Consultation on the Use of Frozen Eggs in Fertility Treatment: Discussion Document (2008)
The Nathaniel Centre welcomes the opportunity to comment on the use of frozen human eggs in fertility treatment.
A Catholic approach to the transmission of human life is characterised by two key beliefs: the dignity of the human person and, flowing from that, a belief that the context in which humans are conceived, and the means that are used, reflect this dignity. The conjugal act is seen as the only means that is wholly consistent with the dignity of the human child. The use of technology in human reproduction is assessed as upholding the dignity of the human person to the extent that it assists the conjugal act but does not replace it. Children must always be conceived in a way which shows that they are respected and recognised as equal in personal dignity to those who give life. This rules out all actions which in any way instrumentalise or treat the child as an object, whether intentionally or otherwise.
One of the implications of this is the need we have, emotionally, psychologically and spiritually to experience ourselves from our very origins as contingent beings; beings who came about in a fortuitous way conceived for no other reason than love, beings conceived in a way that is free from the manipulation of other persons. Technological interventions that allow parents to exercise ever greater control and dominance over the sorts of children that are born can put this very human quality of our existence at risk. A selfless love calls for parents to accept children as gifts without introducing a conditional element into their acceptance into a family.
The freezing of human embryos is always to be regarded as an affront to their innate dignity in so far as it suspends, and puts at risk, the inviolable right to life that is theirs simply by virtue of the fact that they are fully human. While not condoning IVF, we recognise that the technology which allows eggs to be frozen and stored might, in the foreseeable future, mean that there are fewer embryos that are stored in this way and also, ultimately, discarded.
A Catholic approach to marriage and procreation precludes the donation of gametes from a third party outside of the marriage relationship. The mutual and exclusive self-giving of the spouses that characterises the permanent and loving commitment at the heart of marriage calls forth a reciprocal respect that means couples recognise the right to become parents only through each other.
Given these risks and benefits, what is your opinion on ACART's proposed advice to the Minister of Health? Please give reasons for your views.
(See chapter 3 for a discussion of risks and benefits, and chapter 6 for the proposed advice.)
Any assessment of risks to the health and well-being of children must first take into account the physical risks associated with the use of a particular intervention. While it is stated that "the risks to a resulting child associated with the use of frozen eggs are no greater than the risks associated with the use of frozen embryos or [IVF] generally" (p. vi) we also note that there have only been a relatively low number of children born from frozen eggs and that "it is still a relatively new technique" (p. 13). Therefore, while the available evidence may point to its safety (p. 13), it has to be accepted that because there is "a lack of data on outcomes for children born from eggs that have previously been frozen" (p. 8), this technology remains largely experimental.
In other words, given the overall depth of the data available, it seems that at best ACART's view on the acceptability of the risks can only be provisional. On that basis it seems somewhat premature to be declaring this an established procedure.
It is our considered view, therefore, that at this time the use of eggs that have been frozen should reflect the way that we approach the use of other novel or innovative clinical practices; it needs to occur against a background of the sort of ethical and medical oversight that is provided by a specialist Health Research Ethics Committee. In the event that the relevant committee in question may not have the necessary expertise amongst its current members, there should be provision for its makeup to be complemented by persons with the appropriate scientific and medical background.
What is your view on the information that ACART suggests should be collected to monitor the use of frozen eggs in fertility treatment?
(See chapter 3)
In line with what we have said above, we agree that there needs to be ongoing and extensive collection of data so as to better assess the outcomes, and especially the risks, associated with the use of eggs that have previously been frozen. It is beyond the scope of our expertise to comment more specifically on either the nature or the manner of collection of this information.
Has ACART identified all the ethical issues relevant to the use of frozen eggs in fertility treatment? Do any of these issues affect ACART's proposed advice that the use of frozen eggs should be allowed in fertility treatment? If so, how?
(See chapter 5 for a discussion of the ethical issues, and chapter 6 for the proposed advice.)
The posthumous use of frozen eggs raises similar ethical issues to the posthumous use of frozen sperm. We regard the use of assisted human reproductive technologies in such circumstances as inconsistent with the dignity of the child because it intentionally deprives them of a relationship with a mother and a father for reasons that ultimately amount to the satisfaction of adult needs.
As noted above, a Catholic approach to marriage, emphasising as it does the connection between the conjugal act and the transmission of human life, rules out for moral reasons the reception of gametes from a third party.
