The legal and relational identity of the ʼnot-yet’ generation

Law, Innovation and Technology

Volumn 4, Issue 2, 2012, Pages 122-143

  Karpin, Isabel ^a  

^a UNIVERSITY OF TECHNOLOGY SYDNEY   (Australia)

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EID: 84991001177     PISSN: 17579961     EISSN: 1757997X     Source Type: Journal    
DOI: 10.5235/LIT.4.2.122     Document Type: Article

References (115)

1. See eg Assisted Reproductive Technology Act 2007 (NSW), s 28 (prohibiting use of gametes to create embryos with close family members);
2. Assisted Reproductive Treatment Act 2008 (Vic), s 27;
3. Prohibition on Human Cloning for Reproduction Act 2002 (Cth), s 17 (banning creation of chimeric embryos).
4. See eg Assisted Reproductive Treatment Act 2008 (Vic), s 35.
5. See eg Prohibition of Human Cloning for Reproduction Act 2002 (Cth), s 12 (prohibiting creation of a human embryo for a purpose other than achieving pregnancy in a woman).
6. See eg Assisted Reproductive Treatment Act 2007 (NSW), s 25(3)(c);
7. Assisted Reproductive Treatment Act 2008 (Vic), s 33(2)(b)(ii);
8. Human Reproductive Technology Act 1991 (WA), s 24(1).
9. See eg Assisted Reproductive Treatment Act 2008 (Vic), s 34(2);
10. Assisted Reproductive Treatment Regulations 2009, s 12.
11. See eg Assisted Reproductive Treatment Act 2008 (Vic), s 28 (banning sex selection).
12. Significant regulatory work is conducted around embryos that are created not for use in reproduction but rather for the purposes of research: see generally Research Involving Human Embryos Act 2002 (Cth);
13. see also Prohibition of Human Cloning for Reproduction Act 2002 (Cth). These include embryos created through somatic cell nuclear transfer (SCNT) as well as hybrid and chimeric embryos. However, those embryos are not the focus of this paper.
14. ARC Discovery Project Grant DP 0986213, Enhancing Reproductive Opportunities with Chief Investigators Professors Jenni Millbank, Professor Anita Stuhmcke and myself, and Research Fellow Eloise Chandler. Details of the project can be found at www.allabouttheembryo.net. Preliminary Project Report on the Project Updates page, http://allabouttheembryo.net/embryo_wp/?page_id=43.
15. See eg Jenni Millbank, ‘Unlikely Fissures and Uneasy Resonances: Lesbian Co-Mothers, Surrogate Parenthood and Fathers’ Rights’ (2008) 16 Feminist Legal Studies 141 and her discussion of Evans v United Kingdom [2007] 2 FCR 5 at 152-3.
16. This, of course, is without the capacity for ectogenesis via an artificial womb, which still seems some way off.
17. See eg National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (NHMRC ART guidelines 2007) 5.1;
18. Assisted Reproductive Technology Act (NSW), s 3(b)(1);
19. Assisted Reproductive Treatment Act 2008 (Vic), s 5.
20. Most commonly this occurs where the embryo is found to have some kind of genetic or other abnormality; however, it also includes, as shall be discussed in Part II, the disposal of embryos that have reached storage time limits.
21. See n 8 for project details, and the final report: Jenni Millbank, Anita Stuhmcke, Isabel Karpin and Eloise Chandler, Enhancing Reproductive Opportunity: A Study of Decision-Making Concerning Stored Embryos (forthcoming, January 2013) esp chs 4 and 7.
22. See n 8. The full report (Millbank et al (n 13)) will be published early in 2013.
23. Isabel Karpin, ‘Taking Care of the “Health” of Preconceived Human Embryos’ in Jeff Nisker et al (eds), The ‘Healthy’ Embryo (Cambridge University Press, 2010).
