Introduction
In September 2014, a healthy male child was born in Sweden to a woman with Rokitansky syndrome— without a uterus—following a successful uterine transplantation (UTx). The birth, published in the Lancet in October 2015,Footnote 1 made international headlines and was touted as a miracleFootnote 2 and a medical marvel.Footnote 3 The event brought hope to many women without functional uteruses; as the Swedish researchers stated, it meant the eradication of the diagnosis of absolute uterine factor infertility.Footnote 4
Long a theoretical possibility, having a child with a transplanted uterus is now possible, and we must begin to think about how the procedure will be systematized as it becomes more common. Specifically, we ought to address the question of how uteruses will be allocated, and what elements should be weighed when deciding which recipients get priority. UTx exists at the nexus of two complex ethical areas—assisted reproduction and organ transplantation—and the factors that make each area particularly sensitive must be taken into consideration when approaching the topic of uterine transplant allocation. Whereas other ethics articles on UTx highlight the risky nature of the procedure, we believe that there is good reason to continue developing UTx and that the medical community should turn to the issue of how to allocate a scarce supply of uteruses. This article represents a first discussion of the range of criteria that should be considered in addressing the allocation question. The article focuses primarily on practices and policies within the United States, but the issues discussed and questions raised are also relevant to UTx allocation around the world. We build arguments for concentrating on the motivation to seek treatment, allocation by age, child-rearing capacity, and the amount of infertility treatment required.
UTx in the Existing Ethics Literature
Discussion in the ethics literature about UTx has thus far centered on the need to balance the benefits and burdens of transplantation for recipients, living donors, and fetuses.Footnote 5 Extensive attention has been paid to the fact that UTx is not a life-saving procedure, as compared to some other forms of organ transplantation. Transplant recipients thus subject themselves to the risks of surgery and long-term immunosuppression and the potential complications of a novel surgical technique for the sake of an “elective” procedure. Living donors also face risk, though researchers are working to achieve a successful pregnancy following UTx from a cadaveric donor, which would eliminate the risks to living donors.Footnote 6 Finally, the risks to fetuses carried in transplanted uteruses are difficult to predict. Animal models, including primates, demonstrated no prematurity or restricted growth in fetuses.Footnote 7 However, the child born in September was born prematurely, after the patient was admitted to the hospital with preeclampsia. The researchers are unsure as to what caused the preeclampsia, and whether preeclampsia would likely be characteristic of other pregnancies following UTx.Footnote 8
In the existing ethics literature on UTx, authors emphasize the alternatives to transplantation, namely adoption and surrogacy.Footnote 9 They note that potential recipients might overrate the extent to which gestating a child with a transplanted uterus would be akin to the experience they desire, because they might feel alienated from the transplanted organ, and it will not be innervated like a normal uterus.Footnote 10 Overall, the tone of the ethics literature tends to be precautionary, even in work by the medical researchers themselves.Footnote 11
Despite the understandable need for caution in the introduction of a serious surgical procedure affecting multiple parties, there is also reason to believe that some concerns with UTx have been overstated.Footnote 12 Other forms of surgery, such as plastic surgery or hand and face transplantation, are done not to save lives but to improve the quality of life of the recipients. In those cases, we let prospective recipients weigh the benefits and burdens for themselves. We also allow kidney and partial-liver donation from living donors, so there is precedent for allowing people to assume the risks of serving as a living donor. Furthermore, the risks of immunosuppression, both to transplant recipients and their fetuses, have been successfully mitigated in the past.Footnote 13
Perhaps most problematic is the inference that women with uterine infertility should not want a uterine transplant, given the alternatives.Footnote 14 As David Orentlicher argues, “Many women may be perfectly happy despite losing their ability to carry a pregnancy, but that should not lead us to dismiss the interests of those women who very much want to become mothers through pregnancy.”Footnote 15 Even if surrogacy and adoption were available to every woman with uterine infertility, which they are not,Footnote 16 these methods will not be satisfactory substitutes for women who strongly desire to become mothers through gestation. Moreover, we should not lose sight of the fact that uterine infertility is a medical condition, and UTx is the only medical treatment to this condition. Although it is important to weigh the benefits and risks of every medical treatment, the amount of benefit gained from carrying a pregnancy is very personal and is not readily ascertained by a third party weighing available alternatives.