While not condoning IVF, we can see that the use of egg freezing might lead to fewer embryos being stored. We are not opposed to it on the basis that it will limit the harm that is associated with the storage and subsequent discarding of human embryos that is a characteristic of IVF infertility programmes.
At the same time we remain particularly concerned that this technology might lead to a significant increase in women postponing pregnancy for "social reasons". We note that ACART considers the freezing of eggs as "at best a backstop measure for those who are at risk of losing their fertility altogether, and that it would be unwise for women to rely on egg freezing for social reasons" (p. 12). On the basis of a Catholic approach to the transmission of human life (briefly outlined above) we agree with this assessment for reasons that include, but go beyond, the obvious clinical contraindications of egg freezing.
Should the use of frozen eggs in fertility treatment become an established procedure? If not, why, and how should the use of frozen eggs be regulated?
We do not believe that the use of frozen eggs should become an established procedure at this particular point in time because we regard the use of this technology as still largely experimental. (See our answer given in Question 1 above.) For reasons related to a Catholic understanding of the transmission of life we also believe that this procedure should be limited to those requiring it for "medical" reasons as opposed to "social" reasons.
Should the use of frozen eggs in fertility treatment be limited to the individuals the eggs came from, or should frozen eggs be able to be donated to others for use in fertility treatment?
While out of step with a Catholic understanding of marriage, we recognise that current procedures allow for couples to receive gametes donated by third parties. Our reasons for arguing that the use of frozen eggs should be limited to the individuals they come from are the same reasons we use to argue against the donation of any gametes by a third party; the mutual and exclusive self-giving of the spouses that characterises the permanent and loving commitment at the heart of marriage calls forth a reciprocal respect that means couples recognise the right to become parents only through each other.
Should frozen eggs be able to be donated for research purposes?
We uphold the principle enshrined in New Zealand legislation and culture, that transactions involving body tissue not be commercialised. On that basis we see no reason to oppose the donation of eggs for ethical research projects.
As we have stated on other occasions, research using gametes should be regulated through the development of guidelines and then allowed to proceed on a case-by-case basis having undergone appropriate ethical scrutiny and having received appropriate ethical approval. We would expect that such research would be governed by the same or very similar ethical provisions as applies to research on other types of human tissue.
We remain concerned about the very real potential for the exploitation of women that would result from an increased demand for human eggs for purposes unrelated to fertility treatment. Because the donation of frozen eggs presumably means that such eggs are no longer required for fertility reasons, this practice could, in theory, lessen the need to procure eggs in other ways.
We oppose all research using frozen eggs to create a human embryo.
We are also opposed to all research involving the fusion of human gametes with gametes of other species so as to create human-animal hybrid embryos.
Submission to ACART on the Use of Donated Eggs in Conjunction with Donated Sperm (March 2009)
We have laid out our opposition to the creation of embryos using donated eggs and donated sperm in an earlier submission to ACART and we summarise below what we have previously stated with a view to reiterating our absolute opposition to this procedure.
We are opposed to the practice of using donated eggs and donated sperm to create embryos on essentially two grounds; (i) it contravenes the right that married couples have to become parents only through each other, and (ii) intentionally depriving children of the close connection between genetic parenthood and the responsibility of care constitutes a serious offence against the dignity of the child.
Catholic teaching on the transmission of human life reflects a commitment to holding together the genetic, gestational and social dimensions of family and parenting. Our sense of personal well-being is linked with a healthy self-identity, something that is intimately tied in with a lived knowledge of our biological ties. This knowledge is put seriously at risk by arrangements that exclude children from growing up with the families of their biological origins. On this basis we believe that children have the right to grow up within the family networks that are generated by our biological ties. This right should only ever be compromised in situations where it is clearly in the interests of the child involved.
What is at stake in the debate about using donated eggs and sperm is nothing less than the importance of genetic origins and affective relations in establishing enduring human relationships and in securing a healthy self identity. T he Discussion document itself makes it abundantly clear that this particular procedure raises complex issues that impact directly on the identity and well-being of the children that result. To approve of embryos being created from donated eggs and donated sperm is to disregard the critical importance of affective relations with the biological parents and extended family. It remains our firmly held view that an honest appraisal of this procedure from the perspective of the child, one that keeps the interests and well-being of the child to the fore (as required by the HART Act), would rule out the use of donated eggs and sperm as a means of conceiving a child.
