Regulating assisted reproduction: Discrimination and the right to privacy

Abstract

Advances in fertility medicine have led some ethicists to call for stricter regulations on assisted reproduction. One counterargument is that such restrictions are unfair, for they impose far more stringent limits on the procreative liberties of individuals who rely on assisted reproductive technology than on those who reproduce through unassisted coital reproduction. This paper argues that a morally relevant distinction can be drawn between these two cases—one that supports stricter regulations on assisted reproduction. The argument, roughly, is this: it is not possible to regulate unassisted reproduction more stringently without violating the right to privacy. However, it is possible to regulate assisted reproduction without violating it, and the moral benefits of doing so warrant stricter regulations. Two arguments are made for this claim. First, it is not possible to regulate procreative rights in cases of unassisted reproduction in isolation from other freedoms—freedoms protected by the right to privacy. However, it is possible to regulate procreative liberties in isolation from other rights in cases of assisted reproduction. Second, procreative rights do not appear in general to be positive rights that entitle their possessors to assistance from others, and hence they are not violated by sterner regulations on assisted reproduction. However, parallel regulations on unassisted reproduction would violate a right to noninterference that is almost certainly protected by the right to privacy.

Keywords

Reproductive technologies artificial insemination and surrogate mothers in vitro fertilization

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References

For the sake of readability, I will play fast and loose with my terminology in this paper. Some have noted that artificial reproduction is not synonymous with assisted reproduction. Artificial reproduction is reproduction by non-coital means. Assisted reproduction refers to cases where people receive assistance from others in reproductive activity. These are not always the same. A couple who reproduces by artificial insemination (artificial reproduction) may not rely on others to do so (assisted reproduction). Medicine for erectile dysfunction may be an example of assisted reproduction but is not artificial reproduction. (Benatar D. Better to Never Have Been. Oxford: Clarendon, 2006, 124–125.) Finally, ART is a term for a range of technologies used to treat infertility, such as IVF, fertility medications, surrogacy, and so forth. These terms are distinct. Nonetheless, I find it convenient to write as if they can be used interchangeably. Most cases of artificial reproduction involve assisted reproduction, and, obviously, most assisted reproduction involves some form of ART. Technically, my focus is whether ART should be more strictly regulated. However, for the purposes of readability, I will sometimes use ART interchangeably with assisted reproduction.

LaFollette

Licensing parents revisited. J Appl Philos 2010; 27: 327–343.

Pence

Medical Ethics: Accounts of Ground-Breaking Cases. New York: McGraw-Hill, 2010.

Pence G. Medical Ethics: Accounts of Ground-Breaking Cases. New York: McGraw-Hill, 2010, 112.

This situation might seem farfetched. However, it was inspired by a 2007 case in which doctors at a fertility clinic in London received permission to use a genetic test to screen for a cosmetic defect—a disorder that causes severe squints. This case marked the first time in Britain’s history that genetic tests were used to screen for cosmetic defects rather than life-threatening conditions. The doctor who received the license, Gedis Grudzinskas, said in interviews that he did not see a problem with using genetic tests to screen for hair color: “[Hair color] can be a cause of bullying, which can lead to suicide. With the agreement of [the government], I would do it” (quoted in Hancock⁶).

Hancock

Clinic to weed out embryos with squint. The Telegraph, 7 May 2007, http://www.telegraph.co.uk/news/uknews/1550785/Clinic-to-weed-out-embryos-with-a-squint.html

LaFollette

Licensing parents. Philos Public Aff 1980; 9: 182–197.

LaFollette H. Licensing Parents. Philos Public Aff 1980; 9: 182.

Archard

Children: Rights and Childhood. Milton Park: Routledge, 2004.

10.

Rachels

Why privacy is important. Philos Public Aff 1975; 4: 323–333.

11.

Charles Fried was arguably the first person to develop this account of the right to privacy. See Fried’s essay.¹²

12.

Fried

Privacy. Yale Law J 1968; 77: 475–493.

13.

Thomson

JJ.

The right to privacy. Philos Public Aff 1975; 4: 295–314.

14.

Warren

Brandeis

LD.

The right to privacy. Harvard Law Rev 1890; 4: 193–220.

15.

Griswold v. Connecticut 381 US 479 (1965).

16.

The beginnings of this argument are suggested by an observation Wasserstrom makes in “Is Adultery Immoral?”¹⁷ Wasserstrom considers the possibility that adultery may be unavoidably deceptive given the role sex plays in our culture in demarcating intimate relationships. If sex is a key way in which I share information about myself that distinguishes my most loving relationships, then extramarital sex may be unavoidably deceptive. Either my sexual relationship with my spouse conveys misleading information to her, leading her to think she plays this intimate role in my life, or it misleads my extramarital partner, leading him/her to think he/she plays it. This analysis of adultery can be debated. Nevertheless, Wasserstrom’s characterization of sex as involving transactions of private information is useful. If sexual intimacy remains a key way individuals reveal information about themselves that distinguish certain unique social relations, it would fall under the protection of the right to privacy as understood as a right to determine who has access to information about us.

17.

Wasserstrom

Is adultery immoral?

Philos Forum 1974; 5: 513–528.

18.

See Benatar¹ 96–97 for more on these distinctions.

19.

Clearly, this is true of unintended pregnancies. However, it is probably true of most intended pregnancies too. Some couples decide that if a pregnancy results from sex then they will carry the fetus to term and become parents. Their pursuit of coital interests seems to be foremost, with a secondary interest in procreating should pregnancy result from their pursuit of coital interests. Even in cases where couples are deliberately trying to procreate, it seems likely, given pregnancy’s unpredictability, that they pursue this interest through a series of instances where they are in the first place realizing their coital interests.

20.

See Benatar¹ 104–105 for an example of this type of futility argument.

21.

To be clear, I am not arguing that ART should be denied to post-menopausal women in their 50s. Of all the proposed regulations for ART, I find age limits to be the most debatable. Perhaps there should be some age limits. However, the early 50s strike me, at least, as unreasonable. My point is rather that age limits would impact individuals using ART differently than parallel restrictions on unassisted reproduction. It is possible in regard to ART to specifically regulate an aged person’s procreative decision-making. It is not possible to do so with unassisted reproduction without also interfering with an aged person’s exercise of other rights.

22.

See Thomson,¹³ pp. 299–301, for discussion of how privacy may be both a positive and a negative right.