Burning Down the House Publications, Melbourne 1988.
Parameters of Discussion
In considering the ethical status of the human IVF programme, one is initially faced with an enormous range of ethical questions. Perhaps the most prominent of these , both in the community and on policy regulating bodies, has focused on the “sanctity-of-life” principle. Debate of this principle has itself concentrated on the moral status of the embryo, i.e. On whether or not embryos produced by the IVF programme should be accorded human status and the “rights” that that status is believed to entail. Thus, the “sanctity-of-life” debate has focued on the degree to which protection should be afforded to embryos. The resolution of this ethical question would determine the extent to which researchers in the area of IVF are morally permitted to experiment on such embryos. As a practical consequence, this would also affect the actual possibilities for developing the IVF programme. It would not however resolve the ethical status of IVF in principle. Concentration on the “sanctity-of-life” principle also has one other major failing as a means of establishing the ethics of IVF as such. While the debate over whether or not embryos should be accorded human status is unlikely to be resolved in the near future the interests of the adult participants; who are uncontroversially accorded human status; and about which agreement might be reached, have largely been ignored.
Related to the “sanctity-of-life” question has been a less prominent ethical debate, concerning the “naturalness” of the IVF procedure. This debate, however, seems to arise primarily in relation to dogma concerning the institutions of monogamous marriage and the nuclear family. The concern is that IVF may lead to a break down of the institutions of marriage and the family. However, unless one shares a belief in the value placed by such dogmas on the institutions of monogamous marriage and the nuclear family, there seems little common ground on which a debate of the ethics of IVF can proceed.
There is one other major ethical issue that has arisen in regard to IVF, although for the most part it has tended to present a lower profile than the two debates previously mentioned. It is this issue that this paper will concern itself with. The the rights of the infertile to reproduce is often raised by the participants in I.V.F as, I believe incorrectly, a counter to arguments arising from the “sanctity-of-life” principle. For even if such a right exists, it does not follow that this right overrides the rights of the embryo, if embryos can be said to have rights. The right of the infertile to reproduce is not however, a single ethical issue but several depending on how the “right” is construed. In the first instance there is the question of in whom the right inheres.
The medical profession tend to talk of the rights of the ‘infertile couple’, suggesting that the right to reproduce attaches to the couple. , However, I will argue that ethical rights can only properly be said to attach to individuals. However, if the right to reproduce attaches to the individual, one may still ask if it is held to all infertile individuals or only to some. The right itself can be variously construed as the right to reproduce and the right to reproduce by whatever means. For while the right to reproduce is generally conceived as a negative right, i.e. a legitimate individual liberty, in the case of IVF participants the right to reproduce seems to be also construed as a positive right. Indeed, it might be suggested that if the infertile have a right to reproduce it would only make sense if that right entails a demand for resources, since without the resources of IVF and related technologies the right could never be exercised. In as much as the right of the infertile to reproduce can be described as a negative right it is the right to pursue reproduction through IVF and related industries such as surrogacy and so on. It is the ethical status of these various “rights” that this paper will consider, and through that the ethical status of IVF as such.
It should also be pointed out that this paper is not intended to be a discussion of the existence of natural rights as such. For the purposes of this discussion it will not matter if the “right” to reproduce is thought of as a social right, that is, a right bestowed by society. The intention of this paper will be to consider if the concept of the ‘right to reproduce’ can be considered as a coherent concept at all. It may also be the case that the IVF procedure is ethically justified on grounds other than the rights of the infertile; rights understood under any definition. But if this is so, there would at least seem to be a prima facie case for believing that the burden of justification, in establishing that society is under an obligation to assist, or indeed permit the development of IVF at its expense, must fall to those who wish to support the use of IVF.
At the start of this discussion it will be useful to establish a broad outline of what is meant by the terminology of a ‘right to reproduce’, since much debate in this area has tended to confuse two distinct concepts under the one term. In particular the public debate in the media over this issue – such as it is – and the language of IVF researchers themselves, has frequently confused the concepts of reproduction and rearing. That is, there has been confusion over the concept of the right to raise children and the right to produce children. To some extent this confusion is the result of the expression, ” to have children”, which is ambiguous. But while the reproduction and raising of children are not necessarily mutually exclusive activities, they are nonetheless distinct activities and in debating the existence of a right to either, one is faced with quiet different ethical implications. This can be simply illustrated if one considers the logical implications of both, for clearly one may have the right to reproduce but lack or forfeit a corresponding right to raise children. And the reverse might also be true, so that one have the right to raise children but lack a right to reproduce.
If the infertile were arguing for the right to raise children, one might expect that there would be demands for the liberalization of adoption laws and the like, but on the whole this has not been so. Indeed not only are I.V.F programs not directed towards the issue of raising children but the supporters of such programs argue that the raising of children in itself does not address the right that the infertile are claiming, i.e. the right to “have their own children”. Steptoe for instance, as a founding researcher in the area of I.V.F, has explicitly claimed that in the vast majority of I.V.F cases, adoption is not “..a satisfactory alternative .[to the].. right to have a family..”.  It might of course be thought that such a comment merely indicates that there are simply insufficient adoptees to fulfill the parenting desires of all the infertile, and this indeed may be so. However, the observation that there are few adoptees and many infertile individuals merely ignores the fact that there are a vast number of state wards who are, for all intensive purposes, parentless and therefore the opportunity for parenting is still theoretically readily available. Moreover, and more perhaps importantly, it ignores the fact that adoption is considered an alliterative to the right to have a family. Clearly then, supporters of I.V.F interpret the right to “have” a family in the sense of a right to reproduce. It will become clear as the discussion progresses, that the sort of ambiguity in terminology which has been pointed to here, is evident in other areas of this debate,.It will be suggested that this ambiguity of terminology disguises the general incoherence of the concept of a right to reproduce.