For the remainder of this article, we make several assumptions. First, we assume that UTx, though still in the experimental stage, is a legitimate medical treatment. As a non-life-saving transplantation that is nonetheless justifiable in some circumstances, it falls into the same category as hand, face, and other vascularized composite allograft (VCA) transplantation,Footnote 17 which are becoming increasingly accepted and sought-out.Footnote 18 Furthermore, we assume that once the treatment becomes sufficiently well-established, uteruses will be allocated by a central system—most likely the Organ Procurement and Transplantation Network (OPTN), given the organization’s role in regulating other forms of transplantation, including VCA transplants. Finally, since it is still an experimental procedure (like hand and face transplantation), we presume that UTx will probably not be covered by health insurance in the immediate future. For now, the costs of the procedure and short-term follow-up will be covered by the research center carrying out the operation. However, in the future, insurance companies may feel pressured to cover the costs, as they do with other well-established forms of transplantation.
Whether, as a society, we feel that UTx is a worthwhile healthcare expenditure is an important question that falls beyond the scope of this article. As with other new and expensive medical treatments, our society ought to engage in a debate over whether UTx brings about sufficient benefit to be worth the cost. For the purposes of this article, it suffices to note that multiple major medical centers around the world have expressed interest in pursuing UTx, that the recent live birth generated great excitement among the general public, and that there are enough women with uterine infertility to create significant demand for the procedure. UTx is moving forward—will we be prepared to answer difficult allocation questions when the time comes?
A Scarce Supply
Allocating uteruses appropriately requires that we determine who should be eligible for a transplant, and also how to prioritize some women over others. Prioritization will be necessary because there will inevitably be a shortage of uterine transplants—demand will exceed supply. Candidates for UTx include women born without uteruses, women with extensive uterine scarring, and women who have had hysterectomies, for instance, for endometrial or cervical cancer. Estimates for the number of women who would be eligible for UTx vary. Nair et al. estimate that 9.5 million women between ages 15 and 44 in the United States lack functional uteruses.Footnote 19 According to the U.S. Census, of the 62,787,705 total women between the ages of 15 and 44 in 2011, 4,032,469, or 6.4%, gave birth that year.Footnote 20 It is estimated that 50% of pregnancies are planned, which means that if 3.2% of 9.5 million women without uteruses wanted to have a child in the first year, there would be approximately 304,000 women who may desire a transplanted uterus. While not all women who would like children and lack a functional uterus will want to undergo UTx, it seems likely that tens of thousands of women will seek out the procedure.
The population and the demand are present for UTx, but like other kinds of organ transplantation, there will likely be a shortage in supply. At the time of writing this article, there were 123,302 people waiting for an organ in the United States.Footnote 21 Each year in the United States, more than 20,000 people are on the heart transplant waiting list, while only 1,900 received a new heart in 2011.Footnote 22 For lung transplant, the waiting time is often two to three years.Footnote 23 In 2014, there were more than 100,000 people on the U.S. kidney transplant waiting list, with only 16,900 kidney transplants taking place the previous year.Footnote 24 Like kidneys, uteruses can also come from both live and cadaveric donors, and yet there is still a significant shortage in kidneys. According to the OPTN, there are even waiting lists for VCA (hand, face, or other composite tissue) transplants,Footnote 25 and depending on the type of transplant, VCA transplants can also come from either living or cadaveric donors.Footnote 26 Given the existence of shortages and waiting lists for every other kind of organ transplantation, it is reasonable to conclude that uteruses will also be in short supply.Footnote 27
It may be tempting to suggest that healthy uteruses removed during hysterectomy be used to supply uteruses for UTx. However, it is rare for healthy uteruses to be removed by hysterectomy in the United States, and hysterectomies typically remove the uterus in such a way that leaves the organ insufficiently intact for transplantation. In the unusual case in which a woman elects to remove a healthy uterus (e.g., for family planning purposes), she would therefore need to opt for a much longer, more extensive abdominal surgery in order for the organ to be transplantable. It is therefore unlikely that uteruses from hysterectomies performed in the United States would contribute a significant number of organs for transplantation. Uteruses, like other organs, will be a scarce resource, and we must think carefully about how to allocate them in a fair and principled manner.
