In the somewhat Brave New World of modern medical, biomedical and technological advances in the area of Assisted Reproductive Technologies (ART), a number of ethical and philosophical concerns arise. Questions such as these emerge:
-Do we have a right to children?
-What is the relation between parent and child?
-Does a parent own a child?
-What is a family?
And these questions frequently arise in areas where they never used to arise. Previously we talked primarily about childbearing in terms of married heterosexual couples. Now it is open slather, with single women, homosexuals, and others insisting on the “right” to have children.
And the difficulties of such questions are highlighted with things like surrogacy and other forms of creating babies: Who is the parent? Who is the owner? Who does the child belong to? In all such discussions about dealing with infertility and applying the new ART, it is often simply assumed that everyone has an automatic right to have children.
But is this in fact the case? True, in various human rights documents we find certain ideas along these lines. For example, in the Universal Declaration of Human Rights of 1948 we find these rights enunciated (in Article 16):
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
However the right “to marry and to found a family” is not quite the same thing as the right to have children. Let me seek to explain this further. Any man and woman can potentially come together and naturally conceive if they so choose to, unless some sort of infertility problem prevents this.
Then we have to speak about various treatments and medical interventions to make it possible to have children. But as with all such treatments, relative costs and benefits always have to be weighed up and considered. Indeed, is special medical intervention in the area of infertility to be regarded as life-saving medicine or something much more like elective surgery?
And does it then become a matter of anything goes? Who would or should have this “right” to fertility treatment? Would any and all couples have this right? Or any and all women? And why stop there? What about any and all men as well? Ethicist Nick Tonti-Filippini explains:
Certainly women have a right to have children in that it would be wrong to interfere, wrong to prevent a woman from having a child. But the claim being made is more extensive than that. It is a claim to receive treatment which would give a woman a child. The latter is a much weaker claim. Without meaning to be facetious a man might make a similar claim for treatment to make him able to have a child. That he should have such a right seems implausible. The right to receive medical treatment is much more difficult to substantiate, and is a weaker right than the right to non-interference. The right to medical treatment is usually expressed as an equal right to health care. A right to IVF which is a form of elective surgery akin perhaps to cosmetic surgery in that it serves a psychological need rather than a physiological one, can hardly be included under the category of a right to health care. In fact it is more likely to damage health than to improve it. IVF is a solution to the psychological problem of infertility, it does not cure infertility.
Thus the “right to have children” may be regarded more as a negative right than a positive one. That is, it is a right not to be interfered with or to be prevented from having children. But the idea that anyone for any reason at any time at any cost has a fundamental right to a child is a different matter.
This is especially so when speaking about the right to all imaginable medical and technological procedures to overcome infertility regardless of cost. We need to have second thoughts about seeing this as some absolute, universal right. As J. N. Santamaria and Tonti-Filippini wrote back in 1982,
“The right not to be interfered with is not a right to receive treatment. Rights to receive treatment, unlike rights not to be interfered with, are subject to what the State can afford, and to whether or not, given a relative scarcity of resources, there are other members of the society who can make a stronger claim to receive treatment at the State’s expense.”
Given the many risks and problems associated with things like IVF, the authors say a case can be made for not allowing it to continue. This is not about denying infertile individuals or couples their rights: “In this case the couples are not being interfered with, nor is anything being done to prevent them from having children. A medical treatment which can only be had at public expense and which cannot be described as a cure [IVF provides a couple with children but it does not cure infertility], or a treatment restoring good health, is being denied.”
Other moral philosophers have said much the same thing. Ethicist Leon Kass is worth quoting from in this regard:
The right to procreate is an ambiguous right, and certainly not an unqualified one. Whose right is it, a woman’s or a couple’s? Is it a right to carry and deliver (i.e., only a woman’s right) or is it a right to nurture and rear? Is it a right to have your own biological child? . . . Does infertility demand treatment wherever found? In women over seventy? In virgin girls? In men? Can these persons claim either a natural desire or natural right to have a child, which the new technologies might or must provide them? Does infertility demand treatment by any and all available means?
Or as Pete Moore explains, we have “a right to try for a baby whenever we want, but that is not the same as claiming the right to a baby. Slavery was abolished because we recognised that one person could not use another to fulfil their needs, and we need to be cautious before responding to the heart-rending pleas of couples who say that they need to have a child to fulfil their aspirations.”
Bioethicist Edwin Hui also puts the matter in terms of negative and positive rights. Negative rights basically imply being left alone, while positive rights claim that others have an obligation to facilitate one’s right: “So while the right to procreate is a widely accepted negative right that should not be interfered with, the right to use assisted reproductive technologies to procreate as a positive right has yet to be established”.
Thus instead of speaking in terms of ownership, or a right to children, it is perhaps better to speak of the privilege of having children. No one, in this sense, has a right to children. Many folks of a religious persuasion would say they are a gift or a sacred trust. But just because technology can produce babies on demand does not mean that we have an inherent right to babies whenever and however we please.
As philosopher Donald DeMarco argues, “No person should be regarded as the object of another person’s rights. The converse of this moral axiom states that no person should regard another person as an object of his rights, that is to say, no person has a right to another person.”
Along with the moral principle that the end does not justify the means, he elaborates further: the desire to have a child does not justify kidnapping another’s child. And if, as I have argued elsewhere, the desire to have a baby results in a procedure that may in fact destroy many embryos along the way, then that desire must be reined in by the rights of the other.
So as we move further into the Twilight Zone of all manner of human life manufacturing, we need to slow down and consider some of the claims being made – or assumed – here, whether by single women, homosexuals, or anyone else. As such, there is no fundamental right to a child.
But a child does have a fundamental right to be raised by his or her biological parents, preferably secured in heterosexual marriage. It is the rights of the child that should be discussed here, not the supposed rights, desires or whims of adults.
Note: Full documentation for what is written here will be found in my forthcoming book on IVF and surrogacy – hopefully out early 2017.