Origins of the Right to Reproduce
Although supporters of I.V.F have sort to establish the ethical legitimacy of I.V.F and claims for access to I.V.F, by appealing to the right to reproduce as a basic or fundamental human right,  it is nonetheless not immediately clear why such a right should be thought to exist, much less why it should be thought to be fundamental. The concept of the right to reproduce is singularly absent from all but the most recent literature on rights. It does not appear any where as a constitutional legal right and while the U.N. Declaration of 1948 did hold that there is a “… right to marry and found a family free from constraint..”,  this is highly ambiguous and does not establish a clear presumption of the right to reproduce. Clearly then, discussion of a right to reproduce is of fairly recent origin and before accepting the validity of such a right, some clear and explicit argument must be given of the right’s basis. Initially it may seem plausible to suggest that such a basis can be found in an extension of the basic right to liberty. Thus, it might be argued that reproduction is a fundamental component of the individual’s general right to the freedom to act, and the state may not interfere with this freedom of action without the most compelling reasons.  Nevertheless, while one may in general agree that a legitimate liberty may only be restricted by the state for the most compelling reasons, the restriction of reproduction is more extensive than it first appears. In general liberties in themselves do not establish an unconditional lack of restriction. Therefore, even if the right to reproduce can be thought of as a liberty, it does not follow that an individual is at liberty to impinge on the legitimate rights of others. Indeed, given that reproduction of necessity (at least at present) entails interpersonal cooperation, questions concerning the presence or absence of coercion and manipulation must be thought paramount to the ethical status of the exercise of that liberty. The liberty to reproduce has severe restrictions imposed upon it, in particular all societies place fairly stringent restrictions on the choice of reproductive partner that any individual may have. For example, restrictions are placed on incestuous reproductive relationships and while these restrictions may sometimes reflect concerns regarding the coercion of individuals, such relationships are not necessarily coercive. Likewise while such restrictions may reflect genuine concerns for social propriety, they do not always reflect a genuine likelihood of social or genetic harm, and therefore do not always seem to constitute an overriding moral reason for restriction.
Nonetheless, these restrictions are generally thought ethically legitimate and the liberty to reproduce, if there is one, is a particularly restricted one. Moreover, if one construes the basis of the right to reproduce as being an extension of the right to liberty, a significant problem for the infertile and supporters of IVF arises. The right to liberty is fundamentally a negative right, the right to be free from constraint to pursue the ethically permissible. Ironically this reflects the wording of the UN Declaration. The existence of a liberty does not in itself entail rights to resources. Yet if the concept of the infertile having the right to reproduce is to make any real sense, it would seem that the right to reproduce must entail some rights to resources. Without a positive right to the resources of IVF and related technologies, the infertile would have at best, the liberty to attempt to reproduce and, given that they are infertile, such attempts by definition cannot succeed. Unless the right to reproduce is a positive right,- such that the state has an ethical obligation to provide sufficient resources in order for all individuals to obtain the right,- there is no reason to believe that a liberty to reproduce, ethically legitimizes the existence of IVF Clearly, basing the right to reproduce on an extension of the right to liberty will not be sufficient to establish any rights to IVF.
Uniacke, in her article “In Vitro Fertilization and the Right to Reproduce.” suggests that the right to reproduce is most “…likely to be defended as a human right arising either from a basic need or a basic desire.”  and this does seem to be a promising line of ethical defense for IVF. However, if it is argued the right to reproduce is based of a fundamental or basic need, it will be necessary to establish precisely in what way reproduction can be said to constitute a basic need. For it is not at all clear that reproduction is a basic need in the ordinary sense, i.e. that it is a requirement. Supporters of IVF have refered to reproduction as a “basic human instinct”  and it appears that this may be what they have in mind when they speak of a need to reproduce. The need to reproduce might then be thought of as a type of compulsive drive that is inherent in members of the human species, a form of genetically encoded behaviour which individuals “need” to act out. However, while the concept of a “drive to procreate”  has been supported by both IVF practitioners and by some legal opinions – and may even be commonly held within society at large – it seems unlikely that such a view is justified.
To argue that there is an instinct to reproduce is to suggest that there is an instinct to beget or give rise to the birth of children. However, it is difficult to see how there could be an instinct for this behaviour when the causal mechanism was, for the larger part of human history, unknown. Indeed if one were to attribute instinctual behaviour to humans at all, there would seem to be a better prospect for suggesting that there is an instinctual sexual drive. An instinctual sexual drive is not however, translatable into an instinct to reproduce for the two concepts entail different behaviour patterns. That is, an instinctual sexual drive, if there is one, produces non specific sexual behaviour. â€“ It is as likely to be homosexual as heterosexual and as likely to be non reproductive, as reproductive. – If there were a drive to reproduce one would expect that sexual behaviour would be exclusively orientated towards heterosexual reproductive behaviour and clearly this is not the case. Indeed, it seems most unwise to attribute human behaviour to instinct at all. , Even if one grants the existence of instinctual needs, this in itself cannot inform us precisely what behaviour will be produced by such an instinct “…because simpler biological programming is overlaid by extraordinarily complex cultural patterning …, there is no instinctual behaviour as such.”  A It is clearly implausible to believe that an ethical right can be based on the supposed existence of an instinctual behaviour.
