Is it ever ethically justifiable for clinicians or the state to restrict or refuse ART access?

Abstract

Individuals seeking to reproduce non-sexually require access to assisted reproductive technologies (ART) in order to pursue their dream of forming a family. A widespread view in the literature on reproductive rights, and in the broader community, holds that access to ART treatment constitutes a component of reproductive liberty. On this view, decisions about utilising ART sit within the same autonomy and privacy that is universally accorded to sexual reproduction. This implies that restricting or refusing ART access to anybody seeking to have a child non-sexually violates their right to reproduce. I reject this view, and the arguments that underpin it. The grounds upon which clinicians or the state can justifiably restrict or refuse access to available ART treatment form the basis of this thesis.

I commence this thesis with a critical analysis of moral theory on reproductive rights, exploring how the right to reproduce has been understood as a liberty, and then as a right in the philosophical and bioethical literature. I suggest that the way the term ‘reproduction’ is understood in the literature goes beyond the elements of the biological process of human reproduction itself. In short, I demonstrate that reproduction includes the begetting and bearing of a child that is born but does not include rearing within its definitional scope. This position represents an original and, I argue, theoretically significant departure from current understandings of reproduction in the literature. I identify two positions in the literature on reproductive rights: the predominant and dissenting. I critique both. The predominant position fails to adequately recognise the collaborative nature of all reproductive projects – both sexual and non-sexual. The importance of this point then attaches to the grounds upon which ‘others’ asked to assist with non-sexual projects have either a liberty or duty to assist. The predominant position holds that the reproductive right is only negative, but then argues this negative right protects positive claims to ART treatment within its scope, which I demonstrate is conceptually inconsistent. The predominant position regards fertility clinicians as morally devoid automata, whereas I argue that the clinician has assertable moral rights and responsibilities within the treatment paradigm.

ART produces a child. This other-regarding nature of reproduction is also substantively unrecognised in the predominant position. I broadly support the dissenting position, which argues for the interests and wellbeing of the future ART child to be taken into consideration in ART treatment access decision-making. However, I demonstrate that the rights of the future child do not compete directly with the reproductive desires of the hopeful parent. Rather, I propose that the competing interests are the hopeful parents and all the others collaboratively involved in the reproductive project.

Next, I sketch out sexual and non-sexual reproductive projects, identifying each of the stages and who does what at each stage. This then informs my critical analysis of the grounds upon which each individual is involved in a non-sexual reproductive project. I conclude that clinicians and the state have moral rights to restrict or refuse to be involved in non-sexual reproductive projects, because they have a measure of moral responsibility towards the future ART child, who they are causally involved in creating. While Derek Parfit’s ‘non-identity problem’ is often cited as an objection to considering the interests of the future ART child, I additionally demonstrate that my position can accommodate Parfit’s argument.