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Byrne, Mary --- "Ethics, Assisted Reproductive Technologies and Cloning" [2001] ALRCRefJl 21; (2001) 79 Australian Law Reform Commission Reform Journal 22


Reform Issue 79 Spring 2001

This article appeared on pages 22 – 26 & 71 of the original journal.

Ethics, assisted reproductive technologies & cloning

By Mary Byrne*

In 1978, Louise Brown was born — the first person to have been conceived using in-vitro fertilisation. In 1996, not long after Louise celebrated her 18th birthday, Dolly was born — the first mammal to have been conceived using a cloning technique.

In 1997, Dr Richard Seed, a US physicist, announced plans to clone a human being: four couples were willing to work with him. In 2001, Professor Severino Antinori, an Italian physician, also announced plans to clone a human being. Also in 2001, as Louise turned 23, the completion of the mapping of the human genome was announced.

As yet no one has publicly claimed success in using a cloning technique for conceiving a child. In March 1998 the Federal Minister for Health declared that cloning a human being would be made illegal in Australia. At that point three States in Australia – Victoria, South Australia and Western Australia – had legislation that regulated the provision of assisted reproductive technologies and banned attempts to clone a human being. In 2001, following community consultation and advice from the Australian Health Ethics Committee, the premiers and chief ministers of each State and Territory in Australia agreed to enact uniform legislation banning the cloning of human beings — without blocking research involving stem cells.

From the birth of Louise Brown in 1978, assisted reproductive technologies have developed from simple in-vitro fertilisation techniques to include the storage of frozen ova, the micro-injection of a single sperm into an ovum, the storage of frozen embryos (allowing for the existence of ‘spare’ embryos) and the ability to remove one cell from an early developing embryo for the purpose of genetic testing. As well as these developments in assisting human reproduction, the cloning of Dolly has been followed by the cloning of mice and cows and by the explosion of stem cell and genetic research. Despite the initial calls in 1998, the remaining States and Territories in Australia still have not regulated assisted reproductive technologies and cloning. Admittedly, it is a challenging and controversial area for legislators.

In this paper I shall consider some of the ethical issues relating to legislation for assisted reproductive technologies and human cloning. I shall first outline what is at issue in debates about how ethical issues are identified and clarified, and what is at issue in debates about the role and scope of law. I shall then consider some specific issues raised by assisted reproductive technologies and cloning in the light of these debates.

Ethical reflection

A first point of contention that will arise when considering the ethical issues relating to assisted reproductive technologies and cloning concerns what is involved in serious ethical reflection. There are two questions: is it possible to reason about ethics and, if so, what are the appropriate concerns of ethical reasoning? On the first question, one position holds that ‘what ethical view we take is a matter of opinion or taste that is not amenable to argument’.1 However, most moral philosophers accept that it is possible to reason about and evaluate moral positions. They just do not agree about what is involved in such discussions. On the second question, one approach is to look at the consequences of an act, judging the rightness of an act by its consequences. One or more consequences may be considered morally significant.2 This is generally labelled ‘consequentialism’ and the most famous proponent of this approach was John Stuart Mill. Such an approach does not allow for judging some acts as inherently wrong. A second approach, often referred to as ‘deontology’, emphasises the act and the basis for it. The most famous proponent of this was Immanuel Kant, who argued that a person must always act according to certain fundamental duties that that person has recognised as necessary.3 One or more duties, such as justice and respect for autonomy, may be identified as morally significant. Problems with this approach may arise if there is a conflict between two or more fundamental duties. As well, it allows little room for the consideration of consequences or the context of an act.

A third approach, the one that I shall take, derives from Aristotelian ‘virtue-ethics’. According to this view of moral reflection, several aspects of human conduct are morally important: the objectives or goals sought, what motivates the act, the act in itself, the consequences of the act (or of a social policy relating to the act) and the circumstances. In fact, virtue-ethics focus more on the character of the person acting than on the act itself.

