Technological development and the advancement of science constantly raises new political and legal challenges. We must promote scientific development, but at the same time we must also impose restrictions involving certain human and social values. Reproductive technology is one of the best examples of the challenges posed by the development of medical science and it?s involvement with the law. Issues involved with Reproductive Technology include: Techniques, Morals and Ethics, and The Charter of Right and Freedoms.
Reproduction is a fact of life, but it has always fascinated humans. Why did babies die? Why were some people sterile? How can childless couples be helped? To answer these questions scientists began research. This research began mostly in the late nineteenth century. However, some of the techniques used today have been used for hundreds of years.
Artificial Insemination is the oldest known assisted reproductive technology. The first known cases of this type occurred in 1790. Many years of research were put into the development of In Vitro Fertilization. Following the research dealing with humans, scientists began with animals. The first successful transfer of an embryo which resulted into the birth of young was between two rabbits in 1891. During this time, many attempts were made to transfer embryos between mammals. Success was not achieved until the 1970s. Using mice proved to be an important advance because the similarity in the technique used for humans. Despite these similarities it was a long time before anyone achieved success in humans. Bob Edwards of the UK reported successful fertilization of human eggs in vitro in 1969. Upon finding a technique to retrieve the eggs, experiments were performed to determine the best time to retrieve the eggs, how long they should be incubated, and what conditions were most favourable for the embryos. The first ?test tube baby? whose name is Louise Brown, was born in 1978.
Since the development of these techniques, many new technologies have been established. A total of 20,659 babies were born in 1996 (in the USA) using one of the following techniques: In vitro fertilization, gamete intra fallopian transfer, and zygote intra fallopian transfer. In vitro fertilization involves extracting a woman?s eggs, fertilizing the eggs in the laboratory, and then transferring the resulting embryo(s) into the woman?s uterus through the cervix. Gamete intra fallopian transfer is when a fiberoptic instrument called a laparoscope is used to help place the unfertilized eggs and sperm into the woman?s fallopian tubes through small incisions in her abdomen. Zygote intra fallopian transfer involves fertilizing a woman?s eggs in the laboratory and then using a laparoscope to help transfer the fertilized eggs into her fallopian tubes. There are a number of other techniques but they are not as popular and do not have a very high success rate.
Other techniques have been used for specific reasons. Some parents who have children with blood disorders decide to have a ?test-tube baby? so that it can save their suffering child. ?Ellen Phillipson called a fertility clinic in Newcastle upon Tyne to discuss the possibility that a baby brother or sister could save her four-year-old daughter, Simone, who has Fanconi anemia?(NP-1). There is a very high demand for this type of reproduction technology. The first ?Designer Baby? is thought to be Adam Nash. ?Adam?s parents selected their son?s embryo from among others in a petri dish in order to ensure it was free of his sister Molly?s life-threatening blood disease, Franconi?s anemia.?(NP-2)
With all these new reproductive technologies becoming available to people, ethicists are popping up with questions on whether the developing child is harmed during the medical procedure. In the case with Adam Nash, he experienced no pain when donating his umbilical cord (since there are no known nerve terminals in the umbilical arteries). In future cases involving organ donation it will be hard to assess whether the donor child will be harmed. ?How will it be possible to assess whether a child from whom a kidney is removed would have been stronger and healthier had he or she not been subjected to an operation in infancy??(NP-3) This question is highly controversial with the ethicists. But there is another concern that passes unnoticed by the ethicists. ?A human being?s moral status should not depend upon its parents? love, or lack of it, or on their opinion about its genetic profile. It is obviously true some people have children for bad reasons, or for no reason at all. And it is also wholly good Molly Nash has been given a chance to live. But it is precisely such cases , in which the benefits are obvious and the drawbacks subtle, that are surely and swiftly overthrowing the ethical codes that have guided our civilization for generations.?(NP-4) The argument for saving the life of an innocent child has, in this case, inched us closer to accepting that human beings may be treated as ?utilities?. What does it mean when a person becomes the treatment? Just how far can we go? Is there a difference between conceiving a child for umbilical cord cells or bone marrow transplants, for a kidney or a lung? Do parents have the right to produce one child as a set of spare parts for another child? The petri-dish embryo that became Adam was genetically tested for its own health and its sister?s. But testing isn?t limited to lethal childhood diseases. Do we want to screen out a disease that won?t click in for 40 years, if at all? And contrary to that do we want to choose enhancement genes to pick children for height, hair color, or musical ability? ?We are going there. It?s just a question of when we get there.?(Mag-1)
Another case where a baby is going to be used to provide aid is in the case of a Scottish couple who are using the recent UK human rights bill to force authorities to allow them to chose the sex of their next child. Alan and Louise Masterton, who have four boys, say that they have psychologists reports claiming that they have a need for a ?female dimension? to the family following the death of their only daughter, Nicole. They were bombarded with suggestions that he and his wife were trying to exploit the new law to create a ?designer baby? through selective in vitro fertilization. ?We?re not looking to replace Nicole. We?re intelligent enough to be aware that we can never replace Nicole. What we?re trying to do is help heal our family again and have another daughter.?(NP-5) The technique the Mastertons want to use is known as pre-implantation genetic diagnosis. This allows couples to screen the embryos that are implanted, to avoid those that carry genetic disorders such as hemophilia. ?The Masterton?s case has stroked fears in Britain that science is moving too fast for the law to lay down ethical boundaries.?(NP-6) The British are also worried about ?procreation tourism? where couples travel to the country that will provide them the medical procedures they want. While the U.K. and other European nations struggle to restrict the use of human embryo technology, the United States is inching forward with it. ?If we believe in certain ethical principles, then we should not be embarrassed about upholding them in our jurisdiction.?(NP-7) The Mastertons hope the European Convention on Human Rights will help them get around the current rules in Britain. They argue they have been denied a ?fair hearing? and ?respect for private and family life? which are two rights guaranteed by the convention. Supporters think the change will protect the individual. Opponents say it will clog the courts.
