Submission to ACART on Proposed Changes to Donation Guidelines and Surrogacy

Staff of The Nathaniel Centre

In September 2017 the Advisory Committee on Assisted Reproductive Technology (ACART) sought public feedback on its proposal to replace four separate guidelines with one that would cover the four procedures of: family gamete donation, embryo donation, the use of donated eggs with donated sperm, and clinic-assisted surrogacy. The most significant policy shift being proposed was to rescind the “biological link” requirement that currently underpins all four donation guidelines. The Nathaniel Centre’s submission to ACART focused on that key issue. A summary of our submission is printed below.

Background

A Catholic approach to the transmission of human life is characterised by two key beliefs: the inviolable 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 to conceive can positively or negatively impact on this dignity. This means that children must be conceived in a way which shows that they are respected and recognised as equal in personal dignity to those who give them life. This rules out actions which instrumentalise or treat the child as an object (commodity), whether intentionally or otherwise.

At the emotional, psychological and spiritual levels we all need to experience ourselves as ‘contingent beings’; that is, as beings who came about in a ‘fortuitous’ way – conceived in a way that is free from the manipulation of others, conceived for no other reason than love and out of love. Morally speaking, such a love can be described as ‘disinterested’ and ‘selfless’, as focussed overwhelmingly on the needs and well-being of the child to be born. A disinterested and selfless love calls for parents to accept children as ‘gifts’ without introducing a conditional element into their acceptance into a family. Technological interventions that allow parents to exercise ever greater control and dominance over the sorts of children that are born potentially create a very different context for human procreation.

As philosopher Jurgen Habermas notes:

To impose your preferences upon a potential person is to treat that person as an object, a thing made, rather than to treat as a subject, an autonomous individual. To impose upon another a decision about his genetic composition according to your own preferences is to treat a person as a creature of your preferences, and to constrain that person’s ability to self-actualise. It is to adopt an attitude of domination, of instrumentalising.1

The Significance of Biological Ties

We focused our feedback on one key issue – the significance of a biological connection between parents and the children they raise.

We are greatly concerned about the proposed move to rescind the biological link policy, which, because it radically redefines the traditional understanding and structure of the human family, has broader societal consequences that generate important questions not raised in the Consultation Document.

Our strongly held view is that the requirement for a gestational or genetic link between intending parents and a resulting child must be retained as part of the guidelines governing the use of assisted reproductive technologies.

The recommendation that all biological links be rescinded is premised, we argue, on a lack of regard for the personal/emotional, cultural, societal and spiritual significance of being raised by those to whom we are biologically connected/related and constitutes a lack of respect for the dignity of the child to be born.

It is one thing to accept that there are situations in which a birth parent or parents cannot care for their biological child and doing the (next) best thing that promotes the best interests of that child, as occurs with adoptions, but it is quite something else to intentionally set out to deprive children of the right to grow up in their biological families.

To minimise the significance of biological connection for an individual’s overall well-being and identity in favour of the needs and desires of adults for whom donated gametes/eggs represents the “best or only” opportunity to have a child, effectively categorises it as some sort of ‘optional extra’ and creates what one author has referred to as “existential challenges of novel dimensions.”

The Consultation Document emphasises the importance of children being informed about their biological (and gestational) origins, but we argue that children have a fundamental right to grow up within the family networks that are generated by their genetic and gestational ties. Apart from situations of abuse or neglect, arrangements that intentionally exclude children from growing up within families with whom they have biological ties are less than optimal even when, or if, they are ‘informed’ of their biological origins. This stance provides the strongest possible rationale for allowing only those Assisted Reproductive

Technologies (ARTs) which hold together the genetic, gestational and social dimensions of procreation, and for rejecting those procedures which fracture these three dimensions.

In support of our stance, we note the importance that is given to promoting and/or maintaining the relationship between children and their biological families of origin in critical areas of social and public policy and practice. For instance, the Ministry of Social Development has always emphasised the importance of supporting birth families to care for their children and, when required, has given priority to children being placed with their own wider family or whānau whenever possible. Removing the biological connection would represent a significant adjustment to the principles that guide New Zealand policies and practices concerning children and whānau/ families.

We also note that rescinding the biological link as a matter of policy is out of step with UNCRC Article 8 which reads: “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.”2

Consequently, we maintain that the recommendation to remove the requirement that there be a gestational or genetic link between intending parents and a resulting child is inconsistent and out of step with (i) current national and international public policy and practice relating to the care of children and (ii) cultural practices of Maori.

