Comment: An information privacy approach to regulating the middlemen in the lucrative gametes market

University of Pennsylvania Journal of International Economic Law

Volumn 29, Issue 2, 2007, Pages 527-562

  Yuen, Sunni ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 40949156365     PISSN: 10867872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (170)

1. See Missy Kurzweil, Op-Ed, Egg Donor Sought Don't Miss Out, CORNELL DAILY SUN, Sept. 21, 2004, available at http://www.cornellsun.com/node/12494 (quoting an advertisement that appeared in the same publication the day before).
2. Saleh Al Jibouri & Colin Freeman, Black Market Organ Trade is Baghdad's New Growth Industry, TELEGRAPH, May 22, 2005, available at http://www.telegraph.co.uk/ news/main.jhtml?xml=/news/2005/ 05/22/wirq22.xml.
3. There are myriad markets for human body parts, including body parts for medical research and education (i.e., Moore's hairy cell line and cadavers for first year medical students), postmortem tissues which can be reprocessed into surgi cal products necessary for operations, blood and DNA. See generally MICHELE GOODWIN, BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS 160 (2006) (discussing the underground body broker trade);
4. R. Alta Charo, Skin and Bones: Post-Mortem Markets in Human Tissue, 26 NOVA L. REV. 421 (2002) (discussing the medical research and processing product end uses for human tissue retrieved at death). However, the scope of this Comment is limited to transactions in which body parts are largely unaltered, and exchanged with the intent of being used for their original or natural use. Further, the focus will be on body parts exchanged between living persons; even though cadavers are a common source of body parts, it is presumed that one does not maintain information privacy interests past death. But see Clay Calvert, The Privacy of Death: An Emergent Jurisprudence and Legal Rebuke to Media Exploitation and a Voyeuristic Culture, 26 LOY. L.A. ENT. L. REV. 133, 134 (2006) (distinguishing information privacy from the emerging privacy of death jurisprudence in which relatives of the decedent are wrangling over "what others see about the death of [their] late family members").
5. This Comment focuses on the information privacy aspects of commodifiable body parts - that is, largely unaltered human body components which are currently exchanged in both legitimate and black markets. While information derived from body parts such as the cell line derived from Moore's hairy cell leuke mia sample have value, exchanges of such information amongst researchers are encapsulated in the form of such intellectual property as trade secrets and patents. Moreover, the value of the proprietary rights in such information stems at least in part from the researchers' efforts and manipulation of the source material. De spite this Lockean argument, one must recognize that "[t]here is substantial re search value both in unidentified material (i.e., material that is not linked to an in dividual) and in material linked to an identifiable person and his or her continuing medical record." R. Alta Charo, Legal Characterizations of Human Tissue, in TRANSPLANTING HUMAN TISSUE: ETHICS, POLICY, AND PRACTICE 101, 112 (Youngner et al. eds., 2004) (emphasis added). "Sometimes, however, it is necessary to identify the source of the research sample, because the research value of the material depends on linking findings regarding the biology of the sample with updated information from medical or other records pertaining to its source." Id. at 113.
6. To clarify, the parties to the arms-length transaction are the source ("donor") and ultimate recipient of the body part.
7. This Comment refers to banks, clinics, and brokers interchangeably.
8. For the purposes of this Comment, personal information is defined as any piece of information which can potentially be used to uniquely identify, contact, or locate a single person. This includes but is not limited to financial information such as social security and taxpayer numbers, genetic and biometric data, addresses, and health information. Privacy concerns arise when there are breaches and abuse of the collection, storage, transfer, and uses of this uniquely identifiable information. This definition is partially molded from the definition in the Euro pean Union Data Directive and the OECD Privacy Guidelines. Council Directive 95/46/EC, art. 2, 1995 O.J. (L 281) 31;
9. OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, (Sept. 23, 1980), available at http://www.oecd.org/ document/18/0,2340,en_2649_34255_1815186_1_1_1_1,00.html [hereinafter OECD Privacy Guidelines].
10. The OECD Privacy Guidelines also distinguish between sensitive and non-sensitive personal data based on whether the nature of the data is treated as in herently sensitive; the drafters give medical records as an example.
11. Id. See also James T. Sunosky, Privacy Online: A Primer on the European Union's Directive and United States' Safe Harbor Privacy Principles, 9 CURRENTS INT'L TRADE L.J. 80, 86 (2000) (noting the importance and sensitivity of "personal information specifying medical or health conditions, racial or ethnic origin, [or] political opinions").
12. A kidney is only useful or valuable to the recipient insofar as its source has compatible ABO blood group and an adequate number of similar human leukocyte antigens ("HLA") and other minor antigens. See International Association of Living Organ Donors, Inc., Living Kidney Donation: Now ... About Your Health, http://www.livingdonorsonline.org/kidney/kidney4.htm (last visited Nov. 17, 2007) (explaining how the HLA test determines compatibility).
13. Medical histories, covering the provider's parents' and grandparents' fit ness, longevity, and cause of death are particularly common.
14. See N.W. Andrology & Cryobank, Sperm Donor Selection Helpful Hints, http://www.nwcryobank.com/donor_selection.asp (last visited Nov. 17, 2007) (providing information on what many look for when searching for a donor); ScientistDonor.com, Sperm Do nor Full Profile, http://www.scientistdonor.com/ profile.html (last visited Nov. 17, 2007) (providing an example of a donor's answers to a comprehensive ques tionnaire); The Sperm Bank of California, Donor Profile: 3161, http://www.thespermbankofca.org/profiles/donor3161.PDF (last visited Nov. 17, 2007) (pre senting a typical sperm donor profile, which includes family medical history).
15. See Sandra Barney, Accessing Medicalized Donor Sperm in the US and Britain: An Historical Narrative, 8(2) SEXUALITIES 205, 212 (2005), available at http://sexualities.sagepub.com/cgi/reprint/8/2/205. pdf (reporting as an example that Fairfax Cryobank offers discounted sperm on the grounds that the donor had provided less information than that contained in a typical donor profile, which encompasses such information as "the condition of the donor's male relatives' hair, his favorite animal ... and his self-reported musical abilities").
16. As recently as January 17, 2007, President George W. Bush "urged Congress to pass long-stalled legislation to safeguard genetic privacy" so that genetic information willingly shared by individuals would not be exploited in improper ways. Sheryl Gay Stolberg, President Calls for Genetic Privacy Bill, N.Y. TIMES, Jan. 18, 2007, at A14. Although President Bush's statement specifically addresses genetic information (information derived from genetic testing), it is applicable to information beyond the DNA itself (the "building blocks" or encoded instructions for the development and function of living organisms).
17. An information privacy approach focuses on "precluding the dissemination or misuse of sensitive and confidential information."
18. Dorothy J. Glancy, Privacy on the Open Road, 30 OHIO N.U. L. REV. 295, 321 n.101 (2004) (quoting Hill v. Nat'l Collegiate Athletic Ass'n, 865 P.2d 633, 654 (Cal. 1994)).
