Germans are currently debating whether to lift their country’s ban on donating female eggs. Germany and Luxembourg are the two EU countries that ban the practice. Can we donate the building blocks of human beings? If so, can we donate the humans themselves?

Last April, The New York Times ran a lot of stories about donating one’s embryo… and its possible tax implications (spurred by a Tax Day query to Ron Lieber’s “Your Money” column, asking: is donating embryos deductible? See here). The questioner said she’d just finished IVF treatment and had a few spare embryos on ice. She was concerned for Alabamians “worried about their future fertility treatments” and, presumably, for reducing her taxable income. Lieber muses on “what does the law say about what you can and can’t do with your embryos? Can you sell them? And if you donate them — say, to a university for research — can you take a tax deduction?”

All this speaks to the barbarism to which we have descended. Let’s look at Lieber’s thoughts.

He admits selling your embryos “seems outlandish” but it may not be illegal, citing a 1984 federal law that bans sale of bodily organs or tissues for transplant. But, he writes, “it makes no mention of embryos.”

That should not be surprising. In 1984, IVF was in its infancy. It was only in 1978 that the first IVF child was born. Yes, surrogacy was already heating up; the Baby M case began in 1984. But that case was fairly straightforward by contemporary standards. Mary Beth Whitehead was impregnated with William Stern’s sperm, a far easier procedure than manufacturing a baby outside the womb and then implanting the child into a “gestational surrogate.” So, in 1984, few people imagined that trafficking in organs would one day extend to trafficking in babies.

“All legal considerations aside, there may not be a big market for anyone seeking to sell embryos,” continues Lieber, though he doesn’t probe why.

There might be two reasons: attitudinal and economic. First let’s address attitudes.

The adoption “marketplace” might be illustrative. Speaking at the Cardinal O’Connor Conference on Life last January at Georgetown, retiring Cardinal Sean O’Malley noted numerous factors that work against adoption, especially as an alternative to abortion. One of them is attitude: Some women choose abortion over adoption because they feel it is a “surer” future for their clump of tissue. Not wanting their baby going to persons unknown or to be uncertain of the child’s future, a perverse logic concludes the child is better off dead.

Lieber sidles up alongside this consideration, writing that “many potential sellers will probably be thinking hard about the feelings of any potential child and the questions that child might have years later.” Not wanting your kid to ask how much you gave him away for and to spare him ill feelings, isn’t it better he just not exist?

These arguments are not exaggerations. Among the arguments litigated in post-2014 federal abortion cases that eventually led to Dobbs overturning Roe was the question, What does the “right to abortion” include? Does it include “the right not to be pregnant anymore” or “the right to a dead fetus?” The two questions are conceptually distinct, and the pro-abortion side argued the “right to abortion” means the latter. Essentially, the argument was for a strange kind of “closure”: A woman has a right to be free of post-abortion concerns that a surviving and thriving child somewhere might disturb and the right to know her “procreative liberty” did not make her a “parent” she did not want to be. Only a dead fetus assures that.

Pro-life Catholics may find that logic twisted, but I refer you to an article in New York magazine (here) where Jen Gann discusses her “wrongful life” lawsuit. Gann says she was not told in time for her to obtain an abortion that her son would have cystic fibrosis (which is not developmentally damaging or necessarily fatal), insisting she would have had the abortion out of “love” for her Dudley. But she admits she dreads someday telling him, “I’m sorry I didn’t save you from your own life.” Apparently, she is more worried about that than Dudley asking, “Why did you want to kill me?”

So, that’s the “attitudinal” argument about why there may be a limited market in embryos. Some women may think the embryo is better off dead.

Now, the economic attitude. Let’s look at the basic rules of supply and demand. Most people resorting to IVF do so because, although one party usually cannot have children, they want a child who is at least in some way biologically theirs. So, from a purely consumer perspective, why would one want an embryo that is genetically unrelated? Most people using IVF consider the biological link their end and gestation just the necessary means. They don’t resort to IVF just to carry a baby. So, the market for somebody else’s genes is like the market for somebody else’s jeans: they’re not “yours.” Given that few women are hankering to carry a baby they didn’t conceive but will keep and raise, why not just cut to the chase and adopt? After all, the product affords more certainty: the baby’s already inspected. You can be sure it’s defect-free, as compared to gestational flaws that might creep in over nine months.

Compared to embryos, there is a market in gametes but, even there, there are price differences. Sperm is cheap mostly because it’s plentiful. Most men are constantly fertile from puberty onwards. They can donate liberally and extraction is only morally problematic. The laws of the marketplace do not make semen a particularly valuable commodity. One can go online and even find altruistic donors offering sperm for free. (I will not comment anew on people who provide or take up such offers. Do you really want your baby to be the result of receiving a stranger’s sperm in a cup at your local coffee house? For more on this, see my 2011 essay on “coffee shop babies,” here).

