Medically assisted procreation and eugenic practices

By medically assisted procreation we do not understand medical treatments against infertility (i.e. treatments that restore the procreative faculty of a person that, for medical reasons, has lost it), but procedures that have the purpose of “making a baby” for persons who, for whatever reasons, so request. Another term frequently (and almost synonymously) used in this context is “in-vitro fertilization” (IVF), because those procedures typically involve the fertilization of a female egg cell outside the human body in a test tube (in vitro).

Even in our time it is still fairly easy to convey that killing an innocent human being is wrong. But what about such acts that have the purpose of creating a new human being that otherwise would never have come into being? If human life is the highest of values, is it not a noble cause to create new human life and to help women and men who desperately long to become mothers and fathers? Should not all who want to defend family values happily embrace assisted procreation as a means to make family life possible?

There are at least three points that might be made in this respect:

• The fact that human life is one of the highest ranking values does not mean that every and any action that might bring a new human being into existence is in and by itself morally acceptable. For instance, it is morally inacceptable to rape a woman (even if this cannot be seen as a justification for killing a child that has been conceived as a result of rape).

• It is naïve and factually inaccurate to pretend that procedures related to medically assisted procreation lead only to the creation of new life. In actual fact, these procedures typically imply the creation of more embryos than are needed. One may be carried to term, but the others are deep-frozen and, after a certain time has lapsed, destroyed. Medically assisted procreation kills many more human beings than it helps to be born.

• If procreation is dissociated from the sexual act, then the creation of a human being is turned into an act of bio-technological engineering. The child is no longer a gift to the parents that must be accepted as it is, but it is turned into a product that must meet the expectations of those who have ordered it. If those expectations are not met, the product may be rejected and another ordered. Assisted procreation thus undermines the equal dignity of all human beings, implying that some human beings have the right to “make” other human beings according to their tastes and preferences.

Is Assisted Procreation a Therapy?

In many countries, assisted procreation is (at least partially) funded by public health insurance. Without this funding, it would be used much less frequently.

The use of health insurance funds to finance assisted procreation procedures is an absurdity for at least the following reasons:

• While infertility may be seen as a disease, childlessness cannot be considered as such. It may therefore appropriate for a public health insurance to finance treatments against infertility. But an assisted procreation procedure is not a “treatment against infertility”.

• Given the widespread moral reservations against assisted procreation, the financing of such procedures by public health insurance forces the conscience of people who, through their contributions to the scheme, are obliged to financially support activities they find morally inacceptable.

Where a public health insurance scheme finances assisted procreation procedures, such funding should be stopped.

Homologous Assisted Procreation

We distinguish “homologous” from “heterologous” assisted procreation. “Homologous” means that the man and the women whose gametes (sperm and ovular cells) are used to “make” the child are those who actually want to be the child’s social parents. By contrast, “heterologous” means the involvement of the gametes of a third or even a fourth person (who are called “donors”).

Homologous assisted procreation is where the procedure seemingly comes closest to the natural process of procreation, except that conception takes place in vitro rather than in the mother’s womb. The additional moral objections that can be made against heterologous artificial procreation do not apply to the homologous procedure, which nevertheless remains totally unacceptable for the following reasons:

• The dissociation between the conjugal act and its procreative purpose;

• The creation of “surplus embryos” which are frozen and, at a later stage destroyed;

• The use of eugenic practices (i.e. the selection of the “best” of several artificially created embryos, while the other ones are disposed of, according to criteria such as sex or certain genetic qualities)

In the light of the last two points, homologous assisted procreation is assimilated to abortion (in the sense that it implies the destruction of an innocent human being).

But even where no “surplus embryos” are created and destroyed, it remains that medically assisted procreation procedures turn the child into an object that is ”made”, and which must correspond to the quality criteria set by its makers, with all the moral and legal implications this may have (such as “guarantee claims” against the reproductive doctor…).

It follows that in-vitro fertilization and similar practices are gravely immoral under all and any circumstances, and that they should be prohibited by law.

Heterologous Assisted Procreation

If medically assisted procreation is morally unacceptable under all and any circumstances, the moral verdict falling upon it is still exacerbated in the case of the involvement of third persons.

This involvement can consist in the use of donated egg cells, or sperm cells, or both. The child that is created in this way is thus not the child of those who order its creation. One might as well ask another woman to have sexual intercourse with one’s husband, or another man to have intercourse with one’s wife, or an altogether alien couple to have intercourse with each other, just to get a child: it seems all the same. This is not very far from going to a shop and buying a child as one would buy a guinea pig.