24. Nadia Whitelaw and Emma Whitelaw, ‘How Lifetimes Shape Epigenotype Both Within and Across Generations’ (2006) 15 Human Molecular Genetics Suppl 2, R131-7;
25. Hui Chen et al, ‘Hypothalamic Neuroendocrine Circuitry is Programmed by Maternal Obesity: Interaction with Postnatal Nutritional Environment’ (2009) 4 PLOS ONE e6259, 2, www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0006259;
26. Kate Owen et al, ‘Individual Preferences for Diet and Exercise Programmes: Changes over a Lifestyle Intervention and their Link with Outcomes’ (2010) 13 Public Health Nutrition 245;
27. Sheau-Fang Ng et al, ‘Chronic High-Fat Diet in Fathers Programs β-cell Dysfunction in Female Rat Offspring’ (2010) 467 Nature 963.
28. January Payne, ‘Forever Pregnant: Guidelines Treat Nearly All Women as Pre-Pregnant’ Washington Post, 16 May 2006, www.washingtonpost.com/wp-dyn/content/article/2006/05/15/AR2006051500875.html.
29. See also Merry Moos et al, ‘Healthier Women, Healthier Reproductive Outcomes: Recommendations for the Routine Care of All Women of Reproductive Age’ (2008) 199 American Journal of Obstetrics & Gynecology S280.
30. See Isabel Karpin and Kristen Savell, Perfecting Pregnancy: Law, Disability and the Future of Reproduction (Cambridge University Press, 2012) c 2.
31. Lesley Cotterell, ‘Preconception Healthcare’ Australian Doctor, 18 June 2004, 35.
32. See eg NSW Health, ‘Prenatal Testing: Special Tests for Your Baby During Pregnancy’ (8 August 2007) (example of a government health policy aid);
33. Murdoch Children’s Institute, ‘Your Choice: Screening and Diagnostic Tests in Pregnancy’ (2004), www.mcri.edu.au/Downloads/PrenatalTestingDecisionAid.pdf (example of an aid provided by a healthcare provider).
34. Elizabeth Ettorre, ‘Reproductive Genetics, Gender and the Body: “Please Doctor, May I have a Normal Baby?"' (2000) 34 Sociology 403, 408.
35. Elizabeth Ettorre, ‘Reproductive Genetics, Gender and the Body: “Please Doctor, May I have a Normal Baby?"' (2000) 34 Sociology 403, 408.
36. Elizabeth Ettorre, ‘Reproductive Genetics, Gender and the Body: “Please Doctor, May I have a Normal Baby?"' (2000) 34 Sociology 407, 409.
37. Kerry Petersen et al, ‘Assisted Reproductive Technologies: Professional and Legal Restrictions in Australian Clinics’ (2005) 12 (3) Journal of Law and Medicine 373.
38. Department of Health and Human Services, Centers for Disease Control and Prevention, ‘Recommendations to Improve Preconception Health and Health Care in the United States’ (Rep No PR-6:7, 2002);
39. Government of Canada, ‘Family-Centred Maternity and Newborn Care: National Guidelines’ (4th edn, 2000);
40. Health Council of the Netherlands, ‘Preconception Care: A Good Beginning’ (Rep No 2007/19E, The Hague:Health Council of the Netherlands, 2007).
41. See discussion below of the Assisted Reproductive Treatment Act 2008 (Vic), s 14(1) and the Victorian case of ABY, ABZ v Patient Review Panel [2011] VCAT 1382.
42. See eg NHMRC ART guidelines 2007 (n 11) 5.1; Assisted Reproductive Technology Act (NSW), s 3 (b)(1); Assisted Reproductive Treatment Act 2008 (Vic), s 5.
43. See Karpin and Savell (n 19) c 6;
44. Mark Rothstein, Yu Cai and Gary Marchant, ‘The Ghost in Our Genes:Legal and Ethical Implications of Epigenetics’ (2009) 19 Health Matrix: Journal of Law-Medicine 1;
45. Fazal Khan, ‘Preserving Human Potential as Freedom: A Framework for Regulating Epigenetic Harms’ (2010) 20 Health Matrix: Journal of Law-Medicine 259.
46. See also Assisted Reproductive Treatment Act 1988 (SA), s 4A (‘the welfare of any child to be born as a consequence of the provision of assisted reproductive treatment … must be treated as being of paramount importance’);