Whatever people believe about the acceptability of IVF, a clear moral distinction exists between homologous IVF (where the gametes are sourced from both partners within the relationship) and heterologous IVF (where one or both gametes are sourced outside of the commissioning couple). This distinction rests on the fact that homologous IVF conserves the link between parenthood, family and genetic origins. We acknowledge that heterologous IVF is currently approved in New Zealand. However, we think it should always remain limited to situations where one of the parents is genetically related.
We note that the New Zealand Guidelines on Surrogacy Arrangements (2007) require at least one of the intending parents to be the genetic parent of any resulting child. The reasons for this, which reflected the clear views of submitters, relate to the well-being of the child; above all they give concrete recognition to the absolute importance of the connection between self-identity, personal well-being and biological origins.
A decision to approve the intentional creation of embryos from donated eggs and donated sperm cuts right across this reasoning, and effectively severs the genetic dimension of parenting from the gestational and social dimensions. No other approved assisted reproductive technologies have previously gone this far. In this way, the approval to create embryos from donated eggs and sperm takes the use of assisted reproductive technology in New Zealand to a new place, one which places the well-being of children at greater risk than ever before.
Inevitably, the question will also then be asked as to why surrogacy arrangements should remain subject to the restriction that one of the intending parents must be the genetic parent.
To those who argue that "a genetic or gestational link is not necessary for a strong parent-child attachment" (see p. 10 of Discussion document) we would respond by saying that there is much more at stake in this matter than parent-child attachment. The key issue, we would argue, is the child's own sense of identity and well-being. Even in situations where adopted children and adoptive parents form close and strong attachments the personal emotional difficulties are often still significant. If the experiences of adoption have taught us anything then it is surely the fact that strong attachments between adopted children and their adoptive parents do nothing to displace the sense of loss of, and yearning for, connection with their families of biological origin.
The need to foster or adopt children highlights that there are occasions when, for the good of a child's welfare, the decision is made that they not be brought up within their family of origin or by one of their biological parents. In these situations the decision to adopt represents an act of outstanding generosity. To accept that there are circumstances when we need to separate a child from their genetic family of origin is one thing. To set out to deliberately deprive children of this link for the sake of the needs of the adults involved is quite another. It is inconsistent with respect for the child and it undermines the ideal of the family. It is this distinction that makes the adoption of an already existing embryo morally distinct from, and morally more acceptable than, the deliberate creation of an embryo from donor eggs and sperm.
The burden of infertility can indeed be overwhelming for couples. In situations where neither of the partners can provide the gametes for IVF, other options exist including adoption of children and the adoption of 'surplus' embryos. While the context within which they were created means that the adoption of spare embryos is morally distinguishable from the use of donated sperms and eggs, they are in all other respects virtually indistinguishable since in each case the intending parents are not the genetic parents of a resulting child.
We recognise that in formulating this Discussion document ACART have made a significant attempt to consider the issue from the perspective of the child that is to be conceived. We note that in formulating its preliminary position that the procedure of using donated eggs and sperm not extend to surrogacy arrangements, ACART have concluded that "the complexity of the arrangement does not provide sufficient safeguards for the wellbeing of the potential child" (p. 11). We agree with this position, but fail to see how giving proper consideration to the child's wellbeing does not bring ACART to make the same determination in all cases of using donated eggs and sperm. This seems totally inconsistent. Nowhere is it spelled out in the document how, ethically speaking, ACART have arrived at the determination that the safeguards are sufficient in one set of circumstances but not in the other.
In conclusion, then, we respectfully submit that in its consideration of the well-being of the child (as demanded by the HART Act) ACART has, by its decision to recommend the use of donated eggs and sperm, failed to give it the ethical weight demanded by an authentic concern for the dignity and well-being of the children who will potentially be born by way of this procedure. We believe, therefore, that any advice given by ACART to the Minister approving in principle the use of donated eggs and sperm should be urgently reviewed in line with the first purpose of the HART Act which is to "[take] appropriate measures to protect and promote the health, safety, dignity, and rights of all individuals, but particularly those of women and children in the use of [assisted reproductive procedures]" (Part I: Preliminary provisions (a) )
Questions on the draft guidelines
Question 1 (Whether the procedure could involve a surrogacy arrangement):
The paper presents ACART's proposal and another point of view about whether the use of donated eggs with donated sperm could involve a surrogacy arrangement (page 10).
(i) ACART is proposing that the use of donated eggs with donated sperm in conjunction with a surrogacy arrangement should not be permitted.
(ii) However, ACART has noted a view that the guidelines should enable, in exceptional circumstances, the use of donated eggs with donated sperm in conjunction with surrogacy.