19. "Quasi-grey" is an appropriate adjective because while some jurisdictions prohibit the outright sale of gametes (i.e. monetary consideration in exchange for the gametes), they permit compensation for the provider's time and efforts - and absent government-imposed caps, this compensation can range from $4,500 to $50,000.
20. See María Cristina Caballero, Spar Takes on Boom in Baby Biz: Harvard Business School Professor Delves into 'Commerce of Conception,' HARV. U. GAZETTE, Mar. 16, 2006, available at http://www.news.harvard.edu/gazette/2006/03.16/01-babybiz.html (describing the field of reproductive technologies as a booming economic sector, in spite of the "denials of authorities and the difficulty for most to conceive of a child as a commercial product"); see also Kerry Howley, A Market in Morals, THE AMERICAN, Jan. 26, 2007, available at http://www.american.com/archive/2007/january-0107/a-market-in-morals/ ("If you're a European citizen, chances are your country of origin either proscribes compensation for donor eggs, [or] prohibits the anonymous sale of sperm .... But reproductive freedom may lie just a high-speed train away, over a border and into a different legal regime.").
21. See infra Section 2.
22. Anita L. Allen, Genetic Privacy: Emerging Concepts and Values, in GENETIC SECRETS: PROTECTING PRIVACY AND CONFIDENTIALITY IN THE GENETIC ERA 31, 46 (Mark A. Rothstein ed., 1997).
23. Id.
24. Some methods of extracting body parts are more intrusive than others - sperm, for instance, may be harvested without actual physical intrusion with nee dles. See IDANT Labs., Frequently Asked Questions, http://www.idant.com/ fertilityServices/faqs.htm (last visited Nov. 17, 2007) (specifying a preference for specimens obtained by manual stimulation).
25. Sonia M. Suter, Disentangling Privacy from Property: Toward a Deeper Understanding of Genetic Privacy, 72 GEO. WASH. L. REV. 737, 738 (2004) ("Genetic infor mation includes information contained within the DNA in our cells, information present in family histories, information evident in visible traits such as eye color and gender, and information present in medical records.").
26. See MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.m-w.com/dictionary/gamete (last visited Nov. 17, 2007) (defining gamete as "a mature male or female germ cell usually possessing a haploid chromosome set [which contains half the genetic information] and capable of initiating formation of a new diploid individual [whose cells contain full genetic information] by fusion with a gamete of the opposite sex") (citations omitted).
27. GRAEME LAURIE, GENETIC PRIVACY: A CHALLENGE TO MEDICO-LEGAL NORMS 142 (2002).
28. Suter, supra note 19, at 738-39.
29. Id. at 739 ("[Privacy] empowers us by giving us control over the manner in which others will use the information and the right to decide whether we want to learn this information about ourselves.").
30. See id. at 737 (distinguishing between property and privacy on the grounds of whether something is alienable from the self).
31. See id. at 769 ("Property provides control over a commodity; privacy provides control over the self and relationships that constitute the self.")
32. See GEORGE J. ANNAS ET AL., THE GENETIC PRIVACY ACT AND COMMENTARY (Boston Univ. Sch. of Pub. Health 1995), available at http://www.ornl.gov/sci/techresources/Human_Genome/resource/privacy/privacy1. html (providing specifically that an individually identifiable DNA sample is the property of the sample source) [hereinafter GPA].
33. See Suter, supra note 19, at 754 ("Control is central to informational pri vacy, and 'property' works as a proxy for such control.") (internal citations omitted). Graeme Laurie explicates further: Confidentiality is concerned with security of information.... To be confidential, information must be in a state of limited access from individuals, groups, bodies and institutions generally. Confidentiality is characterised by a relationship involving two or more individuals, one or more of whom has undertaken - explicitly or implicitly - not to reveal to third parties information concerning the other party to the relationship. Laurie, supra note 21, at 212.
34. The costs of controlling access include costs relating to limiting collection of the data and safeguarding the stored data from unauthorized access with encryption technology.
35. See generally Ben Malisow, Valuing Secure Access to Personal Information, SECURITYFOCUS, Aug. 19, 2004, http://www.securityfocus.com/infocus/1797 (explaining the ease with which personal information can be bought without permission).
36. See Jessica Litman, Information Privacy/Information Property, 52 STAN. L. REV. 1283, 1293 (2000) ("If ownership of private property is power, however, calling privacy rights 'property rights' offers the promise of magically vesting the power less with control over their personal data.").
37. See Cornell Univ. Dept. of Urology, Male Infertility - Electroejaculation, http://www.cornellurology.com/infertility/srt/ electroejaculation.shtml (de scribing such methods as testicular fine needle aspiration) (last visited Nov. 8, 2007).
38. See Rajasingam S. Jeyendran & Craig Niederberger, Sperm Procurement Methods in SPERM COLLECTION AND PROCESSING METHODS: A PRACTICAL GUIDE 9, 11-12 (Rajasingam S. Jeyendran ed., 2003) (describing semen production and release).
39. See John K. Critser et al., Cryopreservation of Immature and Mature Gametes, in ASSISTED REPRODUCTIVE TECHNOLOGY: ACCOMPLISHMENTS AND NEW HORIZONS 144, 157 (Christopher J. De Jonge & Chirstopher L.R. Barratt eds., 2002) ("Spermatozoa cryopreservation consists of a series of nonphysiological steps that involve hypertonic CPA [cryoprotectant agent] addition, cooling, warming, and CPA removal.").
40. The sperm bank portions out semen samples on the basis of sperm count (concentration) and percent motility. See Oregon Health & Sci. Univ. Infertility Lab, Semen Cryopreservation: Patient Information, http://www.fertilityoregon.com/lab/process.htm#number (noting that each semen sample will yield up to 1.8 milliliters in a vial).
41. Cryoprotectant is a vitrification solution that lowers the freezing temperature and increases the viscosity of the semen sample so as to prevent damage to the cellular membranes from crystal formation damage.
42. See Critser et al., supra note 32, at 147 (naming glycerol buffered with egg yolk-citrate medium as an example).
43. See id.
44. See Joseph Feldschuh, et al., Successful Sperm Storage for 28 Years, 84 FERTILITY & STERILITY 1017.e3 (2005).
45. Oregon Health & Science University Infertility Lab, supra note 33.
46. See Society for Assisted Reproductive Technology, Micromanipulation, http://www.sart.org/Guide_Micromanipulation.html (last visited Dec. 2, 2007).
47. The information collected fulfills this purpose in at least three ways. First, the bank analyzes it to detect the susceptibility of the provider's DNA to genetically-linked diseases. Failure to do so would be akin to selling defective goods with potentially dire health implications for the progeny conceived using the sperm.
