Rethinking progenitive conflict: Why reproductive autonomy matters

Medical Law Review

Volumn 16, Issue 2, 2008, Pages 169-200

  Priaulx, Nicolette ^a  

^a CARDIFF UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; EMBRYO DISPOSITION; ETHICS; FEMALE; HUMAN; INFERTILITY THERAPY; LEGAL ASPECT; MALE; PERSONAL AUTONOMY; REPRODUCTIVE RIGHTS; SOCIAL BEHAVIOR; UNITED KINGDOM; WOMEN'S RIGHTS;

EMBRYO DISPOSITION; ENGLAND; FEMALE; HUMANS; MALE; PERSONAL AUTONOMY; REPRODUCTIVE RIGHTS; REPRODUCTIVE TECHNIQUES, ASSISTED; SOCIAL RESPONSIBILITY; WOMEN'S RIGHTS;

EID: 47049125047     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwn009     Document Type: Article

References (75)

1. The Child Support Act 1991.
2. During marriage and partnership and after divorce and separation - see the Children Act 1989 and the Family Law Act 1996.
3. See the Human Fertilisation and Embryology (Disclosure of Donor Information) Regulations 2004.
4. Sally Sheldon, 'Reconceiving Masculinity: Imagining Men's Reproductive Bodies in Law' (1999) 26 Journal of Law and Society 129 at 130.
5. [2004] E.W.C.A. Civ. 727; Evans v UK. (Application 6339/05, ECtHR Grand Chamber, decided 10 April 2007).
6. Natallie Evans's case reached its conclusion in April 2007 with the judgment of the Grand Chamber of the European Court of Human Rights (concluding that the UK's assisted reproduction regime was compliant with Article 8). For a detailed analysis of the Grand Chamber's decision, see further, Caroline Morris, 'Evans v. United Kingdom: Paradigms of Parenting' (2007) 70 M.L.R. 979.
7. Sally Sheldon, 'Evans v. Amicus Healthcare; Hadley v Midland Fertility Services - Revealing Cracks in the 'Twin Pillar'?' (2004) 16 Child and Family Law Quarterly 437 at 445.
8. Under s.6(3) of Schedule 3 of the 1990 Act, 'An embryo, the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents'.
9. Under s.4(1) of Schedule 3 of the 1990 Act, 'The terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant'.
10. Note that in an earlier decision, the Court of Appeal in Re R [2003] 2 All E.R. 131 had construed the Act as meaning that 'the embryo must be placed in the mother at a time when treatment services are being provided for the woman and the man together'. As Thorpe L.J. noted in the present case, this imposes a requirement of continuing consent thereby determining that Mr. Johnston's withdrawal of consent could not be read as being immaterial to the continuation of Ms Evans's treatment (para. 58).
11. S.28(3) of the 1990 Act.
12. As Thorpe L.J. noted in the Court of Appeal, insofar as pre-legislative material also underpins the right of individuals to vary or withdraw their consent prior to the 'use' of gametes and embryos, there was no explanation for these proposals leaving the courts to grapple with a series of possible explanations underpinning Parliament's intention for requiring the continuing consent of both parties at all stages.
13. Sarah Chan and Muireann Quigley, 'Frozen Embryos, Genetic Information and Reproductive Rights' (2007) 21 Bioethics 439 at 441.
14. Ruth Chadwick, 'Reproductive Autonomy' (2007) 21 Bioethics ii.
15. John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton 1994) at 24.
16. Ibid. at 24.
17. Emily Jackson, Regulating Reproduction (Hart Publishing 2001) at 7.
18. Ibid. at 7.
19. Supra n. 15 at 24.
20. Joel Feinberg, Harm to Others (OUP 1987) at 37
21. see also the work of Abraham Maslow, infra n. 27.
22. Paton v. B.P.A.S. [1979] Q.B. 276.
23. Ibid.
24. Supra n. 17 at 320.
25. Ibid. at 321.
26. Diana Meyers, 'The Rush to Motherhood: Pronatalist Discourse and Women's Autonomy' (2001) 26 Signs 735 at 735.
27. Soran Reader, 'Aristotle on Necessities and Needs' (2005) 80 Royal Institute of Philosophy Supplement 113 at 120.
28. Abraham Maslow, Motivation and Personality (Longman Press, 1954/ 1987).