Do you agree with (i)?
Or do you agree with (ii)? If you agree with (ii), what content would need to be in the guidelines?
Or do you have a view that is different to either (i) or (ii)?
In line with the arguments made in our Introductory comments (above), we agree whole-heartedly with the reasoning given by ACART that the use of donated eggs with donated sperm in conjunction with a surrogacy arrangement should not be permitted. The additional complexity of the arrangement constitutes an even greater increase in the likelihood of adverse risks to the well-being of the child.
To think that the use of donated eggs with donated sperm in conjunction with surrogacy might be allowed in "exceptional circumstances" would be to allow the notion of reproductive autonomy to completely over-ride concerns for the wellbeing of any child that might be born. Yet, the adverse risks are the same for any potential child irrespective of the circumstances of the commissioning couple. Therefore, the circumstances of the couple are, from an ethical perspective, irrelevant in terms of protecting the rights and promoting the well-being of children. It is logically inconsistent to argue otherwise, because then there no longer exists any reasonable basis upon which to argue that the practice in question could not be allowed in any circumstances!
Question 2 (Whether there should be a limit to the number of siblings):
ACART is proposing (page 13) that the use of donated eggs with donated sperm should be limited to producing full genetic siblings in no more than two families. Do you agree with this position?
The existence of full genetic siblings in more than two families would be highly undesirable for the reasons given. At the same time, if it is the case that healthy embryos that have been created will not be available for adoption because of the two family rule, this creates a new situation of injustice. The right to life of the human embryo then becomes subject to what is in many ways an arbitrary decision, even though it appears as a response to genuine concerns regarding the medical, psycho-social and genetic risks associated with relationships between adults with genetic parents in common.
These additional dilemmas only serve to show that, while the decision to allow the use of donated eggs and sperm may arise from a genuine and simple concern to alleviate infertility problems for couples, the practice inevitably leads us into, and opens up, a 'moral maze'. This, in itself, highlights yet another significant reason why we should not approve of this procedure in the first instance.
Question 3 (Informed consent and decision making):
ACART's thinking to date on consent and decision making is set out from page 15.
Do you have any comments about the issues raised in this section?
Do you have any comments about how consent and decision making in relation to the use of donated eggs and donated sperm should be managed?
Should the guidelines on donated eggs with donated sperm include specific provisions about informed consent, withdrawal of consent and decision making?
We believe that egg or sperm donors should not be allowed to withdraw their consent once an embryo has been created. Catholic teaching holds that human life begins at the point of fertilisation. From that point on the embryo needs to be afforded the same dignity and right to survive as a person. We believe this on the basis of the continuity of human existence – an embryo is already the human being that it will always be. To allow donors to withdraw their consent after the embryo has been created would be to tolerate a situation where the inviolable right to life was made subject to the preferences of other persons.
To focus on the limits for withdrawing consent essentially frames the responsibilities associated with the transmission of human life in a negative way. It is a disturbing feature of the use of assisted reproductive technologies that we find ourselves increasingly defining human relationships of care in such a minimalistic and legalistic way. Rather than stipulating the limits of 'withdrawal of consent', the guidelines should somehow stipulate and promote the positive duties of care that are a consequence of the generation of any new human life.
In most situations associated with assisted human reproduction, the providers of the gametes assume responsibility for the care of embryos that are created on the basis of their biological connection to the embryo. However, the use of donated eggs in conjunction with created sperm makes it quite unclear who has ultimate responsibility of care for the embryos created. On the one hand, the context of decision making surrounding the donation of gametes works against donors recognising and acting on the moral commitment that is a consequence of their biological link to the embryo.
On the other hand, the lack of any biological connection between commissioning parents and embryos produced using donated eggs and sperm means that the basis (and therefore motivation) for their duty of care to the embryos created for them can be reduced to something quite 'tentative'; tentative because it is essentially founded on, and therefore dependant on, nothing more than an ongoing desire for a child. The more tentative nature of this relationship, and the different ways in which we are coming to regard the relationships between embryos of differing origins and couples, are already evident in current ACART Guidelines: The "Guidelines on Embryo Donation for Reproductive Purposes" (17th November 2008), for example, specifically exclude couples from donating embryos not created from their own gametes, and thereby make a clear differentiation between the moral authority of the two sets of parents. The effect of this, overall, is to make certain embryos more vulnerable than others even though, ontologically speaking, they all share the same moral status and the same right to life.