There is however, a more plausible way of interpreting the concept of a basic need. One normally thinks of basic needs as those things which are required for the maintenance of life, health and moral dignity, however, if this interpretation is correct it is not obvious that reproduction constitutes a basic need. IVF researchers concede that infertility in itself does not constitute a disease and is not normally life threatening,  reproduction is not therefore essential to the individual’s health or the maintenance of their life. One might of course argue that infertility is nevertheless a disability since it deviates from the proper functioning of the individual’s physiology, but even if this is so this still does not establish that reproduction is a basic need. Blue – green colour blindness is also a disability, but this does not establish that perfect colour vision is a basic and fundamental need. In order to legitimately claim that reproduction is a basic need one must be able to establish that infertility in itself is in some way significantly detrimental to the individual’s quality of life or moral dignity. For example, deafness in itself is a severe disability imposing restrictions on the individual across the broad spectrum of the their life. Infertility however, is not a disability of this sort, for not only does it not constitute a disability access the broad spectrum of the individual’s life, but infertility in itself is often chosen voluntarily as an improvement in the quality of the individual’s life. That is, while the involuntarily infertile may view their infertility as a severe disability, infertility in itself, unlike deafness, is not necessarily a disability at all. Thus, reproduction is clearly not a need, the fulfillment of which is a necessary requirement for maintenance of the individual’s general quality of life. Indeed, one cannot even claim that reproduction is necessary to the moral dignity of the individual. One’s moral dignity is not dependent on one’s status as a parent. The first element of Uniacke’s suggestion must therefore be discounted as being philosophically incoherent. Nonetheless, it is still worth considering her second claim that, the right to reproduce may be based upon the belief that reproduction is a basic desire. For while infertility in itself may not constitute a severe curtailment on the quality of the individual’s life or their dignity as moral agents, one might nonetheless argue that such curtailments arise from the lack of choice that the involuntary infertile suffer.
While Uniacke does not offer an account of what she believes a basic desire to be, it is clearly necessary that some account be offered if basic desires are to form the basis for establishing the right to reproduce. Such a desire must be more ethically significant than merely an expression of one desire among many that an individual may have. In order for the desire to be basic in an ethically relevant sense it must in some way be central to the individual’s moral agency. Thus, it might be argued that the desire to reproduce is central in some way to the conception the individual has of their own life plan and to their own sense of the quality of that life. However, even this position presents difficulties, for not all conceptions of what constitutes a valuable and meaningful life entail the existence of a right to the fulfillment of that view of a meaningful life. Indeed, some conceptions of a meaningful life may well be objectively considered trivial or even immoral. Nonetheless, one might argue that the choice to reproduce or not, is a fundamental choice that individuals make concerning their own lives, and thus a central component to their sense of self and an expression of their free choice as moral agents. Thus, whether or not it is an objectively desirable choice it may still be consistent to argue that society”…takes the protection of certain individual choices as fundamental, and not properly subordinated to any social goal…”.  It must be pointed out that, even if it is agreed for the moment that, the choice of the individual to reproduce or not is an expression of the individual’s moral autonomy, it does not follow that the fulfillment of that desire is necessary for the existence of the agent’s moral autonomy., Clearly it is not. The autonomy of the individual is not affected by reproduction, but it may be affected by a lack of choice. Indeed, it may be suggested that the characterization of a basic desire seems excessively like a characterization of a liberty or a negative right. For while society may recognize that certain fundamental choices arising from basic desires must be protected, in recognition of the moral agency of the individual, it does not follow that society is under any ethical obligation to provide for the fulfillment of those desires.
The protection of individual choices is primarily a recognition of the individual’s claim to non interference. For instance, one might argue that compulsory population restriction programs, such as those which exist in China and various other parts of the world, are clearly a violation of the individual’s freedom to choose to reproduce or not. This is not the case where a society fails to provide resources to enable the individual to reproduce because the individual’s freedom to choose to reproduce has not been interfered with at all. It seems then, that ultimately the concept of a basic desire collapses into a form of liberty, and as has been previously argued the existence of a basic liberty to reproduce is not sufficient to establish that the infertile have any ethical rights to the resources of IVF. In order for there to be a right to reproduce that can be meaningfully applied to the infertile, it would be necessary to establish that the right entailed some ethical obligation on the part of society.  That is, the right which is thought to arise from their fundamental desire, must also entail that they are entitled to social resources in order to bring the aim of that desire about. Without the resources provided by society, in the form of funding for research and funding for the I.V.F programme itself, the infertile would have very little chance of being able to bring the aim of the basic to desire to reproduce about, and their right to reproduce would therefore not be much of a right at all. Clearly, attempts to base the right to reproduce on need or a basic desire, have not been able to do this. Thus, at best the infertile have a liberty to choose what is, by definition, impossible for them to achieve, i.e., to reproduce.
Indeed, given the very considerable resources which would be required in order to establish the availability of this liberty to all,  there are clear prima facie reasons why society might be reluctant to do so, and such reluctance could in no way be considered a violation of the infertile’s liberty.
The Ideology of Choice
While it is clear that the concept of a basic desire collapses into the form of a liberty, it may still be worth considering the nature of the choice to reproduce. If the choice to reproduce is to have any credence at all as a basic liberty, one should be fairly certain that it is indeed a freely chosen option. Thus, while one may support the idea that the basic desires of people should not in general be frustrated, one must also distinguish between “… freely expressed desires and socially induced needs”  and between those choices that are an expression of moral autonomy and those which in actuality restrict moral autonomy. In considering this issue there are two elements which must be dealt with, the first is the actual status of the desire to reproduce and the second is the relationship between that desire and IVF. While in all probability it will not be possible to establish the “true” status of the desire to reproduce, nonetheless, it can be observed that no desire occurs except within the context of a sociopolitical environment, that is within the context of some cultural ideology. Although it is not suggested that cultural ideology necessarily determines the basic desires that people have, nonetheless such ideology establishes “…the ordering of needs and desires in such a way as to make such priority of desires appear natural…”.  What is particularly evident about the desire to reproduce, is that it occurs within an ideological context that views individuals who do not reproduce, as odd and that views individuals who do not desire to reproduce as “unnatural”. It is also clear that the force of this ideological prioritizing falls particularly heavily on women and that the social role of women is still primarily defined as the breeders and rearers of children. While it is not possible to establish here that the desire to reproduce is a socially induced desire, nonetheless, there is clearly good reason to view the priority given to the desire to reproduce with some suspicion.