Purpose of law

It is important to recognise that the morality of an act and the legality of an act are two separate but related issues. A second point of contention when considering legislation relating to acts undertaken by individuals is the purpose and scope of law, particularly the appropriate limits on intrusion into the lives and activities of individuals. Without such a consideration, legislation may be unnecessarily restrictive, impossible to monitor and enforce without violating the privacy of individuals, or so lax as to allow injustices. On this question there is a wide range of views, as demonstrated in the well known debate between Hart and Devlin about laws relating to homosexuality.4 Two views will, however, suffice to raise the relevant issues — one which derives from John Stuart Mill’s liberalism, the other from Aristotle’s communitarianism.

Charlesworth gives an account of a Millian liberal position. He states that the supreme value in a liberal society is personal liberty or autonomy. People should be free to make their own decisions about life choices and personal moral stances. Society must not impose any particular set of moral and personal values on all the members of that society. The role of law does not extend beyond protecting personal autonomy with the least possible restriction on people’s liberty. The main reason for restricting liberty is to prevent harm to others and to enable the maximal liberty and autonomy of all.5

Finnis’ work, which exemplifies communitarianism, claims a richer role for law. Law is ‘directives laid down, by usage or authoritative decision, to guide people’s actions in political community’.6 As such, law should not only protect basic rights but also allow for the fair distribution of advantages and burdens and the restoration of people wronged. While law is distinct from ethics or morals, it is closely connected and cannot avoid some of the questions relating to right or wrong actions and the authority by which these are determined. Liberty is thus only one of many fundamental benefits that laws serve or protect.7

Most people agree that law has a role in preventing harm to individuals. In the area of assisted reproductive technologies it is relatively straightforward to identify some behaviours that would be harmful to individuals. These include not informing potential parents of the risks inherent in assisted reproductive technologies, using experimental techniques without consent, and destroying or not keeping records for the future benefit of the children who may be born. There is less agreement as to what aspects of the common good should be protected by legislation in this area. However, it is clear that there is a public interest in ensuring that the context in which children are born and live is conducive to their well-being.

Assisted reproductive technologies

Two issues will be considered in this section: whether assisted reproductive technologies need separate legislation; and access to assisted reproductive technologies.

Are assisted reproductive technologies different? One underlying issue concerning legislation in relation to assisted reproductive technologies is whether there needs to be separate legislation regulating the provision of assisted reproductive technologies beyond that regulating all medical care. The assumption that there is such a need is not universally accepted. It is argued that assisted reproductive technologies are the same as all other forms of medical treatment and, therefore, are adequately covered by the legislation that covers all medical practice in each State.8 The requirements for good clinical practice are covered by existing legislation.

However, there are arguments supporting the claim that assisted reproductive technologies are significantly different from other forms of medical treatment. The first is that they involve more than one person, in particular a child who may be born as a result of the use of some technology. Along with the healthcare professional, at least three people (the mother, the father and the child to be conceived and born) are involved in the simplest use of assisted reproductive technologies. In more complex cases, up to eight people may be involved if donor gametes are used and/or surrogacy is considered. In this way, assisted reproductive technologies are unlike other medical practice, which is normally a relationship between a healthcare professional and the patient. The crucial qualitative differences derive from the interests and wellbeing of the child who may be born following the use of assisted reproductive technologies and the potential for conflict between the rights and interests of the different people involved. In addition, as Webb argues, the use of assisted reproductive technologies has the potential ‘to exceed normal expectations’.9 It is possible to enable reproduction beyond the normal age or beyond the death of the gamete provider.

These last two arguments would appear to have substance. It is possible for a child to be the unwilling subject of experiments undertaken at the embryonic stage that could potentially disable or adversely affect her or him for life. It is also possible that a child could be born in circumstances in which her or his biological identity is confused, for example where a surrogate mother and a donor of the ovum both claim parentage of the child or where a gestational mother is not the genetic mother. (Until recently it has never been possible not to be genetically related to the person who gave birth to you.) Therefore, it seems reasonable to argue that the interests or rights of children born as a result of assisted reproductive technologies should be protected by legislation.

Access to assisted reproductive technology services. A second ethical issue that has caused debate is the question of who should have access to assisted reproductive technology services. Should they be available only to couples who are legally married or in a stable heterosexual de facto relationship, or should they also be available to other people, such as single women and same sex couples? A distinct but closely connected question is whether assisted reproductive technologies should be available to people who are not infertile but choose them for other reasons (for example, to enable genetic testing of the embryo prior to implantation or to use the service of a surrogate mother so as to avoid the inconvenience of pregnancy).