48. See Johnson v. Cal. Cryobank, 124 Cal. Rptr. 2d 650 (Cal. Ct. App. 2002) (involving a suit for failure to disclose the risk that a child conceived from the sperm sold by California Cryobank was at high risk of developing autosomal dominant polycystic kidney disease, a genetically transferable life-threatening condition). Second, the information is an essential price valuation tool as banks can prioritize the providers based on the immaculateness of their personal and family health records, and other desirable traits such as green eyes. See Buying Babies, Bit by Bit, THE ECONOMIST, Dec. 23, 2006, at 117 [hereinafter Buying Babies] (reporting that one sperm bank also offers "exclusive worldwide rights to a donor for $75,000"). Third, the information itself is commoditized as part of the goods and services the bank delivers to consumers. See id. at 118 ("Basic information about donors [at California Cryobank]-height, weight, colouring, occupation comes free [with purchase of the specimen], but further information must be paid for. A facial-features report, listing such attributes as 'nostril flare' (narrow, average or large), costs $12....").
49. Basic medical questions during this screening process are intended to filter out any prospective providers with known genetically-linked diseases such as cancer or diabetes.
50. California Cryobank justifies the age restriction thusly: Donors must be between the ages of 19 and 39. According to the Cryobank's medical director, Cappy Rothman, MD, "While a man's fertility does not automatically decline after the age of 39, men under that age are more likely to consistently produce superior quality of sperm necessary for successful freezing and thawing." The American Association of Tissue Banks sets age 39 as the maximum age for donors. California Cryobank, Donor Qualification Process, http://www.cryobank. com/donorinfo.cfm?page=43 (last visited Nov. 8, 2007) [hereinafter California Cryobank Donor Page].
51. Educational information is a function of market demand, since most consumers view a four-year university degree as a desirable attribute and proxy of intelligence. Other market demand attributes include physical features (height, eye and hair color), athletic ability, and ethnicity.
52. See, e.g., David Andrew Stoler, Who's Your Daddy?, THE PHOENIX, Aug. 9, 2006, http://thephoenix.com/article.aspx? id=19956 (discovering that the writer's Jewish heritage was the trump card in passing the initial screening process).
53. See id.
54. See id.
55. The middle-man bank or clinic may be subject to liability for negligence, failure to disclose, and false representation and fraud as to sufficient screening of the sperm provider.
56. But see Johnson v. Cal. Cryobank, 124 Cal. Rptr. 2d 650, 666 (Cal. Ct. App. 2002) (holding that it was the gene contained within the sperm used to conceive the child, and not Cryobank's improper approval of the donor, that caused the child's inherited abnormalities).
57. Understandably, banks want to undertake safeguards to assure consumers of the quality of their goods and services. Screening for genetic diseases, infectious diseases, and cytomegalus virus is common. See, e.g., California Cryobank, Genetics Tests, http://www.cryobank.com/gen_tests.cfm?page= 44 (last visited Nov. 8, 2007) (listing the genetic screening test performed on donors).
58. See Lab Tests Online, Cytomegalovirus, http://www.labtestsonline. org/understanding/analytes/cmv/test.html (last visited Nov. 8, 2007) (detailing the process for testing of antigens).
59. California Cryobank Donor Page, supra note 41.
60. Specifically, the sperm provider is directed to wash his hands before ejaculating and deposit the entire specimen into a urine-sized collection cup. Any lost portions of the specimen released onto the hand, clothing, chair, floor, or counter-top must be discarded to prevent contamination.
61. See Stoler, supra note 42.
62. California Cryobank generally looks for sperm providers who have "five times the normal range" of sperm count per ejaculation on the grounds that a por tion of sperm is lost in the freezing and thawing process. Stoler, supra note 42. The rationale for selecting "robust sperm" is that such sperm is more likely to be effective and survive the cryopreservation storage process. See Donor Semen Quality Varies Within and Between Banks, FERTILITY WEEKLY, Aug. 5, 2002 (summarizing studies which show that the freezing and thawing process of cryopreserved sperm is "usually associated with diminished viability, motility, and functional ability of the sperm" although "[s]perm susceptibility to cryodamage appears to vary between individuals and often between samples of a given donor") (internal quotations omitted).
63. The Author was unable to find any sperm bank and broker websites, or applications to donate, addressing disposal (as opposed to retention) of the rejected gametes and candidate profile information. California Cryogenics, however, does destroy all records of sperm donors once their samples are sold. See US Sperm Banks Fret About Government Meddling, BIOEDGE, Oct. 3, 2007, http://www.australasianbioethics.org/ Newsletters/268-2007-10-03.html.
64. A typical contractual agreement contains three parts: (1) authorization for release of semen; (2) personal and financial health; and (3) frozen donor semen purchase agreement, which outlines the terms and conditions for utilizing donor semen specimens. California Cryobank, Client Accounts, http://www.cryobank.com/spbanknonphys.cfm?page=45 (last visited Jan. 3, 2007) (stating that both the client orientation and client agreement forms must be completed and signed prior to placing orders).
65. Id.
66. See M. SARA ROSENTHAL, THE FERTILITY SOURCEBOOK 219 (3d ed. 2002), available at http://www.webmd.eom/content/article/4/1680_51226.htm (explaining that the egg retrieval procedure is identical to that for in vitro fertilization).
67. Lupron effectively "shuts down the ovaries so that no eggs ripen or are released." Mary Lyndon Shanley, Collaboration and Commodification in Assisted Procreation: Reflections on an Open Market and Anonymous Donation in Human Sperm and Eggs, 36 LAW & SOC'Y REV. 257, 264 (2002); see also Duke Fertility Services, Medications: Lupron, DUKEHEALTH.ORG, http://www.dukehealth. org/Services/Fertility/Resources/Medications/Lupron (last visited Oct. 25, 2007) (describing Lupron as effectively turning one's ovaries off so that the physician can "control the amount of ovarian stimulation by the amount of medication").
68. See Egg Donation Inc., Donor Info, http://www.eggdonor.com/? section =donor&page=process (last visited Mar. 15, 2007) [hereinafter EggDonor.com] ("Once the doctor has synchronized the cycles, you will begin receiving daily injections of Gonal-f, Fertinex or Follistim to stimulate your ovaries. Ultrasound examinations are then used to evaluate your ovaries' response to the stimulation treatment and blood tests performed to monitor your estradiol level.").
69. See, e.g., Christy Oglesby, Egg Donation Long, Hard Process, CNN. COM, July 31, 2001, available at http://archives.cnn.com/2001/HEALTH/parenting/07/13/egg.donation/index.html (explaining that human chorionic gonadotropin is a hormone that triggers ovulation); Georgia Reproductive Specialists, In Vitro Fertilization (IVF-ET), http://www.ivf.com/ivffaq.html (last visited Oct. 25, 2007) (describing the in vitro fertilization process).
70. EggDonor.com, supra note 56.
71. See Shanley, supra note 55.
72. Univ. of Kentucky, First Baby Delivered from Commercial Frozen Donor Egg Bank, LAB L. WKLY., Jan. 27, 2006, at 249 (reporting on the ground breaking birth of Avery Lee).
