Ethics, Reproduction and Genetic Control

Ruth Chadwick

• Publisher: Routledge
• Year: 2006
• Print ISBN:
  9781138159280
• eBook ISBN:
  9781134877973
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

In this revised edition with a new preface from the editor, leading scientists explain the nature and goals of `test tube' reproduction and genetic engineering, and their eugenic implications. In contrast to the Warnock report, the extended commentary considers the issues in the context of a social ethic rather than the individualist viewpoint.

Part I
Having Children

1
Having Children: Introduction

Ruth F. Chadwick

The phrase ‘having children’ is deceptively simple. On the face of it, it describes an activity that is practised universally and always has been. But the process is surrounded by an ever-increasing number of problems. Childbirth itself is a subject of controversy, as to how it should best be managed. To what extent the state should interfere between parents and children is another live issue.

For present purposes the important questions concern the appropriate response to infertility and the use of reproductive technology. These have received considerable attention of late, but some of the individual techniques have been considered to a greater degree than the underlying questions of value.

In looking at such value questions, it is sometimes difficult to know where to begin. Some people take the view that the burden of proof lies on those who would oppose new developments, to show why they should not be used. The presumption here is that individuals should be free to do as they choose unless there are good reasons to the contrary. Some of the papers in this volume do consider possible arguments against the new technologies. However, it seems important also to look at value positions underlying the arguments in favour of reproductive technology. For the debates in the literature have suggested that the choice to reproduce or not is a particularly important aspect of freedom. It will be helpful to examine why this is so, if it is. So we shall begin by looking at the question of whether there is a right to reproduce.

Is there a right to reproduce?

Article 12 of the European Convention on Human Rights states: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ The wording of this is ambiguous. Does it imply that marriage is a necessary preliminary to the founding of a family? Whether it could support a right for unmarried people to have children is a matter of controversy, as is the question as to whether it could provide a justification of an entitlement to reproduce by artificial means. At the time the Convention was drafted, test tube babies were far from becoming a reality. The function of a right to reproduce was traditionally to prevent interference in individuals’ lives by such methods as compulsory sterilisation. In other words, it was seen as a negative right with a corresponding duty of non-interference.

A distinction is commonly drawn between such negative rights and positive rights, which suggest that right-holders are entitled to have positive steps taken to enable them to exercise their rights. So a positive right to reproduce could indicate the provision of reproductive technology.

Not too long ago such a claim would scarcely have been intelligible, where a positive right in this context would have involved the provision not only of a sexual partner, but also of a fertile one.

But it may be argued that the situation has changed. Where means are available, a right previously negative in scope can become a positive one. Charles Fried argues in another context that if there are any positive rights at all, there is only one, viz. a right to a fair share of society’s resources.¹ Where those resources include reproductive technology, perhaps everyone has a right of access to them. Thus Sheila Maclean argues that once means are available they may not be distributed in a discriminatory way:

whilst the state may have no general duty to facilitate reproduction through technology or the supply of a partner, once facilities are provided — for example through in vitro fertilization and surrogacy programmes — to deny access on grounds of sexuality is to infringe the right on a discriminatory basis.²

It may be argued that there is no real distinction between negative and positive rights. For if means are available and the state denies access to them that may be construed as an interference with freedom just as surely as compulsory sterilisation. It might seem odd to take the view that there is no difference between compulsory sterilisation and refusal to offer in vitro fertilisation (IVF), but this may be because of factors involved in the means of violation of the right, as opposed to the principle of violation itself. We need however to look at what is the basis, if any, for the right, at its justification, to see if it provides an argument for a positive right.

As John Harris has pointed out,³ rights can be treated either as the starting points or as the conclusions of argument. Those who use them in the first sort of way may regard them as natural, or self-evident.

A natural right to reproduce

It is not clear how we are to understand ‘natural’ rights; whether they are anything more than ‘nonsense on stilts’, as Jeremy Bentham described them.⁴ Perhaps the suggestion is that the right to reproduce is self-evident. But it is certainly not self-evident to many people, e.g. to those who see a child as a gift from God, as a blessing on a marriage, but certainly not as something to which couples or individuals have a right.

Further, there are clearly difficulties in seeing the right to reproduce as a ‘natural’ right where what is under discussion is the provision of artificial reproductive technology to the infertile. There seems to be something very odd about saying that persons have a natural right to reproduce by artificial means.

However, Peter Singer and Deane Wells have argued that natural law could perhaps provide an argument for the use of reproductive technology. In discussing in vitro fertilisation they point out that as natural law holds that the purpose of sexual intercourse is the production of children, and thus rules out contraception, it ought also to hold that to refuse to assist infertile couples to reproduce is to connive at a subversion of the purpose of the sex act.⁵

A difficulty with this is that natural law does not hold that it is desirable that every individual should reproduce — otherwise it would have been unable not only to condone but also to approve positively of chastity. It stresses the reproduction of the species rather than that of the individual.

