Lecturers.haifa.ac.il

An Argument for a Narrow Interpretation1 ABSTRACTThe paper argues for two kinds of limitations on the right to parenthood. First, it claims that the right to parenthooddoes not entail a right to have as many children as one desires. This conclusion follows from the standard justificationsfor the right to parenthood, none of which establishes the need to grant special protection to having as many childrenas one desires. Second, with respect to the right to receive assistance from the state in IVF, it is suggested that the stateshould also be allowed to take non-medical considerations into account in determining whether or not an applicant isentitled to this service, particularly in cases where the applicant seems to lack mothering ability.
KEYWORDSParenthood; Negative and Positive Rights; Assisted Reproduction fering from serious psychological and social diffi-culties. She was not working and lived on welfare Let me begin with two true stories. The first is that benefits, even needing to reside in an apartment of David Oakley from Wisconsin, a story quite rented by the department for social services. She well known by now, one which has aroused wide had no social connections and had difficulties in legal and public discussion in the US.2 Oakley was communication, often manifested in verbal aggres- convicted of deliberately failing to pay child sup- sion. Apparently A's family was also problematic, port for his nine children. He was placed on pro- with most of its members suffering various forms bation, one of the conditions being that he not of retardation, mental illnesses and behavioural father any more children for the term of his pro- difficulties. The psycho-social report written at the bation, unless he could prove that he was capable end of 2000 concluded that, though her parental of supporting those he had already sired and any capability was low, it was impossible to determine additional children he wanted to bring into the unequivocally that A could not mother a child. The world. The ruling was upheld by the Wisconsin report added that, though she probably lacked the Supreme Court in August 2001 and opened (or re- resources and the ability to raise a child by herself, opened) a debate about the nature and limits of the she might be able to do so with "massive support" and "close surveillance". Following this assess- The second story is one I heard from a former ment, the IVF centre called a meeting with all student of mine, Rebecca, who works as a psy- those involved in the case. They decided to refuse chologist in a big IVF centre in Israel. Ms. A, a treatment to Ms. A. In his report, the director of single woman in her thirties, turned to the centre the centre added a letter, commenting in conclu- asking to receive IVF treatment. She was referred sion: "I'm sorry but the woman ought not to be to Rebecca who saw immediately that A was suf- treated. I hope that, in spite of all the pain, this AUTHOR INFORMATION: Daniel Statman, PhD. Dept. of Philosophy, University of Haifa, Haifa 31905 (Israel). E-mail: Ethical Perspectives 10 (2003)3-4, p. 224 decision will prevent further confusion and mis- would be used to fertilize many women anywhere ery." To date, Ms. A has not received IVF treat- in the world, he wouldn't have felt that his desire ment from any other centre in Israel and most for parenthood had been respected, while, simi- larly, Ms. A would not have accepted a solution In both cases, that of Mr. Oakley and that of according to which her ova would be donated to Ms. A, the question to be asked is whether the infertile women in some remote corner of the right to parenthood was violated. The purpose of world to help them produce children that are my paper is to offer a framework for thought on genetically related to her. The interest we have is this question. In the first part, I look at it through not in procreation itself, namely, in merely repli- the prism of negative rights, i.e. the right to non- cating our genes, but in rearing children that are interference in the satisfaction of an interest, while, genetically connected to us, or, at least, in rearing in the second, I utilize the prism of positive rights, children with whom we can enjoy a significant i.e. the right to be granted assistance in the satis- relationship. This interest in having or rearing chil- dren can be satisfied even when the genetic con-nection is absent, e.g. when a woman receives ovafrom a donor to be fertilized with sperm from her 1. Interfering in the Right to Parenthood husband or partner, or, of course, when a woman When claims concerning rights are invoked, two or a couple adopt a child genetically unrelated to issues must be settled: first, whether the person either of them. For most human beings throughout who claims to be the holder of the right does, history, the first choice would be to have children indeed, have the relevant right, and second, genetically related to them and, only if this were whether the right is strong enough to compete with impossible, would they settle for forms of adop- conflicting considerations. Admittedly, in cases tion. Bonnie Steinbock is right to conclude that where the supposed right is easily overridden by individuals who lack the capacity to be rearing other considerations, it is hard to decide whether parents, such as severely retarded people, do not the best conceptualization of the case is in terms have an interest in reproducing, and, as a necessary of a right being overridden, or in terms of a right corollary, do not have a right to reproduce either.4 which was non-existent in the first place. I am not Thus, in what follows, when I talk about the right convinced that the distinction is a significant one, to reproduce or procreate, I'll always have in mind but, in any case, I believe it can be ignored for the the right to parenthood, a term which captures the interest under discussion more successfully.