This, in turn, is likely to lead to the unacceptable situation whereby many more embryos will be simply 'abandoned' and fertility clinics find themselves having to assume 'guardianship' because of their custodial role in storing the embryos; yet another example of the 'moral maze' that will result if approval is given for embryos to be created using donated eggs and donated sperm.
Question 4 (Issues of particular interest to Māori):
ACART has noted on (page 17) some issues that may be of particular interest to Māori. Are there other Māori issues and perspectives that should inform the guidelines?
We defer to the views of Māori on this question while noting that within the Māori tradition there is a strong emphasis on the link between self identity, family and community.
Question 5 (The draft guidelines):
The draft guidelines are set out from page 20. Are these draft guidelines appropriate for managing the use, for reproductive purposes, of embryos created from donated eggs with donated sperm?
We have no specific comments to make on the proposed guidelines.
Question 6 (The discussion paper, including the draft guidelines):
Do you have any other comments or suggestions about either the draft guidelines themselves or the associated discussion?
We note that there have been a number of studies carried out recently which highlight that the practice of donating eggs to help infertile couples comes with both psychological and physical risks. Counselling for the women involved in egg donation should cover these potentialities.
Submission to ACART on the Use of In Vitro Maturation (March 2009)
Given the identified risks and benefits, what is your opinion on ACART's proposed advice to the Minister of Health?
(See chapter 3 for a discussion of risks and benefits, and chapter 6 for the proposed advice.)
It is our considered view that IVM remains a novel procedure. We note, in particular, that "IVM compromises subsequent embryo development rates [and that] the reasons for this are complex and not yet fully understood" (p. 5 of Discussion document). While current indications are that "the rate of congenital abnormalities appears consistent with that of IVF generally [and while] physical and neurological development appears consistent with that of IVF generally" (page 6, emphasis added) we note the tentative nature of these conclusions. The relatively small number of births worldwide (300 to 400 babies), and the fact that IVM is "rarely practised" in most countries (p. 3), surely mean that conclusions about the safety of the procedure safety can be nothing other than tentative at this stage.
We conclude, therefore, that it is premature to declare that the risks associated with IVM "fall within a level of risk that is acceptable in New Zealand" as stated by the HART Act. On that basis we think it is still premature to classify the practice as an "established procedure". The use of IVM requires more intense monitoring than is demanded by the classification of a practice as an established procedure. It is our view that IVM should be treated as innovative practice and subjected to a level of ethical review and ongoing oversight that is consistent with the introduction of other innovative health procedures in New Zealand.
We note that ACART is currently seeking further clarification as to whether or not it is an option to treat such a procedure as an innovative Act.
Has ACART identified all the ethical issues relevant to the use of IVM in fertility treatment? Do any of the identified, or any other ethical issues, affect ACART's proposed advice that the use of IVM should be allowed in fertility treatment? If so, how?
(See chapter 5 for a discussion of the ethical issues, and chapter 6 for the proposed advice.)
Aside from issues relating to the safety of the procedure, we do not see that IVM creates any other significant ethical questions not already raised by the use of IVF.
Should the use of IVM in fertility treatment become an established procedure? If not, why, and how should the use of IVM be regulated?
As outlined in Question 1 (above) we think it is premature to classify IVM as an "established procedure".
Should the use of in vitro matured eggs in fertility treatment be limited to the individuals the eggs came from, or should the eggs be able to be donated to others for use in fertility treatment?
We note that a precedent already exists for women to donate their eggs to other women for the purposes of fertility treatment. Our reasons for opposing the donation of eggs by one woman to another are the same as for all other instances of egg donation: the nature of marriage means couples recognise the right to become parents only through each other. We believe strongly that it is also in the interests of a child to be born into a family where its parents are the biological parents.
We understand that egg donation is already allowed in New Zealand under certain circumstances. On the basis that the live birth rate with IVM is significantly less than with conventional eggs, it strikes us that couples would be ill-advised to undertake IVF procedures using donated eggs matured in vitro.
Proposed Amendments to Guidelines on Surrogacy Arrangements Involving Providers of Fertility Services and Guidelines on Donation of Eggs or Sperm between Certain Family Members
A Submission to the Advisory Committee on Assisted Reproductive Technology
While assisted reproduction has traditionally been seen as a way to help people who are infertile, it is increasingly being seen as a means of providing people outside those categories with the opportunity to build a family; for instance, same-sex couples who wish to become parents through a surrogacy arrangement. The current review of the Guidelines on Surrogacy Arrangements was occasioned by a complaint, received through the Human Rights Commission, that they discriminate on the basis of sex and sexual orientation. The complaint was specifically about two linked provisions in the guidelines requiring that there be an “intending mother” who has a “medical” condition or diagnosis that justifies the use of a surrogacy arrangement.