S. L. Floyd and D. Pomerantz have considered whether there is a natural right to reproduce, and have not come up with any very encouraging conclusions for those who would wish to take this view.⁶ They consider that it might be seen as an aspect of self-determination or as an aspect of the right to do with one’s body as one wishes, but conclude that neither of these avenues is satisfactory for two main reasons. First, having a child involves other people, not only oneself, and secondly, it produces a new person who is not consulted. So it is not simply a question of self-determination or of using one’s own body as one wishes. Even if one ignores the difficulty about the child’s wishes and restricts consideration to those presently existing, it is hard to see how a right to self-determination can, without more, provide an argument for the co-operation of others in providing either sexual intercourse or technology. So the prospects for a positive right to reproduce by artificial means look grim on this view.

The right to privacy

An alternative view is that a right to reproduce can be seen as an aspect of the right to privacy.

In the US case of Eisenstadt v.Baird, Justice Brennan said:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.⁷

To discuss whether there is a right to privacy is not our concern. The important question is whether or not reproduction is a private matter. There may be something in the suggestion that reproduction should be something for which society as a whole assumes responsibility, even at the begetting stage. This need not involve Plato’s mating festivals or the type of ticket system for sexual intercourse envisaged in Zamyatin’s We. It might involve public decision-making about resources, e.g. whether society can afford to waste the resource of large numbers of aborted foetuses on the one hand while on the other hand spending large amounts of money on providing in vitro fertilisation.

The most familiar arguments for social responsibility take place concerning the rearing of children. One advocate of shared responsibility is Penny Perrick, writing in The Times:

Far from urging less government interference I would like to see the appointment of a Minister for Children. And please let it be ‥. somebody who insists that the basic rudiments of parenthood are taught as part of the school curriculum.⁸

Similarly, a case can be made for public concern with rearing by the argument that if society wants children then there should be public provision, in the form of funding out of the public purse for such facilities as day nurseries. Should public concern apply only to rearing and not to begetting?

Lady Warnock, in her Introduction to the later edition of the report, A question of life, invokes the distinction between what is public and what is private in explaining why the Committee decided not to recommend that the law should try to ban private surrogacy arrangements, whereas recommendations were made that commercial agencies should be prohibited. She suggests that ‘a law against agencies would not be intrusive into the private lives of those who were actually engaged in setting up a family’, whereas a law against all surrogacy would be.⁹ The distinction between what is public and what is private is also invoked to explain why embryo research cannot be seen as a matter of conscience.

In her discussion of this topic Lady Warnock attempts to relate the discussion of the public and private to the Hart-Devlin debate on the law and homosexuality in the late 1950s and early 1960s.¹⁰

She claims to reject Devlin’s notion of a moral consensus within society which must be reflected in the law. Even if there could be such a thing on some issues, she says, there could not be one on such new and uncertain questions. Thus it will not do to say that the law should rule out a practice such as surrogacy on the grounds that there is a general consensus that it is morally wrong. Rather, she says that we should look at Hart’s answer to such problems. Hart’s position was that we must ask two questions, first whether a practice is harmful, and secondly, whether the infringement of liberty that would be involved in prohibiting it would be in itself harmful. Lady Warnock’s view is that surrogacy may well be wrong but to prevent private surrogacy would be unduly intrusive.

On the other hand, placing legal restrictions on commercial surrogacy and on embryo experiments would not be unduly restrictive. These are public matters.

How then does she draw the distinction between the public and the private? She says: ‘The reason for this…distinction…between what might be thought a private matter and one which was necessarily public was somewhat obscure.’¹¹

Are there any clues which might make the reasoning less obscure? Let us consider her remarks concerning embryo research.

One criterion she mentions is that embryo research is publicly financed. But this, while sufficient to bring it into the public arena, is not a necessary condition for her purposes, for she says that even if embryo research were privately financed it should be controlled by law. This is inconsistent with a wholehearted application of the finance criterion.

Interestingly enough, though, having earlier rejected Devlin’s idea of a moral consensus, she falls back on this herself when talking about why embryo experiments should be controlled. She says that there is a ‘public and widely shared sentiment’ that embryo experiments are wrong.¹²

Is Lady Warnock right to say that there is a consensus on the issue of embryo experiments? It seems clear that she is not. One has only to think of the heated debates in Parliament concerning the Enoch Powell Bill. It is clear also that there are those willing to argue in favour of embryo experiments on the grounds that they will benefit humankind as a whole.¹³

Lady Warnock’s discussion has attempted to draw a distinction between private and commercial surrogacy, and between some reproduction issues and the issue of embryo research. But there is no discussion of whether there is a right to provision of IVF which can be seen as an aspect of the right to privacy. It is apparent, however, from what is said elsewhere in the report (e.g. that services should be limited to heterosexual couples),¹⁴ that some public criteria are implied.

Whatever these criteria are, it seems clear that once services are provided, reproduction is taken out of the private sphere and into the public. It is difficult to see IVF as a private matter. This is partly because of the finance criterion. If the resources are publicly financed, then the public may reasonably be thought to have an interest in their proper allocation.

It might also be added that this criterion (as Lady Warnock suggested in connection with embryo experiments) is not the whole story. This may be seen as a public concern, not however because of some Devlin-type moral consensus within society, but because these technologies may change for the whole of society the way in which reproduction is regarded, and thus the way we think of o...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Acknowledgements
• List of Contributors
• Preface
• Preface to the Revised Edition
• PART I. Having Children
• PART II. The Perfect Baby
• Glossary
• Select Bibliography
• Index