How should the state regulate reproductive technologies?

The Human Fertilisation and Embryology Authority (HFEA) was created in order to deal with the moral issues surrounding embryonic selection. It was based on the assumption that the embryo was said to have a “special moral status” that exists over and above the interests of the parents.

Embryologists make some basic kinds of evaluation when they inspect in vitro fertilisation (IVF) embryos. They not only select those that are most likely to survive but in accordance with clause 14 of the new Human Fertilisation and Embryology Bill they are required to avoid selecting embryos known to be at risk of developing ‘serious physical or mental disability’ or ‘serious illness’ where there are other embryos available that show no such risk. Because embryologists select and discard embryos that carry disease or disabling traits and such disease or disabling traits may have a genetic basis the practice has been termed “the little sister of eugenics” by Catholic bishops who want the practice banned.

However, for this discussion, I am going to focus on the fact that the current HFE bill prevents selection on the basis of non-disabling, and non-disease traits, such as sex, intelligence, or personality. Further, selection for what are considered minor disabilities, such as deafness, are not permitted, even if deaf parents wish to have a deaf child.

This has angered two groups both of whom think the bill is too conservative and places unwarranted restrictions on parental choice.[1]

The first group contains liberals such as Julian Savelescu who thinks that the embryo has no special moral status above the interests of its parents and that the only criteria that limit the selection of embryos should be the harm that might be accrued either to the individual or others. On this view couples liberty to select embryos on the basis of sex, personality, intelligence, and other non-disease states should not be thwarted by bodies such as the HFEA unless there is a serious risk of harm to others.

The second group contain lobbyists from disabled groups who similarly think that the interests of the parent are tantamount and have priority over any moral status that the embryo has. This group claims that it is immoral to prohibit selection against embryos on the basis of traits such as deafness. These groups have claimed that deafness is not a disability, but instead should be seen as being part of a ‘linguistic minority’, and that if deaf people have equal rights to non deaf people then they should be able to select against embryos that have the trait for hearing. < The National Institute for the Blind does not endorse selection for deafness but it is a controversial issue>

Julian Savelescu has written most extensively on this topic and has presented reasons for thinking that we have a moral obligation to engage in both positive and negative eugenics and that the current legislation is too restrictive. Hence I will outline my interpretaton of his views as a basis for discussion.

Julian Savelescu

1: Savulescu claims that the human embryo does not have a moral status, above that which is derived from the interests of a couple or individual to have a child.

This is not to deny the claim that the embryo does have some moral status, perhaps in terms of its potential, although how much moral status this is worth is never clear, what is clear according to Savulescu is that the moral status that it has does not rise above the interests of a couple or individuals desire to have a child.

Writing in the Guardian, in support of this claim he asks us to consider that:

There are about 100,000 abortions in this country every year, more than 95% of which are for social reasons. More than 300,000 “excess” embryos have been destroyed in 10 years. Legislation requires that embryos are destroyed after 10 years. Many forms of contraception destroy early embryos.

If the embryo did have a special moral status, such as that on a par with an adult human, then we would all be complicit in a ‘reproductive holocaust’.

Even in conservative countries there is a widespread difference in our attitudes towards the destruction of embryos and the destruction of infants, or fetuses. We can explain this difference in attitudes as reflecting a difference in what is of value.

In particular we can explain the difference in our attitudes towards the practices by assuming that the embryo does not have any special moral status over and above the interests of the parents whereas the fetus or infant does.

This is an argument based on our current social practices and the values that such practice presupposes.

A charitable reconstruction of the argument here is that:

A: Our current social practices presuppose the falsity of the claim that the embryo has a special moral status above the interests of parents who want to have children.

B:    ………………………….……………………

C: We are warranted in believing that the embryo does not have a special moral status above the interests of parents who want to have children.

Clearly there is a missing premise in the argument. The missing premise must be one that takes our current social practices as evidence for what is of value so perhaps we can boldly plug in the gap with the following?

B: The presuppositions of our current social practices are evidence for what is of value

Or

B2: The best explanation for our current social practices are that they reflect what is of value.

2: Secondly he claims that restrictions on liberty that are not based on considerations of harm violate a central tenet of liberalism. As J S Mill put it:

That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.

Hence his position is that where reproductive choices do not cause significant harm to others we should have the procreative liberty to decide with whom we have children, when to have children, how many to have, and what kind of children we have. However, this does not permit parents to select for traits that would be harmful to others e.g., psychopathy, excessive aggressiveness.

3: Savulescu argues given that the only legitimate right the state can have to restrict parents liberty is harm to the individual that will develop or harm to others and that there are many non-disease and non-disabling traits such as sex, that do not cause harm to the individual person who will develop or others then the law is too conservative. Parents should be allowed to select the sex of their child if, for sake of argument, they want another male to balance their female child.

In addition he argues for the positive thesis that we have a moral obligation to select embryos on their prospects for having the best life possible. A position he calls ‘Procreative Beneficence’.

Procreative beneficience includes not only selecting against genes that cause disease, even minor disease, but also selecting against those genes which dispose, even weakly, to significant impediments to wellbeing, like poor impulse control or lack of empathy.

