Artificial reproduction, the 'Welfare Principle', and the common good

Medical Law Review

Volumn 13, Issue 3, 2005, Pages 328-356

  Laing, Jacqueline ^a   Oderberg, David S ^b  

^a LONDON METROPOLITAN UNIVERSITY   (United Kingdom)

^b UNIVERSITY OF READING   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 28544444842     PISSN: 09670742     EISSN: None     Source Type: Journal    
DOI: 10.1093/medlaw/fwi022     Document Type: Article

References (92)

1. E. Jackson 'Conception and the Irrelevance of the Welfare Principle' (2002) 65 MLR 176-203;
2. J.A. Robertson, 'Human Cloning and the Challenge of Regulation' (1998) 339 New England Journal of Medicine 119-22 at 120,
3. and 'Liberty, Identity, and Human Cloning' (1998) 76 Texas Law Review 1371-456 at 1389ff;
4. J. Harris, 'Rights and Reproductive Choice' in J. Harris and S. Holm (eds), The Future of Human Reproduction: Ethics, Choice, and Regulation (Clarendon Press 1998) at 5-37;
5. R. Dworkin, Life's Dominion (HarperCollins 1993);
6. J. Savulescu, 'Deaf Lesbians, "Designer Disability" and the Future of Medicine' (2002) 32 BMJ 771-3. (Some of the writers frame the issue in terms of decisional 'liberty' rather than privacy, though the ethical thrust is the same.)
7. Jackson, ibid. at 177.
8. Op.Cit.
9. Ibid. at 177, 178.
10. This can be viewed at http://www.publications.parliament.uk/pa/cm200405/ cmselect/cmsctech/491/49102.htm (accessed 13.4.05). It is the Eighth Special Report of Session 2004-5. The much longer accompanying report, Human Reproductive Technologies and the Law, is the Fifth Report of Session 2004-5;
11. it can be viewed at http://www.publications.parliament.uk/pa/cm200405/ cmselect/cmsctech/7/702.htm.
12. Format Minutes (23 March 2005) of the House of Commons Science and Technology Committee report, Inquiry into Human Reproductive Technologies and the Law, Annex A, p. 6.
13. Apart from reference in s. 13(5) to 'the need [of that child] for a father', which is vague as between biological and social relationships.
14. United Nations General Assembly, Declaration on Human Cloning, 8 March 2005.
15. See also UNESCO, Universal Declaration on the Human Genome and Human Rights 1997, article 11: 'Practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted.' The General Assembly declaration is broader than UNESCO's, since on its face so-called 'therapeutic cloning' (cloning for research) is also declared wrongful.
16. European Convention on Human Rights, Article 12; see Schedule 1 of the Human Rights Act 1998 (UK).
17. We owe the term 'existential indebtedness' to Rupert Rushbrooke.
18. See further n. 38. D. Parfit, Reasons and Persons (OUP 1984) at 373-7.
19. In his classic essay On Liberty.
20. P. Devlin, The Enforcement of Morals (Oxford University Press 1965);
21. H.L.A. Hart, Law, Liberty and Morality (Oxford University Press 1963).
22. See e.g. the Code of Hammurabi (Babylon, 18th century BC) and the Old and New Testaments (Hebrew and Christian Law) on adultery, homosexuality and other offences, Hindu legal condemnation of adultery, Roman laws against incest, and so on.
23. See, for instance, the recent vote by the European Parliament in favour of 'a universal and specific ban at the level of the United Nations on the cloning of human beings at all stages of formation and development.' (Report on the European Commission's Communication on Life Sciences and Biotechnology: A Strategy for Europe; consultation paper, voted 21 November 2002.)
24. Jackson, op.cit. at 183.
25. See e.g. L.R. Kass, 'The Wisdom of Repugnance', The New Republic (2 June 1997) 17-26;
26. also L.R. Kass and J.Q. Wilson, The Ethics ofHuman Cloning (American Enterprise Institute Press 1998);
27. F. Bowring, Science, Seeds, and Cyborgs: Biotechnology and the Appropriation of Life (Verso 2003);
28. J. Rifkin, The Biotech Century: Harnessing the Gene and Remaking the World (Jeremy P. Tarcher/Putnam 1998).
29. See e.g. M.-W. Ho, 'Why Biotech Patents Are Patently Absurd: Scientific Briefing on TRIPs and Related Issues', Institute of Science in Society-Third World Network Report 2001, at http://www.i-sis.org.uk/ trips2.php;