Factors to Consider in the Allocation of Uterine Transplants
Prioritizing some women over others in the allocation of uterine transplants will require assessing a variety of pragmatic and value-based concerns. We do not discuss the pragmatic concerns—the medical criteria for determining whether a recipient is a good tissue match for a particular organ or is sufficiently healthy to tolerate transplantation—because medical experts are best suited to decide these factors. We also do not address allocation by geographic region, because regional prioritization is linked to how long the organ can remain viable outside the body, which will also be determined by transplantation experts as the science develops. To a certain extent, uterine transplant allocation can be modeled off existing allocation systems for other organs, but these systems are not uniform across the different organ types, and ranking methods will diverge when we account for key differences between UTx and other forms of transplantation. Our analysis focuses on features of UTx that present unique allocation challenges. They include both exclusion criteria and ranking criteria for the allocation of uteruses.
Motivation to Seek Treatment
The goal of UTx is different from that of other kinds of transplantation. For life-saving organs, transplantation is a means of extending life. For kidney transplants, transplantation is a means of extending life or vastly improving health. For hand or face transplants, transplantation is a means of repairing or replacing a body part to improve quality of life. In all these cases, transplantation may be a means to a further end, but transplantation and rehabilitation—procuring and integrating the organ—are the final steps. For UTx, the goal is not only to provide a functioning uterus but also to use that uterus to have a child. The end is to become a mother to one or more children through gestating a pregnancy,Footnote 28 not to possess a functional uterus per se.
It is possible for a woman to desire a uterus only in order to restore a feeling of bodily integrity,Footnote 29 but this motivation would undermine the purpose of UTx as a treatment for infertility. Infertility is defined by the American Society of Reproductive Medicine as “the result of a disease (an interruption, cessation, or disorder of body functions, systems, or organs) of the male or female reproductive tract which prevents the conception of a child or the ability to carry a pregnancy to delivery.”Footnote 30 Infertility is defined in terms of lacking a capacity to do something—to become pregnant and carry a child to delivery—not only in terms of having the necessary equipment. In fact, a 2013 consensus document written by a group of international UTx researchers states that we should “define a satisfactory outcome as no less than a live birth.”Footnote 31
Furthermore, the Swedish transplant team informed the UTx recipient that removal of the organ would eventually be recommended for medical reasons due to concerns about rejection, surgical complications at cesarean section, and the side effects of immunosuppression.Footnote 32 The ethics approval and consent forms for the transplantation stipulated that the uterus should be removed after a maximum of two successful pregnancies, with permission from the patient.Footnote 33 These specifications illustrate that the purpose of the transplantation was to bear children, not to restore permanent gestational capacity or a sense of bodily integrity. The temporary nature of the transplant should be considered a positive feature when weighing the benefits or burdens of the procedure, since the woman does not need to face a lifelong possibility of rejection or immunosuppression.Footnote 34 Permanent transplantation might actually tip the scales toward the burdens of UTx and away from recommending the procedure.
It is also possible for a woman to desire a uterus in order to experience gestation but not motherhood. For example, a woman might want a uterine transplant in order to serve as a gestational surrogate or to give the child up for adoption. This motivation would be idiosyncratic, however, because most women who desire uterine transplants see UTx as a means to motherhood.Footnote 35 This is why surrogacy and adoption are viewed as alternatives to UTx, though we have noted that they may not be appropriate substitutes for some women.Footnote 36 Women who seek UTx can be viewed as wanting a certain kind of motherhood—one that is not superior to other kinds, but that they believe is better suited to their needs and desires.Footnote 37 The experience of gestation is both part of and a means to that kind of motherhood, but becoming a mother is central to the enterprise. It would be reasonable, therefore, to limit UTx to women who desire to become mothers through gestation.Footnote 38
In addition to these two criteria—that women must desire to (1) experience pregnancy and (2) become a mother—we ought to consider several interesting and important challenges related to obtaining valid informed consent for UTx. First, UTx is still a very novel procedure with a low rate of success. Women who are unrealistic about the likelihood of successfully carrying a child to term will not be able to make a reasonable risk-benefit calculation when consenting to the procedure. Before they can become UTx recipients, women should be able to demonstrate an understanding of the probability that they will achieve the outcome they desire.