Did Mr. Oakley, then, have a right to procreate But why should the interest to parenthood be that was violated by the court? I shall assume, fol- entitled to special protection in the form of a right? lowing Raz and others, that rights are interests that American jurisprudence has emphasized the con- deserve special protection or enhancement, inter- nection between parenthood and privacy, imply- ests that impose various duties on others. I shall ing that protection of the former is anchored in the also assume that the notion of right is essentially importance of the latter. But while the importance non-utilitarian, that is to say, the very fact that vio- of privacy can explain why the state ought not to lating the right would cause greater utility than not interfere in procreation, it offers no explanation as doing so is insufficient to justify the violation.
to why the state might be required to help people As noted by numerous writers,3 the notion of a procreate, as in the case of Ms. A. Refusing to right to procreate is a bit misleading, because we offer such help might be morally wrong on other don't seem to have an interest in procreation per grounds, but it is hard to see how such refusal se. If Mr. Oakley had been allowed to donate would violate an individual's privacy. Hence, sperm and had been promised that his sperm though privacy might play some role in a theory Ethical Perspectives 10 (2003)3-4, p. 225 of parenthood, it can't be the whole story.5 What achieve that goal. Furthermore, if, as argued in the needs to be added is the deep value attached to Symposium, this immortality has to do with the parenthood by human beings, and its crucial role rearing and education of offspring9, then, surely, in their well-being. I will not list here all relevant there's a limit to the number of children one can reasons for this value. Among other things, they rear and educate effectively. Similarly, if a deep have to do with the desire to achieve a kind of human need to build a 'nest' exists, a need to cre- immortality by continuing to live through descen- ate a place where one will always have a sense of dants, the desire to live vicariously through one's safety, of belonging, and of meaningfulness, then, children, getting a second chance, as it were, the again, the nest need not include more than two or desire for the deep and enduring intimate relations three children to fulfill its role. Finally, if having that one hopes to achieve with one's offspring, the children is essential to the bonding together of two longing for a home, a nest, a secure place with a souls and to the founding of a family, there's no close network of relationships in which one need for ten children to achieve these goals.
belongs, and, in addition, the interest of couples To be sure, people's perception of the size of a 'normal' family and their idea of the number of chil- Now if these are the kind of considerations that dren a respectable member of the community underlie the right to parenthood, they have crucial should have are significantly influenced by the par- implications regarding the nature of this right. I ticular culture. For some, the nest must include at will mention one in brief, while elaborating at least five children. For others, two would be more length on another. The first implication, then, enough. But if there is a grain of truth in the idea is that the right to be a parent does not include, or of a universal right for parenthood, then - as with entail, the right not to be one.7 Some of the judges all human rights - there must be some core interest in the Israeli case of Nachmani v. Nachmani in parenthood shared by all human beings, regard- thought otherwise and argued that a woman's right less of the distinctive features of their culture. And to be a mother by having her fertilized eggs if I'm right in my argument, then, in normal cir- planted in a surrogate mother's womb is equiva- cumstances, the satisfaction of this fundamental lent to the right of her husband not to be a father interest does not require more than two or three against his will. In my view, this is a mistake.
children. Even the Biblical matriarchs were satis- Maybe Mr. Nachmani did have a right to prevent fied with small families. Sarah had one child.
his wife from continuing the artificial process of Rebecca had twins. When Rachel's moving plea to procreation against his will, but this right was not her husband "Give me children else I die" was part of, nor entailed by, the right to parenthood answered, one child was enough for her to state that because the reasons explaining the importance of "God had taken away my reproach", while the most parenthood for human beings are not those estab- she aspired to was one more child. "And she called lishing the importance of not being a parent.
his name Joseph for she said God will add to me The second implication I'd like to draw from another son" (Genesis 30, 22-24). Thus, in the eyes the above kind of considerations supporting the of the Biblical narrator, one or two children are right to parenthood is that, contrary to what Justice enough to satisfy the interest in parenthood.
Bradley stated in the Oakley case, it is not a right It is interesting to note in this context that the to have "as many children as one desires".8 In Biblical injunction to multiply and replenish the terms of any of the considerations just mentioned, earth is not interpreted in the Talmudic tradition two or three children should definitely suffice. If, as an obligation to reproduce as many children as for instance, we want children so that in a real or possible, though such an interpretation would be a a symbolic way, we continue to exist in the world natural reading of the above order, but rather as after we die, then we don't need ten children to an obligation to give birth to one boy and one girl.