47. Canada Assisted Human Reproduction Act, s 2(a) (‘[t]he health and well being of children born through the application of [ART] must be given priority in all decisions respecting their use’).
48. Assisted Reproductive Treatment Act 2008 (Vic), s 14(1).
49. See also s 5(a) (‘The welfare and interests of the person born or to be born as a result of treatment procedures are paramount’).
50. See Human Reproductive Technology Act 1991 (WA), s 23(1)(e) and s 4(d)(iv) (‘ensure that the prospective welfare of any child to be born consequent on a procedure to which this Act relates is properly taken into consideration’).
51. The 8th edition of the HFEA Code of Practice notes: ‘It is presumed that all prospective parents will be supportive parents, in the absence of any reasonable cause for concern that any child who may be born, or any other child, may be at risk of significant harm or neglect. Where centres have concern as to whether this commitment exists, they may wish to take account of wider family and social networks within which the child will be raised’ (para 8.11).
52. Ellie Lee, Jan Macvarish and Sally Sheldon, Assessing Child Welfare under the Human Fertilisation and Embryology Act: The New Law (Full Report, University of Kent, September 2012) 7.
53. www.hfea.gov.uk/docs/Welfare_of_the_child_Aug_2010.pdf.
54. See Lee, Macvarish and Sheldon (n 34) 7.
55. See Lee, Macvarish and Sheldon (n 34) 5
56. Australian Human Rights Commission, Bringing Them Home: The Stolen Children Report (1997).
57. NSW Government Report, Releasing the Past (2000);
58. Federal Senate Committee Inquiry, ‘The Commonwealth’s Contribution to Former Forced Adoption Policies and Practices’, February 2012.
59. See Lee, Macvarish and Sheldon (n 34) 9.
60. McBain v State of Victoria [2000] FCA 1009;
61. JM v QFG &GK [1998] QCA 228.
62. Assisted Reproductive Treatment Act 2008 (Vic), s 11(1)(c) and (d).
63. Assisted Reproductive Treatment Act 2008 (Vic), s 14(1).
64. ABY, ABZ v Patient Review Panel [2011] VCAT 1382.
65. Patient Review Panel v ABY and ABZ [2012] VSCA 264 (date of judgment: 26 October 2012).
66. ABY, ABZ v Patient Review Panel [2011] VCAT 1382, [48].
67. ABY, ABZ v Patient Review Panel [51].
68. ABY, ABZ v Patient Review Panel [29].
69. ABY, ABZ v Patient Review Panel [114] (Justice Ross and Member Fabris).
70. Patient Review Panel v ABY and ABZ [2012] VSCA 264, [21].
71. Patient Review Panel v ABY and ABZ [2012] VSCA 264, [62].
72. Patient Review Panel v ABY and ABZ [2012] VSCA 264, [73].
73. Patient Review Panel v ABY and ABZ [2012] VSCA 264, [85].
74. Patient Review Panel v ABY and ABZ [2012] VSCA 264, [117], emphasis added.
75. Patient Review Panel v ABY and ABZ [2012] VSCA 264, emphasis added.
76. Note that in Victoria the Act specifically precludes discrimination on the basis of sexual orientation, marital status, race or religion: see Assisted Reproductive Treatment Act 2008 (Vic), s 5(e).
77. Emily Jackson, ‘Conception and the Welfare Principle’ (2002) 65 Modern Law Review 176.
78. Emily Jackson, ‘Conception and the Welfare Principle’ (2002) 65 Modern Law Review 180.
79. Emily Jackson, ‘Conception and the Welfare Principle’ (2002) 65 Modern Law Review 181.
80. Thérèse Murphy, ‘The Texture of Choice’ in Thérèse Murphy (ed), New Technologies and Human Rights (Oxford University Press, 2009) 195, 210.
81. IVF Australia, ‘Freezing Embryos’ (2012), http://ivf.com.au/fertility-treatment/ivf-treatment/frozen-embryo-transfer.