73. See Mayumi Saito, Here Comes the Egg Biz: Ova Operations Open in Japan, http://findarticles.com/p/articles/mi_m0NTN/is_44/ai_108881982 (last visited Oct. 25, 2007) (reporting that in 2003, a newly opened branch of a South Korean ovam bank in Tokyo would arrange for recipients to browse the egg provider profiles, and even meet up to two providers "in person before making a final choice" to undergo the medical procedure).
74. See id. (reporting that in 2003, "freezing human eggs for clinical applications [was] premature" due to a lack of safe methods).
75. The distinction between oocytes and ova is that the former are immature egg cells that mature into the latter. Critser et al., supra note 32, at 149-51.
76. Id. Further sensitivity may stem from the hormonal treatments (e.g., Lupron, which is a gonadoropin-releasing hormone agonist) which influence die development of the germinal vesicle (fully grown) oocytes. Germinal vesicle oocytes are particularly sensitive because maturation causes the germinal vesicle to break down and "meiotic spindles [to] form in the cytoplasm, which makes them more vulnerable to the detrimental effects of cryopreservation processing." Id.
77. Aneuploidy is a condition in which the number of chromosomes is abnormal due to extra or missing chromosomes; this may lead to chromosomal genetic disorders including Down syndrome and Turner syndrome. See Ulrich Melcher, Aneuploidy, in MOLECULAR GENETICS 1211, 1211 (2003), http://opbs.okstate.edu/%7Emelcher/MG/MGW1/MG1211.html (explaining that human genetic diseases may result from trisomy or monosomy, with Down syndrome being a prominent example of the former).
78. Critser et al., supra note 32, at 149-51. See also Michael J. Tucker, Human Oocyte and Embryo Cryopreservation, IVF.COM http://www.ivf.com/boston.html (describing the general concern over increased aneuploidy potential due to freezing and thawing process of mature oocytes).
79. Univ. of Kentucky, supra note 60.
80. Id.
81. Dahleen Glanton, Women Put Pregnancy Hopes on Ice, CHI. TRIB., Jan. 15, 2007, at 1.
82. See EggDonor.com, supra note 56 ("Once your Application has been approved, you will be entered into our egg donor database and available to be matched with a Recipient. Interested Recipients will then notify us of their interest in you. We will provide you general non-identifying information about the Recipient so you can decide if you wish to proceed. If you are desirous of working with the Recipient, you will receive a contract from the Recipient's attorney and you will be required to schedule an independent legal consultation with an attorney of your choice. Your Recipient Couple will contribute $300 towards the cost of this consultation.")
83. Advanced college degrees such as master's or doctorate degrees, Asian and Jewish ancestry, career-oriented professionals, and unique artistic or creative talents comprise special characteristics. Egg Donation Inc., Donor Info, http://www.eggdonor.com/?section=donor&page=dfaq (last visited Oct. 25, 2007).
84. The Donor Egg Bank Inc., Application, http://www.donoreggbankinc.com/ application.php (requesting a recent digital photograph as part of the application) (last visited Oct. 25, 2007); see e.g., The Donor Egg Bank Inc., Donor Profile Information, http://www.donoreggbankinc.com/850105.html (featuring a current photograph of an egg provider replete with detailed post-secondary education and career information) (last visited Oct. 25, 2007).
85. EggDonor.com, supra note 56 (justifying the restriction on adult status to ages between 21-30 and time of optimal biological condition).
86. Id.
87. In literature on globalization, barbers are a popular example of service providers tied to a physical location. Put differently, barber shops are necessarily local: since few people would find it cost-effective to fly to another country for a haircut since the cost of the flight would be greater than any savings from wage differentials. See, e.g., CHARLES DERBER, PEOPLE BEFORE PROFIT: THE NEW GLOBALIZATION IN AN AGE OF TERROR, BIG MONEY, AND ECONOMIC CRISIS 139 (2002) (noting the local and small-scale characteristics of barber shops).
88. For instance, Los Angeles-based Cryobank maintains a laboratory branch in Cambridge, Massachusetts and an international affiliate in Frederiksberg, Denmark. California Cryobank Sperm Bank - Locations, http://www.cryobank.com/ fact2.cfm?page=2&sub=2 (last visited Dec. 7, 2007). Georgia-based Xytex Corp. operates several satellite offices in the United States and Canada, as well as a Swiss affiliate. Xytex Corporation, About Us, http://www.xytex.com/ aboutus.cfm (last visited Dec. 7, 2007).
89. The "Frequently Asked Questions" page on Xytex's website explains: Each unit of semen arrives frozen in a screw-cap vial. Each vial is clipped to a metal support rod (called a "cane") to facilitate vial removal from a refrigerated "tank" (or "dry shipper"). The tank is refrigerated with liquid nitrogen trapped in spongy material to prevent spillage, hence the name "dry shipper." Outside of the tank are shipping documents including product description and other non-frozen material such as insemination appliances, "Summary of Records" and a packet of documents for the inseminated patient. Xytex, Patient Section FAQ, http://www.xytex.com/patient_faq.cfm#44 (last visited Dec. 7, 2007) [hereinafter Xytex Patient Page]. See also Cryos New York, Ordering & Shipping, http://www.scandinaviancryobank.com/orders.aspx (last visited Dec. 7, 2007) [hereinafter Cryos Orders] (explaining that semen is shipped in its own "high security" straws, with ID tags via FedEx in "aluminum-clad liquid nitrogen-filled shipping flask[s] chilled to minus 320 degrees Fahrenheit").
90. While some banks will ship the sperm specimen directly to the customer, others will only ship to people or places with medical authority, such as a physician, authorized medical staff, or institutions approved for therapeutic treatment with donor semen. Compare California Cryobank Sperm Bank - Reproductive FAQs, http://www.cryobank.com/reprofq.cfm?page=5 (last visited Dec. 7, 2007) ("The specimens are guaranteed in the dry shipper tanks for 7 days from the date shipped.") and Xytex Patient Page, supra note 77 ("[S]hipments will only be sent to your medical specialist who has signed a Supply Agreement with Xytex").
91. BC Heng, The Advent of International 'Mail-Order' Egg Donation, BJOG, AN INT'L J. OF OBSTETRICS AND GYNAECOLOGY 1225, 1225 (2006).
92. Id. ("[F]rozen sperm of the recipient's male partner is exported abroad through courier mail").
93. Id.
94. See e.g., Xytex, Sample Donor Profile, http://www.xytex.com/ patient_sdp.cfm (last visited Dec. 7, 2007) (providing a sample profile that shows what information is contained in a donor profile).
95. See e.g., Xytex, Patient Section, http://www.xytex.com/ patient_fees.cfm (last visited Dec. 7, 2007) (listing the prices for different categories of semen and shipping methods).
96. Denmark to Tax Insemination Clinic Donors, PLAYFULS.COM, Jan. 12, 2007, at http://www.playfuls.com/ news_003921_Denmark_To_Tax_Insemination_Clinic _Donors.html.