Furthermore, we should do our best to ensure that women do not feel unduly pressured to undergo the UTx. Mumtaz and Levay argue that in some low-income, pronatalist societies, women may not feel as though they have a choice to refuse UTx if it is the only socially acceptable path to motherhood.Footnote 39 If these women feel unduly pressured to carry out UTx, they may not be providing valid consent for the procedure, and performing UTx may be inappropriate.Footnote 40 Outside low-income, pronatalist societies, women may still feel extreme social pressure to reproduce. Consequences of infertility can range from ostracism or divorce to less overt forms of social stigma,Footnote 41 and some women may also feel pressure to undergo UTx in order to “give” their partners children.Footnote 42 Furthermore, even if childbearing is not the only basis for a woman’s identity, it can still be an important part of her self-conception, or her conception as a woman. It will often be difficult to distinguish among innate desires to undergo UTx, externally motivated desires, and desires resulting from undue pressure. It is worth noting, however, that other forms of VCA transplantation, such as face transplantation, are also motivated by a complex combination of personal and social factors, including feelings of stigmatization and isolation.Footnote 43 These transplants are being carried out nonetheless and are generally considered ethically acceptable.
Careful psychological assessment of potential recipients, including their motivation for seeking UTx, will need to be conducted prior to surgery, as is done with other forms of VCA transplantation.Footnote 44 Ultimately, a patient’s motivation for desiring to undergo UTx should factor into her eligibility to receive a transplant. Eligibility involves (1) having the desire to experience pregnancy and (2) having the desire to be a mother. We should also be sensitive to the complexities of obtaining proper informed consent for UTx from potential recipients.
Age of the Recipient
Allocating uterine transplants to women of different ages will differ from allocating other organs by age, because UTx requires us to consider the question of what constitutes appropriate childbearing age. In other forms of organ transplantation, age is typically considered from a medical perspective and is factored into either the scoring of recipients or the prioritization of one group or another depending on the age of the organ donor, or both. In general, younger patients are more likely to be offered an organ before older patients, though it depends on the organ and condition. For VCA transplants, for example, candidates are prioritized simply by blood type and geographic region.Footnote 45 For lung transplantation, age is factored into the calculation of the lung allocation score (LAS), but younger recipients are not necessarily scored higher. Younger patients do tend to be offered lungs before older patients, however, since, within a given geographic region, lungs are offered to those of the same age group or younger.Footnote 46 For heart transplantation, the ranking of recipients depends only on factors contributing to waiting list urgency, but, like with lungs, adult hearts are offered to high-urgency pediatric and adult candidates, whereas pediatric hearts are offered first to pediatric candidates and then to adults.Footnote 47
The scoring of kidney transplant recipients explicitly prioritizes younger patients through the use of the estimated posttransplant survival (EPTS) score.Footnote 48 The stated goal of the EPTS score is to “more accurately estimate graft longevity and recipient longevity to maximize the potential survival of every transplanted kidney,”Footnote 49 which clearly prioritizes younger patients. The kidney allocation policy was deliberately designed in this way because of the view that pediatric priority is the fairest way to allocate kidneys; adults have already experienced childhood, while sick children may never have that opportunity.Footnote 50 This is a kind of “fair innings” argument that maintains that everyone is entitled to some “normal” span of health.Footnote 51 We are sympathetic to the fair innings argument, because it accounts for what people find most tragic about the death or injury of a young person—that he or she is unable to “achieve a diverse array of mature goals, such as employment or intimate relationships.”Footnote 52
The OPTN/UNOS document on the ethical principles of pediatric organ allocation refers explicitly to the fair innings approach, as well as to Norman Daniels’s “prudential lifespan account.”Footnote 53 According to the latter account, we should try to reach a consensus about how to invest resources across one life, with the goal of making that life go as well as possible. We should make decisions about allocation across a single human lifespan, rather than conceiving of allocation as a tradeoff between people of different ages. Lifespan is a universal concept (unlike race, for example), and if we can agree about how to allocate across one lifespan, we will not view the prioritization of one age group over another as discriminatory.Footnote 54
The UNOS/OPTN pediatric allocation document draws from Daniels’s account the following conclusion: “From this perspective, as a society, it makes sense to preferentially allocate resources to children and young people in order to maximize the potential for these individuals to thrive in early and later stages of life.”Footnote 55 Like the fair innings argument, the prudential lifespan is used to justify favoring younger patients in the allocation of scarce life-saving organs because young people can benefit more from transplantation—they can benefit in earlier and later stages of life. We can all agree that it is better to confer the greater, rather than the lesser, benefit to the single life we are considering. For non-life-saving treatments, Daniels stipulates that we must determine what the “age-relative normal opportunity range”Footnote 56 for a given treatment is, or what constitutes a normal part of life for a given age group.
