral values. I should note that this paper has notaddressed other important questions pertaining tothe ownership of human reproductive materials.Commodification simply represents a particularform of control, but other types of control arepossible, such as stewardship, partnership, and soon.20 21 A discussion of these other forms of own-ership could provide some additional insights intoproprietary relationships in human reproduction,but I will not engage these issues here.

AcknowledgmentsA version of this paper was presented to audiencesat the Department of Medical Humanities, EastCarolina University School of Medicine, and theDepartment of Philosophy, University of SouthCarolina. The author is grateful to these audi-ences for helpful comments and discussions. Theauthor also wishes to thank an anonymousreviewer from the Journal of Medical Ethics foruseful criticisms.

David B Resnik, PhD, is Associate Professor, Depart-ment of Medical Humanities, East Carolina Univer-sity School of Medicine, Greenville, North Carolina,USA.

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