97. Lizette Alvarez, Spreading Scandinavian Genes, Without Viking Boats, N.Y. TIMES, Sept. 30, 2004, at A4 (listing possible destinations for deposited sperm and indicating that sperm banks may establish new satellite offices in places where its Internet mail-order business demonstrates a sufficient demand in that area).
98. Although critics warn of designer babies and eugenics, Cryos Managing Director Ole Schou insists that the real impetus is that people want "someone like them, someone they can relate to." Id. See also Caballero, supra note 14 (reporting an increasing demand for 'designer babies:' the consumer decides which eggs to purchase based on SAT scores and other desired characteristics).
99. Stoler's interview with California CryoBank's founder reveals the preferences consumers have for similar ancestry: "Italian women, sometimes they only want full-blooded Italians." Staler himself was valued for his Jewish ancestry, which led him to quip that "Jewish women are hard-pressed to find the seeded rye." Staler, supra note 42.
100. Certain attributes, such as blonde hair and blue eyes, tend to be more popular than others. In 2005, the FDA banned "sperm from any European countries with exposure to mad cow disease" causing U.S. sperm banks to "run[] low on donor sperm that can produce ... Scandinavian babies." Mad Cow Ban Leads to U.S. Shortage of'European' Sperm, THE CANADIAN PRESS, Sept. 21, 2007, available at http://www.cbc.ca/story/health/national/2007/09/21/sperm-shortage.html [hereinafter Mad Cow Ban].
101. See e.g., Kerry Howley, A Market in Morals, THE AMERICAN, Jan. 26, 2007, http://www.american.com/archive/2007/january- 0107/a-market-in-morals (noting that when Britain banned anonymous selling of sperm, supply dramatically decreased); see also Bill Muelenberg, Sperm Wars, CULTURE WATCH, Nov. 6, 2007, http://www.billmuehlenberg.com/ 2007/06/11/sperm-wars (explaining that some countries have banned the anonymous sale of sperm by requiring that donors must consent to being identified to the children resulting from the donation once the children reach the age of eighteen).
102. Switzerland's constitution prohibits all commercial transactions that implicate human germinal material. Constitution fédérale de la Confédération Suisse [Constitution] April 18, 1999, SR 101, RO 101, art. 119(2)(e) (Switz.), available at http://www.admin.ch/suchen/index. html?keywords=119&lang=en. Australia's Prohibition of Human Cloning Act likewise targets the exchange of gametes for any consideration. L. Bernier & D. Grégoire, Reproductive and Therapeutic Cloning, Germline Therapy, and Purchase of Gametes and Embryos: Comments on Canadian Legislation Governing Reproduction Technologies, 30 J. MED. ETHICS 527, 530 (2004) ("[S]ection 23 ... states that it is an offence to intentionally give or receive value for the supply of human eggs, sperm, or embryos."). Sweden's Transplantation Act expressly precludes the operation of sperm and ova brokers by providing "that someone who wilfully [sic] and for profit, collects, donates, receives or acts as an intermediary in respect to biological material from a living or a dead human ... shall be fined or sentenced to imprisonment for up to 2 years." Id. "In Norway sperm donation is legal, but egg donation is not - despite today's technology and medical techniques that make it possible." BERET BRȦTEN, KILDEN INFORMATION CENTRE FOR GENDER RESEARCH IN NORWAY, MOTHERHOOD CHALLENGED (2006), http://kilden.forskningsradet.no/c17224/artikkel/ vis.html?tid=41266.
103. See e.g., Sperm Ships for Fertility Seekers, BBC NEWS, Sept. 16, 2005, http://news.bbc.co.Uk/2/hi/health/4251634.stm [hereinafter Sperm Ships] (quoting Ole Schou of Cryos as saying, "[i]f you have different regulations on treatments[of gamete transfers,] then you will have trading
104. Steven Kotler, The God of Sperm, LA WEEKLY, Sept. 26, 2007, http://www.laweekly.com/news/news/the-god-of-sperm/17290/?page=1 (reporting that Creutzfeldt-Jakob disease is a prion disease and cannot be sexually transmitted, and that the only danger would come from someone actually eating mad cow-tainted frozen sperm).
105. According to Professor Debora Spar, sperm and ova brokers "capitalize on regulatory gaps. In Germany, all eggs removed from a woman must be transferred back inside her [since egg transfer of any sort is illegal]: But in Russia, these same eggs can be sold or bartered." Caballero, supra note 14. After extensive media coverage about a Romanian clinic "specialising [sic] in egg cell donation to EU nationals in return for financial compensation," the European Commission re leased a report in 2006 surveying the national legislations of 25 member states relating to reproductive cell donation. Health & CONSUMER PROTECTION DIRECTOR ATE-GENERAL, REPORT ON THE REGULATION OF REPRODUCTIVE CELL DONATION IN THE EUROPEAN UNION 2 (2006), available at http://ec.europa.eu/health/ph_threats/ human_substance/documents/tissues_frep_en.pdf. While the European Commission regards payment of substantial fees beyond compensation for expenses and inconveniences related to the donation procedure to obtain human egg cells "to be against the principles expressed in the Directive 2004/23/EC on Tissues & Cells," the Directive also "provides for a mechanism that will allow for a coherent approach to the authorisation of imports and exports [of gametes]." Id. at 2. This has also opened the doors for creative gamete transfer arrangements, such as mobile fertility clinics on ships which would be "governed by the laws of their own country [thereby allowing] people from many different countries ... to sidestep their own nation's fertility laws." Sperm Ships, supra note 91.
106. Italy's 2004 ban was prompted by the Roman Catholic Church's outcry against playing God. See Andrew Wancata, Note, No Value for a Pound of Flesh: Extending Market-Inalienability of the Human Body, 18 J.L. & HEALTH 199, 227 (2003); see also Caballero, supra note 14 ("Italy [has also] passed legislation that prohibits sterile, gay, or single adults from using donor eggs or surrogate mothers.").
107. Alvarez, supra note 70. See also Marcia C. Inhorn, A More Open Mind To ward Iran, THE CHRONICLE REVIEW, June 23, 2006, http://www.chronicle.com/weekly/v52/i42/ 42b01201.htm (comparing Sunni Muslim fatwas prohibiting any form of third-party donation of gametes with Shiite cleric Ayatollah Ali Hussein Khamanei's fatwa permitting both sperm and egg donation, the latter of which has led to significant reproductive tourism in Tehran).
108. The 1990 Human Fertilisation and Embryology Act prohibits any form of consideration for the supply of gametes unless otherwise specified in a direction issued under section 23. Human Fertilisation and Embryology Act, 1990, c. 37, art. 12(e) (U.K.), available at http://www.opsi.gov.uk/acts/ acts1990/ukpga_19900037_en_1#pb5-l1g12. In 1996, a direction instructed that "individual donors of gametes may be given money or other benefits for the supply of their gametes," although the value of the consideration is to be capped at £15. See Directions Given Under the Human Fertilisation and Embryology Act 1990, Ref.D. 1996/1, Feb. 22, 1996, available at http://www.hfea.gov.uk/docs/D-1996- 1_Giving_and_receiving_money_or_other_benefits.pdf (providing also that institutional suppliers of gametes - the middle-men - may receive sufficient money to reimburse the "supplier's reasonable expenses").