The suspicion that the priority given the desire to reproduce is the result of cultural ideology rather than freely chosen, is reinforced by the relationship between that desire and IVF. Although IVF has been supported by the argument that the right to reproduce is a fundamental choice that individuals must be allowed to make, IVF and related technologies actually have consequences which narrow the options of women and therefore restrict the moral autonomy of women overall.  Indeed, the extraordinary lengths taken to ensure reproduction through IVF – and this includes the use of vast resources for repeated treatments by a painful and unpleasant procedure over relatively long periods of time – not only reinforces the view that such “desperation” to reproduce is itself natural, but also reinforces the narrow defining of women as primarily breeders of children such that they should be prepared to go to any lengths in order to fulfill that role. However, this is not the only restrictive effect that IVF is likely to have on the autonomy of women. One of the technological consequences of IVF research has been an enormous increase in the technology of embryo screening. Thus, not only is there pressure on infertile women to join IVF programmes, but fertile women may be increasingly pressured into mandatory screening of all pregnancies as direct result of IVF research into embryo screening. “New technologies often have a momentum of their own, once they exist, they are likely to be seen as pragmatically and morally superior to any less highly technological option…”‘  and indeed this tendency can already be seen in the concept of “wrongful life” which has appeared in U.S law. Not only are women therefore, being pressured by the medical profession into subjecting themselves to prenatal screening, but they may be legally punished if all that was technologically possible was not done and the child born is in some way significantly disabled. Clearly, this is a restriction of the choices that women have and thus a restriction of their autonomy. For while such procedures might be of benefit to the unborn child they nonetheless compel women to under go medical treatment that they may not desire.
Not only has IVF reinforced the social position of women as the reproducers and rearers of children, but the practice of IVF itself has also reflected the objectification of women which is prevalent in society. Rather than extending the autonomy of women, IVF programmes have in fact regarded them as useful but expendable sources of research material. In the area of infertility treatment, it was initially decided to begin testing the procedure of IVF on humans rather than apes because women as a resource were considerably cheaper.  Indeed, the practice of using women undergoing IVF treatment, as experimental subjects has extended to such an extent that “…it no longer appears possible to consider the marketing of new drugs for stimulating the [reproductive hormone system] unless they have been tested within the framework of IVF”.  This is despite the fact that many of these hormone drugs are known to dangerous  It might of course be argued that since these women consent to these procedures, no ethical principle is violated. However, while it is possible that women undergoing IVF in its initial testing stage may have consented to being experimental subjects, it is unlikely that the vast majority of women currently being treated by IVF even know that they are being subjected to experimental drugs. Indeed, it is standard procedure in IVF to superovulate women by subjecting them to massive hormone doses, the precise nature of which, are unlikely to be known to the patient. The use of women as experimental subjects does not however cease here. The superovulation of these women is not merely for the purpose of acquiring sufficient embryos for implantation, but also to provide “spare embryos” for genetic engineering research.  Under the pretext of extending the autonomy of women, by assisting them to fulfill their desire to reproduce, women have been recruited as source material for experimental research. The ethical illegitimacy of this practice is not so much that these women are used as means to some research end, but that they have been viewed entirely as passive objects. Their consent or otherwise, is not then entirely relevant since the actuality of IVF treatment undermines their very status as autonomous moral agents. Thus, while Professor Carl Wood has been proclaimed in the press as a “test-tube Hero” and Edwards (founding IVF researcher in England) declared “Father of the Year”,  the arrangement of Wood’s office reflects the actuality of women’s objectification by IVF.
“On the wall next to his [Carl Wood’s] desk is a large white board showing a crude drawing of a woman’s torso complete with details of sexual anatomy. Opposite is a large painting of a female nude with enormous buttocks painted in bright pastels colours. Patients would see both on their way to the small examination room.” 
Clearly, the choice to reproduce cannot be separated from the ideological context in which that choice is made and that context, in the case of women being treated by IVF, is one in which their autonomy as moral agents is undermined, not extended.
There is then reason to doubt that the desire to reproduce is a freely chosen desire rather than a socially induced need, and there is even more substantial reason to believe that the desire – as fulfilled by IVF – diminishes rather than expands the autonomy of women. If this is the case, supporters of IVF cannot claim to find ethical legitimacy for the procedure in the right to reproduce, because they have failed to establish that the right itself is based on a basic and fundamental desire. On the contrary the fact that the procedure of IVF itself diminishes women’s autonomy overall seems to be a legitimate reason for considering the procedure ethically illegitimate.
Who Has the Right to Reproduce?
While it becomes increasingly clear that it makes little sense to talk of the infertile having a right to reproduce because they have little more than a liberty to the impossible, nonetheless let us assume for the moment that there is a general right to reproduce and the right arises from an acceptance that reproduction is a basic desire – basic in an ethically relevant way. One must then ask in whom does this right inhere? Discussion so far has been in terms of individuals however, Uniacke makes the startling claim that, if there is a right to reproduce, married couples will be “… most likely to be thought to have the strongest case for the right to have children”.  While one might judiciously choose to ignore such a comment as philosophically unwise, it is by no means an entirely aberrant view for it is reflected in some legal opinions and more significantly it is a view reflected by policy making boards designed to regulate IVF.  It seems then that it will be necessary to consider this option seriously. Specifically the claim is that the right to reproduce, if it exists, is mostly likely to belong to married couples. Individuals as such, have a much weaker claim to such a right, if they have any claim at all.