On reflection the ACART Committee agreed that there was prima facie discrimination in the guidelines not justified by the principles of the Human Assisted Reproductive Technology Act 2004. For consistency, ACART also needed to review the medical criteria in the guidelines concerned with donation of eggs or sperm between family members. (In some surrogacy arrangements, people wish to use eggs or sperm donated by a family member.)
The following article is based on the submission developed by staff members of The Nathaniel Centre in response to the amendments proposed by the ACART Committee.
The broadening of the eligibility criteria for intending parents who wish to enter a surrogacy arrangement using a fertility services provider and/or use eggs or sperm donated by a family member poses critical ethical questions regarding the welfare of any children born as a result of these procedures.
As noted in previous submissions, we are opposed to all forms of surrogacy because we believe that the overall well-being of children is compromised by arrangements under which a woman agrees to become pregnant with the explicit intention of surrendering custody of the child to be born. We also believe that the practice of surrogacy can place the health and welfare of women at risk.
We have also laid out our concerns about the creation of embryos using donated eggs and donated sperm in earlier submissions to ACART and we reiterate the view we have previously stated which sets out our opposition to this procedure. Catholic teaching on the transmission of human life reflects a commitment to holding together the genetic, gestational and social dimensions of family and parenting. We would argue that one’s sense of personal well-being is fundamentally linked with a healthy self-identity, which in turn is intimately and inextricably tied in with a lived knowledge of our biological ties - whakapapa. This knowledge is put seriously at risk by arrangements that exclude children from growing up within the families of their biological origins or, worse, deny them knowledge of their biological origins. It is for this reason we believe that children have the right to grow up within the family networks that are generated by their biological ties. This right should only ever be compromised in situations where it is clearly in the interests of the child involved.
What is at stake in the debate about using surrogacy in conjunction with donated eggs and sperm is the recognition of the significance of being raised by those to whom we are immediately biologically related. The importance of genetic origins in securing a healthy self-identity and the role biological relations play in establishing enduring human relationships cannot be ignored. To approve of embryos being created from donated eggs and/or donated sperm is to set aside the critical importance of affective relations with one’s genetic parents and extended family and to create what one author has referred to as “existential challenges of novel dimensions.” This is no less the case when the donation comes from a family member of one of the partners.
We note, approvingly, in the proposed amendments to the Surrogacy guidelines, that where there are two intending parents, at least one must be a genetic parent. We also note the stipulation that where there is one intending parent he or she must be a genetic parent of any resulting child. We see these requirements as a clear affirmation of the importance of holding the genetic, gestational and social dimensions of family and parenting together – a position that we believe reflects the principle, upheld in the HART Act, to promote the health and well-being of the children who are born. Our own considered view is that when this principle is given the concrete recognition it deserves, it would rule out the use of donated gametes (and multiple parents) in any and all circumstances.
The critical importance of the relationship between parents and their biological family is well documented. Even in situations where adopted children and adoptive parents form close and strong attachments, the personal emotional difficulties for both are often still significant. The experiences of adoption have taught us that strong attachments between adopted children and their adoptive parents do nothing to displace their sense of loss of, and yearning for, meaningful and close connection with their families of biological origin.
The fostering or adoption of children reflects the fact that there are sometimes occasions when, for the good of a child’s welfare, it is judged best that they not be brought up within their family of origin or by one of their biological parents. In these situations the decision to adopt represents an act of outstanding generosity premised on the well-being of the child. To accept that there are circumstances when we need to remove a child from their genetic family of origin is one thing. To set out to deliberately deprive children of this link for reasons related primarily to the needs of the adults involved is quite another. It is inconsistent with the guidelines outlined in the International Convention on the Rights of the Child where the rights of the child to be raised in their birth families is clearly spelled out. We would also argue that it undermines the ideal of the family which, we would contend, is based on what is optimal for children.
Similarly, there are many situations where, for often tragic reasons, a parent finds him or herself as a sole care-giver. While, in such circumstances, parents cope admirably and children may not appear to have been harmed to any great extent, there are few people who regard this as an ‘ideal’ situation. Once again, it is one thing to accept that some children are, out of necessity, brought up in single-parent families but quite another to set out to deliberately create situations that would deprive children of one or both genetic parents and be cared for by a single parent as will be the case when there is only one intending parent.