And of course, one wants to have a child made of the “best” genetic material, which is why one would make sure to get hold of the egg cells and sperm of “good” donors (good looking, healthy academics with no criminal record, etc.).

It should be self-evident that these practices severely undermine human dignity:

• They deprive the child of its own identity, and of its right to know, grow up with, and be educated by, its real (viz. biological) parents.

• Those parents, in turn, are deprived of their role as parents.

• Instead the “donors” are reduced to the role of “breeding bulls”, which in itself is a serious violation of human dignity.

• It also must be suspected that, despite assertions to the contrary, such egg or sperm donations are usually not free of charge, but that they result in a trade in human gametes. This undermines the dignity of the donors, but also of human kind in general: the gametes are turned into a tradable commodity. One could describe this as a modern form of slave trade.

Surrogate Motherhood

Besides using the gametes of third donors, one can also use the services of a surrogate mother if one is oneself unwilling or unable to become pregnant. One could indeed imagine situations in which A goes to a reproduction clinic where he purchases a child that is created from the gametes of B and C and then born by D.

If the surrogate mother receives a payment, one speaks of “commercial”, otherwise of “altruistic”, surrogacy.

It is self evident that, however the compensation paid out to the surrogate mother may be named, surrogate motherhood is a form of commercializing the female body. It is a form of exploiting vulnerable persons, similar to slave trade, or to prostitution.

Eugenic Practices

Pre-Implantation Diagnostics

Medically assisted procreation typically includes techniques that seek to ensure the “quality”, or even to pre-determine the genetic identity, of the child that is being created. These techniques usually involve “pre-implantation diagnostics”: several embryos are created and subject to a genetic screening procedure that allows to select the “best” embryo. The selection criteria may involve the sex of the child, or certain genetic characteristics, such as the absence of certain genes that indicate a predisposition for certain diseases, or the presence of genes that would make the child a potential tissue donor (“saviour child”) for a sick sibling. The “surplus embryos” are disposed of: either they are frozen in order to be used for future pregnancies, or they are “donated” for research purposes, or simply destroyed.

Cloning

Another eugenic practice is “cloning”: the nucleus of a somatic cell of an existing adult person is transferred into a female egg cell (from which the nucleus has been removed) and then induced to develop into an embryo that is genetically identical to the adult “donor” of the somatic cell. This is a technology that potentially could be used to produce genetically identical copies of a human person.

There was considerable concern about “cloning” several years ago, when it was feared that it could soon become a current practice. As one of very few reproductive technologies the cloning of human persons is explicitly forbidden in many jurisdictions, notably in the EU by virtue of the EU Fundamental Rights Charter. However, the scope of that prohibition is very limited, given that it makes a rather artificial distinction between “reproductive” and “therapeutic” cloning. [1]

“Reproductive cloning” is the cloning of a person with the purpose of creating a genetically identical embryo that is then implanted into a woman’s womb and carried to term by her. This idea of creating genetically identical copies of existing persons was found so appalling that it was possible at the European level to agree on a prohibition of “reproductive cloning”.

By contrast, “therapeutic cloning” is a procedure in which the embryo, instead of being implanted into a woman’s uterus, is kept alive solely for a few days until its stem cells can be harvested. These stem cells, it was thought, could be used for a variety of therapeutic purposes that would benefit the (genetically identical) “donor” of the cell that has been cloned. Given the expectation that “therapeutic cloning” could result in new therapeutic uses, the grave ethical concerns against the procedure were brushed aside, and “therapeutic cloning” was not explicitly prohibited in the EU Fundamental Rights Charter.

Besides the EU Fundamental Rights Charter, there is no international human rights document that explicitly deals with cloning.

Whoever takes a closer look at the substance of the matter will find the distinction between “reproductive” and “therapeutic” cloning artificial and not to the point:

• Cloning is always “reproductive”, because a new human being is created.

• “Therapeutic” cloning is not therapeutic, because actually the cloned embryo is killed when its stem cells are harvested.

• Given that the cloning procedure remains the same irrespective of whether it is undertaken for “reproductive” or “therapeutic” purposes, it always affects human dignity in the same way: a human being is made the object of a manipulation that determines its genetic identity. Both “reproductive” and “therapeutic” cloning is therefore morally unacceptable.

• If any distinction must be made, then “therapeutic” cloning is even less acceptable than “reproductive” cloning, given that, besides the morally unacceptable genetic manipulation, it also involves the destruction of the cloned embryo, which is an innocent human being. It appears therefore absurdly hypocritical to prohibit “reproductive”, but not “therapeutic” cloning.

Eugenic practices are a form of slavery

Given that this is a relatively new field of technology, reproductive medicine, including pre-implantation diagnostics, is so far hardly subject to any legislation at national or international level. This creates a certain legal vacuum, in which unscrupulous practitioners find it easy to operate.