Ethical Perspectives 10 (2003)3-4, p. 226 If one assumes that the dictates of religion often procreate as a right to have as many children as manifest deep human concerns, then we might see one wishes, an argument often made by environ- here another confirmation of the idea that to sat- mentalists. The argument is based on the assumed isfy interest in procreation, no more than two or negative relation between population growth and its impact on the environment. The simple idea is As far as I know, my suggestion to limit the that the more children one has, the more one con- right to parenthood with respect to the number of tributes (a) to the depletion of the world's offspring goes against most, if not all, accepted resources - food, water etc. - and (b) to envi- wisdom and legal conventions in this area, accord- ronmental damage, such as pollution, global ing to which the right under discussion entails the warming, etc. The logic of the argument seems right to determine the size of one's family. Of undeniable: If, on average, each individual has a course I do not deny that people often have a deep negative impact, i, on the environment, then eight desire to have big families and, moreover, that this individuals have an impact of i times eight. A cou- desire might at times enjoy the protection of a ple that bears eight children thus makes four times right - but it will not be the right to parenthood.
a worse negative impact on the environment than Maybe the right to culture, for example, could jus- does a couple with only two. Hence, the right to tify special protection of the procreation norms parenthood must not be interpreted as a right to which are accepted in some religious or ethnic bear as many children as one likes, but rather - minority groups. Or maybe freedom of religion as suggested above - as a right to bear two or could justify a right to have as many children as a three children. Yet this argument overlooks the couple wants, in cases where the dictates of some complexities of the social reality. The fact is that religion call for big families or forbids the use of families with eight children are (a) typically poorer contraceptives.10 The point is that, in the absence than families with only two children, hence they of these special rights, the right to parenthood does consume less, and (b) they contribute less to envi- not imply interest in bearing ten or more children.
ronmental damage. Yaakov Garb examined this Returning now to Mr. Oakley. If my under- issue in detail regarding the situation in Israel, standing of the right to parenthood is correct, the where the fertility level of two social groups, conclusion is that, at the time of his appeal, he no Arab-Muslims and Jewish Ultra-Orthodox, is longer had such a right. Nine children are far more much higher than that of other groups. Garb has than needed to satisfy the human craving for off- shown that the consumption of water, for instance, spring, hence Oakley's desire for more children is, on average, about two times smaller in Muslim could not enjoy the status of a right. Therefore, it and Ultra-Orthodox villages and neighbourhoods could be overridden by considerations concerning than in affluent secular communities, while the the welfare of the actual or potential children, or number of cars is three times lower.12 Thus, con- by utilitarian considerations in general. Since the trary to what the argument under discussion sug- court was convinced that, if Oakley fathered more gests, a right to have as many children as one children, he would fail to provide for their needs, wants - which might result in the production of and would continue to fail to fulfill his responsi- more children -might, in certain social condi- bilities to his existing family, the court was right tions, be advantageous, rather than detrimental to in trying to limit his right to father more children.
the environment. Furthermore, from the point of Though the legal picture was more complicated,11 view of environmentalism, not only is bearing at least from a moral point of view, Oakley's claim many children problematic, but so is bearing any child. As Thomas Young nicely shows, if over- At this point, I would like to refer to a differ- consumption is morally wrong in face of an over- ent argument against understanding the right to Ethical Perspectives 10 (2003)3-4, p. 227 procreation, and if the latter is all right, so is the importance of speech, nor those underlying the former.13 Hence, environmentalism does not lend importance of parenthood, entail the importance clear support to my suggestion to respect the right of speech or procreation at a particular point of to parenthood only for two or three children.
time, rather than at a reasonably later one.
Needless to say, the conclusion above regard- Finally, let me repeat the obvious point that ing Mr. Oakley would apply also to women in sim- while denying some interest the status of a right ilar circumstances. Consider, for instance, the cur- weakens its normative power, it, of course, does rent debate in the US about the proposal to offer not deny it. As Dworkin emphasizes, with rights, women additional welfare bonuses on the condi- mere utilitarian considerations are insufficient to tion that they agree to temporary sterilization justify intervention in the relevant domain, be it (using Norplant or Depo-Provera) while they are speech, movement, association, or any other pro- on welfare. Following my previous argument, if tected domain. This does not mean that interven- such women have already produced two or three tion needs no justification whatsoever, that the children, they can't say that their right to parent- state can disregard the individual interests of its hood is violated by such a proposal, though it does members. What it does mean is that the onus of put some pressure on them not to produce more justification is lighter. Regarding the case of Oak- ley with which we began our discussion, it means The temporariness of the limitations on the that the public interest in taking care of children right to parenthood might also be significant.
and of ensuring that no more children will be born One's right to bear children is not violated if one who will become a burden on society overrides the is forced to postpone one's procreative plans by a individual interest of Oakley to father more chil- week, a month, or even by a year or so. Though it dren. Similarly, in the case of women on welfare, is impossible to draw an exact line here, surely a the public interest in not having children in soci- reasonable delay might be consistent with a true ety for whom their parents cannot provide justi- concern for one's interest in parenthood. This is fies making some bonuses conditional on tempo- true of other rights too. One's freedom of speech rary sterilization, especially if the women already is violated if one is prevented from publishing a have children and, if not, assuming that the delay book expressing one's opinions. It is not violated would be of no consequence in this regard.
