Speculative Egg Freezing and Oocyte Markets: Translating Metaphors of Body and Bank

Abstract

This paper will take up the conceptual category of the American oocyte bank to think more closely about how metaphors of financialisation and efficiency translate within the context of human fertility and reproduction. It will analyse the biomaterial archive of human gamete banks and trace the ways in which the metaphor of the ‘bank’ moves across human reproduction and the production of value. By taking up these questions in relation to human biomaterials, this paper aims to better understand recent shifts toward speculative value, such as predictive egg freezing, as well as the transformation of contemporary oocyte economies. It argues that the privatised and racialised character of the modern reproductive marketplace is enabled by the translation work performed by financialised metaphors of the bank, and suggests that frameworks drawn from more collectivist metaphors may allow for different legal and social materialities to emerge.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 Toril Swan, ‘Metaphors of Body and Mind in the History of English’ (2009) 90(4) English Studies 460 at 461.

2 Mark Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination, and Reason (University of Chicago Press 1987).

3 Susanne Niemeier, cited in Swan, above note 1 at 461.

4 Swan, above note 1. Of course, this insight is far older than our current era. In the 16th century, Giambattista Vico remarked that, ‘It is noteworthy that in all languages the greater part of the expressions relating to inanimate things are formed by metaphor from the human body and its parts and from the human senses and passions.’: Giambattista Vico, The New Science of Giambattista Vico §405 (trans Thomas Goddard Bergin and Max Harold Fisch) (Cornell University Press 1948), cited in Alan Hyde, Bodies of Law (Princeton University Press 1997) 3.

5 Alan Hyde, Bodies of Law (Princeton University Press 1997) at 6.

6 As above at 52.

7 As above at 51.

8 For approaches that make similar claims about bodily practices and social construction, but read ‘liberalism’ more closely within colonial histories of white supremacy and the phenomenology of race, see, for example, Sara Ahmed, ‘A Phenomenology of Whiteness’ (2007) 8(2) Feminist Theory 149; Nirmal Puwar, Space Invaders: Race, Gender and Bodies Out of Place (Berg 2004); Sherene H Razack (ed) Race, Space, and the Law: Unmapping a White Settler Society (Between the Lines 2002).

9 Hyde, above note 5 at 259.

10 This is, of course, an imperfect and impartial translation that operates unevenly across geographies and subjects. For attentive examples of how liberal notions of self, belonging, and indigeneity operate as part of settler-colonial claims to property, see Jodi Byrd’s work on metaphors of transit and Sarah Keenan on the production of belonging: Jodi A Byrd, The Transit of Empire: Indigenous Critiques of Colonialism (University of Minnesota Press 2011); Sarah Keenan, Subversive Property: Law and the Production of Spaces of Belonging (Routledge 2015).

11 Hyde, above note 5 at 52.

12 While it is hoped that this analysis will also find purchase within other jurisdictions, for the purposes of space and clarity this paper will primarily focus on the American oocyte industry.

13 Kath Weston, ‘Lifeblood, Liquidity, and Cash Transfusions: Beyond Metaphor in the Cultural Study of Finance’ (2013) 19(S1) Journal of the Royal Anthropological Institute S24 at S37.

14 As above.

15 Janet Carsten, ‘Introduction: Blood Will Out’ (2013) 19(S1) Journal of the Royal Anthropological Institute S1 at S14.

16 Philip Mirowski, More Heat Than Light: Economics as Social Physics, Physics as Nature’s Economics (Cambridge University Press 1989).

17 Mirowski, above note 16, cited in Weston, above note 13 at S25.

18 Kaushik Sunder Rajan, Biocapital: The Constitution of Postgenomic Life (Duke University Press 2006); Melinda E. Cooper, Life as Surplus: Biotechnology and Capitalism in the Neoliberal Era (University of Washington Press 2008).

19 Kara W Swanson, Banking on the Body: The Market in Blood, Milk and Sperm in Modern America (Harvard University Press 2014).

20 As above at 3.

21 For a classic text in the field see also Richard M Titmuss, The Gift Relationship: From Human Blood to Social Policy (Allen and Unwin 1970).

22 Swanson, above note 19 at 4.

23 Catherine Waldby, The Oocyte Economy: The Changing Meaning of Human Eggs (Duke University Press 2019).

24 Lucy Van de Wiel, ‘The Speculative Turn in IVF: Egg Freezing and the Financialization of Fertility’ (2020) 39(3) New Genetics and Society 306.

