Compensation for gamete donation: The analogy with jury duty

Cambridge Quarterly of Healthcare Ethics

Volumn 16, Issue 1, 2007, Pages 35-43

  Reid, Lynette ^a   Ram, Natalie ^a   Brown, R Blake ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

CANADA; DIRECTED TISSUE DONATION; ECONOMICS; ETHICS; FEMALE; FERTILIZATION IN VITRO; HUMAN; LEGAL ASPECT; MALE; METHODOLOGY; REVIEW; SOCIAL CONTROL;

CANADA; DIRECTED TISSUE DONATION; FEMALE; FERTILIZATION IN VITRO; HUMANS; MALE; SOCIAL CONTROL, FORMAL;

EID: 33947371266     PISSN: 09631801     EISSN: 14692147     Source Type: Journal    
DOI: 10.1017/S0963180107070041     Document Type: Review

References (47)

1. See for instance the World Health Assembly's Resolution on Organ and Tissue Donation, May 22, 2004, WHA57.18. Available at: http://www.who.int/gb/ ebwha/pdf_files/WHA57/A57_R18-en.pdf. In the United States, blood plasma is collected through for-profit centers that pay for donation, but whole blood is collected by volunteer donation. The permissibility of payment for gametes in the largely unregulated in vitro fertilization market varies from state to state. Apart from this, trade in human organs and tissues is illegal in virtually all jurisdictions. Precise jurisdictional comparisons are hard to come by: Iran and Pakistan are reported to be the only two jurisdictions in which such trade is legal; in other jurisdictions, lax enforcement creates a functioning black market. Calandrillo SP. Cash for kidneys? Utilizing incentives to end America's organ shortage. George Mason Law Review 2004;13:69-133.
2. Lanzendorf SE, Boyd CA, Wright DL, Muasher S, Oehninger S, Hodgen GD. Use of human gametes obtained from anonymous donors for the production of human embryonic stem cell lines. Fertuity and Sterility 2001;76(1):132-7.
3. British Columbia and Quebec have statutes protecting gamete donors from claims for child support. Sokoloff H. Canadian donors remain in the shadows. National Post Oct 1, 2004:A7.
4. Sher Institute for Reproductive Medicine. Gonadotropins: How they work and the risks and side effects associated with their administration. 2005. Available at: http://www.haveababy.com/infert/gonadotrp.asp.
5. Risks and side effects of drug treatment and surgery associated with assisted reproductive technology (ART). 2001. Available at: http://www. pregnancymd.org/risks-and-side-effects-of-drugs-surgery-art-reproductive.htm.
6. Jimenez M. Eggs shouldn't go to the highest bidder. Globe & Mail June 4, 2005:F6.
7. See note 3, Sokoloff 2004:A7.
8. For a discussion of the similar rationales that support the use of juries in civil cases, see Ontario Law Reform Commission. Report on the Use of Jury Trials in Civil Cases. Toronto: Ontario Law Reform Commission; 1996:19-26.
9. Law Commission of Canada. The Jury in Canada, Working Paper 27. Ottawa; 1980:5-6.
10. Also see Findlay M, Duff P. The Jury under Attack. Sydney: Butterworths; 1988:163-5.
11. Granger C, Granger C. The Criminal Jury Trial in Canada. 2nd ed. Scarborough, Ont: Carswell; 1996:7-8.
12. See note 9, Law Commission of Canada 1980:8-11.
13. Supreme Court of Canada, R, v. Latimer 1 S.C.R. 3.
14. As Patrick Devlin suggests, "Each jury is a little Parliament." Devlin P. Trial by Jury. London: Stevens; 1956:164.
15. Also see Cornish WR. The Jury. London: Allen Lane; 1968:138-62; see note 9, Law Commission of Canada 1980:11-3.
16. The Supreme Court of Canada has limited the right of juries to nullify the law. In R. v. Morgentaler, the Court referred to a jury's power to nullify as "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law," that can serve as a "safety valve" in exceptional cases.
17. However, C.J. Dickson also warned that recognizing jury nullification "is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or tell a jury that it has a right to do so." Supreme Court of Canada, R. v. Morgentaler 1 S.C.R. 30, pp. 78-9.
18. See note 9, Law Commission of Canada 1980:13-5.
19. See note 9, Law Commission of Canada 1980:15-6.
20. Brown RB. The Jury, Politics, and the State in British North America: Reforms to Jury Systems in Nova Scotia and Upper Canada, 1825-1867. Ph.D. dissertation. Halifax, NS: Dalhousie University; 2005.
21. Law Reform Commission of Nova Scotia. Juries in Nova Scotia: A Discussion Paper. Halifax: Law Reform Commission of Nova Scotia; 1993:1.
22. Grand jury service was once considered an honor that was reserved for the leading members of the community. Beattie JM. Crime and the Courts in England, 1660-1800. Princeton, NJ: Princeton University Press; 1986:322-3.
23. For example, Nova Scotia jurors who fail to show up for court may be arrested and fined up to $1000. The Courts of Nova Scotia. Jury Information. 2005. Available at: http://www.courts.ns.ca/General/jury.htm.