if the publication of the book is delayed by a year That in normal circumstances the state must not or so (assuming that things are more or less equal prevent anybody from procreating applies to so- in the relevant aspects). Similarly, as the Supreme called 'natural' procreation, i.e. through sexual Court of Israel ruled some twenty years ago, intercourse, as well as to so-called 'artificial' pro- creation, via artificial insemination, or in vitro fer- evening to Saturday evening does not violate the tilization (IVF). There seems to be no relevant dif- producers' right of expression, even if the rating ference between natural and artificial procreation that could explain why the former should enjoy a I indicated earlier that often it makes no real stronger protection than the other16.
difference whether we say that some interest falls Or is there? Some feminists have argued that short of constituting a right, or whether we say it the availability of IVF often has negative effects constitutes a weak one, that is, an interest easily on women, who suffer from what Phyllis Tobin overridden by conflicting considerations. With called "the addiction to high tech promise".17 Dur- respect, however, to disturbances of a temporary ing the often painful and frustrating process of nature, like the ones just listed, it seems truly arti- IVF, women are under the illusion that they can ficial to conceptualize them in terms of a threat to make it happen, which is combined with the illu- rights. Neither the justifications underlying the sion that they are in control and can stop any time Ethical Perspectives 10 (2003)3-4, p. 228 they wish. The need to maintain these illusions fertility treatments would confirm and perpetuate "can result in a woman becoming increasingly the view that a woman who fails to procreate is compulsive and obsessive in her attempt to con- deeply deficient, a view with harmful psycholog- ceive… she becomes crisis oriented… she lives ical and social consequences. In the present dis- only for herself, for her next treatment, and cussion, I shall skip this question and focus on a between treatments can feel nothing but the empti- different one. Given that in some countries, such ness within her".18 From the point of view of the as Israel, the public health system does offer IVF welfare of the women involved, it would be better as one of its medical services, the question I'd like for many of them to accept their infertility and to address is who should be entitled to it. This will quit, so to say, the race, rather than get involved in this Via Dolorosa with its high psychologicalcost.19 The availability of IVF makes it hard for women to appreciate the option of seeing them-selves as child-free rather than as childless.20 But State-granted assistance to enable parenthood Tobin does not suggest, nor do most feminists, that the right to procreate via IVF - for those women (a) Is it permissible for the state ever to refuse to who so wish - should be entitled to less protec- grant IVF treatment to women on the grounds that tion vis-à-vis the state than the right to procreate they are incapable of being reasonable mothers, or through intercourse. Preventing access to IVF do such women, nevertheless, have a right to par- would be an extreme case of maternalism21 and Let me sum up the main conclusions so far.
(b) Given that state resources are limited, namely, First, people have a right to procreate which is that it cannot afford to grant as many IVF treatments anchored in fundamental human concerns. Second, as its citizens might request, how should it distrib- the right exists whether the procreation is 'natural' or 'artificial'. Third, the limits of the right - likethose of all rights - are determined by the limits Question (a) is about rights. It asks who has, and, of the above concerns, which means, among other particularly, who does not have a right to parent- things, that one does not have a right to have as hood, in the sense of a positive right to assistance many children as one wants. Fourth, when the from society to become a parent. Question (b) is interest in parenthood does not enjoy the status of about distribution or about distributive justice. It a right, it can be overridden by considerations con- asks how parenthood should be allocated, so to cerning the welfare of the potential children, as speak, given that society's resources are limited.
well as by considerations of fairness suggesting The question arises with regard to IVF treatments, that one ought not to produce children, the burden and even more so with regard to ova for transplant.
In the actual world, where resources are and That one has a right to non-interference in the will probably continue to be limited, questions realm of procreation does not, of course, imply about the right to parenthood can be formulated as that one has a right to positive assistance by the questions about priority in allocation, so that a state in cases of infertility, i.e. that the state has an woman seen as unfit to be a mother would get a obligation to provide IVF and other treatments to low ranking in the queue, which in effect would those in need through the public health system and mean that she'd never reach its top. Nevertheless, national insurance. Here, the feminist concerns I think it is worthwhile, both theoretically and indicated above are powerful, especially the fear practically, to discuss question (a) separately, as a that public finance for IVF and other expensive question about rights. If the answer to it is in the Ethical Perspectives 10 (2003)3-4, p. 229 affirmative, then even if our resources become less abused by a parent with very minimal parental limited, it might still be permissible to refuse capabilities. For the present purpose, I believe we requests for parenthood. The rest of the paper will can bracket the question of whether to conceptu- be devoted to question (a), and issues of distribu- alize the concern under discussion as a personal tion will have to await some other occasion.