The fair innings and prudential lifespan accounts cited by the OPTN can be applied to UTx in order to determine how to allocate uteruses to women of different ages. For the fair innings argument, the “normal span of health” can be reconceived as a “normal span of reproductive health.” This implies that when allocating uteruses, we should prioritize women who are within a normal childbearing age range, so that they can experience their normal spans of reproductive health. Older women are naturally past the normal span of reproductive health, and adolescents or girls have not yet reached childbearing age and will be able to benefit from interventions aimed at assuring their reproductive health at a later point in time. Similarly, for the prudential lifespan account, the “age-relative normal opportunity range” is the age at which it is normal to bear children. Since it is normal for a 60-year-old woman to be infertile, we should prioritize a 30-year-old over a 60-year-old when allocating uteruses. But what if we are choosing between a 40-year-old and a 20-year-old—two women of childbearing age?
Both the fair innings argument and the prudential lifespan account allow us to rank women within the childbearing age group as well. For the fair innings argument, women who are nearing the end of childbearing age—reaching their last opportunity to have children—should be prioritized over younger women of childbearing age, so that they too will have the chance to experience reproductive health. By prioritizing older women of childbearing age (the 40-year-old over the 20-year-old), we are giving older women their fair shot at having children during their normal childbearing years. Similarly, according to the prudential lifespan account, we should prioritize older women within the childbearing age range because they are going to “age out” of the age-relative normal opportunity range, and it would make a single life go better if the woman is able to have a child at all, before she is too old to do so.
There are a number of complications with our age-ranking proposal, beginning with the definition of “normal childbearing age.” The World Health Organization defines “women of childbearing age” as women between the ages of 15 and 49.Footnote 57 Women are technically able to bear children from menarche to menopause, the average ages of which are 12Footnote 58 and 51Footnote 59 years old, respectively, in the United States, but most women do not bear children on the lower and higher ends of that range. According to the most recent census data, more than 87% of births in 2011 were by women between the ages of 20 and 39.Footnote 60 But at what percentile can we nonarbitrarily draw the line?