For these reasons we maintain that the arguments offered in the Consultation Document fail to give proper consideration to Principles f) and g) of the HART Act: adequate respect for the needs, values and beliefs of Māori, as well as the different ethical, spiritual and cultural perspectives. This, in addition to our belief that the proposed changes fail to adequately take into account the health and wellbeing of children born as a result – principle a).

We readily acknowledge that maintaining the biological link policy rules ‘in’ only certain means of conceiving children. In response to the Consultation Document which suggests that the current requirement for a biological or gestational link is “a source of potential discrimination” (n. 49), we argue that our commitment to the status quo is more accurately described as ‘a positive commitment to showing proper respect for the health and wellbeing of children’ born as a result of such practices.

From this it follows that the rejection of certain means and situations for conceiving human life is most correctly viewed as the logical and ethical consequence of a positive and intentional commitment to the optimal flourishing of children. We therefore reject the view that our stance discriminates against certain categories of intending parents (single men or single women) or certain types of couple relationships (which we note include both heterosexual as well as same-sex couples).

In response to those who see the current guidelines as an unjustified limitation on their choice, we note that our stance articulates the critically important idea that there are limits to autonomy. As stated by Atkin and Reid in 1994: “… individual rights can be limited when the aim is to protect important social interests … that different people’s rights overlap, that rights are subject to various limitations.”3 And also: “Members of many cultures, including Māori, have collective values which may intercept the limits of autonomy and these new limits of autonomy must be negotiated.” 4

For the reasons outlined above, we argue for retention of the biological link which, by insisting that at least one of the intending parents must have a gestational or genetic link, holds together at least two of the three inter-related components of conceiving and rearing children – either social and gestational or social and genetic.

Conclusion:

We acknowledge that there is an inherent tension in the use of ARTs which results from holding the welfare and well-being of such children in a creative balance with respect for the rights and choices of intending parents who seek to use reproductive technology.

We argue that the regulations governing the use of ARTs in New Zealand since the ACART Act was passed in 2004 have, to date, managed to successfully maintain that creative balance between the two (at times competing) realities. However, rescinding the biological link represents a significant shift in that balance away from the rights and well-being of the child.

To the extent that there is a right to have a child we argue that it exists as a ‘negative right’ rather than a ‘positive right’. The 1994 Report on Assisted Human Reproduction concurs: “Any right to found a family must not be seen in proprietary terms. It is not a right to have or own a child, whom many see as a gift.”5

When considering the eligibility criteria for intending parents who wish to enter a surrogacy arrangement and/or use donated gametes or donated embryos, our position is that an ethical commitment to the optimal well-being and flourishing of the child means giving over-riding priority to the maintenance of a genetic or gestational connection.

On this basis, we conclude that the recommendation to rescind the biological link between intending parents and their children makes the well-being of children secondary to the needs and desires of adults.

Allowing parents to conceive children with whom there is no biological or gestational link would be a significant and concerning step along a path that redefines parenthood as a social construct rather than a biological phenomenon. This would represent a significant ethical and social change for the whole of society, which should not be implemented without much wider public discussion and consensus.

As noted above, it is one thing to accept there are situations where children are unable to grow up with their biological family but quite another to intentionally create such scenarios. For this reason, we regard the donation and adoption of so-called ‘spare’ embryos by intending parents who are not biologically connected as ethically and morally distinct from the deliberate creation of such embryos.

Guidelines associated with embryo creation and surrogacy should stem from an ethical framework rather than simply respond to the next stage in the development and availability of assisted reproductive technologies. To this end we recommend the ‘ethic of care’ that is articulated by Atkin and Reid in their 1994 Report: … an ethic of care holds, broadly speaking, that moral reasoning is not solely, or even primarily, a matter of finding rules to arbitrate between conflicting interests … the priority … is on helping human relationships to flourish by seeking to foster the dignity of the individual and the welfare of the community.6

Endnotes

1 See Rorty, M (2003) in her review of Habermas, Jurgen, The Future of Human Nature.
2 See http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
3 See Atkin, W. R., & Reid, P. (1994). Assisted human reproduction: Navigating our future. Report of the Ministerial Committee on Assisted Reproductive Technologies. Department of Justice. New Zealand. P. 30.
4 Ibid., p. 30.
5 See (Atkin, W. R., & Reid, P. (1994). Assisted human reproduction: Navigating our future. Report of the Ministerial Committee on Assisted Reproductive Technologies. Department of Justice. New Zealand. P.31.
6 Ibid., p. 28