Procreative Liberty and Harm to Offspring in Assisted Reproduction

I. INTRODUCTION Assisted reproductive technologies ("ARTs") have enabled many infertile couples to have children but have long been controversial.' Opposition initially focused on the "unnaturalness" of laboratory conception and the doubts that healthy children would result. Once children were born, ethical debate shifted to the status and ownership of embryos and the novel forms of family that could result. The new century has brought forth both new and old ethical concerns. The growing capacity to screen the genomes of embryos has sparked fears of eugenic selection and alteration. In addition, concerns about safety have reasserted themselves. Several studies suggest that in vitro fertilization ("IVF") may be associated with lower birth weights and major malformations. Ethical attention has also focused on whether all persons seeking ARTs should be granted access to them, regardless of their child-rearing ability, age, disability, health status, marital status, or sexual orientation. Concerns about the welfare of offspring resulting from ARTs cover a wide range of procedures and potential risks. In addition to physical risks from the techniques themselves, they include the risk of providing ART services to persons who could transmit infectious or genetic disease to offspring, such as persons with HIV or carriers of cystic fibrosis. Risks to offspring from inadequate parenting may arise if ARTs are provided to persons with mental illness or serious disability. Questions of offspring welfare also arise from the use of ARTs in novel family settings, such as surrogacy, the posthumous uses of gametes and embryos, or with single parents or a same sex couples. Finally, both physical and psychological risks may result from alteration or manipulation of genes, gametes, and embryos. Such situations have a common ethical structure. The use of ARTs may enable an infertile person or one who carries genes for serious disease to reproduce, but in doing so they risk having a child with diminished welfare. The degree, certainty, and kind of risk vary, as does the motivation for seeking reproductive assistance and the person's other options for reproducing. But they all pose a risk that the child will experience physical, psychological, or social limitations that ordinarily do not occur without the use of ARTs. Persons who argue that the welfare of the child should be the primary ethical concern urge that society discourage or even prohibit ARTs that pose high risks of physical or social suffering to resulting children. Such claims, however, present an ethical paradox. It is true that some techniques may lead to situations in which the child has a less favorable physical, psychological, or social situation than healthy children born after coital conception in a married nuclear family setting. But the only way to prevent those effects would be to eschew use of the ART that makes the birth of the child possible. This is the famous philosophical problem that Derek Parfit and others call "the non-identity problem"-the person protected never benefits because they are never born.2 How should professional practice and public policy about ARTs deal with this paradox? This Article will argue that even if children are not themselves "harmed," other effects or implications of the situation may be relevant in making professional and policy decisions about them. In doing so, however, due regard must also be paid to the liberty interests of persons needing reproductive assistance and to the moral responsibility of providers who decide whether or not to offer their services. The resulting judgments about different ARTs may seldom justify prohibiting them altogether, but they do and should leave wide room for physician discretion over whether to offer ART services in many of those situations. Part II discusses six situations of harm to offspring that are of current policy concern. Part III analyzes the meaning of harm to offspring, and the role that procreative liberty and provider autonomy play in efforts to prevent harm to offspring. …