Some countries with federally funded assisted reproductive technology (ART) programs have restricted the age at which women can access ART. For instance, the United Kingdom offers three NHS-funded IVF cycles to women under the age of 40, and one cycle to women aged 40–42, if they meet certain criteria.Footnote 61 In the United States, where IVF is not covered by public funds, there is no common standard for restricting access to ART. However, some states in the United States have mandated limited health insurance coverage for ART and have therefore had to determine an age range for which coverage is required. For example, New York requires coverage for women aged 21–44, and Rhode Island requires coverage for women aged 25–42.Footnote 62
The upper age cutoff largely reflects cost-effectiveness assessments regarding the difficulty of achieving a successful pregnancy through ART above a certain age. But while ART tends to be less successful for older women, this is primarily due to a decline in ovarian reserve with age,Footnote 63 which can be overcome through the use of donor eggs. Egg donation allows women to achieve pregnancy until and even beyond menopause, stretching our standard conception of childbearing age. The oldest verified mother, who conceived using donor eggs, was 67 years old.Footnote 64
There is a substantial literature on the ethics of having children at an older age and on the age at which egg donation is no longer appropriate.Footnote 65 Medically, the risks of advanced maternal age both to the mother and the fetus have been shown to increase over age 35.Footnote 66 Risks include gestational diabetes, hypertension, and postpartum hemorrhage for the mother and breech presentation, respiratory distress, and low birth weight for gestational age for the fetus.Footnote 67 Other concerns include the worry that older mothers will die sooner, orphaning children at an early age, and that older mothers will not have the energy and stamina to care for children. However, research does not support the hypothesis that mothers of advanced maternal age have reduced parenting capacity due to higher stress levels or lower physical or mental ability.Footnote 68 Furthermore, these factors apply equally to older male parents, so it seems discriminatory to deny women alone the chance of becoming older parents for these reasons.Footnote 69 Since older childbearing has been associated with greater reproductive choice (e.g., due to the availability of safe and effective oral contraceptives) and a higher proportion of career-oriented women, restricting the age of ART use on the basis of values or lifestyle judgments can be viewed as an inappropriate exercise of social control over women.Footnote 70 At the very least, developing age restrictions on the use of ART for social reasons would be highly controversial and potentially politically infeasible.
To develop a national standard for restricting the age of uterine transplant recipients, then, we should rely solely on a medical assessment of the risks of surgery and subsequent pregnancy to women of different ages, along with their fetuses, and the likelihood of achieving a successful pregnancy. The American Society for Reproductive Medicine (ASRM) recommends that egg donor recipients over the age of 45 undergo thorough medical evaluation, including cardiovascular testing and a high-risk obstetric consultation, before treatment.Footnote 71 While the ASRM does not suggest prohibiting the use of ART for older women, it acknowledges the increased risk of pregnancy to older women, which would likely be even greater for women undergoing UTx. The upper limit will reflect surgical and obstetric risks and will likely fall in the mid-40s range.Footnote 72
The lower age limit for UTx must also be determined. While it is difficult to argue that women nearing menopause are likely to be poorly suited for parenting (in fact, it has been demonstrated that women having children over 35 do so in part because of greater partner support and financial stabilityFootnote 73), the social and economic impacts of childbearing on teens, their children, and society at large are well documented.Footnote 74 They include greater incidence of incarceration, lower levels of education, increased child welfare costs, and billions of dollars in lost tax revenue.Footnote 75 Given the combination of personal hardship and public costs for teen mothers, we suggest a lower age limit of UTx of 20 years old.
Finally, we must address complications with our general principle of prioritizing older over younger women. Women may have good reason to prefer to have children at certain times in their lives. Conceptions of what constitutes an appropriate age for childbearing differ among women from different cultures and geographic regions in the United States. Furthermore, some women will want to control—for career, family, or other reasons—when they have their children, and ranking recipients by age may substantially limit when they are able to obtain a uterus and reproduce. Moreover, some women may want to have multiple children and so would prefer to have the transplant earlier in their childbearing years.
With regards to the cultural and geographic variation in normal childbearing age, this is a difficulty inherent to policymaking in a diverse, multicultural society. As with other organs, the distribution of uteruses will cross cultural and geographic barriers, and the OPTN, a national body, will need to devise an allocation policy that is fair and universalizable. In practice, we will not be able to account for the particularities of how different women conceive of “normal childbearing age.” Rather, we will need to develop national standards based on aggregated data on when women in the United States tend to have children. Similarly, it will not be feasible to take account of individual preferences for when to have children, no matter how reasonable those preferences are.
Nevertheless, it does seem unfair for a woman to wait to join the waiting list until she is in her late 30s, knowing that she will receive priority over a 30-year-old who has been on the waiting list for 10 years. Thus, in order to account for when individual women in need of UTx desire to reproduce, we should build time spent on the waiting list into our prioritization criteria. While we should still preference older women over younger women of childbearing age by virtue of their being near the end of their reproductive lifespan, factoring in length of time on the waiting list will ensure that it is not always the oldest patients who receive transplants, regardless of how long they have been seeking UTx.