30. M. Khor, 'A Worldwide Fight against Biopiracy and Patents on Life', Third World Newtork article at http://www.twnside.org.sg/title/ pat-ch.htm;
31. G. Monbiot, 'Science with Scruples', Amnesty Lecture 1997, at http://www.monbiot.com/archives/1997/01/01/science-with-scruples/. (All articles accessed 5.5.05.)
32. See e.g. the human traffic in the organs of executed prisoners in China (for a detailed report see D. Kram, 'Illegal Human Organ Trade from Executed Prisoners in China' (2001) 11(2) Trade and Environment Database Case Studies at http://www.american.edu/TED/prisonorgans.htm [accessed 6.4.05]);
33. the sale of bodily organs by the poor in developing countries (see the resources at http://www.vachss.com/help_text/organ_trafficking.html [accessed 6.4.05])
34. unease caused by campaigns to legalise the trade in organs in Western countries (see the Policy and Ethics statement of the Transplantation Society, at http://www.transplantation-soc.org/policy.php [accessed 6.4.05]). At the time of writing, section 1 of the Human Organ Transplants Act 1989 (UK) prohibits the sale or solicitation of organs within the country; the same is true for Brazil (1997) and South Africa (1983), and organ sales are illegal in most of India. (In addition, the Human Tissue Act 2004 (UK) will continue that ban and closely regulate the storage, use, and disposal of human organs in the wake of scandals at children's and other hospitals involving the retention and use of such material without consent.)
35. 'All human beings are born free and equal in dignity and rights' (Universal Declaration of Human Rights, Article 1); 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment' (European Convention on Human Rights, Article 3, incorporated into the Human Rights Act 1998 (UK)). Yet a form of treatment can be degrading without the victims' feeling or thinking it is degrading, or suffering any actual distress thereby.
36. There is no space to list here, let alone discuss, the literature on 'personhood' and 'personism' in modern bioethics and medical law. But for a sample, see: D.S. Oderberg, Moral Theory (Blackwell 2000), ch. 4, and Applied Ethics (Blackwell 2000), ch. 1;
37. J. Teichman, Social Ethics (Blackwell 1996), Part 2;
38. J.A. Laing, 'Innocence and Consequentialism: Inconsistency, Equivocation and Contradiction in the Philosophy of Peter Singer' in D.S. Oderberg and J.A. Laing (eds), Human Lives: Critical Essays on Consequentialist Bioethics (Macmillan 1997) at 196-224;
39. D. Beyleveld and R. Brownsword, Human Dignity in Bioethics and Biolaw (Oxford University Press 2002).
40. Blackstone, Commentaries on the Laws of England, Book 1, Ch. 1, 'Of the Absolute Rights of Individuals'.
41. Ibid., Book 1, Ch. 14, 'Of Master and Servant'.
42. See R. Rowland, Living Laboratories: Women and Reproductive Technologies (Indiana University Press 1992).
43. Embryologist Dr Sammy Lee has recently written that mix-ups are a regular feature of clinical practice, that commissioning parties are sometimes, kept in ignorance of this fact and further, that mix-ups are occasionally deliberate, for instance so that a 'deserving' couple be provided with a child: BBC News Online, 24 July 2002
44. Sunday Telegraph, 10 November 2002. For a case involving the birth of black children to white parents, see: Leeds Teaching Hospitals N.H.S. Trust v. Mr A, Mrs A [2003] 1 F.L.R. 1091, [2003] E.W.H.C. (Q.B.) 259.
45. See Evans v. Amicus Healthcare Ltd (Secretary of State and another intervening) [2004] E.W.C.A. Civ. 727, [2004] 3 All E.R. 1025, where the Court of Appeal upheld the High Court decision requiring continuing consent under the HFEA Act for Natalie Evans to be implanted with stored embryos conceived with gametes from her former partner.
46. R v. Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 All E.R. 687, [1997] 2 W.L.R. 806, C.A.
47. For example, Ole Schou is chief of Danish sperm bank, Cryos International Sperm Bank Ltd: 'Cryos dominates the Scandinavian market from its headquarters in Aarhus, Denmark. In the early 1990s, the country began looking abroad for ways to expand its business and now exports to 25 countries, including Australia, Eastern Europe [sic], and the US. It markets three grades of sperm, including 'Extra' grade, which contains twice as many sperm as the standard grade and exhibits the highest levels of motility, a measure of sperm's ability to reach its target.' (P. Zachary, Wall Street Journal, 6 January 2000.)