concern for the child,24 which will get us into well- The question about limiting the positive right to known problems of non-identity, or as an imper- parenthood takes us back to the case of Ms. A. The sonal concern for a world with less suffering. On IVF centre to which Ms. A turned had enough either view, I can't imagine that anybody would resources to provide her with the required treat- claim that there's a moral duty to help a woman ment. No doubt she would have been a problem- conceive a child expected to suffer in the ways just atic patient, in terms of complying with the mentioned. To be sure, psychological and educa- instructions, and in terms of human relationships, tional deprivation is different from physical pain but with a lot of patience and assistance by the and limitation, but when the former is grave staff she could have still borne a child. Given the enough, I see no reason why the argument should pessimistic assessments about the quality of her potential motherhood, was it morally acceptable The second argument for limiting the positive to refuse to help her have a child? Let me work my right to parenthood is based on the idea that soci- way to answering this question through another ety has a right to refuse to grant parenthood when case reported to me by the head of that IVF cen- the burden of taking care of the potential children tre. In this case, a woman had a child through IVF, would almost certainly fall on its own shoulders.
but was incapable of taking care of it and gave it As you will recall, that was exactly the case with up for adoption two months after delivery. It seems Ms. A, who was assumed not to be able to bring safe to say that, retroactively, the decision to help up a child without massive and ongoing help by her conceive and bear a child was a mistake. Had the social services. In such cases, the individual is we known when this woman turned to the IVF asking for more than help in procreating, but is centre that she would not be able to rear a child, also requesting significant help in rearing the we would have had no duty to help her, in fact we child. I think it is reasonable for society to refuse might have had a duty not to help her have a child.
at least some of these requests. There's something If this last assumption is granted, then we have unfair about a person asking to bring a child into shown that, in principle, it is permissible for a pub- the world while knowing in advance that he or she lic IVF centre to refuse to provide IVF treatment cannot care for it, thus planning in advance to take on non-medical grounds. It all depends on the advantage of the good will of society.25 gravity of the parental incapacity, that is to say, The natural objection to these arguments is that under a certain threshold women can be denied they apply not only to IVF, or to artificial procre- state-funded IVF treatment.23 And this seems to ation in general, but to natural parenthood too. If lend support to the decision, mentioned at the out- the concern for the child's quality of life is legiti- set, to turn down Ms. A's request for IVF.
mate, and if the argument from fairness is sound, Such limits on the positive right to parenthood then why not limit the right of potential parents to are based on two arguments. The first is based on have children in the natural way too? Since such concern for the potential child. Just as it would be limitations would be unthinkable, continues the morally acceptable to refuse to help a woman con- argument, we ought not to use them in procreation ceive a child expected to suffer from a terribly through high-tech methods either. I myself argued painful and paralyzing disease, so it would be earlier that insofar as violating the right to parent- morally acceptable to refuse to help in the con- hood is concerned, it makes no difference whether ception of a child expected to be neglected or access to parenthood is via sexual intercourse, or Ethical Perspectives 10 (2003)3-4, p. 230 via IVF. What does seem to make a difference, ther procreate naturally, nor pay for IVF, can however, is whether the individual has an ability demand that society provide the help they need. To to conceive by herself, or whether she needs assis- be sure, some philosophers would respond by say- tance from society. In the latter case, it seems that ing that this initial inequality between those who society is entitled to a say about how its money is have X and those who don't must be reversed to to be used and about the burdens it agrees to take achieve a just society, because all differences based on brute luck must be eliminated. All I can say But doesn't the above suggestion create unjust about this challenge in the present context is that inequality between fertile and infertile women? making claims for IVF, claims which depend on a While fertile women would be able to have as specific view about equality, namely egalitarian- many children as they wish, deprived and ill as the ism, seems to weaken them, not strengthen them, children might be, supported as they might be by because they would then be accepted only by those society, infertile women would be denied access to parenthood. This seems unfair, because the My second response to the assumed inequality method of conception looks morally irrelevant, between fertile and infertile women is that, in prin- hence, the same limitations based on concern for ciple, we might have been happy to use the crite- the child's physical and psychological welfare and ria listed above to limit natural parenthood too, but on society's right to refuse to take upon itself in such use would raise such grave practical diffi- advance the burden of bringing up the children of culties as to make the proposal unfeasible. Here I a bad parent should apply equally to natural par- am following the argument developed by David ents too - or should apply to none.