109. Jonathan Thompson & Renee Knight, Eggs for Sale: The Booming Business of Sharing Your Fertility, THE INDEPENDENT, Nov. 5, 2006, http://news.independent.co.uk/health/article1956558.ece.
110. Human Fertilisation and Embryology Authority (HFEA), http://www.hfea.gov. uk (last visited Nov. 15, 2007).
111. Human Fertilisation and Embryology Authority (HFEA), FAQs for Donors, http://www.hfea.gov.uk/cps/rde/xchg/SID-3F57D79B-63EEE067/hfea/hs.xsl/1205. html#How_much_do_I (last visited Dec. 7, 2007).
112. See Sarah Boseley, Women May Get £1,000 for Their Eggs, THE GUARDIAN, Nov. 12, 2004, http://www.guardian.co. uk/medicine/story/0,11381,1349407,00.html (noting the possibility of increased donor compensation following the passage of new regulations; amounting to approximately $1,973.75, at an exchange rate of $1.00 for £0.506649).
113. Thompson & Knight, supra note 96 (noting the drastic upturn in egg prices over the last fifteen years).
114. while eggs cannot technically be sold, compensation for "expenses in curred" is not capped and in fact acts as a proxy for the sale of the egg. Simply put, ova providers charge what the market will bear for the time and effort expended in donating eggs - a calculus that includes the quality and conditioning of their genetically linked attributes. For example, a university degree connotes intelligence and diligence.
115. See Thompson & Knight, supra note 96 (stating that American "[d]onors with the right physical, personal and intellectual attributes can attract fees of up to $35,000 for their eggs, with some in the industry claiming that as much as $50,000 has changed hands").
116. Id.
117. Human Fertilisation and Embryology Authority (HFEA), supra note 98 (stating that the information requirements became effective as of an April 1, 2005 change in the law).
118. Dr. Kirk Maxey summarizes the view of advocates for ending anonymity: It's access to the information.... [a donor should know that his kids] exist and whether they are healthy or not. And that there is a meeting point, an information exchange point where, if you want to know about each other, you can go there. Becoming connected with your genetic relatives should be facilitated and not blocked. Martin Bashir, Confessions of a Sperm Donor, ABC NEWS, Aug. 31, 2006, http://abcnews.go.com/Nightline/Health/Story?id= 1982328&page=1; see also Angus Roxburgh, Dutch Sperm Laws Threaten Donations, BBC NEWS, Aug. 12, 2004, http://news.bbc.co.Uk/2/hi/ europe/3555202.stm (quoting one sperm donor as saying, "I don't know how many children I have fathered, and don't want to know. The right of the child is all very well, but so is the right of the donor ...."). Advocates of lifting anonymity claim that the value of record-keeping and maintaining a registry of gamete donors and recipients outweighs the costs. The claim is that access to the medical and genetic information of their progenitors is vital for children conceived with donor gametes who wish to assess their own reproductive and health needs. See Nanette R. Elster, ARTistic Licence: Should Assisted Reproductive Technologies Be Regulated?, in ASSISTED REPRODUCTIVE TECHNOLOGY: ACCOMPLISHMENTS AND NEW HORIZONS 366, 373 (Christopher J. De Jonge & Christopher L. R. Barratt eds., 2002) (analogizing gamete donation to the adoption context "where a range of non-identifying information must be collected and maintained and is accessible to the child when he or she reaches adulthood"). Furthermore, at a basic level, advocates of lifting anonymity root their claim in the idea that children conceived with donor gametes should be able to exercise the "right to know the identity of their biological fathers." Roxburgh, supra note 105.
119. See Alvarez, supra note 85 ("Faced with the possibility that 18 years down the line, one, or perhaps 10 or 20, of their children can surprise them at the front door, most young men opt out."). But see Elster, supra note 105, at 373 (describing that while the number of donors initially declined after "Sweden enacted a law requiring collection of donor information to be maintained for 70 years," the number of donors returned to the previous level shortly thereafter).
120. Will Pavia, How Danish Sperm is Conquering the World, THE TIMES, Nov. 27, 2006, at 4 available at http://www.timesonline. co.uk/tol/life_and_style/health/features/article649651.ece.
121. An example of procreative travel or tourism is British women traveling to Denmark to purchase sperm. According to Dr. Karstein Peterson of Ciconia Private Hospital in Denmark, who has already treated 20 British couples, this is a common occurrence: "It's all very recent, but many are e-mailing me. You can fly Ryanair from Stansted, and we have deals with hotels: fertility tourists get a discount." Id.
122. See Alvarez, supra note 85 (noting that Cryos' above average pregnancy rate of 12-31% is also a factor).
123. Male Danes receive a thorough sexual education at primary school, and are given the "option of having their sperm tested" during a mandatory health check required by the national conscription scheme. Sexual health awareness coupled with a pro-donation attitude in blood makes sperm donation a natural choice for many Danes. Pavia, supra note 107.
124. Id.
125. See Mark Tighe, Viking's Test Tube Invasion, THE SUNDAY TIMES, Dec. 3, 2006 (describing the dominance of Cryos in Ireland).
126. G. Pascal Zachary, A Most Unlikely Industry Finds It Can't Resist Globalization's Call, WALL ST. J., Jan. 6, 2000, at B1.
127. For example: For $81, a consumer could ... [purchase] a package that would provide them with a photograph of the donor as an infant, a profile of more than 20 pages of information, an audio interview with the donor, a 10-page report based on a Keirsey Temperament evaluation, sketches of the donor's features, an essay written by the donor, and a document entitled Staff Impressions in which members of the facility's staff offer their opinions on the donor's personality. Barney, supra note 11, at 212 (citation omitted).
128. See, e.g., Sperm Banking with Fairfax Cryobank, Sperm Donor Information, http://www.fairfaxcryobank.com/donorinfo.aspx?menu=4&turn=on (last visited Nov. 15, 2007) ("Also available on a majority of our donors, audio interviews provide insightful information into the donor's childhood, aspirations, accomplishments, values, family life, and personal interests in his own words.").
129. Tamara Audi, Sperm Buyers Customize Orders: Banks Offer Choices Down to Minutest Detail, DET. FREE PRESS, May 22, 2006, at 1A, available at http://www.wzzm13.com/news/watercooler/ watercooler_article.aspx?storyid =54856.
130. See Teri Sforza, Egg Donor Registry Records in Limbo, THE ORANGE COUNTY REG., Oct. 7, 2007, available at http://www.ocregister.com/news/egg-donor-children-1879669- donors-eggs (noting also that the "files in that nondescript storage unit [currently paid for by the bankruptcy trustee through the middle of October] could unravel highly sensitive, and carefully-kept, family secrets.").