However, it is arguable that existing moral and legal principles, if correctly applied, would be sufficient to set an end to the abominable practice. In actual fact, all the different reproductive technologies described in this chapter, and in particular those involving genetic testing and selection, are a modern form of slavery.

Indeed, they are worse than prior forms of slave trade. While a slave is ordered what he must do, the human being that is subject to IVF and genetic manipulation is told who it must be. And while a slave might at least try to run away from his slavery or fight for his freedom, the slavery of the artificially created child is something that it can never get rid of, but that will be passed on to all future generations.

All forms of procreation that deviate from the natural conjugal act undermine the equality of all human beings, given that they subject some of them (the artificially created) to others (their creators). This is a technology that will always be controlled by a very restricted number of engineers, whereas the rest of humanity will simply be subject to it.

It would therefore seem possible and appropriate, once the true character of this technology is more widely understood, to use existing prohibitions against slavery to prohibit it.

Medically Assisted Procreation in International Law

International Law to a large extent remains silent with regard to medically assisted reproduction techniques, leaving a wide margin of appreciation to national legislators. But even at the level of national legislation the matter is hardly regulated.

The only country in the world that is known to have constitutionally prohibited medically assisted procreation is Costa Rica, due to a judgment by its Constitutional Court in which it was pointed out that, given (1) that medically assisted procreation typically involves the creation and destruction of “surplus embryos” and (2) that Costa Rican Constitution protects the right to life from the moment of conception, such practices are unconstitutional.[2]

Some countries regulate certain assisted reproduction procedures and prohibit others, while many other countries (especially developing and least developed countries) leave the matter widely unregulated.

This opens a huge legal grey zone, in which clever and unscrupulous providers of such procedures can operate without any real risk of being disturbed. If necessary, they can always take recourse to forum-shopping, i.e. move on to countries where the legal standards are conveniently low.

The only international treaty to deal with questions related to reproductive medicine is the Oviedo Convention of the Council of Europe (1997), which, however, has been ratified only by 29 countries. Important European countries like the UK, Germany, or Russia, have not even signed the Convention yet, and countries like the Netherlands, Italy, and Sweden, have not yet ratified it. The Convention does not provide full-fledged and complete protection against eugenic practices, but it does prohibit:

• discrimination against a person on grounds of his or her genetic heritage,

• the use of the human body as a source of financial gain, and

• the production of human embryos solely for research purposes.

Beyond these three prohibitions, the ambition of the Convention is rather limited. Instead of prohibiting ethically questionable practices, it places them under vague restrictions such as the approval of “ethics committees” for research projects, or the “consent” of the person who is made the object of biomedical research or from whom tissues or organs are to be removed.

Some of the provisions of the Convention regarding “consent” are in themselves highly questionable, if not unacceptable. For example, Article 20 allows for organ or tissue removal from minors under the condition that (a) consent is obtained from their parents and (b) the removed organs or tissues are used to save the life of a sibling. This is the case of the “saviour baby” discussed above.

There is an additional Protocol to the Convention that explicitly prohibits the cloning of human beings, which has so far been ratified by 21 countries. Contrary to the EU Fundamental Rights Charter, this Protocol does not differentiate between “reproductive” and “therapeutic” cloning.

In the absence of more specific rules, it is certainly arguable that general rules such as the right to life or the prohibition of slavery could be applied to medically assisted reproduction techniques. This, however, has so far hardly been attempted in academic literature, and there appears to be no case law of international human rights bodies. It must be concluded that international law, as things currently stand, offers little protection.

Inversely, however, the same can be said with regard to the question as to whether international law obliges states obliges states to legalize any of the medically assisted reproductive practices set out above. This appears not to be the case, and there is therefore nothing to prevent a state from prohibiting those practices altogether. The attempt to establish a “right to assisted procreation” on the basis of an “equality” argument (“if a State has legalized some methods of reproductive medicine, it must also legalize all the others, so that all persons may fulfil their desire to have a child”) has ultimately remained unsuccessful in Europe, when the ECtHR Grand Chamber in the case of S.H. and others v. Austria reversed a prior Chamber judgment in which such a right had been “found”.

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[1]  Article 3 (2) of the Charter provides: “In the fields of medicine and biology, the following must be respected in particular … the prohibition of the reproductive cloning of human beings”

[2] That prohibition was, however, overturned by an extremely ill-argued decision of the Inter-American Human Rights Court in 2012 (case of Gretel Artavia Murillo and Others (‘Fecundacion In Vitro’) v Costa Rica)