Archard about whether individuals should be I'd like to offer two answers to this question.
given a licence to be parents. "Why," he asks, First, the distinction between a right to non-inter- "shouldn't the state, or society as a whole, decide ference in X and a right to be granted X is not easy whether a child should be born and, if it is, to to justify. The difficulties in doing so mirror the which parents it should be allocated?"26 He then familiar difficulties in justifying the distinctions lists a few good reasons why the state should make between doing and allowing, killing and letting die, such decisions, reasons of the kind mentioned action and inaction. My point is that if the former above when we discussed criteria for receiving or distinction is accepted - and I believe most of us non-receiving IVF. Nevertheless, in the end he do accept it - it necessarily entails a difference rejects this proposal, on the basis of four practical between those who already have X and those who objections which I shall not rehearse here.27 On do not. The right of movement protects the human Archard's view, these practical considerations interest in free movement, but the protection ben- explain the difference between the rules govern- efits only those who have the means to avail them- ing natural parenthood and those governing adop- selves of this right. Those who cannot travel far, tion. While no individual needs a licence to be a because they are too poor to afford transport, can- natural parent, one does need to satisfy some cri- not require, under the right to freedom of move- teria in order to qualify as an adoptive parent. On ment, that the state give them a car or cover their Archard's view, we would license natural parents travel expenses. Similarly in the present context: too if we could do it practically, but we cannot.
those women who are lucky enough to be fertile, With adoption we can, therefore we should.
or to have enough money for IVF, enjoy the pro- My suggestion, then, is that, in the relevant tection of the right to parenthood, which means that respects, parenthood through IVF is closer to par- under normal conditions their procreative plans enthood through adoption than it is to natural par- should not suffer interference. Yet, this right does enthood. Since we can screen candidates for IVF not automatically entail that women who can nei- in a way that would be close to impossible with Ethical Perspectives 10 (2003)3-4, p. 231 natural parents, and since we have control over the to non-medical criteria than they are willing to ability of such candidates to procreate which we admit. With respect to organ allocation, Volker don't have with natural parents, we are entitled to Schmidt has found that "there is a tendency to refuse to grant IVF treatment in some cases, just rationalize non-medical criteria in medical as we are entitled to reject candidacy for adoption terms",31 and I guess that a similar phenomenon in cases where the candidates seem unsuitable.
exists with IVF too. From my inside information, More than twenty years ago, Hugh Lafollette I have the feeling that one way of evading giving argued the provocative thesis that parents ought to IVF to women who formally qualify, but are per- be licensed.28 The rationale for his proposal was ceived as unfit by the staff, is to delay the treat- simple. The state has a duty to regulate all poten- ment with all kinds of excuses until the women tially harmful activities; parenting is an activity are too old according to existing regulations.
potentially very harmful to children (abuse, Needless to say, limitations on the right to par- neglect); therefore, parenthood, too, must be reg- enthood are not to be imposed lightly, even if they ulated. For many years, this proposal hasn't been are imposed through weak forms of coercion, such taken seriously, but, as noted by Carl Hedman, as denying bonuses, or conditioning probation.
"things seem to be changing," and he refers to Such limitations were often motivated by forms of what he sees as relatively wide support for the idea hatred and racism, and were part of despicable of licensing parents as a way of reducing child political agendas. We should never underestimate abuse.29 The conditions imposed on Oakley, as these dangers. Yet neither should we overlook the well as those imposed on mothers on welfare, interests of children who suffer as a result of irre- seem to be consistent with this development.
sponsible and unsuitable parents, and the interest When I look back at the line of argument, it seems of society not to bear the burden of children whose that my paper too expresses this shift in opinion about the status of the right to parenthood. I have Finally, and to avoid any possible misunder- no wish to deny the depth of the human interest in standing, let me emphasize that all the suggestions parenthood, nor to reject its status as a right, i.e.
I put forward for limiting the right to parenthood the need to grant it special protection. Yet, the - in terms of number, timing and assistance from boundaries of this right, as with other rights, the state - apply only to what David Heyd has depend on the rationales establishing it, hence, as called potential children.32 The rights of actual I showed at length in the first part of the paper, children vis-à-vis their parents and vis-à-vis the one does not have a right to have as many children state, and the right of parents to actual children as one desires, whenever one so desires.
vis-à-vis the state are a different story altogether.
Moreover, the interest in parenthood must be If Mr. Oakley fathers another child while on pro- balanced against the interests of the potential child bation and if Ms. A manages to conceive a child and those of society in general. While monitoring through some IVF centre, these children will, of parenthood is very problematic in natural parents, course, deserve full rights as human beings and as it is more practical in adoption and in high-tech members of society. This paper dealt with a dif- parenthood, and, in these cases, I find it legiti- ferent issue, that of whether Oakley and Ms. A mate.30 This latter conclusion is less provocative have a right to bring children into the world in than it sounds. With adoption, it has long been their special circumstances, by claiming the right accepted that candidates must be monitored to parenthood. And, to this question, I answer in according to clear non-medical criteria, such as the negative: neither Mr. Oakley, nor Ms. A, have age, education, etc. But with IVF too, I suspect a right to parenthood which was violated by their that the actual policy of IVF centres is more open Ethical Perspectives 10 (2003)3-4, p. 232 1 I wish to thank the participants of the Bremen workshop on reproductive rights for helpful comments on an earlier draft. I am also grateful to Ariel Zisman for his invaluable research assistance.