One presumes that the weak sense in which individuals might be thought to have the right to reproduce, is that they have the right in as much as the unit of the married couple is made up of individuals and therefore in some sense individuals have he right to reproduce. But individuals as such, that is individuals unattached from the unit of the married couple, do not have a right to reproduce. There are obvious problems with this position that immediately present themselves, not the least of which is the question of why only married couples should be thought to have an ethical right to reproduce. At the very least it would seem prima facie unjust to deny unmarried couples the right to reproduce merely because of their unmarried status. Indeed, it would seem particularly unjust given that both married and unmarried couples bear much the same social burdens, i.e., for the purposes of taxation, social security and the like both are treated alike. More importantly, however, if the right to reproduce has been based on the assumption that the desire to reproduce is a basic expression of moral autonomy, it is not clear that there is any ethically significant difference between the centrality of that desire to the lives of a married couple and to that of an unmarried couple. If there is no ethically significant difference, it would seem to be a violation of the unmarried couple’s liberty to deny them the right to reproduce. Thus, it is clearly ethically inconsistent to maintain that if there is a right to reproduce only married couples have that right.
Let us assume then that the right to reproduce, if there is one, extends equally to married and unmarried couples alike, nevertheless the problem of attributing rights to couples at all, remains. Certainly the law recognizes institutions as having rights and obligations, and may therefore recognize the institution of the couple as having some rights and obligations. However, in order to establish that there is a right to reproduce, it is not enough to merely legislate the existence of such a right. For, as has been seen, attempts to establish a right to reproduce, have primarily concerned themselves with establishing an ethical right, and this does not necessarily follow from the existence of a legal right. Indeed, one would normally hope that the reverse is true, that the establishing of an ethical right is, at least on some occasions, a forerunner to the creation of legislation. The establishment of an ethical right for couples is however, much more difficult than that of legal right. It is possible for the law to hold that an entity such as a couple, may have legal rights, because the law is able to consider what are known as “legal fictions”. Thus, for certain purposes it is convenient for the law to deal with more than one individual, as if there were only one entity. The couple may be a legal fiction but it is certainly not in actuality one entity and thus not a single entity for the purposes of establishing an ethical right. If a right to reproduce exists at all it attaches to individuals. Indeed, it is hard to imagine why any philosopher would wish to attribute an ethical right to any thing as inherently unstable as the institution of the modern couple.
One must ask for instance, what happens to the right to reproduce should the particular couple cease to exist, i.e. they are divorced or separated? Does that particular instance of the right also cease to exist? If the right does cease to exist, then the situation of an already pregnant woman would seem to be particularly precarious. If the right to reproduce ceases to exist upon her separation from her spouse, it seems that she would loose the right to reproduce, which she was party to while she lived as part of a couple. Even for supporters of the concept of the right to reproduce, this must appear as nonsense.
There is however, an even more problematic situation to consider if one takes into account the basis of the right to reproduce. It has been argued that, the most promising basis of a right to reproduce, is one which holds that the desire to reproduce is a basic and fundamental choice because it is in some way central to the individual’s own expression of moral autonomy. This argument was stated in terms of the desires of the individual, for while both individuals within a couple may have basic desires and even the same type of basic desire, the couple itself does not does not have desires at all. Indeed, to argue that “couples” have basic desires, is to treat the institution as if it were a single moral agent, effectively concealing the actual ethical position of each of the individuals which make up the couple. Thus, making it is unclear exactly whose desires are thought to form the basis of the right to reproduce. Previously the issue of the restriction of coercion in the exercise of rights and liberties was discussed, however, if one considers the “couple” to be an amorphous, single entity, this protection of individual rights within the couple seems to be lost. For while it is entirely possible that one member of the couple may coerce the other into participating in their desire to reproduce, no violation of rights seems to have taken place for the simple reason that the couple as a single entity cannot coerce itself. Indeed, in such a situation, the “couple” can still be held to be exercising a basic desire regardless of the actual desires of any given individual within the couple. Clearly, this is not so, the moral agency which inheres in a couple, belongs to the individuals that comprise the couple, of which, by definition, there are two.
Nevertheless the effect of blurring the actual ethical position of individuals under the term “couple” is particularly evident in the area of IVF and the related area of surrogacy. As previously mentioned, IVF regulating bodies recognize only the entity of the couple and indeed, have extended the concept to include the existence of a “infertile couple”, thus compounding the illusion that individuals which make up the couple can be treated as a single entity. Not only does this practice conceal the fact that IVF is primarily the treatment of women, requiring women to under go massive hormone disruption and surgical intervention, but it also conceals the fact that sixteen percent of women who undergo IVF treatment are not medically infertile at all. These women are undergoing the treatment for their spouse’s infertility.  By concealing the actual position of the individuals who make up the couple, under the term “infertile couple”, the dubious ethics of treating a perfectly healthy person with a potentially dangerous procedure, for someone else’s medical disorder, can be completely overlooked. And unlike other situations that involve treating a healthy individual for another’s medical disorder e.g. bone marrow transplants, the medical risks of the treatment fall entirely on the healthy party, i.e. entirely on women.
It may be argued that IVF is nonetheless treating infertility – the infertility of the male – and that since the women is a consenting participant, no ethical principle is violated. However this still ignores the fact that IVF is a procedure which was developed for the treatment of infertility in women, and these women are not infertile. If society were truly concerned to extend the supposed right to reproduce to infertile males, one would surely expect that resources should be expended in developing treatments for male infertility. At the very least, one would expect that, given that infertility is not life threatening in itself, that the least hazardous course would be taken to circumvent the disorder. This however, is not the case. For although A.I. involves less risk than IVF, and has a better success rate, IVF nonetheless increases in popularity among the medical profession as a means of treating male infertility.
