Race, Health Care and the Law 
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Blue Ribbon Egg Donations and Racism

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Vernellia R. Randall
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Kari L. Karsjens

excerpted from: Kari L. Karsjens, BouTique Egg Donations: a New Form of Racism and Patriarchy, 5 DePaul Journal of Health Care Law 57-89, 78-81 (Summer 2002)(188 Footnotes)

Critical race theory is highly relevant to the issue of boutique egg donation for a variety of reasons. First, the entire premise of boutique egg donation is to perpetuate certain characteristics that are deemed salient by a select few. Wealthy couples, who utilize egg brokers or high profile advertisements, do not seek general traits. These couples are seeking a "perfect gene pool" for their commodity - notice the highly sought after donor is a woman who has blonde hair, blue eyes, received a 1400 on her SAT, attends an Ivy League school, and who preferably has some additional talents such as music, sports, or theatre.

A brief overview of egg donor "profiles" from a well known fertility clinic indicates the same result. Out of 95 egg donor profiles, only eleven included women of color. Of these eleven minority egg donors, three were Asian-American, three were African-American, and four were Hispanic-American. Granted, this is only a selected summary, but given the overwhelming majority of egg donors were of Caucasian, European descent, the additional donor profiles would make a marginal difference in racial diversity composition.

Given that some egg brokerage firms have a "dossier book" of prospective donors with mandatory photographs and resumes, is it any more shocking to think that since the technology exists to genetically select certain genes, that the wealthy, well educated strata of society will attempt to seize racial selection to their advantage? It is a fact that the couples who are seeking Advanced Reproductive Technology (ART), are not underprivileged minorities in inner cities. Rather, the typical profile of a woman utilizing ART is an upper middle class woman in her mid to late 30's, who has at least a Bachelor's degree, and who is more likely than not, white.

In short, racial characteristics matter for prospective families. Linking the disparate number of minority donors and the overwhelming number and demand for white donors, critical race theorists view as suspicious the profitable practice of encouraging a racial hegemony by limited minorities access to the ART services, as well as limited the type of donors recruited to one race. As related to concepts of passing and assimilation, the mere fact of being "white" and the racial desirability of a "white child" carries inherent privilege, while simultaneously oppressing and delegitimatizing those of non-white birth.

The issue of access to ART services thus calls into question the motivations and intentions of having medical reproductive technology services available for a limited subsection of society. Critical race theory scholarship questions the significance of race in existing legal structures. Why is there such a premium on having the "perfect child" ? Why is there an obsession to have a "biological child" at all costs? What is to be said for the implications of a woman who bears a child via egg donation, but who is not actually genetically related to that child? What stories or disclosures must that woman willingly tell her child - so that her child knows the truth about its origins? What policy decisions will have to be made regarding the right of privacy and confidentiality of egg donors? More importantly, is it fair to ask the already over burdened tax payers to shoulder the costs of litigation, debate, and outcry that will be associated with "boutique egg donations" ?

There exists but a scintilla of answers to these questions, but some interesting theoretical conclusions can be drawn. Critical race theory has a vested interest in analyzing the motivations and intentions of couples who utilize boutique egg donation because if race matters, then the crucial question for analysis is the message being sent when the highest paid donors are of one race. When one factors in other relevant considerations related to race, such as social status, prestige, power, and preference - consideration must be given to what generalizations and conclusions are expressed to women of color.

A related issue for consideration is whether the competing legal interests and minimal judicial recognition of a property right in cells and tissues can provide a basis of choice for contemplated genetic manipulation. It is suggested that the unrestrained exercise by parents of genetic changes in anoffspring constitutes a clear abuse of [if any are in fact ascribed] those possessory interests.

As detailed earlier, there may be broad public policy reasons for denying the procreative right to alter genetic trait. First, if only the wealthy have the resources to alter the appearance and intelligence of their offspring, is there a competing social rationale that requires equalization of that proprietary right? Second, is the analysis on property rights overreaching - the danger is that many individuals are equating proprietary rights regarding "whether" to reproduce with exercising control over "how" to reproduce. Third, and most importantly, is there an identifiable social policy interest that requires the preservation of that random condition, or do procreative proprietary rights extend to choices of eye, hair, and skin color, gender, intelligence and personality?

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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
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Email: randall@udayton.edu


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