131. Change of stewardship over the information can compromise the data privacy of providers. Suppose the "highly sensitive records" are sold on eBay to insurance companies or identity theft rings? Id. (reporting that a founder of an online database of potential egg donors feels "obligated to contact ... post-2004 clients at their last known address to inform them of the pending sale [of the business] ... [and give them] the choice of paying a service to hold the information, or the information would most probably be destroyed.").
132. Id. (noting that bioethicist Arthur Caplan believes that gamete banks and brokers should be accountable for all the records and that regulations "mandating minimal requirements for egg banks and brokers, including bankruptcy and disaster/catastrophe plans" should be implemented).
133. Ted T. Ashburn et al., Human Tissue Research in the Genomic Era of Medicine: Balancing Individual and Societal Interests, 160 ARCHIVES OF INTERNAL MED. 3377, 3378 (2000).
134. For instance, the Cryos International Sperm Bank Ltd. is the franchisor of Cryos International - Denmark (offices in Aarhus, Copenhagen and Ordense) and Cryos New York (previously Scandianvian Cryobank). See Cryos International, Cryos' Franchise Concept, http://www.cryosinternational.com/ franchise/cryos-franchise-concept.aspx (last visited Dec. 7, 2007) ("Cryos International franchise concept focuses on the establishment of sperm banks worldwide. Our goal is to provide an extensive selection of high quality donor semen to patients and clinics all over the world through our network of sperm banks.").
135. Like any online database, the database of donor profiles, even if encrypted, is susceptible to security breaches by careless employees or malicious hackers. See Privacy Rights Clearinghouse, A Chronology of Data Breaches, http://www.privacyrights.org/ar/ChronDataBreaches.htm (last visited Dec. 7, 2007) (tracking incidents of electronic data breaches since 2005 ranging from university files to health records). Middle-men databases of the providers contain an even greater wealth of sensitive personal information - medical information, physical attributes, personality information, and sometimes even the names and contact details of providers "open" to disclosing their identities. There is certainly an incentive for hackers to breach the electronic database and make a windfall by selling data packages on the providers.
136. Abuse occurs when someone other than the designated recipient gains access to the provider's information. For instance, if sperm provider Z contracts with the sperm bank to supply his personal information for the sole purpose of facilitating the transaction of his genetic material for conception, and researchers for a biotech company somehow gain database access to Z's information, Z's in formation privacy - his ability to control who has access to and use of his personal information - has been violated.
137. Sperm banks do, however, traditionally destroy records of the provider after his samples are sold, in order to preserve anonymity. Kotler, supra note 91 (noting that California Cryobank reacted to media reports of children trying to track their biological fathers by removing information from donor profiles).
138. Xytex Patient Page, supra note 77.
139. In the contract for provision of personal information and gametes, the banks are the sophisticated parties. Sperm and ova providers sign boilerplate information release forms so that any arms-length negotiation that occurs tends to revolve around the value of special or highly desirable traits of the provider. Kotler, supra note 91 (reporting that Northwest Andrology has requested at least one provider to remove his information from a sibling donor registry site as part of his contract).
140. Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 18, 26, 29, and 42 U.S.C.).
141. Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. § 164 (2007), available at http://www.hhs.gov/ocr/ combinedregtext.pdf.
142. ELEC. PRIVACY INFO. CTR., PRIVACY & HUMAN RIGHTS 2005: AN INTERNATIONAL SURVEY OF PRIVACY LAWS AND DEVELOPMENTS 1067 (2006).
143. Id. at 1068.
144. The Privacy Rule sports civil penalties for noncompliance and criminal penalties for malicious misappropriation and misuse of health information, which are enforced by the Department of Health and Human Services' Office for Civil Rights and the Department of Justice, respectively. Id. at 1068. The Privacy Rule does not preempt state laws providing stronger protection for health and medical information. Id. at 1067.
145. See U.S. Dept. of Health & Human Servs., Covered Entity Charts, http://www.cms.hhs.gov/HIPAAGenInfo/Downloads/CoveredEntitycharts.pdf (defining an entity that furnishes, bills or receives payment for health care in the normal course of business and electronically transmits covered transactions as a covered entity) [hereinafter HIPAA Covered Entity].
146. But see Johnson v. Cal. Cryobank, 124 Cal. Rptr. 2d 650, 655 (Cal. Ct. App. 2002) (holding that a sperm bank constitutes a 'health care provider' under the State Code of Civil Procedure section 425.13(a)). This case adheres to the state's civil procedure definition of 'health care provider' and thus may be discounted in relevance to the HIPAA definition.
147. HIPAA Covered Entity, supra note 132.
148. 29 C.F.R. § 825.118 (2007) defines the following as health care providers: medical or osteopathic doctors, podiatrists, dentists, nurse practitioners, clinical psychologists, and "any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits...." Since the banks merely provide brokering services - transactions in information - and do not perform the clinical procedures themselves, they are arguably not "health care providers" under the purview of 29 CFR § 825.118.
149. U.S. DEPT OF HEALTH & HUMAN SERVS., SUMMARY OF THE HIPAA PRIVACY RULE 3 (2003) available at http://www.hhs.gov/ ocr/privacysummary.pdf.
150. 45 C.F.R. § 164.501 (2007).
151. One prominent case involved Cryobank. After conceiving a child with autosomal dominant polycystic kidney disease using sperm from Cryobank, recipient couple sued Cryobank for professional negligence, fraud and breach of contract. Alleging that Cryobank knew of donor's family history of kidney disease, recipients claimed that Cryobank had failed to ascertain whether the donor "was a potential carrier of the ADPKD gene, failed to property investigate [his] family history of kidney disease, and falsely represented to the [recipient couple] that the sperm they were purchasing had been tested and screened for infectious and 'reasonably detectable genetically transferred' diseases...." Johnson, 124 Cal. Rptr. 2d at 654.
152. 21 C.F.R. § 1271.1 (2007) requires manufacturers of human cellular and tissue-based products to screen and test cell and tissue donors, in a way that "prevents the introduction, transmission, or spread of communicable diseases. . . ." available at http://www.fda.gov/cber/rules/ frtisreg011901.pdf
153. Jeffrey Prottas, Ethics of Allocation: Lessons from Organ Procurement History, in TRANSPLANTING HUMAN TISSUE 120, 130 (Stuart J. Youngner et al., eds., Oxford University Press 2004).
154. 21 C.F.R. § 1271.
155. If the agency determines a bank is violating the rule, it may undertake such enforcement actions as confiscating and destroying the violative tissue/cells, ordering the bank to cease all operations, and engage in prosecution or fines. See Martha A. Wells, Ctr. for Biologies Evaluation & Research, Presentation at the AATB Annual Meeting, FDA Update: Regulation of Reproductive Establishments (Sept. 2006), available at http://www.fda.gov/cber/tissue/aatb090906mw.pdf.