24. Some employers continue to pay jurors during their time away from work, though the law in most provinces does not require this. On juror pay in the United States, see Seamone ER. A refreshing jury cola: Fulfilling the duty to compensate jurors adequately. New York University Journal of Legislation and Public Policy 2002;5:289-417.
25. See note 19, Courts 2005.
26. Juries Act, R.S.O. 1990, c.J.3, s.35; Ministry of the Attorney General of Ontario, Court Services, Jury Duty. Available at: http://www.attorneygeneral.jus.gov.on.ca/english/courts/jury/ juryduty.asp. British Columbia provides jurors with traveling expenses, as well as $20 a day for each of the first 10 days of a trial, $60 a day for the 11th to 49th days of a trial, and $100 a day for the 50th and each succeeding day of a trial.
27. Jury Act, R.S.B.C. 1996, c.242, ss.24, 34; B.C. Reg. 282/95.
28. Alberta is less generous; it provides jurors $10 per day for the first 5 days of jury duty, and then $40 per day for each subsequent day, plus traveling expenses. Alberta Courts; Court Services; Juror Information; Fees and Expenses. Available at: http://www.albertacourts.ab.ca/go.aspx?tabid=515. For rates in Saskatchewan see Jury Act, 1998, S.S. 1998, c.J-4.2, s.14; Courts of Saskatchewan; Court of Queen's Bench, Jury Information. Available at: http://www. sasklawcourts.ca/default.asp?pg=qb_jury_info.
29. Particularly those jurors whose employers continue to pay them during the sittings of the courts.
30. Special juries were usually composed of jurors of a higher social rank than petit juries, and in England were often formed in commercial disputes, libel cases, and marital cases involving infidelity. Oldham JC. The origins of the special jury. University of Chicago Law Review 1983;50:137-221.
31. See Bentham J. The Elements of the Art of Packing, as Applied to Special Juries Particularly in Cases of Libel Law. London: E. Wilson; 1821.
32. Oldham JC. Special juries in England: Nineteenth-century usage and reform. Journal of Legal History 1987;8:148-66, at p. 157.
33. For other discussions of appropriate juror fees, see note 17, Law Reform Commission 1993:16-7; note 8, Ontario Law Reform Commission 1996.
34. Harrison CH. Neither Moore nor the market: Alternative models for compensating contributors of human tissue. American Journal of Law and Medicine 2002;28:77-105;
35. Nelkin D, Andrews L. Commercialization of body tissue in the age of biotechnology. Hastings Center Report 1998;28(5):30-9.
36. Trotter JF, Talamantes M, McClure M, Wachs M, Bak T, Trouillot T, et al. Right hepatic lobe donation for living donor liver transplantation: Impact on donor quality of life. Liver Transplantation 2001;7(6):485-93.
37. Organ Donation and Recovery Improvement Act, 2004. Available at: http://frwebgate. access.gpo.gov/cgi-bin/getdoc.cgi?dbname= 108_cong_public_laws&docid=f:publ216.108.
38. Directive 2004/23/EC: On setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells. Mar 31 2004:Chapter 3 Article 12 Section 1. Available at: http://etiropa.eu.int/eur-lex/pri/en/oj/dat/2004/1_1. 02/1_10220040407en00480058.pdf.
39. See, for instance, Beavers KL, Sandier RS, Shrestha R. Donor morbidity associated with right lobectomy for living donor liver transplantation to adult recipients: A systematic review. Liver Transplantation 2002;8(2):110-7.
40. Information on donor compensation practices derived from The Bone Marrow Foundation; 2005. Available at: www.bonemarrow.org.
41. See, for instance, de Castro LD. Commodification and exploitation: Arguments in favor of compensated organ donation. Journal of Medical Ethics 2003;29(3):142-6;
42. Engelhardt Jr HT. Giving, selling, and having taken: Conflicting views of organ transfer. Indiana Health Law Review 2004;1:29-49;
43. Jensen TR. Organ procurement: Various legal systems and their effectiveness. Houston Journal of International Law 2000;22(3):555-84;
44. Jefferies DE. The body as commodity: The use of markets to cure the organ deficit. Indiana Journal of Global Legal Studies 1998;5:621-58.
45. Recent books advancing arguments for an open market in organs include Cherry MJ. Kidney for Sale by Owner: Human Organs, Transplantation, and the Market. Washington, DC: Georgetown University Press; 2005;
46. Taylor JS. Stakes and Kidneys: Why Markets in Human Body Parts Are Morally Imperative. Aldershot, Hants, England: Ashgate Publishers; 2005.
47. For a description of what a global market for human organs means in a world without reasonable guarantees of human rights and living wages for most of its inhabitants, see Scheper-Hughes N. The global traffic in human organs. Current Anthropology 2000;41(2):191-224.