29. And indeed, this apparently 'innocuous triangle' would seem to have been generally interpreted as such given the durability of this theory into the reaches of the twenty-first century; as Dye et al. note, the hierarchy of needs 'has been reproduced near mindlessly by scholars, educators and practitioners over the last 50 years'. Infra., n. 31 at 1378.
30. Dallas Cullen and Lise Gotell, 'From Orgasms to Organizations: Maslow, Women's Sexuality and the Gendered Foundation of the Needs Hierarchy' (2002) 9 Gender, Work and Organization 537.
31. Ibid. at 553.
32. Kelly Dye, Albert Mills and Terrence Weatherbee, 'Maslow: Man Interrupted: Reading Management Theory in Context' (2005) 43 Management Decision 1375.
33. Abraham Maslow, The Farther Reaches of Human Nature (Penguin Books 1971). For example, one might note Maslow's reflections on women and creativity in this later work: 'We've left out of consideration almost entirely the creativeness of women by the simple semantic technique of defining only male products as creative and overlooking entirely the creativeness of women' (at 59).
34. Betty Friedan, The Feminine Mystique (Penguin Books 1963) at 273-274.
35. Ibid. n. 33 at 283.
36. Leslie Bender, 'Teaching Feminist Perspectives on Health Care, Ethics and Law: A Review Essay' (1993) 61 University of Cincinnati Law Review 1251 at 1263.
37. Supra n. 25 at 735.
38. Ibid. at 736.
39. Supra, n.32 at 259.
40. Supra n. 27 at 17.
41. Ibid. at 37.
42. Gregory C. Elliott, Suzanne Kao and Ann-Marie Grant, 'Mattering: Empirical Validation of a Social-Psychological Concept' (2004) 3 Self and Identity 339 at 339.
43. Ibid. at 340.
44. Ibid. at 341.
45. Ibid. at 342.
46. Gillian Woolhead, Michael Calnan, Paul Dieppe and Win Todd, 'Dignity in Older Age: What Do Older People in the United Kingdom Think?' (2004) 33 Age and Ageing 165.
47. B. Olofsson and L. Jacobsson, 'A Plea for Respect: Involuntarily Hospitalized Psychiatric Patients' Narratives about Being Subjected to Coercion' (2001) 8 Journal of Psychiatric and Mental Health Nursing 357.
48. Supra n. 45 and 46.
49. David Archard, 'The Wrong of Rape' (2007) 57 Philosophical Quarterly 374 at 383.
50. Ibid. at 388. Where he suggests that in contrast with Joel Feinberg's 'network model of interests', on the spatial model, 'interests should be thought of as occupying a defined but metaphorical space constitutive of the person or self. Interests are more or less important to the identity of the person, to our sense and understanding of ourselves. The more important the interests are, the closer they are to the centre or core of the space that, metaphorically defines the self'.
51. Ibid.
52. Ibid. at 389.
53. Extracts from Louisa McLennan and agencies, 'Woman loses fight to have ex-boyfriend's baby', Times On-line, 10 April 2007. Available at http://www.timesonline.co.uk/tol/news/uk/article1636024.ece?token= null&offset=12 (last accessed 24 October 2007).
54. See further Sheldon's excellent critical analysis on this point: Sally Sheldon, 'Gender Equality and Reproductive Decision-Making' (2004) 12 Feminist Legal Studies 303.
55. Ibid. at 313.
56. Ibid.
57. Anna Smajdor, 'Is There a Right Not to Be a Parent?' Progress Educational Trust, 2 May 2007. Available at: http://www.ivf/net/ivf/ index.php?page+out&id=2670 (last accessed 24 October 2007).
58. Supra n. 13 at 441.
59. Ibid.
60. Ibid. at 447-448.
61. Supra, n. 53 at 315.
62. For a detailed critique on the issue as to how the law of abortion is at odds with the value of reproductive autonomy, see Emily Jackson, 'Abortion, Autonomy and Prenatal Diagnosis' (2000) 9 Social & Legal Studies 467.
