Abstract
Current law in Victoria, Australia requires that all prospective assisted reproduction patients provide a criminal background check and child protection order check prior to being eligible for treatment. These presumptions against treatment stipulated in the Assisted Reproductive Treatment Act (http://www.legislation.vic.gov.au/domino/web_notes/ldms/pubstatbook.nsf/f932b66241ecf1b7ca256e92000e23be/3ADFC9FBA2C0F526CA25751C0020E494/$FILE/08-076a.pdf, 2008) are discriminatory against all people that are infertile. Requiring assistance in founding a family says nothing about whether someone will be a minimally decent parent to their (future) child. The most plausible justifications for this differential treatment of family builders that require assistance are unsound. The wellbeing of the resulting child is something that the prospective patient(s) should be presumed to have at heart, as this is the default assumption with other kinds of family builders that do not require assistance. That assisted reproduction treatment is publicly funded does not mean that the state is thereby justified in putting moral conditions on access to treatment. As we should not accept discriminatory laws, especially about practices that are of fundamental importance to the lives of citizens, the presumptions against treatment stipulated in ARTA should be eradicated.
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Notes
DSM-5 distinguishes between incestual pedolphilia and other (non-incestual) kinds of pedophilia. If this distinction holds, then we may need to ask the (hard) question about whether non-incestual pedophiles are necessarily destined to be poor parents to children of their own that they come to have. Analogies here include those that recruit child soldiers but that do not recruit their own children, or the Nazi lieutenant that is nevertheless a caring and generous father or mother (Swanton 2003).
This view has received some recent criticism. See for example Botterell and McLeod (2015), who develop an argument challenging the status quo of licensing prospective adoptive parents.
Personal correspondence with the Victorian Infertility Counsellors Group (November 2014).
See ABY, ABZ v Patient Review Panel [(Health & Privacy) [2011] VCAT 1382 (29 July 2011). Available at http://www.austlii.edu.au/au/cases/vic/VCAT/2011/1382.html; and ABY & ABZ v Secretary to the Department of Health & Anor (Human Rights) [2013] VCAT 625 (15 May 2013). Available at http://www.austlii.edu.au/cgibin/sinodisp/au/cases/vic/VCAT/2013/625.html?stem=0&synonyms=0&query=title(ABY%20).
In the recent case of TRV, the Victorian Civil and Administrative Tribunal (VCAT) ruling against providing clinical assistance in reproduction is problematic, not because it is not well-intentioned (i.e. in line with protecting a future child from being born to a serially neglectful mother). However tragic it seems, the state only received this information about TRV through its systematic discrimination of one group of family builders; TRV’s equivalent in the realm of unassisted reproduction would not have been stopped from having another child. See TRV v Department of Health and Human Services (Human Rights) [2015] VCAT 1188 (5 August 2015), available at http://www.austlii.edu.au/au/cases/vic/VCAT/2015/1188.html.
Here I assume that ARTA is justified in holding this as its paramount guiding concern. This assumption is deeply ingrained in policy surrounding assisted reproduction in many Westernized countries, including Australia. While there may be some reason to be suspicious of holding this principle as “paramount”, especially if this comes at the expense of violating other important principles (e.g. non-discrimination), this is a complex and controversial argument to make, and its full treatment is beyond the scope of this paper. For a sustained attempt at doing so, see Jackson (2002).
Interestingly, as stated in §5 (e), ARTA also has “non-discrimination” as one of its guiding principles, though not its paramount one: “persons seeking to undergo treatment procedures must not be discriminated against on the basis of their sexual orientation, marital status, race or religion” (p. 7). Notice that ARTA overlooks the possibility of persons seeking to undergo treatment procedures being discriminated against based on their fertility status. This is perhaps unsurprising, given that all patients receiving treatment in this context are infertile in some relevant sense. However, since this is a state law, its soundness needs to be tested against the treatment of all other kinds of morally equal family builders in that state. (If it was clinic policy, rather than state law, then because the clinic has no obligations to other kinds of family builders, such screening would be less problematic. For a proposal for similar screening of prospective ART patients in the U.S. context, see ECASRM 2013).
There are other reasons for rejecting this possible justification for state intervention, based on the best interests or wellbeing of the future child. These have to do with, for example, the non-identity problem, and the argument that we are all harmed by being brought into existence. These other arguments have been well-presented elsewhere in the literature (see e.g. Thompson and McDougall 2015).
References
Assisted Reproductive Treatment Act. 2008. http://www.legislation.vic.gov.au/domino/web_notes/ldms/pubstatbook.nsf/f932b66241ecf1b7ca256e92000e23be/3ADFC9FBA2C0F526CA25751C0020E494/$FILE/08-076a.pdf.
Botterell, A., and C. McLeod. 2015. Can a right to reproduce justify the status quo on parental licensing? In Permissible Progeny?: The Morality of Procreation and Parenting, ed. S. Hannan, S. Brennan, and R. Vernon, 184–207. Oxford: Oxford University Press.
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Swanton, C. 2003. Virtue ethics: A pluralistic view. Oxford: Oxford University Press.
Thompson, K., and R. McDougall. 2015. Restricting access to ART on the basis of criminal record. Journal of Bioethical Inquiry 12 (3): 511–520.
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Tonkens, R. Infertilitism: unjustified discrimination of assisted reproduction patients. Monash Bioeth. Rev. 35, 36–49 (2018). https://doi.org/10.1007/s40592-018-0078-x
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DOI: https://doi.org/10.1007/s40592-018-0078-x