The Legal, Medical and Cultural Regulation of the Body

Transformation and Transgression

Stephen W. Smith, Ronan Deazley

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780754677369
• eBook ISBN: 9781317025894
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The regulation of the body provides an important concern in law, medical practice and culture. This volume contributes to existing research in the area by encouraging experts from a range of related disciplines to consider the legal, cultural and medical ways in which we regulate the body, further exploring how conceptions of self, liberalism, property and harm inform and influence contentious legal and ethical questions about what we can and cannot do to or with our own bodies.

PART I
REGULATING REPRODUCTION

Chapter 1
Introduction to Part I

Helen Beebee

The chapters in this section address, in different ways, the ‘transgressive’ status of human embryos and foetuses. English law treats embryos and foetuses neither as persons nor as property: they lack the rights accorded to persons, but they are not mere ‘commodities’ that are owned by one or both of the biological parents or gamete providers or prospective social parents who have paid for surrogacy. This transgressive status raises a host of difficult moral and legal questions, which are forced into particularly sharp relief by advances in reproductive technology. Frozen embryos may lack rights, but they may nonetheless have interests: what are these interests, and how important are they when weighed against other relevant considerations? How are the interests of a frozen embryo connected with issues concerning the welfare of the person they have the potential to become? Should disputes about the use or disposal of frozen embryos engage with the interests of the embryo itself, or merely with the rights and/or interests of the gamete providers? Under what circumstances is the selection of genetic traits acceptable; and again, are the relevant concerns the interests of the embryo, the welfare of the potential person, and/or the rights and interests of the gamete providers (or those who wish to use the gametes)? Or should the wider societal implications of the commodification of children be taken into account?

Answers to these questions are difficult partly because they require a balancing act between considerations of quite different sorts: the rights, interests, and welfare of the involved parties, and also the interests of society at large. But they are also difficult because it is not always even clear what the relevant considerations are. For example, philosophically speaking, it is difficult to justify the claim that embryos have interests at all; certainly we cannot simply infer that they actually have interests merely from the fact that they will, or may, later become persons with interests. What, exactly, is the ‘right’ to procreative liberty (which might, for example, be thought to conflict with any restriction on the selection of genetic traits)? Do biological differences between men and women accord them different rights? Does the right to procreative liberty include all, or just some, of the right to pass on one’s genes, the right to choose which of one’s genes one passes on, the right to be a gestational mother, and the right to perform the social role of a parent?

The chapters in this section shed light on questions in this area, though in very different ways. Mary Ford argues that embryos and foetuses rightly belong in the postmodern category of the ‘gothic self’ – a category that cannot be subsumed under the category of the ‘liberal self’ that the law presupposes. Thus it is unsurprising that the ‘special status’ accorded to embryos and foetuses in English law cannot be justified from within the confines of existing legal categories. Sonia Harris-Short argues that in disputes about the disposition of frozen embryos, the interest of the female gamete provider in biological motherhood should, in some circumstances, be allowed to tip the legal balance that currently exists between the procreative rights of both gamete providers. And Heather Widdows argues that the selection of genetic traits should be limited, on the grounds that doing so would limit the commodification of children.

Ford argues that the ‘special status’ accorded to embryos and foetuses cannot be justified by appeal to arguments about respect for interests, relationships, dignity or potentiality. Ford argues that the problematic status of embryos and foetuses within the law stems from the liberal notion of the self with which the law operates, according to which legal subjects are free, autonomous, independent, rational and self-interested. She argues that foetuses and embryos can be subsumed under the postmodern category of the ‘gothic’ or ‘monstrous’ self – ‘disordered, leaky and lacking in self-sovereignty’ – and that it is the fact that the embryo/foetus falls within this category, and not a legal argument that implicitly rejects such a category, that explains and justifies its ‘special status’.

Ford’s chapter raises interesting questions about what the consequences of such a reconceptualization of the unborn would be. A proposal endorsed by Ford is to strive to resist the language of what Julia Kristeva calls ‘abjection’, ‘a kind of casting-out’, as Ford puts it, ‘characterised by the ambivalence that results from existing between categories’. Ford notes in particular the judgement in the case of Re A, involving the proposed separation of conjoined twins. (Both twins would die if left in their conjoined state; one, ‘Mary’, would inevitably die on the operating table if the operation were to proceed.) In considering the advantages the operation would hold for Mary, the judgement cited the ‘bodily integrity which is the natural order for all of us’, and one judge said that ‘the proposed operation would give these children’s bodies the integrity which nature denied them’. Thus the operation would be beneficial to Mary – despite the fact that it would kill her – because it would allow her to achieve the ‘natural’ physical state of the liberal self, as opposed to consigning her to a (short, but nonetheless longer) life in an abject state. The proposal would thus be to be wary of such arguments, given their presuppositions about the intrinsic desirability of features of the liberal self (in this case the physical separateness of the body).

