The rights of test tube babies

The Ontario Expert Panel on Infertility and Adoption recently released its report, titled "Raising Expectations," which describes the current state of Ontario's adoption and assisted reproduction systems and makes detailed recommendations.

There is much to praise in the report. For instance, the recommendations to make it easier for children taken into custody by the state -- Crown wards -- to be adopted instead of languishing in a "no man's land" of the child welfare system, not living with their biological families and not having access to an adoptive family, because many of them "have court-ordered access to their birth families that prevents them from being adopted."

Likewise, the recommendations to try to prevent infertility and to accredit IVF clinics are admirable, although the latter already falls under the mandate of Assisted Human Reproduction Canada.

Some matters do however raise problems. Some of these are expressly stated in the report, others are unarticulated presumptions. In raising these issues, I am not saying that IVF should never be government funded, but, rather, that there are many considerations, either not addressed in the report or raised by its recommendations, that should be taken into account before doing so.

First, there's the tone set by the rather rah-rah slogan chosen for the report: "The Best Jurisdiction to Build a Family: In our view, Ontario has the opportunity to become a leader in adoption and assisted reproduction in Canada and the world. The Province can join a select group of countries that are setting the standard for family building." It is reminiscent of advertisements trumpeting that a particular province is "open for business." It sounds more like a trade brochure than a document dealing with our most intimate human relationships.

That approach is consistent with another concern -- the commercialization of human reproduction. A fundamental question is whether that is ethically acceptable.

The so-called "fertility industry" is a major business involving billions of dollars a year in the United States alone; figures for Canada are unavailable, but in just a few short years the number of private, for-profit fertility clinics here has grown rapidly, with more than 10 in Toronto alone. Physicians who specialize in fertility treatments, such as in vitro fertilization (IVF), are among the highest paid in medicine, with some Canadian doctors likely taking home more than $1-million annually.

Keeping this business highly active and profitable is one of the goals behind objections to the prohibitions of the sale of sperm, ova and embryos, and on paying surrogate mothers. People will not "donate" or act as a surrogates without payment, so when these "services" cannot be sold, the industry as a whole is restricted.

The report recommends reconsidering the prohibition on such payments in the federal Assisted Human Reproduction Act and suggests that Ontario should be able to decide for itself what it wants to do in this regard. In doing so, it would join Quebec which has challenged the constitutional validity of the act and is awaiting the Supreme Court of Canada's decision in this regard.

The report recommends that medicare (OHIP) pay for three IVF cycles for women under 42 years of age, extending coverage for conditions other than blocked fallopian tubes, which is currently covered.

Quite apart from the ethical issues that such payment raises, which I discuss below, might taxpayers want to ensure that their money was not funding excessive profits?

The report also argues that government-funded payment will save taxpayers money, since people covered for IVF will not be tempted to have multiple embryos transferred, as they would if they cannot afford more than one IVF cycle themselves. Multiple pregnancies are much more risky for the mother and children, who often suffer serious disabilities and need costly care throughout their lives. But, surely, it is a misuse of IVF by both prospective parents and physicians to take such risks, and the first question is what restrictions should be placed on their doing so.

Then there is the issue of opportunity costs: Are there other treatments that should be given priority in our financially strained health care system?

And is the use of reproductive technologies "medical treatment" that should be funded, when the infertility has a social not medical cause?

The report states we should "respect choices made by families -- regardless of the family-building option they choose." In other words, it assumes that what constitutes a family is simply a matter of personal preference of the adults involved and that society should be willing to assist establishing whatever "family form" ("building option") is chosen. Is this fair to resulting children and what are society's obligations to them?

The adoption section is reasonably sensitive to the child's interests being placed first -- although it seems ambivalent on children's rights to know the identities of their biological parents. There should be a basic presumption of openness, as Ontario law now mandates, with rare exceptions where the child's welfare requires it. In contrast, the report is laudable in recommending taking into account children's wishes regarding adoption, where those can be known.

But the infertility recommendations give clear primacy to the claims of adults in founding a family, including, it would seem, with respect to whether children can know the identities of their biological parents. Children who do not yet exist cannot be consulted, but those who have already come into existence in the same ways as are being proposed, can be.

The doctrine of "anticipated consent" -- can we reasonably assume that someone affected by our decision would consent to what we are going to do if they were present and able to decide? -- is relevant here.

Now, while it's ethically desirable that prospective parents would apply this test in making decisions about using reproductive technologies, those are not the decisions I'm addressing here. The decisions to which the "anticipated consent" doctrine must be applied are those of society to fund any given use. In paying for that technology, society becomes complicit in its use, and has ethical obligations to the children who result.

Over the years, many "donor conceived adults" (people brought into being through anonymous sperm donation and people resulting from ova or embryo donation) have said to me, "How could society have thought they had the right to do this to me?" It's a rhetorical question we must address in deciding both whether we can assume anticipated consent and whether, more broadly, what we are doing is ethical.

The report is "politically correct" in making no distinctions between the natural family, same-sex couples and single people wanting assistance to have children. Same-sex marriage deconstructed the natural family as being the societal norm. In doing so, it negated children's rights to both a mother and a father, and to know and be reared by their own biological parents, unless an exception was justified as in the "best interests" of the child, as in adoption. But the recommendations in this report go further.

The "right to found a family" that same-sex marriage gave same-sex couples can be seen as a negative content right, a right not to be interfered with in doing so. This report, however, proposes a positive content right to have society assist people to establish whatever family form they choose. It's one matter not to stop people who want access to reproductive technology from paying for it themselves; it's another when society is complicit in making that possible.

Margaret Somerville is director of the Centre for Medicine, Ethics and Law at McGill University, and author of The Ethical Imagination: Journeys of the Human Spirit.