48. An action in the High Court was recently undertaken in which a woman and a six-year-old child born from donor insemination argued for the right to know more about their biological fathers. Scott Baker J. ruled that Article 8 of the European Convention on Human Rights, providing a legal right to respect for private and family life, also applied to those conceived by artificial insemination by donor. He said that Article 8 incorporated the concept of personal identity, which included a person's origins and the opportunity to understand them. It was, he added, entirely understandable that children conceived by artificial insemination by donor should wish to know about their origins: R (on the application of Rose) v. Secretary of State for Health; also known as Rose v. Secretary of State for Health [2002] 2 F.L.R. 962, [2002] E.W.H.C. (Admin.) 1593. Baroness Warnock, one of the architects of the Human Fertilisation and Embryology Act 1990 (UK), has herself recently recommended that the law be changed to allow AR children to trace their biological fathers, saying: 'It's absolutely deplorable for a child not to know what other children know' (reported by the BBC, 14 May 2002). In response to pressure exerted by the Joanna Rose case the government agreed to the setting up of an identity register. The regulations now provide that donor-conceived children will be able to access the identity of their donor and 'information about their genetic origins' when they reach the age of 18. However, since the regulations only apply to people who donate after 1 April 2005, Ms Rose and others like her are not entitled to receive this information. She discovered, in the course of the hearing, that records relating to her conception had been destroyed.
49. Recently the House of Lords has upheld a Court of Appeal ruling that reversed the High Court judgment rejecting tissue-typing to produce a so-called 'saviour sibling' for a child with beta thalassaemia, an inherited disease; R (on the application of Quintavalle v. Human Fertilization and Embryology Authority [2005] U.K.H.L. 28.
50. Note that bioethicists who adopt a very different position from ours are content to refer to the human embryo and/or the foetus as a 'lump of cells', or as 'not really a person', sometimes even 'not really a human being': Such ways of talking are a commonplace in the literature. (See, e.g. the writings of P. Singer, J. Harris and M. Tooley.) Are such phrases merely emotive or rhetorical? To an opponent, of course, they may seem so, indeed they are seen as dehumanising expressions concealing the reality of the situation. But the users of such terms see them as factually correct descriptions of what the embryo is and is not. It is the same when terms such as 'manufacture' and 'design specification' are used by us with reference to AR. What may seem mere rhetoric to one party will typically have a higher significance to the other; to try to eliminate such controversy only inhibits debate.
51. As suggested by an anonymous referee.
52. Let us leave aside the donation of blood or tissue for potential cloning.
53. See n. 24.
54. This is the thrust of research by Susan Golombok: See e.g. S. Golombok, A. Brewaeys, M.T. Giavazzi, D. Guerra, F. MacCallum and J. Rust, 'The European Study of Assisted Reproduction Families: The Transition to Adolescence' (2002) 17 Human Reproduction 830-40.
55. But for strong empirical evidence of harm, see the work of Alexina McWhinnie: A. McWhinnie, 'Families from Assisted Conception: Ethical and Psychological Issues' (2000) 3 Human Fertility 13-19;
56. A. McWhinnie, 'Euphoria or Despair? Coping with Multiple Births from ART: What Patients Don't Tell the Clinics' (2000) 3 Human Fertility 20-5;
57. A. McWhinnie, 'Children from Assisted Reproductive Technology: The Psychological Issues and Ethical Dilemmas' (2001) 163 Early Child Development and Care 13-23;