This blurring of the ethical position of individuals is also prevalent in the area of Surrogacy. This is particularly demonstrated by the case of Baby M in the U.S. In the court case which followed the surrogate agreement between William Stern and Mary Beth Whitehead, the initial legal ruling held that the Stern “couple” had a right to reproduce and had a right to do so by whatever means.  This clearly blurs the actual position of Elizabeth Stern who was not reproducing in any sense at all. At best she could only be held to be party to an adoption. Thus, the fact that the court was in actuality up holding the supposed right of William Stern to reproduce could go unnoticed. The consequent result was that it appeared acceptable to refer to Mary Beth Whitehead as the surrogate mother, as if the “real” mother of the child was elsewhere. The implication was that Elizabeth Stern was in some way the “real” mother, despite the fact that she neither bore the child nor contributed any genetic material to the child. Clearly, the court was then in actuality defending the right of William Stern to reproduce and to do so by whatever means, for if this were not so, there is no reason to believe that Whitehead had any less right to the custody of the child than Stern.
Nevertheless, attributing the right to reproduce to individuals rather than to couples is not without its problems either. While it has been argued here, that the right to reproduce is at best a liberty, the clear intention of supporters of IVF has been to attempt to establish that the right to reproduce is a positive right which entails an ethical obligation for society to provide resources sufficient to ensure the fulfillment of that right. However, if one attributes a positive right to reproduce to individuals, certain ethically dubious implications seem to follow. Consider the circumstances of a fertile individual who is for whatever reason unable to find a partner to reproduce with. That is, someone who wishes to reproduce, that desire is a basic desire and yet they are unable to fulfill that desire. One might suggest that, they too are entitled to access to the social provision of IVF and so on. Given that slightly under half the population is male, for which the resources of IVF in itself are of no use, society may also be ethically obliged not only to permit surrogacy but also to actively recruit surrogates. Perhaps society would also become ethically obliged to set up state run, match making services. It may be argued that, such a suggestion trivializes the issue. But if one is to accept that the desire to reproduce gives rise to a positive right, then there is no apparent ethical reason why such a desire should be considered any less basic to fertile but single individuals than infertile married individuals. Nonetheless, given the already difficult problem of distributing social resources fairly, this does indeed seem to be a trivial use of society’s resources. It may be , a trivial but perhaps ethically compelling use of resources if one accepts that there is a right to reproduce which ethically obliges society to provide resources to obtaining of it.
It might be argued that there is a plausible way around this problem, by restricting the entitlement to social resources to those who are disadvantaged in the exercise of the liberty to reproduce. This line of defense for positive rights is after all common enough in other areas, and indeed the concept of compensating those disadvantaged in their liberty to reproduce through the resources of IVF is suggested by Uniacke.  However, arguing that compensation should be restricted to reproductively disadvantaged individuals does not address the problem of compensating those individuals who are socially disadvantaged in heir reproductive liberty, and therefore does not overcome the situation of society being ethically obliged to recruit surrogates and run match making services. In order to avoid this outcome, it would be necessary to argue that compensation should be restricted to only those who are directly physically disadvantaged, i.e. those who have some physical disorder directly related to their ability to reproduce, in other words the medically infertile. There does not however, seem an obvious ethical justification for imposing such restrictions. Uniacke suggests that the resources of I.V.F might be thought of as compensation for those whose infertility results from human neglect or error. Thus, those individuals whose reproductive capacity is damaged by the neglect of IUD’s, through exposure to dangerous work environments or through gross carelessness in previous surgical procedures, might be thought to have a greater claim to compensation than those socially disadvantaged since it is possible to identify an injury for which society or individuals within society are clearly responsible. Even so, the ethical distinction between a dangerous environment which injures an individual’s reproductive capacity, and a social environment which discriminates against the ability of an individual to find a reproductive partner, seems tenuous indeed. The other significant result of holding such a position would also be to exclude all those who are infertile as the result of no specific causes. It would also explicitly exclude those women currently undergo IVF treatment to bypass their husband’s infertility. Clearly, they as individuals are not entitled to access to the resources of IVF for they are not disadvantaged in their reproductive capacity at all. The infertility of their husbands may establish an entitlement to compensation for the husband, but it does not establish an entitlement to compensation for some other individual. Thus, it is clear, that at most ,one can only claim that there is a liberty to reproduce and that liberty, if it exists, is held by all individuals and only by individuals. However as such, such a right can only plausibly entail a right to resources if one grants that there is an ethical obligation upon society to assist those who are disadvantaged in the exercise of their basic liberties. The implication of this however, is either to accept that society has an ethical obligation to pursue the trivial and the ethically dubious, or to restrict the entitlement to such resources to the physically impaired on ethical dubious grounds. The result in any case would be a far narrower range of individuals who would be ethically entitled to the resources of IVF and related technologies than is currently he case.
The Limitations of Society’s Obligations
It may be thought that even though, in strict sense, society owes no ethical obligations to provide resources to the infertile on account of their infertility, there is nonetheless something inherently more ethically civilized about a society which assists when it is able to do so. Since the society is able to assist infertile individuals, it should do so, since depriving them of the medical resource of IVF is not more ethically desirable than their having access to that resource. However, while one might in general agree with such a stance, this position in relation to IVF and related technologies not only seems to entail the dubious ethical implications previously mentioned but exposes a much broader problem with regard to the distribution of medical resources in general. There has been an increasing tendency in Western societies for the medical profession to develop an attitude that holds that everything medically possible must be done for all individuals, nevertheless an increasing amount of medical resources is going to fewer and fewer people.  The question of the ethics of the distribution of medical resources is out side the scope of this paper, however some immediately obvious observations on this issue in regard to IVF can briefly be made. As has already been pointed out, the amount of resources required to maintain an IVF programme are enormous  and yet the number of individuals that can be assisted by such programmes is minuscule. This is not simply to observe that access to such programmes is as a matter of fact limited to the middle class – for it would be rightly pointed out that this is a reflection of administration policies and not necessarily of the value of such programmes themselves – but rather to observe that even in the best situations IVF as a treatment is only suitable for a small fraction of infertile individuals, and that of those, only one tenth or less will actually be successful in their desire to reproduce.  Against this society is entitled to weigh the fact that insufficient medical resources are provided for the treatment of chronically debilitating diseases such as blindness and deafness which result from the poverty of the environment of many individuals. Where there are limited medical resources one is forced to consider where the greater ethical value lies, and clearly those suffering debilitating disease are in greater need than individuals merely lack the capacity to fulfill one of many basic desires that they may have.
