A right to reproduce?

Bioethics

Volumn 24, Issue 8, 2010, Pages 403-411

  Quigley, Muireann ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

Reproduction; Reproductive interests; Reproductive liberty; Reproductive technologies; Right to reproduce; Theories of rights

Indexed keywords

ARTICLE; ETHICAL THEORY; ETHICS; HUMAN; INFERTILITY THERAPY; MORALITY; PERSONAL AUTONOMY; REPRODUCTIVE RIGHTS;

ETHICAL THEORY; HUMANS; MORALS; PERSONAL AUTONOMY; REPRODUCTIVE RIGHTS; REPRODUCTIVE TECHNIQUES, ASSISTED;

EID: 77957060196     PISSN: 02699702     EISSN: 14678519     Source Type: Journal    
DOI: 10.1111/j.1467-8519.2008.00722.x     Document Type: Article

References (55)

1. Application No 6339/05. Judgment of 7 March 2006; [2006] 1 FCR 585.
2. [2001] 3 WLR 533, C.A.
3. Application No. 44362/04. Judgement of 4 December 2007 (Grand Chamber).
4. For a small selection of articles discussing the Evans case see S. Sheldon. Case Commentary Evans v Amicus Healthcare; Hadley v Midland Fertility Services - Revealing Cracks in the 'Twin Pillars'? Child and Family Law Quarterly [Child Fam Law Q] 2004; 16(4): 437-452;
5. C. Lind. Evans v United Kingdom - Judgments of Solomon: Power, Gender and Procreation. Child and Family Law Quarterly 2006; 18(4)
6. T. Annett. Balancing Competing Interests Over Frozen Embryos: The Judgment of Solomon? Medical Law Review [Med Law Rev] 2006; 14
7. A. Alghrani. Deciding the Fate of Frozen Embryos. Medical Law Review 2005; 13(1): 244-256
8. C. Morris. Evans v United Kingdom: Paradigms Parenting. Modern Law Review [MLR] 2007; 70(6): 992-1002
9. L. Zucca. Evans v United Kingdom: Frozen Embryos and Conflicting Rights. Edinburgh Law Review 2007; 11: 446-449
10. For a selection of articles discussing the Mellor and Dickson cases see H. Codd. The Slippery Slope to Sperm Smuggling: Prisoners, Artificial Insemination and Human Rights. Medical Law Review 2007; 15: 220-235
11. H. Codd. Regulating Reproduction: Prisoners' Families, Artificial Insemination and Human Rights. European Human Rights Law Review 2006; 1: 39-48
12. J. Williams. Have the Courts Got it Right? - The Queen on the Application of Mellor v. Secretary of State for the Home Department. Child and Family Law Quarterly 2002; 14: 218-228
13. P. Proctor. Procreating from Prison: Evaluating British Prisoners' Right to Artificially Inseminate their Wives under the United Kingdom's New Human Rights Act and the 2001 Mellor Case. Georgia Journal of International and Comparative Law [Ga J Int Comp Law] 2003; 31(2): 459-492
14. J. Raz. On the Nature of Rights. Mind 1985; XCIII: 194-214.
15. H.L.A. Hart. Are there any Natural Rights. Philosophical Review [Phil Rev]1955; LXIV: 175-191. Reprinted in 1984. Theories of Rights J. Waldron., ed. Oxford Oxford University Press: 77-90.
16. J. Robertson. 1994. Children of Choice - Freedom and the New Reproductive Technologies. Princeton; Princeton University Press.
17. B. Steinbock. A Philosopher looks at Assisted Reproduction. J Assist Reprod Genet 1995; 12: 543-551
18. For more on the role of rights as part of morality see R. Dworkin. 2000. Taking Rights Seriously. London; Duckworth: 150-183
19. J.L. Mackie. Can There Be a Right-based Moral Theory? In Waldron, op. cit. note 6.
20. We will see later that this itself could be seen as deriving from a general right to liberty.
21. Robertson, op. cit. note 7, pp. 22-23. Robertson actually uses the words 'freedom' and 'liberty' but states 'that "liberty" as used in procreative liberty is a negative right', therefore I will take the terms to be synonymous for the purposes of this paper.
22. Steinbock, op. cit. note 8, p. 548.
23. Ibid: 547. cf. Raz,. op. cit. note 5.
24. Robertson, op. cit. note 7.