We also believe that any moves to broaden the eligibility criteria for surrogacy and/or the donation of gametes will, even if unwittingly, contribute to people regarding children as a ‘positive’ right for adults who so choose. This would represent a significant change. It could all too easily generate an expectation that the state has an absolute obligation to provide for all and any adults the necessary means to procreate. This would have significant resource implications in the future. It would also, potentially, have implications for the way in which we come to view the parent-child relationship, including a greater propensity to see children as commodities rather than gifts to be received. We would argue that there is no ‘positive’ right to a child. Rather, we regard procreation as a ‘negative’ right by which we mean that the State has an obligation not to interfere in the choice of couples to have a child.
Assessing the Health and Well-being of Children
We note the extensive review of information about outcomes for children raised by single people and same-sex couples that forms part of the consultation document. We also note the considered conclusion “that there is no large body of robust evidence that children are harmed if raised by male couples or by single men” (page 10) as well as female couples or single women. In response we offer the following brief comments.
In the first instance, the comment that there is “no large body of robust evidence” ignores the fact that there is some evidence which suggests otherwise. Secondly, we would suggest that the studies referred to do not adequately account for the fact that there may well be a difference in outcomes between children born to parents in heterosexual relationships, one of whom then ‘migrates’ into a gay partnership, and children born to same-sex couples by way of assisted reproductive technologies involving third-parties. Thirdly, we would make the point that when advocating policy changes that affect the make-up of a long-standing social institution such as the family, the burden of proof is surely on those advocating for such changes to prove beyond reasonable doubt that children will not be harmed.
Furthermore, with respect to the idea that it is “family functioning, rather than family structure, [which] is crucial for children” (p. 10, emphasis added) we would stress that the notions of “family functioning” and “family structure” are very closely related. In support of this we note research which shows men and women parent differently and a growing body of contemporary research which has established that certain genes in young mammals have been shown to be activated by parental behaviour. The exploration of the complex relationships between paternal, maternal and offspring phenotypes and the effect of the environment on this dynamic, represent a new and challenging field of research that is still very much in its infancy. We should, therefore, be wary of concluding that the question of likely harm to children conceived and reared outside of the traditional heterosexual family structures is a closed one. That being so, we should be wary of writing what some have referred to as “a blank cheque in the name of non-discrimination” that will allow for more children to be routinely created outside of the two-parent heterosexual family structure.
Lastly we would make the point that the project of parenting is about the flourishing of children rather than simply securing for them an absence of harm or an ‘acceptable’ degree of risk of harm. In which case, what is surely required is that research show that single parent and same sex parent families are capable of providing the same optimal conditions for flourishing as heterosexual couples, rather than simply avoiding harm; the former test calls for a much higher threshold than the latter. We note with interest that ACART believes that “surrogacy arrangements carry substantial risks for the adults involved and potential children” (p. 9). This assessment, which we agree with, would seem to support the argument that such procedures are, at best, less than optimal and, at worst, introduce very real risks likely to lead to harm to women and children. Yet, there is absolutely no evidence in the consultation document of the grounds used for establishing how such “substantial risks” could be judged to be outweighed by the inequity involved in restricting access to surrogacy to (some) same-sex couples or to (some) single intending parents.
Granting single-intending parents or same-sex couples access to fertility services for the purposes of having a child will, through biological necessity, inevitably require the use of third-party gametes. In the case of a single intending male parent, male couples and some female couples, it will also require a surrogacy arrangement. We anticipate that the proposed changes will lead to a greater demand for gametes from family members (and others) as well as a greater demand for the provision of surrogacy with all the “substantial risks” that this will involve.
Our opposition to granting single intending parents and same-sex couples access to fertility services for the purposes of having a child follows from, and is consistent with, our overall and long-standing opposition to the introduction of third parties as part of human reproduction. It is also consistent with our belief that a family made up of two parents of opposite gender represents the optimal context for human flourishing. More specifically, because the proposed changes involve the intentional separation of the genetic, gestational and social dimensions of parenting, our concern is that they thereby frustrate the sense of identity and kinship that we maintain is a crucial dimension of human well-being. Put another way, no matter how we look at the practices of surrogacy and the donation of gametes, it cannot be denied that they knowingly and intentionally involve adults and society in the deliberate creation of fragmented families, complicating the most fundamental and vulnerable of human relationships – that of a child with its parents.