63. On this point, see also the joint dissenting opinion of Judges Türmen, Tsatsa-Nikolovska, Spielmann and Ziemele in the Grand Chamber of the European Court of Human Rights in Evans v. UK. Insofar as the joint dissenting opinion merits much greater discussion than can be provided here, for present purposes it is worth noting in particular that the dissenting judges considered that the 1990 Act had not struck a fair balance in the 'special circumstances' of the case, on the basis that: 'Where the effect of the legislation is such that, on the one hand, it provides a woman with the right to take a decision to have a genetically related child but, on the other hand, effectively deprives a woman from ever again being in this position, it inflicts in our view such a disproportionate moral and physical burden on a woman that it can hardly be compatible with Article 8 and the very purposes of the Convention protecting human dignity and autonomy' (at para. 13).
64. Kirsty Horsey, 'Unconsidered Inconsistencies: Parenthood and Assisted Conception' in H. Biggs and K. Horsey (eds), Human Fertilisation and Embryology: Reproducing Regulation (Routledge-Cavendish 2007) at 171.
65. Supra n. 53 at 313.
66. Natallie Evans v. Amicus Healthcare Ltd and others [2003] E.W.H.C. 2161 at para. [308].
67. See for example an excellent critique by Emily Jackson, 'Rethinking the Preconception Welfare Principle' in H. Biggs and K. Horsey (eds), Human Fertilisation and Embryology: Reproducing Regulation (Routledge-Cavendish 2007).
68. Supra n. 53 at 314-315.
69. Supra n. 66 at 47.
70. See, further, Clause 14(2)(b) of the Bill; this amends the reference to a child's need for a father so that s.13(5) of the 1990 Act would instead refer to the child's need for 'supportive parenting'. A further notable provision of the Bill in the context of the Evans case includes Paragraph 7 of Schedule 3 which introduces a 'cooling off period'. This provision would apply where one person in a couple seeking fertility treatment withdraws their consent to the continued storage or an embryo (as was the case in Evans), or where donated gametes are used where the gamete donor withdraws their consent. However, this provision would not alter the requirement that the consent of both parties is required to store the embryos; it is merely intended to provide a cooling-off period of one year during which time the embryos will not be destroyed until all interested parties provide their consent.
71. Andrew Grubb, 'Frozen Embryos: Legal Status, Disposition and Control' (1993) Medical Law Review 273 at 278.
72. For an excellent overview (and critique) of such scholarship in the field, see further Onora O'Neill, Autonomy and Trust in Bioethics (CUP 2002), at C 3.
73. Take, for example, the assumption that if given the choice, prospective parents accessing assisted reproductive technologies would seek to 'genetically engineer' their offspring in pursuit of the 'perfect baby'. As one study illustrates, albeit based on a limited sample, individuals accessing ARTs are in fact less likely to express a desire to select traits in their offspring. See further, Andrea Gurmankin, Peter Ubel, Elizabeth Banger and Glenn McGee, 'Aspiring Parents, Genotypes and Phenotypes: The Unexamined Myth of the Perfect Baby' (2005) 68 Albany Law Review 1097.
74. See, for example, the recommendations of the House of Commons Science and Technology Committee in its recent review of the 'Scientific Developments Relating to the Abortion Act 1967', published on 29 October 2007 (Twelfth Report of Session 2006-07/HC 1045-I). Among its various recommendations, the Committee also urges Parliament to consider the removal of the requirement for two doctors' signatures; on the evidence, the Committee found that this requirement served no meaningful purpose and was out of line with the need to encourage early, as opposed to later abortion (at para. 99). The Report is available on-line at: http://www.publications.parliament.uk/pa/cm200607/cmselect/cmsctech/ 1045/104502.htm
75. Linda Beckman and S Marie Harvey, 'Current Reproductive Technologies: Increased Access and Choice?' (2005) 61 Journal of Social Issues 1 at 3.