There is also a more compelling reason for suggesting that permitting the treatment of individuals through IVF and related technologies, is indeed more ethically undesirable than preventing the use of such treatment. If the state “… inflates a right (by defining it more broadly than justice requires) then it cheats society of a general benefit …, that there is no reason that it should not have”‘  and in this case that benefit is the right to protect itself from exposure to potentially socially dangerous technology. Perhaps the most obvious of these potential dangers is that of genetic engineering. While the question of the ethical desirability of genetic engineering is not being discussed in this paper, it is nonetheless clear, that society is entitled to come to some conclusion about the ethical desirability of such treatment before it is implemented into society. Through the use of IVF however, such research proceeds undebated. Indeed in one IVF clinic in France as many as forty percent of couples seeking treatment were doing so for eugenic or sex selective reasons.  The relationship between genetic engineering and IVF has been previously mentioned in the practice of producing “spare embryos” for germ- line manipulation i.e. the injecting of engineered genes into early embryos. This requires the procedure of IVF to provide research material and thus, researchers in the area of genetic engineering have a vested interest in the continuation of IVF programmes.  Moreover, IVF researchers themselves are involved in genetic research and at least one of IVF’s supporters has proclaimed that while the potential risks associated with genetic engineering may be great “…so are the potential benefits”.  Thus, society’s entitlement to debate the virtues or otherwise of genetic engineering are seemingly well on the way to being entirely circumvented. There is however, a more insidious potential threat to society that IVF poses. The social position of women, already disadvantaged, is reinforced by the treatment of IVF itself and by technological consequences of IVF research. It has already been argued that, the ideology of considering reproduction a basic and fundamental desire has the effect of reinforcing the view that women are primarily defined by their role as reproducers, thereby restricting the autonomy of women overall, but it should also be pointed out that society’s acceptance of the practice of treating fertile women under IVF for their husband’s infertility also reinforces the view that it is women who must bear all the burdens of reproduction. The technological consequences of IVF also reinforce the disadvantaged position that women hold in society. For along with embryo screening, has been the development of technology which allows for easy sex preselection. The consequent result of such a technical ability is to allow for the actualization of the already existing bias towards male children. Indeed “… it has been consistently found that there is a preference for more males than females, and a preference for the first born to be male”.  The actualization of this bias can be seen in the practice of IVF clinics. Of the five hundred odd IVF clinics that operate in India, all allow the sex selection of embryos, and of the embryos which are discarded are almost all are female. The extension of this technology is not only likely to be detrimental to the position of women in society, but it is also likely to be detrimental to the society as a whole. Thus, there are clearly good reasons not only for society to deny that it has any obligation to provide the medical resources necessary for IVF, but that it also has good reasons for claiming the right to protect itself nom the potential dangers that IVF exposes it to. One might however, choose to ignore the issue of society’s rights in this question and argue that in the question of an individual’s liberty, social considerations are irrelevant. Thus, while society may not have an ethical obligation to provide resources to individuals wishing to exercise their liberty to reproduce, it nonetheless has an ethical obligation to refrain from interfering with their attempts to pursue that liberty by whatever means. However, it has already been seen that society may legitimately restrict the liberty of an individual where harm is likely to result from the exercise of that liberty or where the exercise of that right entails the violation of another’s rights. Not only does IVF potentially violate the rights of women in general, by reinforcing an ideology which undermines the autonomy of women, but IVF and surrogacy also potentially constitute a violation of the individual rights of women who are subjected to IVF or who enter into surrogacy contracts. Society thus, has a basis for claiming that the restriction of individual’s liberty in the area of IVF and surrogacy is not only a reflection of society’s right to protect itself but also of the right of society to protect individuals from harm.
What has become clear throughout this discussion is that, although the supposed right to reproduce has been treated by IVF supporters as if it were self evident; and this may explain the vagueness of their terminology and incoherence of their arguments; such a right is in fact far from self evident. Attempts to base the right on the concept of fundamental need fail, for reproduction is not a need in any ethically relevant sense. At best therefore, it may be possible to argue that the desire to reproduce is an expression of the agent’s fundamental moral autonomy, although it has been argued that this collapses into the concept of a liberty which is not sufficient to establish the legitimacy of IVF. Even here however, there is some doubt that desire to reproduce is genuinely a free expression of moral autonomy. In particular, the extent to which reproduction can be considered a free expression of choice must be questioned because not only do researchers in the area of IVF have a vested interest in maintaining IVF programs – and thus a vested interest in encouraging individuals to under go IVF treatment – but there are also strong ideological pressures placed on women in particular which reinforce the belief that women’s main role in life is that of bearers of children. There is a case therefore for suggesting that IVF in fact undermines rather than extends the autonomy of women as moral agents.