25. On a Razian view of rights, many claim-rights are justified on the grounds of protecting individual freedom and autonomy. My thanks to Kimberley Brownlee for pointing this out.
26. Robertson, op. cit. note 7, p. 22.
27. Raz,. op. cit. note 5, p. 195.
28. Ibid: 195. My emphasis.
29. Robertson, op. cit. note 7; Steinbock, op. cit. note 8.
30. Steinbock, op. cit. note 8, p. 549.
31. Robertson, op. cit. note 7, p. 30.
32. Steinbock, op. cit. note 29, p. 549.
33. Found in the HFEA's Seventh Code of Practice. See, Last accessed 21 Nov 2008 http://cop.hfea.gov.uk/cop/pdf/CodeOfPracticeVR_4.pdf.
34. The Human Fertilisation and Embryology Act 2008 received Royal Assent on 13 Nov 2008. This Act will have a staged implementation but will be in full force by October 2009. The 2008 Act will amend the 1990 Act. As such section 14(2)(b) of the 2008 Act replaces the need for 'a father' with the need for 'supportive parenting' and section 23 of the 2008 Act similarly amends section 25(2). The HFEA will continue to be required to issue guidance.
35. Section 13(5). Although it must be noted that the Guidelines themselves cannot be taken as an indication of the individual positions of members of the Authority. The past chair of the HFEA, Suzie Leather was notably critical of part of s13(5) of the Act. My thanks to one of the reviewers for bringing this to my attention.
36. A. Alghrani, J. Harris. Child and Family Law Quarterly 2006; 18: 197.
37. Harris, op. cit. note 16.
38. For more on this, see P. Tittle, ed. 2004. Should Parents Be Licensed. [Amherst, N.Y.] Prometheus Books; H. La Follette. Licensing Parents. Philos Public Aff 1980; 9: 182-197.
39. One of the heavily debated aspects of the Act on its passage through Parliament as the HFE Bill was related to the welfare of the child provision and was on whether there should be a statutory duty for clinics to consider the 'need for a father' for any children born as a result of IVF. The move to have a 'need for a father' clause included in the Bill proved controversial, as it was seen as a dubious social judgement on the suitability of lesbian and single mothers to be parents. The clause was rejected by MPs on 20/05/08. The new act can be found at http://www.opsi.gov.uk/acts/acts2008/ukpga_20080022_en_1
40. Parliamentary debates can be found at, [Last accessed 03 Dec 2008] http://services.parliament.uk/bills/2007-08/humanfertilisation_andembryology.html
41. Of course, this problem might be resolved if we could draw up or identify a list of objective reproductive interests of the type that Raz and his proponents would support.
42. This is the type of right described by R. Nozick. 1974. Anarchy, State and Utopia. Oxford: Basil Blackwell.
43. P. Jones. 1994. Rights. Basinstoke: MacMillan: 15.
44. R. Plant. 1986. Needs, Agency and Rights. In Law, Rights and the Welfare State. D.J. Galligan & C.J.G. Sampford, eds. London: Croom Helm.
45. R. Copelon. Losing the Negative Right of Privacy: Building Sexual and reproductive Freedom. New York University Review of Law and Social Change [Rev Law Soc Change] 1991; 18: 15-15: 46.
46. It might be that these positive and negative rights are only one right, which generates both positive and negative duties.
47. Plant, op. cit. note 45, p. 26.
48. J. Rawls. 1999. A Theory of Justice. Oxford: Oxford University Press: 171-227.
49. Plant, op. cit. note 45, p. 28.
50. I. Berlin. 1958. Two Concepts of Liberty. In Four essays on Liberty. Oxford: Oxford University Press: 6-16.
51. Dworkin. op. cit. note 9, p. 273.
52. R. Dworkin. 1984. Rights as Trumps. In J. Waldron, op. cit. note 6, p. 167.
53. Dworkin, op. cit. note 9, pp. 272-273.
54. Or at least to those individuals that are capable of being rights-holders on choice theory.
55. Or indeed the new draft Bill.