Section 7 of the Charter of Rights and Freedoms reads as follows:
Under the Charter it is held that the unborn do not have Charter rights. These values were taken from Canadian Law prior to the enactment of the Charter but when the Charter was put into existence the courts that addressed the issue followed the traditional common law position. The only places that do protect the right to life of the unborn are Ireland and the former West Germany. Legally there is nowhere in the Charter that states specifically that someone has or has not the right to procreate. It was thought to be entailed in the right to life, liberty or security of the person. But the meaning of the ?right to liberty? has never been clearly set out by the Supreme Court of Canada. The Court has noted that ?it is capable of a broad range of meaning?.(LB-2) Justice Wilson has stated a definition of liberty that would entail a right to procreate. In her view, ?the right to liberty contained in s.7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives.
Specifically in the Morgentaler case Justice Wilson stated,
?I believe that the framers of the Constitution in guaranteeing ?liberty? as a fundamental value in a free and democratic society had in mind the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be non-conformist, idiosyncratic and even eccentric ? to be, in today?s parlance, ?his own person? and accountable as such.?(LB-3)
With that definition one can see how the simple words of s.7 of the Charter are not that simple and can be thought of in many different ways. These words in the Charter are not clearly stated as they should of been. In another case involving the sterilization of habitual criminals Justice Douglas stated, ?We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race…?(LB-4)
The law books are flooded with specific cases that involved a court deciding that rights of the individual including the right of privacy and the right to procreate is in fact valid and pertains to Section 7 of the Charter of Rights and Freedoms. But the Supreme Court of Canada does not want to address this very controversial issue because of possible repercussions.
The whole issue of Reproductive Technology has taken this world into a totally different way of thinking. We question the ethics and morals that we have kept close to us for hundreds of years without questioning them until now. Is it ?right? to alter the embryo to suit specific needs or does this go against everything we believe in. It is a very controversial issue and no one is ready to set down limits or guidelines to represent it. As this world is developing newer technologies we are faced with decisions to make about where we draw the line and how far we are willing to go with respect to altering genes and by doing so changing the fate of someone. But in another sense are we not making ourselves stronger and immune to lethal diseases? Does this not make the civilization of mankind stronger as a whole or are we just slowly killing off our authenticity and making us ?less human?? The whole basis of life is to be unique in your own way and similar in others. Other issues could result from this including cloning. We don?t have the answers to our own questions and yet they will be needed as our technology takes over our lives more and more. We must promote scientific development and at the same time impose proper restrictions on human and social values. We must overcome the challenges we are faced with and make sure we keep up with our own technology. In a sense we are controlling our destiny.
(NP-2)(NP-3)(NP-4) Newspaper Article ?Utility Babies?(National Post, Thursday, October 5, 2000)
(Mag-1) Time Magazine (Oct/00) ?Designer Baby? ( pg.67)
(NP-5)(NP-6)(NP-7) Newspaper Article ?U.K. couple see bill as tool in quest to choose baby?s sex? (National Post, Thursday, October 5, 2000)
(LB-1)(LB-2)(LB-3)(LB-4) GOV. DOCS. ?Medically Assisted Procreation Law Reform Commission of Canada? (pg.74-100)
1) ?Controlling Our Reproductive Destiny? (Kaplan, Lawrence J. 1945)
3) ?In Vitro Fertilization? (Sher, Geoffrey, 1943)
4) ?Remaking Eden? (Silver, Lee M.)