The incoherence of suggesting that IVF can be justified under the claim to a right to reproduce can also be seen in the issue of the possession of rights. In order for IVF to be considered anything more than a eugenic treatment, available to the very few, it must either be maintain that all individuals whether fertile or not, have a right to the resources of society to reproduce, or conceal the fact that IVF’s marginal success rate is bolstered by the treatment of healthy individuals by implying that “couples” have rights. The treatment of couples as if there were one moral agent where there are in fact two, is unethical as it conceals the actual ethical position of each individual and clearly liberties do not inhere in couples but in individuals, if they inhere at all. Against all this one is entitled to balance society’s rights to protect itself from potentially harmful medical procedures, and to balance the genuine claims that other individuals within society have to society’s limited medical resources. The potential dangers of IVF cannot be under estimated. Not only does it reinforce an attitude towards women which is in itself harmful, but the technological consequences of IVF research must inevitably lead to the possibility of genetic engineering. Society is ethically entitled to be given the opportunity to debate the ethical desirability of genetic engineering before it becomes implemented, but while genetic engineering research is effectively concealed by the procedure of IVF such debate does not occur. One can also argue that given that there clearly are individuals within society who have genuine needs for access to medical resources, the supply of vast amounts of medical resources to a small section of the community who neither have a genuine need nor a legitimate entitlement is unjust.
- Etzioni, Amitai. The Genetic Fix . New York: Harper and Row, 1973. P.61 back
- Uniacke, Suzanne. “In Vitro Fertilization and the Right to Reproduce”. Wm. Vol. 1 (3), July 1987. p245 back
- Blank, Robert. Redefining Human Life: Reproductive Technology and Social Policy . Boulder, Colorado: Westview Press, 1984. p18 ‘ back
- Ibid. p18. back
- Uniacke. p245 . back
- Ibid. p76 back
- Raymond, Janice. G. “The Spermatic Market: Surrogate Stock and Liquid Assets”. Reproductive and Genetic Engineering . vol. I, No 1, 1988, p68 – The initial legal ruling in the U.S. surrogate case of Baby M, held that the biological father had a “drive to procreate”. back
- Greer, Germain. Sex and Destiny: The Politics of Human Fertility . London: Secker and Warburg, 1984, p40 back
- Etzioni, p76 back
- Dworkin, Ronald. Taking Rights Seriously . London: Duckworth Press, 1977. p177. back
- McCloskey, H. J. “Rights”. The Philosophical Quarterly . No 15, 1965. pl18- l19. back
- Age. “IVF births cost S 48,51U each, seminar is told”. 22 June 1988. The estimated cost to the state for each live birth produced by IW is 48,51U dollars and this does not include the cost of the vast amount of research work necessary for the maintenance and development of IW, nor the cost to the community of supporting congenitally defective children born under the scheme. back
- Stolcke, Verena. “New Reproductive Technologies: The Old Quest For Fatherhood”. Reproductive and Genetic Engineering . Vol. I, (1). 1988. p.11. back
- Poovey, Mary. The Proper Lady and the Woman Writer . Chicago: University of Chicago Press, 1984, preface IX. back
- Figueria-McDonogh, Joserfina. and Rosemary Sam (eds.) The Trapped Woman. Newbury Park Beverly Hills: Sage Publications. p106. back
- Warren. Mary Anne. “IVF and Women’s Interests: An Analysis of Feminist Concerns”. mm. Vol. 2, (1). January 1988. p45. back
- Walters, William. A.W. and Peter Singer. (eds.) Test-tube Babies. Melbourne: Oxford University Press, 1982. p19. back
- Laborie, Francoise. “New Reproductive Technologies: News from France and Elsewhere”. Reproductive and Genetic Engineering. Vol. I (1), 1988. p84. back
- Carter, Marian. E, and David. N. Joyce. “Ovarian Carcinoma in a Patient Hyperstimulated by Gonadotropin Therapy for in Vitro Fertilization: A case Report.”. Journal of in Vitro Fertilization and Embryo Transfer. Vol. 4. No 2, 1987. back
- Klein, R. “pro-technology and the Future of Humanity…”. p8-10. Back
- Figueira-McDonogh. p85. back
- Walters. and Singer. p19. back
- Uniacke, p243. back
- f. Rodriguez-Jonas, Marie. “Reproductive Technology. Women Providing Spare Pans?” Socialist International , 1987.and Arditti, Rita. “A Summary Of Some Recent Developments On Surrogacy In The United States”. Reproductive and Genetic Engineering . Vol. I (1), 1988. The Great Britain Voluntary Licensing Authority, the regulatory body for IVF research in England, recognizes only the unit of the couple in its policy on the treatment of the infertile. Likewise the initial legal ruling on surrogacy in the Baby M case held that the “couple” has a right to reproduce. back
- Klein, Renate. unpublished paper “Bio-technology and the Future of Humanity…” Given at 27th Conference of the Australian Federation of University Women. January 1988. p19. back
- Arditfi. “A Summary of some Recent Developments on Surrogacy in the United States”. p55. back
- Uniacke. p252. back
- Blank, p14. back
- Mclntosh, Philip. “IVF births cost $48,500 each, seminar is told”. Rowland, Robyn. “Making Women Visible in the Embryo Experimentation Debate”. Bioethics . Vol. 1, (2). April 1987, p180. The success rate of IVF is between seven and fifteen percent. back
- Dworkin. p198. back
- Wichterich, Cl1rista. “From the Struggle Against “Overpopulation” to the Industrialization of Human Reproduction”. Reproductive and Genetic Engineering . Vol. I (1), 1988. p28. back
- Ewing, Christine. M. “Tailored Genes: IVF, Genetic Engineering and Eugenics”. Reproductive and Genetic Engineering . vol. I (1), 1988. p35. back
- Stolcke. p.11. back
- Westoff, Cl1arles. F. and Ronald R. Rindfuss. “Sex Preselection in the United States: Some Implications”. Science . Vol. 184, May 10. 1974. p633. back
- Wichterich. p28. back