25 As above. See also Aimee Bahng, Migrant Futures: Decolonizing Speculation in Financial Times (Duke University Press 2018).

26 Esther Breithoff and Rodney Harrison, ‘From Ark to Bank: Extinction, Proxies and Biocapitals in Ex-Situ Biodiversity Conservation Practices’ (2020) 26(1) International Journal of Heritage Studies 37.

27 Camille Gear Rich, ‘Contracting Our Way to Inequality: Race, Reproductive Freedom, and the Quest for the Perfect Child’ (2020) 104 Minnesota Law Review 2375.

28 As above.

29 Waldby, above note 23.

30 Van de Wiel, above note 24 at 306.

31 For a conceptual overview of the ‘biological clock’ metaphor, see: Ludger Rensing, Ulf Meyer-Grahle, and Peter Ruoff, ‘Biological Timing and the Clock Metaphor: Oscillatory and Hourglass Mechanisms’ (2001) Chronobiology International 18(3) 329. For a more applied analysis in the context of infertility, see Carrie Friese, Gay Becker, and Robert D Nachtigall, ‘Rethinking the Biological Clock: Eleventh-Hour Moms, Miracle Moms and Meanings of Age-Related Infertility’ (2006) Social Science & Medicine 63(6) 1550.

32 Practice Committees of the American Society for Reproductive Medicine and the Society for Assisted Reproductive Technology, ‘Mature Oocyte Cryopreservation: A Guideline’ (2013) 99(1) Fertility and Sterility 37.

33 Waldby, above note 23.

34 As Sheila Jasanoff has explained: ‘co-production is shorthand for the proposition that the ways in which we know and represent the world (both nature and society) are inseparable from the ways in which we choose to live in it. Knowledge and its material embodiments are at once products of social work and constitutive of forms of social life; society cannot function without knowledge any more than knowledge can exist without appropriate social supports. Scientific knowledge, in particular, is not a transcendent mirror of reality. It both embeds and is embedded in social practices, identities, norms, conventions, discourses, instruments and institutions – in short, in all the building blocks of what we term the social. The same can be said even more forcefully of technology.’: Sheila Jasanoff, ‘The Idiom of Co-Production’ in Sheila Jasanoff (ed) States of Knowledge: The Co-Production of Science and the Social Order (Routledge 2004) 1 at 2–3.

35 Steven Francis Mullen, Advances in the Fundamental Cryobiology of Mammalian Oocytes (PhD Thesis, University of Missouri, 2007), cited in Waldby, above note 23 at 122. See also Masashige Kuwayama, Gábor Vajta, Osamu Kato and Stanley P. Leibo, ‘Highly Efficient Vitrification Method for Cryopreservation of Human Oocytes’ (2005) 11(3) Reproductive Biomedicine Online 300.

36 Waldby, above note 23 at 122.

37 As above at 126.

38 J Maureen Henderson, ‘Why We Should Be Alarmed That Apple and Facebook Are Paying for Employee Egg Freezing’ Forbes (online) 15 October 2014 <https://www.forbes.com/sites/jmaureenhenderson/2014/10/15/dont-work-for-or-trust-a-company-that-pays-you-to-freeze-your-eggs/?sh=23e787211c9a> (last accessed 1 June 2021).

39 As above.

40 Van de Wiel, above note 24 at 307.

41 As above at 308.

42 As above at 311.

43 MyEggBank, How Can I Freeze My Eggs for Free? (online) 31 January 2019 <https://www.myeggbank.com/about/blog/how-can-i-freeze-my-eggs-for-free> (last accessed 17 June 2021).

44 As above.

45 Many scholars have noted the production of desire for whiteness within the fertility industry through racial matching of white gamete donors to white, heterosexual parents: see Charlotte Halmø Kroløkke, ‘West is Best: Affective Assemblages and Spanish Oocytes’ 2014 21(1) European Journal of Women’s Studies 57; Seline Szkupinski Quiroga, ‘Blood is Thicker than Water: Policing Donor Insemination and the Reproduction of Whiteness’ (2007) 22(2) Hypatia 143; Camisha A Russell, The Assisted Reproduction of Race (Indiana University Press 2018); Charis Thompson, ‘Skin Tone and the Persistence of Biological Race in Egg Donation for Assisted Reproduction’ in Evelyn Nakano Glenn (ed) Shades of Difference: Why Skin Color Matters (Stanford University Press 2009) 131. In a recent article, Amrita Pande argues that a secondary track of ‘strategic hybridization’ also exists for some same-sex intended parents who do not identify as white but may nevertheless seek access to white-coded gametes as a desire to reflect a ‘cosmopolitan’ ethos: see Amrita Pande, ‘‘Mix or Match?”: Transnational Fertility Industry and White Desirability’ (2021) 40(4) Medical Anthropology 335.

