HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, September 14, 2013

California Governor Jerry Brown's Veto of Payment for Oocytes for Research

As reported  by the Huffington Post, California will remain one of only three states prohibiting payment to women for providing oocytes for research.  (The other two states are Massachusetts and South Dakota) The California ban on the sale of oocytes for use in research was enacted in 2006 in reaction to the state's 2004 commitment to funding for stem cell research.  The California legislature sought to end the ban, but was rebuffed by Governor Jerry Brown's veto this past Tuesday.  Women's groups such as NOW, reproductive rights groups such as Planned Parenthood, and fertility experts such as ASRM supported permitting payment for oocytes.  The California Catholic Conference, the Center for Genetics and Society, and the California Right to Life Committee supported continuing the ban. 

Governor Brown's veto message sounded several themes.  He began with "not everything in life is for sale, nor should it be." He continued by noting that the questions raised "are not simple; they touch issues that are both philosophical and personal."  And he concluded that true informed consent would not be possible because the long term risks of oocyte harvesting are unknown and because payment "compounds" the problem.

Although there is something to these themes, they seem to me to be at best half truths--and deeply problematic ones at that. Oocytes are used in stem cell research, but they are also used extensively in fertility research.  Governor Brown's veto relegates this kind of research to reliance on altruism.  An argument could be made that all research where the risks to participants are unknown should rely on altruism, but we are far from accepting that position in current research practice; placing women participants and fertility and stem cell research in that position singles them out for restrictions not imposed on others.  An an argument could be made that informed consent is at least very difficult when risks are unknown--but this is not an argument that applies to women alone.  Nor should women be treated as though they were more likely to be susceptible to the blandishments of monetary compensation than men might be and more in need of protection from choosing the benefits such compensation might have for them.  While correct that the choice to provide oocytes is personal and may reach deep very deep questions about ethics and metaphysics, Governor Brown by imposing the veto is in effect making the choice for many others.  The Governor's veto in the current context is paternalizing and unjust.

We might of course want to think far more generally about the role of payment in fertility care and in health care more generally.  Governor Brown's remark that not everything should be for sale is indeed worth pondering--many blogs worth!--but in far different directions from the one taken in his veto.


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