82. See my discussion of this view in Isabel Karpin, ‘Uncanny Embryos: Legal Limits to the Human and Reproduction without Women’ (2006) 28 Sydney Law Review 599.
83. See my discussion of this view in Isabel Karpin, ‘Uncanny Embryos: Legal Limits to the Human and Reproduction without Women’ (2006) 28 Sydney Law Review 599.
84. See generally the Research Involving Human Embryos Act 2002 (Cth) and the Prohibition of Human Cloning for Reproduction Act 2002 (Cth).
85. s 11 of the Research Involving Human Embryos Act 2002 (Cth) makes it illegal to use an embryo formed by the fertilisation of a sperm and egg other than an excess embryo without accreditation.
86. So-called ‘on-donation’-where an embryo or gamete recipient wishes to donate the embryo formed from the donated material to another person-is typically prohibited.
87. See eg NHMRC ART guidelines, para 7.2.1.
88. NHMRC ART guidelines 2007 (n 11) para 6.1.5.
89. NHMRC ART guidelines 2007 (n 11) para 8.9.
90. Research Involving Human Embryos Act 2002 (Cth), s 11.
91. Human Reproductive Technology Act 1991 (WA), s 24(1)(b).
92. Reproductive Technology Council, ‘Embryo Storage’, www.rtc.org.au/embryostorage/index.html.
93. See also HRTA Directions, 6.10-6.12.
94. Assisted Reproductive Treatment Act 2008 (Vic), s 33(2)(b)(ii).
95. The Act additionally provides for a Patient Review Panel to approve a longer period of storage if ‘it considers there are reasonable grounds for doing so in the particular case’. See s 33(3).
96. Assisted Reproductive Technology Act 2007 (NSW), s 25(3)(c).
97. Assisted Reproductive Technology Act 2007 (NSW), ss 25(3)(c)-26.
98. See Part II below.
99. Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy and Law (Oxford University Press, 2011) 38.
100. Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy and Law (Oxford University Press, 2011) 194.
101. Three surveys were later disqualified as respondent answers indicated that they had not experienced having embryos in storage-the sole participation criterion for this project.
102. See Millbank et al (n 13).
103. Françoise Bayliss, ‘The Self in Situ: A Relational Account of Personal Identity’ in Jocelyn Downie and Jennifer Llewellyn (eds), Being Relational: Reflections on Relational Theory and Health Law (UBC Press, 2012) 110.
104. Evans v United Kingdom [2007] 2 FCR 5 Sonia Harris-Short argues that it might be appropriate to infer a welfare interest in being born to a pre-gestated embryo where there is a dispute between gamete providers about its future development.
105. Sonia Harris-Short, ‘Regulating Reproduction: Frozen Embryos, Consent, Welfare and the Equality Myth’ in Stephen Smith and Ronan Deazley (eds), Legal, Medical and Cultural Regulation of the Body (Ashgate, 2009) 47-75, 68.
106. See Millbank et al (n 13).
107. See Sarah Franklin and Celia Roberts, Born and Made: An Ethnography of Preimplantation Genetic Diagnosis (Princeton University Press, 2006). Feminist anthropologist Lyn Morgan, too, has, in attempting to articulate women’s need to express a sense of reproductive or gestational loss in the case of pregnancy and miscarriage, argued for ‘pragmatic situational ethics of fetal relationality’, and this is useful for thinking about the pre-gestated embryo as well.
108. Lyn Morgan, ‘Fetal Relationality in Feminist Philosophy: An Anthropological Critique’ (1996) 11 Hypatia 47, 63.
109. Murphy (n 59).
110. Murphy (n 59) 214.
111. Murphy (n 59) 219.
112. Nedelsky (n 74) 5.
113. Judith Butler, Frames of War: When is Life Grievable (Verso, 2009) 19.
114. Nedelsky (n 74) 167 (emphasis in original).
115. Nedelsky (n 74) 176.