2 See State v. Oakley, 629 N.W.2d (Wis. 2001) at 219.
3 See e.g. Bonnie Steinbock, "Reproductive Rights and Responsibilities," Hastings Center Report, 24/3 (1994): 15-16.
4 Ibid., p.15. See John Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton: Princeton University Press, 1994), 30.
5 A similar argument should be made against the claim that "the demand for reproductive freedom seems to derive ultimately from the idea of having control over one's body". Gillian Douglas, Law, Fertility and Reproduction (London:Sweet & Maxwell, 1991), p. 16.
6 On this last consideration, see Athena Liu, Artificial Reproduction and Reproductive Rights (Aldershot: Ashgate, 1991), 41, who argues that the claim of the wife or the husband to exercise an individual right to reproduce might reflectadditionally, and as importantly, the interest of the couple in founding a family. I should add that the relatively new notionof 'single-parent families' makes it hard to acknowledge this interest, because if a family can include merely a womanand her child, then the founding of a family is a necessary result of any act of procreation and cannot constitute a sep-arate consideration.
7 The thought that it does is often motivated by a general misconception about rights, see Daphna Barak-Erez and Ron Shapira, "The Delusion of Symmetric Rights," Oxford Journal of Legal Studies 19 (1999): 297.
8 Justice Bradley in State v. Oakley, supra note 2, at 219.
9 Symposium, 208-209.
10 The right to culture and freedom of religion are intimately connected, as the former is a main rationale of the lat- ter. See e.g. Gideon Sapir "Religion and State: A Fresh Theoretical Start" Notre Dame Law Rev. 75 (1999): 579.
11 For a detailed argument in favour of the court's decision, see William Betesh, "Has the State Gone Too far? Test- ing the Constitutionality of Probation Conditions that limit a Probationer's Right to Procreate," Seton Hall Legis. J. 26(2002): 459-497. For the opposite view, see David Corneal, "Limiting the Right to Procreate: State v. Oakley and theNeed for Strict Scrutiny of Probation Conditions," Seton Hall Legis. J. 33 (2003) 447-478.
12 See Yaakov Garb, "Population Dynamics and Sustainability in the Israeli Context," in Paths to Sustainability: Shadow report to the Government of Israel's Assessment of Progress in Implementing Agenda 21Presented at the WorldSummit for Sustainable Development (Johannesburg, 2002).
13 Thomas Young, "Overconsumption and Procreation: Are they Morally equivalent?" Journal of Applied Philosophy 14 For a defence of the above welfare condition, see Kimberly A. Smith, "Conceivable Sterilization: A Constitutional Analysis of a Norplant/Depo-Provera Welfare Condition," Indiana L.J. 77 (2002): 389-418.
15 2437/92 Yigal Lev v. Minister of Education P.D. 46(3): 756.
16 Cf. Robertson (supra note 4), 32: "If the moral right to reproduce presumptively protects coital reproduction, then it should protect noncoital reproduction as well." 17 Phyllis Tobin, Motherhood Optional: A Psychological Journey (Northvale, N.J.: Jason Aronson, 1998), 109.
18 Ibid., 110.
19 On the psychological costs of IVF see also Linda S. Williams, "No Relief Until the End: The Physical and Emo- tional Costs of In Vitro Fertilization," in The Future of Human Reproduction, ed. Christine Overall (Toronto: Women'sPress, 1989), 120-138; Christine Overall, "Access to IVF: Costs, Care and Consent," Dialogue XXX (1991): 383-397.
20 Ibid., 117-118.
21 Overall, 392.
22 See Mary Anne Warren, "IVF and Women's Interests: An Analysis of Feminist Concerns," Bioethics 2 (1988): 33-57, section II, who objects to denying IVF, for paternalistic reasons, to all women. After considering the various feminist objec-tions to IVF and to other new reproductive technologies, she concludes that "the costs and risks of IVT treatment are sub-stantial, but they are not known to be so great as to clearly outweigh the potential benefits, in every case" (p. 53).
23 Torbjörn Tännsjö puts forward a powerful argument against "meddling with our reproductive decisions" (p. 249).
In his view, "the use of techniques for assisted reproduction should not be regulated by political authorities Ethical Perspectives 10 (2003)3-4, p. 233 (nor by doctors)" (p. 247). Torbjörn Tännsjö, "Compulsory Sterilization in Sweden," Bioethics 12 (1998): 236-249. Iconcur - insofar as this use is not funded by the state.
24 See, e.g., Torbjörn Tännsjö, "Who Are the Beneficiaries?" Bioethics 6 (1992): 288-296, 289, who argues that if the life a child has to live is clearly worse than no life at all, it would be wrong to conceive it. By doing so, the would-beparents "would wrong it." 25 See David Heyd, Genethics: Moral Issues in the Creation of People (Berkeley: University of California Press, 1992), 111, who argues that "it is wrong for a young girl to decide on motherhood when she knows that she will not beable to fulfill her duties as a mother - not a wrong to the child, but to her own moral integrity." 26 David Archard, Children: Rights and Childhood (London: Routledge, 1993), 139.