Eggs, by contrast, are another question entirely. There’s demand but limited supply. Fresh eggs (as opposed to defrost and hatch) require medically coordinating the fertility cycles of the donor and the recipient to implant them successfully. Extraction is an invasive procedure. And since these eggs will “become” your children, you’re going to want only the “best.”

People don’t think about these questions. Abortionists don’t want you to; they want to sell the image of “having a baby” as “reproductive choice.” But that doesn’t make these questions any less real. Jennifer Lahl has produced three compelling films on these issues: “Anonymous Father’s Day” (on what it’s like being the child of a sperm donor); “Eggsploitation” (on the myths and realities of being an egg donor), and “Breeders: A Subclass of Women?” (on surrogacy). They’re worth watching (see here).

These are the reasons why the used embryo market is economically limited.

Finally, Lieder starts considering the tax questions. If you donate your embryo for tax purposes, how do you assign a price? Is it what you paid to create him through IVF? If you created multiple embryos through IVF, do you have to prorate the costs? What about the distinction between “business use” and “personal use” if you actually used some of those embryos yourself (as, apparently, Lieder’s correspondent did)? And, in the latter case, what constitutes “used?” Is “use” implantation, regardless of outcome, or only those actually resulting in live birth? If the latter, how does that affect the value of your “donation” before it proves its “potential” through birth? (Will you need to plan when you donate, in case the pregnancy passes December 31 and you have to “carryover” the baby you’re carrying to next year’s itemized deductions?)

I’ll ask, where do you enter the claim, anyway? Is it a “medical expense” because you paid for the IVF? If so, it’s subject to the 7.5% adjusted gross income threshold. Or is it a “charitable deduction,” which then makes no sense unless you benefit from itemization versus standard deductions. Presumably, you can’t pick both, because that would be double dipping.

Please don’t be surprised if there is an economically elitist poke here. Jennifer Lahl speaks of the huge and largely unregulated IVF/surrogacy business as “Big Fertility.” It makes — and charges — lots of money. The folks availing themselves of these techniques seem — contrary to diversity and equity considerations — not to “look like America.” They leave the impression of very rich folks who can buy what they want, including babies. That was true back in the Baby M case; the economic gap between the Sterns and Mary Beth Whitehead was apparent. Of course, Big Fertility wants to get even bigger.

What’s telling is how Lieder ends his column, with what he fears most: If you attempt to put a price tag on your embryo, those pesky pro-lifers might intervene and say, “this is not a thing but a person and so the government cannot assign a value to him.” That could result in a “federal court case over whether any such donations are deductible … [becoming] an opportunity to advance the cause of fetal personhood. Someone who wants to preserve abortion rights, however, may not want to be in the middle of that.”

So, don’t ask, don’t tell. Maybe, instead, take the advice the Times published a few days earlier, from a woke Princeton professor who thinks social justice is best served by not taking all the deductions one might be entitled to. (See here.)

As Lieder notes, deductibility reopens the question: Is the embryo an “asset” (maybe depreciated) or a person? He doesn’t want to venture down that path. But that was the path the Alabama Supreme Court was forced down in February, for which it has since been misrepresented. Was the embryo that was destroyed in the Alabama fertility clinic an asset that was irreparably damaged or a human being whose loss constituted a personal injury to him and his parents? The abortionists are in a lather because the Court awarded personal injury damages in this limited set of circumstances to the parents. Tell me: If the Court had determined what happened was “property damage,” how do you determine “asset value?” Faced with that problem last year when a Virginia court had to divide “assets” in a divorce case — assets that included frozen embryos — the court went in search of precedents and found one on “chattels” in Virginia’s pre-Civil War slave code. Is that where we want to go?

Of course, a couple not looking for the tax write-off could consider donating embryos to a research facility, gratis. Such embryos might then be used by some other couple. Or, it might be put to experimental use, say, developing a chimera. (Remember how we were all told over ten years ago that all sorts of disabilities would magically disappear if we just allowed and funded embryonic experiments?)

Decades ago Cahal Daly — then a theologian and later Primate of All Ireland — presciently wrote in Morals, Law, and Life that what one does with sperm one would do with a man. That respect for the human procreative meaning of gametes — sperm and eggs — was poohpoohed by some. It’s not so much consumerist as nominalist: Humans who think their fiat determines reality and its value and that the value can be fixed by their almighty wills according to their self-interest. But, when we have a newspaper of record like The New York Times speculating, in response to a reader’s question, how much her embryo might be worth taxwise, one can only reaffirm the wisdom of Oscar Wilde’s 1892 observation about those who “know the price of everything and the value of nothing.”