Couples (or single reproducers) should select the child, of the possible children that they could have, who is expected to have the best life[2] as the others, based on the relevant available information.

Savulesco ‘Procreative Beneficence’ (2001)

In support of the position in favor of selecting against genes that cause disability where other options are available he quotes a famous thought experiment by D. Parfit:

Consider a woman who has rubella. If she conceives now, she will have a blind and deaf child (child A). If she waits 3 months, she will     conceive another different but healthy child (child B).

If we ask whether the woman does something wrong in conceiving now as opposed to in three months time we are comparing situations in which the same number of people being brought into the world (1) and comparing which of the two people it is best to bring about. Faced with two possible outcomes involving the same number of people:  a blind and deaf child, or a child that is not blind and death, it seems that the latter option is clearly the best outcome. Similarly the reason to prefer embryos with abilities rather than disabilities is the same as the reason to prefer genes without dispositions to heart disease, or cancer – it is because of the badness of these things where they occur as part of a person’s life.

In contrast the following situation:

Sally has a genetic condition that she knows will cause any child she conceives to be born with moderate retardation. Despite knowing this fact, Sally deliberately conceives and gives birth to a moderately retarded child (child A).

If we ask whether Sally did something wrong in giving birth to child A we are comparing outcomes with different numbers of people. A case in which there is a child and a case in which there is not. Hence it is not inconsistent to think that there is a wrong done in conceiving child A in the first scenario but not in the latter.  (Of course depending on how bad the retardation is, some will think that both cases involve a wrong).

So we can represent Savalescu’s reasoning as being that it is better for someone to exist than not exist (providing existence is of a worthwhile life) and it is better for someone to exist without disabling or disease traits than it is for someone to exist with disabling or disease traits. Finally, that it is better to exist with positive traits such as empathy, courage, good impulse control, intelligence, good memory recall than without these traits. Hence, Savalescu is represented as defending what is termed ‘designer babies’.

Savelescu asks us to imagine that there is a gene for ‘a violent, explosive, uncontrollable temper’ that gene is likely to cause suffering for both that person when it leads to the collapse of important social relations and conflict with the law, and to others. With regards to positive traits he asks us to consider  memory (such as the ability to remember important dates, people, items of interest) and a host of other traits, including intelligence which form an essential part of many people conception of the good life stretching back to Plato.[3]

Without the power of calculation you could not even calculate that you will get enjoyment in the future; your life would be that not of a man, but of a sea-lung or one of those marine creatures whose bodies are confined to a shell.

Plato, Philebus 21

Savelescu asks us to acknowledge that many of our social practices are best explained on the basis of thinking that certain conditions or traits are better to have than others. Hence we have hospitals because disease and injury are bad, not because people are indifferent to them, and we praise people’s characters because we think that they have virtuous traits that are better to have than to lack. However, our current embryonic legislation does not allow us to select embryos on the increased probability of such character traits emerging in individuals. Instead it lets a genetic lottery take place where the possibility of such traits emerging in individuals is left to chance. But if we value these things then we should not only allow for parents to load the genetic dice in the favor of them occurring, but we may also be morally obliged to do so.

Objections Raised.

1: The ‘I would not exist’ objection.

The objection raised was that if embryonic selection had taken place I would not exist. <Imagine your parents having the option of selecting an embryo other than the one that was you – or the one that you emerged from and that other embryo having a greater likliehood of developing better traits than your current ones>

However, whilst the above would then be true, it would also be true to say that not only would you not exist, another individual that was more likely to have better traits, more intelligent, greater capacity for self-control, empathy, would have been here. If these traits are truly more valuable to have than to lack then from an impartial view not only would there have been no loss in value, but there would also have been an increase in value.

What we have to remember for embryonic selection is that for every individual that comes to exist a score of others have failed to exist.

2: Designer babies will generate greater inequality

IVF is only available to those who pay, hence if only those who pay are allowed to choose embryo’s with advantageous traits then this will create an even more divided society than we have now.

Good point – this is clearly an important consideration – especially given the impact inequality has on most people. Although it is difficult to see how it can be avoided given that there are already private institutions in other countries that allow for embryonic selection on such lines e.g. The Abrahamic[4] institute claim to offer embryonic selection for personality traits.

3: Some of the negative traits mentioned are really virtues

Saveluscu mentions lack of impulse control as a negative trait to select against, but isn’t such a trait really useful?

Lack of impulse control gets mentioned because it is the most reliable predictor of teenage delinquency in later life. The Standford Marshmallow Experiment (1972) also indicated that good impulse control might be important for academic achievement and success in adult life.

4: We don’t know what knock on effects embryonic selection will bring

True, and we don’t know what knock on effects leaving it to chance will bring either. But we have an option of trying to load the dice and select for positive traits or leave it to chance.

Disability objections

1 Deaf parent’s want to select deaf children, and other disabled parents may want to select for disabilities that they have too.