156. Barney, supra note 11, at 211.
157. American Association of Tissue Banks, AATB Accreditation Process Overview, http://aatb.timberlakepublishing.com/files/aatbaccreditationprocess. pdf (Jan. 12, 2007).
158. See id. at 2 ("[T]he AATB inspection is not meant to be, nor is it, a surrogate inspection for an FDA inspection. The accreditation program is meant to ascertain if good faith efforts are being made by the bank to comply with AATB Standards and that the bank has a self-assessment mechanism and corrective and preventive action procedures in place that will enable the bank to correct deficiencies.").
159. The World Trade Organization is one international authority that can address the issue of gamete transactions. See Alice J. Carson, Trade in Reproductive Human Biota: Our Quest for Babies, TED CASE STUDY TEMPLATE, Fall 2003, http://www.american.edu/TED/ reproductive-trade.htm (explaining that within the WTO framework, the TRIPS agreement addressing public health, the Women's Global Network for Reproductive Rights, and the Dispute Settlement Body's 2003 case regarding pig semen would support multinational regulation of the compensation of gametes and reproductive trade generally). Carson also suggests that the legal framework of the United Nations could support regulation over gamete transactions as well by listing the UN Ban on Cloning, Convention on the Rights of the Child, and Women Watch. Id. But see ALEXANDER MCCALL SMITH & MICHEL REVEL, UNESCO, THE USE OF EMBRYONIC STEM CELLS IN THERAPEUTIC RESEARCH: REPORT OF THE IBC ON THE ETHICAL ASPECTS OF HUMAN EMBRYONIC STEM CELL RESEARCH 12 (2001), available at http://portal.unesco.org/shs/en/files/2144/ 10541312311StemCells_en.pdf/StemCells_en.pdf (stating that the transfer of human embryos can never be a commercial transaction and that measures should be taken to discourage any financial incentive).
160. Countries prohibiting commercial and/or non-commercial gamete transactions for various cultural, religious and historic reasons will refuse to recognize or endorse such a standard even if their own laws make it a practical insignificance. See Buying Babies, supra note 39 (explaining that governments want to regulate the reproductive industry because the "manufacturing of anything which is regarded as God-given - or at least natural - touches a moral nerve" and that such regulations vary in conjunction with attitudes to the family). Even the United States, as one of the largest markets, is unlikely to subscribe to such a standard if it means formally acknowledging that a gametes market exists, because "[s]trictly speaking, paying for donated eggs is illegal in America too, since it counts as buying a body part." Id. at 118. In other words, the gamete trade is conceptually acceptable to legislators only if consideration is construed as compensation for donor time and effort rather than the gamete itself.
161. Germany has a flat-out ban on any form of egg transfers because it is "still haunted by the memory of Nazi experiments." Caballero, supra note 14.
162. GLOBAL INTERNET POLICY INITIATIVE, THE INTERNATIONAL LEGAL FRAMEWORK FOR DATA PROTECTION AND ITS TRANSPOSITION TO DEVELOPING AND TRANSITIONAL COUNTRIES 1-2 (2004), available at http://www.internetpolicy.net/privacy/20041228privacy.pdf [hereinafter "GLOBAL INTERNET"].
163. OECD Privacy Guidelines consist of: 1) Collection Limitation: there should be limits to the collection of personal data, and any such data collected ought to be obtained with the consent of the data subject and in a lawful manner; 2) Data Quality: collected data should be relevant to a specific purpose, and be accurate, complete, and up-to-date; 3) Purpose Specification: the purpose for collecting the data should be communicated at the outset so that only new purposes that are compatible with the original ones can be introduced, and data that no longer serves a purpose should be destroyed or anonymized; 4) Use Limitation: data acquired for one purpose should only be used for the specified purposes unless otherwise legally required or the data subject's consent is obtained; 5) Security Safeguards: data must be collected and stored so that it is reasonably guarded from loss or unauthorized access, destruction, use, modification or disclosure; 6) Openness: there should be general policy of transparency vis-à-vis developments, practices and policies with respect to the data, and data subjects should have the means to confirm the existence and status of their information, as well as the contact information of the data controller; 7) Individual Participation: data subjects should have the right to access, confirm and demand correction of their personal information, and; 8) Accountability: the data controller assumes responsibility for complying with the aforementioned principles. Org. for Econ. Co-Operation & Dev. [OECD], OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, pt. 2 (Sept. 23, 1980), available at http://www.oecd.org/document/18/0,2340,en_2649_34255_1815186_1_1_1_1,00.html.
164. While anonymity does preserve family privacy - by protecting the identity of the provider and recipient, and "shield [s] the donor from parental obligations, inheritance claims and unwanted contact with his progeny" - it is distinguishable from information privacy. EMILY JACKSON, REGULATING REPRODUCTION: LAW, TECHNOLOGY AND AUTONOMY 212 (2001). Anonymity prevents middlemen banks and brokers from disclosing the provider's identity and contact information to the recipient and ensuing progeny but does not prevent the disclosure of any other personal information about the provider.
165. See Bill Berkowitz, Health: Poor Countries Raided to Traffic Human Organs, INTER PRESS SERVICE, Apr. 27, 2006 ("The rise in illegal transplant tourism ... was developed to meet an insatiable demand for organ transplants that rises exponentially against a flat supply of organs donated through traditional and regulated means.... [P]oor people are recruited or entrapped into donating their body parts to satisfy the demand from rich patients who can afford to travel abroad and ... to break national laws and international medical regulations to get the organs and medical procedures they need.") (internal quotations omitted).
166. See Bernier & Grégoire, supra note 90, at 531 (distinguishing human embryos and body parts from sperm and "other human cells that can regenerate and divide infinitely," on the grounds that donation of the latter does not risk the donor's health thus making the grant of property rights for gametes a "logical and equitable solution, ... [that] could ensure a better respect for individual autonomy, ... resolve important shortages and dismantle unsafe underground markets").
167. MICHELE GOODWIN, supra note 3, at 161.
168. National Organ Transplant Act, Pub. L. No. 98-507, 98 Stat. 2339 (1984) (stating that the sale of organs is illegal and establishing a task force for the regulation of organ procurement).
169. Armand Karow, Implications of Tissue Banking for Human Reproductive Medicine, in REPRODUCTIVE TISSUE BANKING: SCIENTIFIC PRINCIPLES 451 (Armand M. Karow & John K Critser eds., 1997) ("The primary legal reason for characterizing these transactions as involving services rather than commodities is to avoid the specific performance provisions of the Uniform Commercial Code and to avoid liability for transmission of infectious diseases.").
170. Jeffrey Prottas, Ethics of Allocation: Lessons from Organ Procurement History, in TRANSPLANTING HUMAN TISSUE: ETHICS, POLICY, AND PRACTICE 120, 129 (Stuart J. Youngner et al. eds., 2004).