Once again there is a range of views to be considered. On one view, assisted reproductive technologies should be limited to couples committed to each other in stable, heterosexual relationships. This argument has two components: a claim about the circumstances in which it is appropriate to bring children into the world, and a claim about society having a legitimate interest in the circumstances in which children are brought into the world. While there are children who are happily raised by one parent, by adoptive parents or in other circumstances, these are responses to situations that were not deliberately chosen. Proponents of this view suggest that it would be wrong to deliberately choose a situation that does not seek the best possible circumstances for a child who may be born following the use of assisted reproductive technologies.10

Charlesworth does not accept this. He claims that it is not possible, when committed to the supreme value of personal autonomy, to establish one concept of the family as normative and so deny people seeking to establish other forms of family life access to assisted reproductive technologies. Secondly, he argues that there is no empirical evidence that children in single families or raised by single sex couples have suffered harm simply because of the structure of the family, and there is empirical evidence that some children raised by married couples do suffer harm.11 Determining who has access to assisted reproductive technologies is thus not a matter for the state to decide or an appropriate part of legislation. Access should be available for everyone.

Other writers question the scope of access to assisted reproductive technologies in light of questions about justice in the allocation of healthcare resources. Uniacke acknowledges the pain of infertility but asks whether infertility is a health problem that needs healthcare resources. She argues that, even if the desire to have children is a basic human need as ‘part of an individual’s right to self-development’, this does not entail a right to assistance in overcoming personal barriers of infertility.12

Cloning

Cloning encompasses several different activities. One distinction that is drawn is the difference between cloning for reproductive purposes and cloning for therapeutic purposes with the intention of producing human stem cells and other tissues and organs.13

There are several reasons why cloning for reproductive purposes may be considered. They include the desire to have a child genetically related to at least one parent (particularly when avoiding mitochondrial disease) or to reproduce a genetic match of another person (to ‘replace’ a child or partner who has died or to have a second child who could provide matching tissue for a sick child).14 However, Kass argues that we should take seriously the widespread revulsion at the very idea of cloning a human being. He attributes this revulsion to the fact that cloning is asexual reproduction and, as such, it overturns all normal notions of human biology and begetting as well as our understanding of father, mother and other relationships. It depersonalises reproduction. Altering such fundamental aspects of human identity and dignity cannot occur without human cost.15

Harris has reviewed the different arguments supporting a ban on the cloning of human embryos and claims to find them wanting. Producing a person with the same genotype as another will not lead to an identical person as many other factors also impact on the character of a person. Such procedures should also not threaten the common genome of humanity or the dignity of an individual.16 Singer claims that no one method of reproduction, assisted or otherwise, deserves a special standing or recognition over other forms. To devise new forms of overcoming infertility is simply to use human ingenuity. However, Singer does look to the possible risks of experimentation. If the embryo survives experimentation and is implanted, it is possible the child born may be damaged. Therefore, some regulation and constraint should be implemented to ensure cloning techniques are safe before implantation of cloned embryos is considered.17

The central ethical issue when considering cloning for therapeutic purposes is whether it is legitimate to experiment on and, at times, destroy embryos. On one view the embryo is to be respected and treated as a person from the moment of conception, therefore deserving of the protection afforded to all humans.18 This includes a right to protection of life and not to be the unwilling subject of experiments. Furthermore, treating an embryo simply as a source of tissue or cells for another person where the procedures involved will seriously harm or destroy the embryo is a grave violation of the dignity of that embryo. On the other hand, Singer considers experimentation on embryos and the use of embryos as a source of cells and tissues as acceptable because an embryo is only potentially a person. It is only beyond birth, when the baby has gained consciousness, that she or he can be considered a person. Furthermore, in the early stages of development an embryo is unable to suffer and so experimentation would cause the embryo no harm.19

If the latter view is accepted, then further questions arise: for example, the extent of experimentation that should be undertaken with human embryos prior to attempting implantation, the extent to which developmental and other abnormalities will be accepted as a part of the experiments, who should determine which abnormalities are acceptable, and how the people who are born with such abnormalities should be treated and cared for.20