We wish to emphasise that, for us, it is not a matter of concluding that surrogacy and the use of third parties in human procreation “is not in the best interests of children because it is unnatural and/or immoral” (page 12). Rather, it is a case of arguing that it is ‘immoral’ because it is not in the best interests of children and because of the risks it introduces. Ultimately, the position we are taking flows out of, and reflects an absolute commitment to, the well-being and dignity of the children involved. Conversely, we cannot help but conclude that the changes being proposed in this consultation document are being driven first and foremost by the needs and desires of adults.
In summary, it is our contention that the move to give single intending parents and same-sex couples access to surrogacy, relying as it does on the deliberate unlinking of parenthood from biology, undermines the fundamental right of a child to have both a mother and a father (as opposed to multiple parents or only one parent). We understand that in light of current practices (that we already consider problematical) our position may appear to some as discriminatory towards single intending parents and/or same-sex couples, in particular male couples. To those who might level this criticism against us we would reply that to argue otherwise is to let the general nature of human rights act as a barrier to the proper recognition of children’s human rights. To reiterate, our considered position represents a positive commitment to the health and well-being of children born as a result of the performance of an assisted reproductive procedure; the sort of commitment that we believe is called for by the HART Act. In light of this we think it is inaccurate to frame the argument in favour of maintaining the status quo as an act of unjustifiable discrimination.
It is a general principle of social justice that one does not address the discrimination of one group by way of acts which have the real potential to cause harm to others, in this case women and children. Because the proposed changes pose real risks for women and children, and because they will lead to a greater demand for surrogacy and third party gametes, something that has significant resource implications, we urge ACART to revisit its conclusion that there is not a justifiable basis for at least maintaining the status quo.
We also urge that, in its analysis of the effects of broadening the eligibility criteria for surrogacy to include single parents and same-sex couples, the threshold used needs to be based on the ‘flourishing’ of children rather than the much lower, and to our minds inadequate, test of ‘no evidence of harm’. Only the former test, we believe, will satisfactorily meet the criteria set out in the HART Bill – in particular the requirement to uphold the health and well-being of any children born.
 While New Zealand law prohibits anonymous donation of gametes, we note that, in practice, many children may not gain access to identifying information about their biological origins until they are 18 years of age or older. They are, in other words, effectively denied knowledge of their connections during their formative years.
 See, for example, the findings of Weaver et al in Nature Neuroscience which provide the first evidence that maternal behavior produces stable alterations of DNA methylation and chromatin structure in rat offspring: http://academic.reed.edu/biology/courses/BIO342/2010_syllabus/2010_readings/Weaver_etal_2004.pdf
A summary of the key points made in this submission
- It is our view that personal well-being is linked with healthy self-identity which is, in turn, inextricably linked to a lived knowledge of our whakapapa or biological ties. This knowledge is put at risk by arrangements that exclude children from growing up within the families of their biological origins or, worse, deny them knowledge of these origins. We believe children have a right to grow up within the family networks that are generated by biological ties.
- When all is said and done, the practices of surrogacy and the donation of gametes result in the deliberate creation of fragmented families as well as complicating the most fundamental and vulnerable of human relationships – the parent-child relationship. We note ACART’s own expressed view that these practices carry “considerable risks”.
- We do not believe that the question of ‘outcomes’ for children in single parent or same-sex parent families has been settled despite the evidence provided to date. We think the research is incomplete, particularly given the new insights being generated by the emerging discipline of epigenetics.
- When advocating policy changes that affect the make-up of a long standing social institution such as the family, it should be noted that the HART Act identifies the health and well-being of children as the first principle. In our minds the test that should be used needs to be based on the ‘flourishing’ of children rather than simply an ‘absence of harm’. The key question from the perspective of a child is whether or not single parent and same sex parent families are capable of providing the same optimal conditions for flourishing as heterosexual couples.
- In our considered opinion the suggested changes to the Guidelines are being driven first and foremost by the needs and desires of adults rather than what is best for children.
- One does not address the discrimination of one group by way of acts which have the real potential to cause harm to others, in this case women and children.
- The proposed changes to broaden the eligibility criteria for surrogacy and/or the donation of gametes will contribute to people regarding human procreation as a ‘positive’ right. This could all too easily generate an expectation that the state has an absolute obligation to provide for all and any adults the necessary means to procreate. This would have significant resource implications in the future as well as implications for the way in which we come to view the parent-child relationship.