27 Ibid., pp. 142-146.
28 Hugh Lafollette, "Licensing Parents," Philosophy & Public Affairs 9 (1980): 182-197.
29 See Carl Hedman, "Three Approaches to the Problem of Child Abuse and Neglect," Journal of Social Philosophy 31 (2000), 268-293, and his references on p. 283, notes 3-7 to the discussion around Jack Westman, "Licensing Parents:Can We Prevent Child Abuse and Neglect?" The Milwaukee Journal, January 22, 1995.
30 Needless to say, such monitoring must not be arbitrary. A good example of an unjustified limitation on IVF is an age limitation, i.e. denying access to IVF to 'old', post-menopausal women. On why such denial is unjustified, see Jen-nifer Parks, "On the Use of IVF by Post-Menopausal Women," Hypatia 14 (1999): 77-96, and Guido Pennings, "Post-Menopausal Women and the Right of Access to Oocyte Donation," Journal of Applied Philosophy 18 (2001): 171-181.
Private IVF centres typically have no such age limit, see e.g. the conditions listed in www.givf.com/ivf.cfm, where itsays explicitly that "there is no age limit for couples who may be considered for IVF in our institute." 31 Volker H. Schmidt, "Selection of Recipients for Donor Organs in Transplant Medicine," Journal of Medicine and 32 See Heyd, Genethics, Introduction.
Archard, D. Children: Rights and Childhood. London: Routledge, 1993.
Barak-Erez, D. and R. Schapira. "The Delusion of Symmetric Rights." Oxford Journal of Legal Studies 19 (1999): 297- Betesh, W. "Has the State Gone Too far? Testing the Constitutionality of Probation Conditions that Limit a Probationer's Right to Procreate." Seton Hall Legis. J. 26 (2002): 459-497.
Corneal, D. "Limiting the Right to Procreate: State v. Oakley and the Need for Strict Scrutiny of Probation Conditions." Seton Hall Legis. J. 33 (2003): 447-478.
Douglas, G. Law, Fertility and Reproduction. London: Sweet & Maxwell, 1991.
Garb, Y. "Population Dynamics and Sustainability in the Israeli Context." In Paths to Sustainability: Shadow report to the Government of Israel's Assessment of Progress in Implementing Agenda 21Presented at the World Summit for Sus-tainable Development. Johannesburg, 2002.
Hedman, C. "Three Approaches to the Problem of Child Abuse and Neglect." Journal of Social Philosophy 31 (2000): Heyd, D. Genethics: Moral Issues in the Creation of People. Berkeley: University of California Press, 1992Lafollette, H. "Licensing Parents." Philosophy & Public Affairs 9 (1980): 182-197.
Liu, A. Artificial Reproduction and Reproductive Rights. Aldershot: Ashgate, 1991.
Overall, C. "Access to IVF: Costs, Care and Consent." Dialogue XXX (1991): 383-397.
Parks, J. "On the Use of IVF by Post-Menopausal Women." Hypatia 14 (1999): 77-96.
Pennings, G. "Post-Menopausal Women and the Right of Access to Oocyte Donation." Journal of Applied Philosophy Robertson, J. Children of Choice: Freedom and the New Reproductive Technologies. Princeton: Princeton University Sapir, G. "Religion and State: A Fresh Theoretical Start." Notre Dame Law Review 75 (1999): 579.
Ethical Perspectives 10 (2003)3-4, p. 234 Schmidt, V.H. "Selection of Recipients for Donor Organs in Transplant Medicine." Journal of Medicine and Philoso- Steinbock, B. "Reproductive Rights and Responsibilities." Hastings Center Report 24/3 (1994): 15-16.
Tännsjö, T. "Who Are the Beneficiaries?" Bioethics 6 (1992): 288-296.
Tännsjö, T. "Compulsory Sterilization in Sweden." Bioethics 12 (1998): 236-249Tobin, P. Motherhood Optional: A Psychological Journey. Northvale, N.J.: Jason Aronson, 1998.
Warren, M.A. "IVF and Women's Interests: An Analysis of Feminist Concerns." Bioethics 2 (1988): 33-57.
Williams, L.S. "No Relief Until the End: The Physical and Emotional Costs of In Vitro Fertilization" In The Future of Human Reproduction. Edited by Christine Overall. Toronto: Women's Press, 1989, Young, T. "Overconsumption and Procreation: Are they Morally equivalent?" Journal of Applied Philosophy 18 (2001): Ethical Perspectives 10 (2003)3-4, p. 235

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