46 As above, and Email from CNY Fertility to Author, 22 June 2021.

47 Email from CNY Fertility to Author, 22 June 2021.

48 Ethics Committee of the American Society for Reproductive Medicine, ‘Fertility Preservation and Reproduction in Patients Facing Gonadotoxic Therapies: A Committee Opinion’ (2013) 100(5) Fertility and Sterility 1224.

49 Beth E Roxland and Arthur Caplan, ‘Should Unclaimed Frozen Embryos Be Considered Abandoned Property and Donated to Stem Cell Research?’ (2015) 21(1) Boston University Journal of Science & Technology Law 108.

50 Alicia J Paller, ‘A Chilling Experience: An Analysis of the Legal and Ethical Issues Surrounding Egg Freezing, and a Contractual Solution’ (2014) 99(4) Minnesota Law Review 1571.

51 Hyde, above note 5 at 52.

52 Kara W Swanson, ‘Rethinking Body Property’ (2016) 44(1) Florida State University Law Review 193 at 234 (citations omitted).

53 As above at 234. See also Richard M Titmuss, whose work on the importance of ‘gifting’ in the blood economy in The Gift Relationship: From Human Blood to Social Policy (Allen and Unwin 1970) had a global influence on the establishment of non-remuneration policies in national blood donation systems.

54 Swanson, above note 52 at 235. Kara Swanson’s work helpfully tracks the shift from a model aimed at ensuring everyone could access needed blood transfusion, regardless of means; to a rigid ‘for pay’ framework; and back again to a needs-based repository with free blood donation understood as a civic duty.

55 Alexander M Quaas and Guido Pennings, ‘The Current Status of Oocyte Banks: Domestic and International Perspectives’ (2018) 110(7) Fertility and Sterility 1203 at 1206.

56 Catherine Waldby and Robert Mitchell, Tissue Economies: Blood, Organs, and Cell Lines in Late Capitalism (Duke University Press 2006) at 184.

57 Jody Lyneé Madeira and Susan L Crockin, ‘Legal Principles and Seminal Legal Cases in Oocyte Donation’ (2018) 110(7) Fertility and Sterility 1209 at 1214.

58 As above.

59 As above.

60 J Benjamin Hurlbut, ‘Promising Waste: Biobanking, Embryo Research, and Infrastructures of Ethical Efficiency’ (2015) 33(4) Monash Bioethics Review 301.

61 Catherine Waldby and Melinda Cooper, ‘The Biopolitics of Reproduction: Post-Fordist Biotechnology and Women's Clinical Labour’ (2008) 23(55) Australian Feminist Studies 57.

62 Swanson, above note 52 at 259 (emphasis added).

63 There are also important gender distinctions here between sperm donation and egg donation. Rene Almeling’s work has helpfully examined the gendered discourses that shape different expectations of motivation and remuneration for male sperm donors and female egg donors: Rene Almeling, Sex Cells: The Medical Market for Eggs and Sperm (University of California Press 2011). For a wider discussion of the gendering of donation, see also Julie Kent, Maria Fannin and Sally Dowling, ‘Gender Dynamics in the Donation Field: Human Tissue Donation for Research, Therapy and Feeding’ (2019) 41(3) Sociology of Health & Illness 567.

64 Waldby, above note 23.

65 However, it remains to be seen what online registries may develop to track oocyte donors and children produced from (potentially) both donor oocytes and donor sperm. If existing models such as the private Donor Sibling Registry are replicated in the context of donor oocytes, this may offer different forms of lateral kinship and ‘donor clans’ to emerge in the future. See for example, Stu Marvel, ‘“Tony Danza Is My Sperm Donor?”: Queer Kinship and the Impact of Canadian Regulations around Sperm Donation’ (2013) 25(2) Canadian Journal of Women and the Law 221; Rosanna Hertz and Jane Mattes, ‘Donor-Shared Siblings or Genetic Strangers: New Families, Clans, and the Internet’ (2011) 32(9) Journal of Family Issues 1129; Naomi R Cahn, The New Kinship: Constructing Donor-Conceived Families (New York University Press 2013); Rosanna Hertz, Margaret K Nelson, and Wendy Kramer, ‘Donor Sibling Networks as a Vehicle for Expanding Kinship: A Replication and Extension’ (2017) 38(2) Journal of Family Issues 248.