This proposal raises a question, however. As Ford notes, a central feature of the gothic self or body is the ambivalence that it engenders in our responses to it: the gothic self is a self we regard both as deserving – we feel an affinity with the gothic ‘Other’, because they are nearly, but not quite, one of us – and threatening, ‘thus inviting us to repel it’. Indeed, Ford says, ‘[i]t would be strange if the embryo/foetus were able to avoid [responses of abjection], given how readily it maps onto the concepts of the monstrous and the abhuman.’ This suggests that abjection is in fact an appropriate response to the foetus/embryo: not a response we should try to avoid (as suggested by the proposal described above), but a response that is in fact entirely appropriate to its object. After all, if the category of the gothic is a bona fide category, into which the embryo/foetus genuinely falls, and it is constitutive of something’s being a member of that category that it invites responses of abjection, then it seems that to counsel against such responses is tantamount to claiming that the embryo/foetus does not really belong in that category at all. Thus, while accepting the gothic character of the embryo/foetus may provide us with a better understanding of our responses to it, and a better explanation for its ‘special status’, it would not deliver any positive proposal as to how, morally or legally, it ought to be treated.

On the other hand, the benefits of simply better understanding our responses should not be underestimated. As Widdows notes in her chapter, the ‘yuk factor’ – whereby a medical procedure is rejected as ‘repugnant’, ‘repulsive’ or ‘grotesque’ without appeal to further argument – has played a major role in bioethical debates, for example in the debate about cloning. Insofar as such a response plays a similar role in debates about the embryo/foetus, conceiving it as a case of abjection might help to shed light on the role the ‘yuk factor’ ought to play in bioethical disputes. One might argue on this basis, for example, that while the response itself is a legitimate response to the ‘abhuman’ (so that the force of the ‘yuk factor’ is not simply ignored or rejected as inappropriate), the rejection of the procedure is not morally justified purely on the basis of the response, since this would be to assume that the abhuman, or the gothic self/body, does not have a legitimate place in nature.

The problematic status of embryos as neither persons nor property is raised in Sonia Harris-Short’s chapter through the consideration of the case of Evans v Amicus Healthcare and Others. Natallie Evans required urgent medical treatment involving the removal of her ovaries and fallopian tubes, and she and her partner therefore embarked upon IVF treatment. However, after she had undergone the medical treatment, Evans and her partner separated, and her ex-partner (Johnson) withdrew his consent (as he was legally entitled to do) to Evans’ use of the embryos, thus removing any possibility of her becoming a genetic mother. The initial legal judgement, subsequently confirmed by the Court of Appeal and the European Court of Human Rights, was that the rights to procreative liberty balanced, in that while Article 8 of the European Convention protected Evans’ right to decide to become a genetic parent, it equally protected Johnson’s right not to become a genetic parent. Hence there were no grounds for revoking Johnson’s withdrawal of consent.

Harris-Short regards the outcome of the case as unjust on broadly feminist grounds: given that in fact many women ‘still invest a great deal more in reproduction and parenting than men’, the principle of gender equality underpinning the legal framework should not be held to be sacrosanct, since this ignores the special interest that some women have in biological motherhood. Harris-Short argues that two amendments to the Human Fertilisation and Embryology Act 1990 (HFE Act 1990) would solve the problem: first, the parties should be allowed to reach their own agreement at the outset concerning the fate of frozen embryos; for example, they should be allowed to give irrevocable consent to future use of the embryos. Second, in those rare cases of dispute where some unexpected supervening event undermines the assumptions on the basis of which the original agreement was made (for example one gamete provider unexpectedly becoming infertile), referral to the courts should be permitted so that the (new) interests of the involved parties can be reconsidered.

Harris-Short’s response to the Evans case raises interesting questions about the status of embryos. She notes that, while the statutory regime enshrined in the HFE Act 1990 is founded on the ‘twin pillars’ of welfare and consent, ‘in the context of disputes over frozen embryos it is however the single pillar of consent which dominates’. She notes that the second proposed amendment would allow for the interests of the embryo to play a role; for example, the interest of the embryo in being born, while it perhaps should not be given much weight, might be enough to tip the balance in favour of the woman in a case like Evans. Questions about what interests (if any) embryos have, what those interests are, and how much weight should be accorded to them would need to be seriously considered here, given the status of embryos as non-persons – as would questions concerning the connection between the intrinsic interests of the embryo and the future welfare of the embryo qua potential person.

Harris-Short’s chapter also raises questions about a fundamental disagreement amongst feminist writers concerning the legitimacy of the politics of difference: is it legitimate, or desirable, for the law to be sensitive to contingent cultural differences between men and women concerning their desire for, or the extent to which their self-conceptions are tied to, parenthood? And again, advances in reproductive technology force new questions upon us. Even if we accept the legitimacy of enshrining such differences in law, is the relevant desire or interest one that attaches, in the case of the woman, to genetic parenthood, or to pregnancy and giving birth, or merely to raising a child from birth or near-birth? For example, in the Evans case, Evans in principle was still able to achieve parenthood in the latter two senses (she could, for example, undergo IVF with an embryo that came from different gamete-providers).

Heather Widdows’ chapter argues that new reproductive technologies may result in a more commodified conception of children. Widdows argues that there is an analogy between the commodification of persons that – she argues – results from the trading of transplant organs and the commodification of children that results from the selection of characteristics, such as intelligence and attractiveness (for example by choosing egg or sperm donors with these characteristics). Widdows notes that, in the context of a loving family raising the child with the chosen trait...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Preface
• Introduction Being Human: Of Liberty and Privilege
• PART I: REGULATING REPRODUCTION
• PART II: INTERSPECIES EMBRYOS
• PART III: Transforming the Body
• PART IV: SELF-HARM AND SELF-DETERMINATION
• Index