In terms of the number of children that women wish to have, the safety concerns with UTx will limit the number of children a woman can have with a transplanted organ. The Swedish woman agreed to have a maximum of two children with her transplanted uterus, and although this number might grow as the procedure becomes better established, it is unlikely—based on the current state of medical science—that women who are candidates for UTx will be able to carry many pregnancies. Also, it will be very difficult to ascertain in a fixed and reliable manner how many children UTx patients wish to have. People’s assessments of how many children they plan to have can change, particularly before they have experienced childbearing and parenting. Since it will not be possible to ensure that women abide by their preoperative estimates, women might attempt to gain access to organs faster by claiming they want to have multiple children. However, women who want multiple children can join the waiting list earlier in life, giving their ranking extra weight due to the time-on-waitlist provision.
To our earlier criteria regarding the motivation to seek treatment we have added in this section the provisions that women must be older than 20 and young enough to be able to safely undergo UTx and gestation (approximately < 45), that older women within this range should be given additional weight in the ranking, and that length of time on the waiting list should be factored in as well.
Child-Rearing Capacity
As we have discussed, uterine transplant recipients are receiving not only an organ but also an opportunity to become mothers through gestation. Therefore, we should only give uteruses to people who meet certain standards for child-rearing ability. This means not that we should rank each woman or couple based on the likelihood of being good parents—a burdensome and morally questionable undertaking—but rather that we should develop minimum standards for child-rearing capacity before offering a uterus to a potential recipient.
There is precedent for modern governments limiting the opportunity to become parents to those who are deemed suitable—adoption. Adoption is regulated by states in the United States, and each state has certain standards that a prospective parent must meet in order to be eligible to adopt. For instance, New York state requires prospective parents to pass a criminal background check,Footnote 76 and Washington, DC, requires that prospective parents and close family members pass a child abuse background check and that prospective parents be sufficiently financially able to support a child.Footnote 77
Criminality and financial stability are two key elements of a minimum “child-rearing capacity standard” aimed at ensuring that uteruses are allocated responsibly. It would be negligent for the state to allocate an organ to a woman who cannot afford to raise a subsequent child, or to a woman who would likely raise a future child in an unsafe environment. As with adoption, the financial standard for UTx would be to meet a minimum level of wealth. The standard should not, however, preference wealthier women or families over less wealthy ones above a certain minimum.
Some might argue that the criteria utilized during the adoption process are not appropriate for UTx, because women who undergo UTx are seeking treatment for a medical condition, not access to a social service. However, there is also a model for limiting ART to those who meet minimum standards for child-rearing capacity. The American Society of Reproductive Medicine published a guidance document in 2013 on the parenting ability of fertility patients, in which it stated that “fertility programs may withhold services from prospective patients on the basis of well-substantiated judgments that those patients will be unable to provide minimally adequate or safe care for offspring.”Footnote 78 The document emphasized that decisions to withhold treatment must be based on objective facts about the woman or couple and must be agreed on by multiple members of a fertility team. The ASRM also noted that the United Kingdom’s Human Fertilisation and Embryology Act explicitly states that fertility treatment services should not be provided unless “account has been taken of the welfare of any child who may be born as a result of treatment.”Footnote 79
Ultimately, while it is true that women and couples who become pregnant through the normal process have not been screened for parenting ability, certain minimum criteria are necessary in the cases of adoption and fertility treatment for three interrelated reasons: (1) because it is better to promote the best interests of some future children, even if we cannot do so for all future children; (2) so that governments and physicians are not complicit in the mistreatment of future children; and (3) because of the social responsibility to act as sound stewards of a scarce resource, which requires that the state (or the OPTN, which has been empowered by the state) should promote (1) and avoid (2).