66 Alexander N Hecht, ‘The Wild Wild West: Inadequate Regulation of Assisted Reproductive Technology’ (2001) 1 Houston Journal of Health Law & Policy 227; Judith Daar, ‘Federalizing Embryo Transfers: Taming the Wild West of Reproductive Medicine’ (2012) 23(2) Columbia Journal of Gender & Law 257.

67 Dov Fox, ‘Reproductive Negligence’ (2017) 117(1) Columbia Law Review 149.

68 Jacqueline Hurtado and Michael Martinez, ‘Sofia Vergara Reportedly Sued by Ex-Fiance over Their Frozen Embryos’ CNN (online) 21 April 2015 <https://www.cnn.com/2015/04/17/entertainment/sofia-vergara-frozen-embryos-lawsuit/index.html> (last accessed 1 June 2021); I Glenn Cohen and Eli Y Adashi, ‘Embryo Disposition Disputes: Controversies and Case Law’ (2016) 46(4) Hastings Center Report 13.

69 Gary A Debele and Susan L Crockin, ‘Legal Issues Surrounding Embryos and Gametes: What Family Law Practitioners Need to Know’ (2018) 31(1) Journal of the American Academy of Matrimonial Lawyers 55.

70 As above at 114.

71 Waldby, above note 23 at 4.

72 Charlotte Kroløkke and others, The Cryopolitics of Reproduction on Ice: A New Scandinavian Ice Age (Emerald Publishing 2019) at 14.

73 It must be noted that people nevertheless appear pleased to be doing so, with 89% reporting satisfaction at their decision to egg freeze in a recent study: Eleni A Greenwood and others, ‘To Freeze or Not to Freeze: Decision Regret and Satisfaction Following Elective Oocyte Cryopreservation’ (2018) 109(6) Fertility and Sterility 1097.

74 Daniel Bodri, ‘Risk and Complications Associated with Egg Donation’ in Mark V. Sauer (ed) Principles of Oocyte and Embryo Donation (Springer 2013, 2nd edn) 205.

75 Mindy S Christianson and others, ‘Embryo Cryopreservation and Utilization in the United States from 2004–2013’ (2020) 1(2) F&S Reports 71.

76 Alana Cattapan and Françoise Baylis, ‘Frozen in Perpetuity: “Abandoned Embryos” in Canada’ (2015) 1(2) Reproductive Biomedicine & Society Online 104.

77 Juan Pablo Beca and others, ‘Medical, Ethical and Legal Issues in Cryopreservation of Human Embryos’ (2014) 142(7) Revista Medica de Chile 903; Xuan Jin and others, ‘Patients’ Attitudes towards the Surplus Frozen Embryos in China’ (2013) BioMed Research International; Shizuko Takahashi and others, ‘The Decision-Making Process for the Fate of Frozen Embryos by Japanese Infertile Women: A Qualitative Study’ (2012) 13(1) BMC Medical Ethics.

78 Esther Breithoff and Rodney Harrison, ‘Making Futures in End Times: Nature Conservation in the Anthropocene’ in Rodney Harrison and Colin Sterling (eds) Deterritorializing the Future: Heritage in, of and after the Anthropocene (Open Humanities Press 2020) 155.

79 Jodi A Byrd and others, ‘Predatory Value: Economies of Dispossession and Disturbed Relationalities’ (2018) 36(2) Social Text 1 at 3.

80 Rich, above note 27.

81 Marcin Smietana, Charis Thompson and France Winddance Twine, ‘Making and Breaking Families: Reading Queer Reproductions, Stratified Reproduction and Reproductive Justice Together’ (2018) 7 Reproductive Biomedicine & Society Online 112; Rachel Epstein, ‘Space Invaders: Queer and Trans Bodies in Fertility Clinics’ (2018) 21(7) Sexualities 1039; Stu Marvel, ‘Polymorphous Reproductivity and the Critique of Futurity: Toward a Queer Legal Analytic for Fertility Law’ (2013) 4(2) Jindal Global Law Review 294.

82 Davina Cooper, ‘Prefiguring the State’ (2017) 49(2) Antipode 335 at 335.

83 Kalindi Vora, ‘Re-imagining Reproduction: Unsettling Metaphors in the History of Imperial Science and Commercial Surrogacy in India’ (2015) 5(1) Somatechnics 88 at 89.