My understanding of Saveluscu’s views selecting for disabilities would count as selecting against better traits, since he treats abilities as better than disabilities. However regarding deafness, he argues that since the numbers are so small, and deafness is not a major disabling condition, then it might be better to allow deaf parents to make the wrong choice, and select for deafness, rather than impose regulation on them and restrict their liberties. In order to challenge the claim that it is wrong to select for a child with a disability over an ability some argument to the effect that disabilities are not disadvantageous for the individual or others would be required.

2 Some disabilities are not really disabilities.

The objection raised was that being blind is not a disability because some blind people do not know what it is like to see, in not knowing what it is like to see they do not miss the ability to see. So for them they are not disabled or lacking in any ability.

However, the standard usage of the term ‘disability’ refers to a physical or mental condition that limits a person’s movements, senses, or activities. Since sight – being able to see objects is clearly an ability – the lack of this ability is a disability. This definition does not depend on the person being able to recognize that they are disabled in any way. Hence infants might be recognised as disabled without reliance on the infant’s ability to conceptualise this.

Like most terms that refer to abilities, disabilities and their impairments such as being drunk whilst driving, the standard for someone possessing an ability is independent of their recognizing such a standard. For instance the standard for whether someone’s driving ability is impaired is not whether they recognize such impairment for often the impairment prevents them from recognizing their impairment.

This even applies to whole communities, for instance if I lived in a rural village where everybody drove after drinking, there may be no one sober enough in the community might recognize that the driving was impaired through drinking, but this would not entail the relativistic statement that in such a community drink driving was not an impairment on people’s driving ability.

Disabilities and impairments are defined functionally not through subjective experience.

However there are many people who are willing to deny that deafness, blindness, or other disabilities like being wheel chair bound, are not really disabilities (even when they claim ‘disability allowance’) and so some explanation of why people say this would be desirable.

I think that at least part of the story would involve noting that the term ‘disability’ carried negative connotations, and that people’s identities are often wrapped up in the term, hence we talk about a ‘disabled person’, but no one wants to think of themselves or their friends/family in negative ways, and it is not healthy to do so, hence there is a desire to avoid attributing the term ‘disabled’ to people who are disabled.

The other part of the story is that if you can compensate for a mobility disability, perhaps by wheelchair use, then the disability (like an impairment that is compensated for by wearing glasses etc) is no longer disabling because the natural disability or impairment has been masked or overcome by technology

So, this may lead one to think that paradoxically, there can be a sense in which disabled people are, with assistance, no longer disabled because they are able to carry out the same function as able bodied people, albeit in different ways.

3: Some disabilities such as deafness are not disadvantageous.

Deafness is clearly not as restricting a disability as being blind (compare driving abilities) for mobility issues and speech can be translated into sign language for communication, and many deaf people learn to lip read.

However, in selecting for deafness over hearing, there is clearly a restriction on the abilities and options available to that child, for instance they will never have the option of being able to listen to and enjoy the pleasures of great music, at least not to the same extent as fully hearing people. Conversely it is not clear that there are any advantages to being deaf that a hearing child would lack – for instance both could learn sign language.

Further, if a mid wife deliberately caused a child to be deaf, we would hold such a person morally culpable for doing a wrong to the child. We would not treat the action on a par with some neutral act, like changing the child’s clothes. In contrast restoring a child’s hearing is not considered an act of moral culpability.

In addition most hearing people would not want to be made deaf, and those hard of hearing seek hearing aids to restore hearing, rather than spend years trying to compensate for this impairment or disability in other ways.

Those that are caused to go death during their lives, even those who compensate for such a loss of hearing, express regret and not being able to enjoy the pleasure that hearing can bring <perhaps which most of us take for granted>. Such people have experienced both sides of the ability/disability and yet express regret at the disability.

If deafness was a disability that was not disadvantageous in any way the above practices would be hard to make sense of, but we could make sense of the above practices if the disability was disadvantageous in some sense for the person involved.

We can explain all of the above by holding that having our senses operational is something of value – either it is of value in itself and/or as a means to the pleasures that those senses afford.

So perhaps a better way to put it would be to say that deafness is both a disability and a disadvantage. It is the loss of something valuable, but through a lot of work deaf people can learn to overcome that disadvantage until it is hardly noticeable?

However the important question that remains, which is most relevant for the above discussion, is whether it is better to have to overcome disadvantages that others lack or whether it is better not to have to overcome such disadvantages.

 


[1] The groups that think that the bill is too liberal hold that the embryo does have a special moral status akin to that of an individual human and so not only embryonic selection but the destruction of (any) embryos is of serious moral concern. This latter group tends to be religious in nature.

[2] Best life is taken to be the life that has the most well-being (whether this is measured in terms of hedonism or desire satisfaction or some other way).

[3] Other positive traits include Intelligence, memory, self-discipline, impulse control, foresight, patience, sense of humour, sunny temperament, empathy, imagination, sympathy, fairness, honesty, capacity to live peaceably and socially with others.

[4] Abraham was of course famous for thinking that the slaughter of his son was morally justified if God so wished it. Hopefully IVF parents won’t have such lapses.

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