Assisted conception: Do you have a right to have a child?

Menopur, prescribed to women on IVF treatment Is there a right to have a child? This might seem a straightforward question, but is ambiguous in number of ways.

First, there’s a distinction between moral rights and legal rights. We might hope that these more or less coincide but even if they do, there’s still a difference in principle between what the law permits, and what morality permits.

And of course they often don’t coincide. You might think there’s a right – a moral right – to help shape your country’s government even when you are living under a dictatorship. Or the law might give you a right to torture suspects even if – morally – it is wrong to do this.

A second ambiguity concerns positive and negative rights. Often, to claim a right to something is to insist on non-interference.

The clearest sort of right to life is a right not to be killed, and similarly a right to free speech is a right not to be gagged. We can refer to these as negative rights. Positive rights, in contrast, imply a right to assistance, to getting help in securing for yourself some good.

To give examples, a right to health care, or education, puts upon others – normally a government – a duty to supply hospitals or schools.

So one understanding of an alleged right to have a child says only that we do something morally wrong in preventing a woman from having a baby.

A contrasting understanding says that the state is required to provide assistance, for those who want and need it, in having a baby.

Now, though there is a third ambiguity. Is the right to have a child satisfied if you adopt? Or if a child is born to you indirectly, through surrogacy? Or does the right involve you yourself becoming pregnant and taking a child to term?

The existence of legal rights, within a particular jurisdiction, is pretty straightforward. We can just look at the statute books to find out what rights we have.

But working out which are our moral rights is far more complicated. One thing though – the more elaborate the right, the less likely you are to have it.

A woman is more likely to have a negative right to leaving her free with respect to conception and birth than she is to have a positive right to assistance with such things.

Similarly, you are more likely to have a right to primary education at some school or other, than a right to go to one of the top universities.

My concern here is with positive rights of the moral kind. Ought a woman, if she wants and needs it, to be given assistance with having a child?

And, as my title suggests, it is with making, bearing and keeping a child, rather than adopting, or having one born elsewhere.

Suppose there is such a right. How widespread might it be?

In many countries there’s an emphasis or value placed on equality. Roughly, we think we should treat people equally. So maybe, if some women have a right to assistance with getting pregnant, then all women do. But it can’t be that simple.

Our emphasis on equality, properly understood, requires that we treat like cases in a like manner.

So if Rachel has a right to assistance, so does her identical twin Ruth.

But equality also requires that we avoid arbitrary discrimination or bias.

If English women have a right to assistance, so too do Welsh women.

But equality doesn’t require us to avoid all forms of discrimination. For sometimes we discriminate in a reasonable and non-arbitrary way.

Here are three grounds on which it might be thought appropriate to refuse to assist a woman in becoming pregnant:

Age
Surely it can be reasonable to assist a 30 year old woman, but refuse to assist a 13 year old. It might be reasonable, also, (though this is more controversial) to refuse to assist a 50 year old.

Health
If becoming pregnant carries considerable risks for the woman concerned, this might be a reason to refuse assistance. Suppose her health will be unaffected, but any child she might have will have a high risk of suffering from some serious illness, then again refusal might be reasonable.

Ability to care for the child
If a woman will be unable, for physical, psychological, or even financial reasons, properly to look after a child, this too might be a reason not to provide assistance.

I’m not saying here that any of these really does provide grounds for refusing to assist. The claim only is that these sorts of considerations are relevant. We need more discussion to decide whether restrictions should be in place.

And I am certainly not saying that only youngish, healthy and wealthy people should have children. The issue here is not one of preventing people from having children, only that of declining to assist. I’ve been focussing, as I said I would, not on negative, but only on positive rights.

DISCUSSION POINT: What do you think? How should an ethics committee approach a case like this? Share your views in the comments area below.