58. A. McWhinnie, 'Gamete Donation and Anonymity' (2001) 16 Human Reproduction 807-17.
59. See also the literature cited in n. 36. Evidence of physical harm to IVF children is also beginning to emerge: See e.g. M. Hansen, J.J. Kurinczuk et al., 'The Risk of Major Birth Defects after Intracytoplasmic Sperm Injection and In Vitro Fertilization' (2002) 346 New England Journal of Medicine 725-30. This study found that IVF (and ICSI) offspring have twice as high a risk of a major (e.g. chromosomal or musculoskeletal) birth defect as naturally conceived infants.
60. A later study by the same researchers has shown a 30-40% increased risk of birth defects: M. Hansen, C. Bower et al., 'Assisted Reproductive Technologies and the Risk of Birth Defects: A Systematic Review' (2005) 20 Human Reproduction 328-38.
61. See e.g. J. Rose, 'The Response of an Adult Donor Insemination Offspring to the Article "The Psychology of Assisted Reproduction: Or Psychology Assisting its Reproduction?"', (1999) 34 Australian Psychologist 220;
62. C. Whipp, 'The Legacy of Deceit: A Donor Offspring's Perspective on Secrecy in Donor Assisted Conception' in E. Blyth, M. Crawshaw and J. Speirs (eds), Truth and the Child 10 Years On: Information Exchange in Donor Assisted Conception (British Association of Social Workers 1998).
63. On some of the general issues raised by secrecy, including the obstacle it poses to the very possibility of obtaining reliable empirical evidence of the effects of AR, see R. Rushbrooke, 'Donor Insemination: The Secret Experiment' (2004) 196 Bulletin of Medical Ethics 13-22,
64. and also: A.J. Turner and A. Coyle, 'What Does it Mean to be a Donor Offspring? The Identity Experiences of Adults Conceived by Donor Insemination and the Implications for Counselling and Therapy' (2000) 15 Human Reproduction 2041-51;
65. A.W. Cordray, 'A Survey of People Conceived through Donor Insemination' (1999/2000) 14 D.I. Network News 4-5;
66. E. Blyth, 'Donor Assisted Conception and Donor Offspring Rights to Genetic Origins Information' (1998) 6 International Journal of Children's Rights 237-53;
67. E. Blyth, 'Sharing Genetic Origins Information in Third Party Assisted Conception: A Case for Victorian Family Values?' (2000) 14 Children and Society 11-22.
68. See also the papers by A. McWhinnie cited in n. 34. Note that most of this literature pertains to IVF in general and donor insemination in particular; but it is highly likely that in the case of other forms of AR such as cloning, should it ever become a reality, the sorts of harm discussed would only be greatly magnified (not to mention added to by other kinds of harm).
69. By 'turn out' we do not mean that the innocent victim finds out about the deception; rather, that this is how the facts stand objectively after the victim's death.
70. J.A. Robertson, 'Liberty, Identity, and Human Cloning' (1998) 76 Texas Law Review 1371-456, at 1407.
71. The idea of 'existential debt' on the part of a person brought into existence, even if harmed thereby, to those who bring that person into existence, is found in D. Parfit, Reasons and Persons (OUP 1984) at 373-7.
72. Robertson, op.cit. at 1408 (emphasis added).
73. We leave aside the harmful effects on the parties to the relationship, which is also of course a potential basis of prohibition.
74. Jackson, op.cit. at 196-9.
75. Ibid. at 188.
76. We are indebted to an anonymous referee for raising this point.
77. We have not said anything about the dignity of human reproduction either, as this would take us too far afield. But it too can be appealed to in defence of our central claim.
78. On this point see further J.A. Laing, 'Law, Liberalism, and the Common Good' in D.S. Oderberg and T. Chappell (eds), Human Values: New Essays in Ethics and Natural Law (Palgrave 2004) at 185-216.
79. Ibid. at 186.
80. Ibid. at 187.
81. Ibid. at 177.
82. Ibid. at 186.
83. See n. 28.
84. For example, Jackson, ibid. at 182, 184, 186.
85. Ibid. at 181.
86. Ibid. at 195.
87. Ibid. at 178.
88. Ibid. at 97.
89. Ibid. at 203.
90. Ibid. at 202.
91. Loc. cit.
92. Adult stem cell research is an obvious example, as are certain kinds of reproductive therapy and genetic techniques that respect life and treat human illness.