Thus we should establish a standard for parenting capacity, but where should we draw the line? UTx is like adoption in that the state must allocate a scarce resource and should do so responsibly. On the other hand, UTx is like other forms of ART in that it is a medical treatment. Although there is precedent for examining the parenting capacity of prospective fertility patients, we do not typically take into account nonmedical factors when determining whether someone should have access to a medical treatment. This suggests that we should set a low bar for parenting capacity. We argue for eliminating candidates with a criminal background of child abuse and negligence, and those who fail to meet a minimum level of financial ability. Minimum level of financial ability should not be a burdensome requirement; for instance, it could be a self-reported expense sheet along with documents to demonstrate the ability to cover basic monthly expenses.
It has been suggested that the marital status and sexual orientation of prospective parents should also be taken into account when providing treatment for infertility. Some countries, such as France, limit the use of ART to heterosexual couples. However, given the lack of evidence that children of single women or homosexual couples are maladjusted or otherwise disadvantaged, we reject this basis for prioritizing women for UTx. The American Society for Reproductive Medicine has similarly taken the position that “data do not support restricting access to assisted reproductive technologies on the basis of a prospective parent’s marital/partner status or sexual orientation,” so programs should treat all requests for ART equally without regard to marital status or sexual orientation.Footnote 80 In sum, criminal background of child abuse and minimum level of financial ability should be considered as part of meeting minimum eligibility criteria for UTx, but marital or partner status and sexual orientation should not.
Amount of Infertility Treatment Required
Different patients with uterine infertility have different treatment needs; some need only a functional uterus to begin menstruating and achieve fertility, whereas others need IVF, egg donation, and/or a sperm donation as well. In an allocation system that is, at least in part, aimed at providing the greatest benefit to the greatest number of potential recipients,Footnote 81 it seems reasonable to consider prioritizing women who need fewer interventions to achieve fertility. This would be akin to, with other organs, prioritizing candidates who are likeliest to have a successful transplantation. Furthermore, if a public system were funding the entire process from UTx to the birth of a child, prioritizing women who require only transplantation would be the most cost-effective means of allocating organs.
In the United States, however, transplantation costs are typically covered by private insurance companies, not the government. Furthermore, fertility treatment is not funded by the government (with the exception of limited coverage for military families) and is very inconsistently covered by private insurance plans.Footnote 82 Most couples using IVF pay out of pocket as much as $17,000 per cycle (including the cost of hormones).Footnote 83 Since there is no central system allocating funding and people largely pay for their own treatments, uteruses should not be allocated to women with lower costs of treatment for the sake of achieving cost-effectiveness on a societal level. Countries that have a central funding agency may, however, be justified in prioritizing patients with less expensive reproductive needs in order to maximize the benefit obtained from limited public funding.
For utility purposes—to achieve the best possible outcome with the uterine resources available—it will make sense to allocate uteruses to women in the United States who are most likely to achieve a healthy, successful pregnancy. We do not want to create a regressive policy that further disadvantages those with more severe fertility problems, so, for making allocation decisions, we should assume that women have access to all available treatments and have the ability to afford these treatments.Footnote 84 Some women, whether due to advanced age, their underlying condition, or another factor, will nonetheless have a lower chance at successfully carrying a child to term in a transplanted uterus. In order to maximize the utility of the scarce supply of uteruses, these women should receive lower priority.
Conclusion
The success of uterine transplantation is truly a medical marvel. Now we must take up the task of devising a system for the just allocation of uteruses to women who seek motherhood through gestation. In this article, we have addressed several of the unique features of UTx as they relate to how uteruses should be allocated: notably, the motivation to seek treatment, the age of potential recipients, child-rearing ability, and the need for additional interventions to achieve pregnancy. Some of our suggestions for prioritizing some women over others may be controversial, and reasonable people will disagree about exactly how uterine transplants should be allocated. Ultimately, we will need to develop a fair process, likely through an OPTN committee, to decide which factors to include in our criteria for eligibility and ranking of UTx recipients. More work must also be done to figure out how much relative weight should be given to our different criteria (e.g., age vs. length of time on the waiting list). To ensure that allocation criteria are developed in as objective a manner possible, we expect that statistical models will be run to determine which criteria and weights will benefit the most women in need of UTx, as has been done for other forms of transplantation.Footnote 85 These determinations, in addition to considerations about just access to UTx, will form the basis of a fair and principled system of uterine transplant allocation.