Conclusion

I have tried to show what is at issue in some of the ethical debates associated with the regulating of assisted reproductive technologies and cloning. There are other areas that appropriately need legislative oversight that have not been considered: the type and extent of record keeping (in particular, whether it should include identifying information on donors); procedures for resolving disputes over genetic material, gametes and embryos; determining whether gametes and embryos should be used after the death of the donor; and determining whether surrogacy should be allowed or supported and how it should be regulated. In a distinct, but related, arena the potential for genetic testing is increasing. The role of law in this area is to prevent unfair discrimination and protect individual privacy, but again the scope of such protection and the extent of legislative oversight are matters for further debate.

The science of assisted reproductive technologies is rapidly evolving. New procedures and new possibilities not even conceived of a few years ago are now being explored. This means that legislation will need to have a degree of flexibility. Two core values that must be considered in legislation are protection of the interests of the children who will be born following the use of reproductive technologies and protection of the privacy of individuals. Furthermore, while the focus of this paper is legislation, case law is also a source of law, particularly when difficult situations are not easily resolved by current legislation. A further challenge will be to articulate the basic principles underpinning the legislation in such way that it offers guidance in resolving difficult and unusual cases and guides responses to new situations.

*Mary Byrne is a Research Associate at the Plunkett Centre for Ethics in Health Care, a joint centre of St Vincent’s Health Care Campus and Australian Catholic University. She is also the Manager of the St Vincent’s Campus Nursing Research Unit. Her research interests include institutional cooperation, research ethics, health care policy and nursing ethics.

The author would like to acknowledge the helpful comments on previous drafts received from Dr Bernadette Tobin and Dr Stephen Buckle.

Endnotes

1. As described in ‘Introduction’ H Kuhse and P Singer (eds) Bioethics: An Anthology (1999) Blackwell Publishers, Oxford, 1.

2. Ibid, 3.

3. As described in B Tobin ‘Ethics and health care: a case for the virtues’ (1992) 3 Bioethics Outlook 7.

4. HLA Hart ‘Immorality and Treason’ in RM Dworkin (ed) The Philosophy of Law (1997) Oxford University Press, Oxford, 83-88; P Devlin ‘Morals and the Criminal Law’ in RM Dworkin (ed) The Philosophy of Law (1977) Oxford University Press, Oxford, 66-82.

5. M Charlesworth Bioethics in a Liberal Society (1993) Cambridge University Press, Cambridge, 15-20.

6. J Finnis ‘Law, problems of the philosophy of’ in T Honderich (ed) The Oxford Companion to Philosophy (1995) Oxford University Press, Oxford, 468.

7. Ibid, 471.

8. ISLAT working group ‘ART into science: regulation of fertility techniques’ (31 July 1998) Science, 651.

9. S Webb ‘Legislation: benefits and limitations’ (March 1998) 9 Bioethics Outlook 5.

10. G Gleeson ‘Ethical issues in reproductive technology: some Catholic insights’ (March 1998) 9 Bioethics Outlook 9-11.

11. M Charlesworth op cit, 68-69.

12. S Uniacke ‘In vitro fertilization and the right to reproduce’ (1987) 1 (3) Bioethics 247.

13. Australian Academy of Science On Human Cloning: A Position Statement (1999) Australian Academy of Science, Canberra, 8.

14. Australian Health Ethics Committee Scientific, Ethical and Regulatory Considerations Relevant to Cloning of Human Beings (1998) National Health and Medical Research Council, Canberra, 24-27.

15. L Kass ‘The wisdom of repugnance’ (2 June 1997) The New Republic.

16. J Harris ‘“Goodbye Dolly?” The ethics of human cloning’ in H Kuhse and P Singer (eds) Bioethics: An Anthology (1999) Blackwell Publishers, Oxford, 144 - 145.

17. P Singer ‘New Assisted Reproductive Technology’ in H Kuhse and P Singer (eds) Bioethics: An Anthology (1999) Blackwell Publishers, Oxford, 100-102.

18. Sacred Congregation for the Doctrine of the Faith Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation St Paul Publications, Homebush, 18-22.

19. P Singer op cit, 101-102.

20. Australian Health Ethics Committee op cit, 25.


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