Two currently contentious domains in infertility treatment are discussed: assisted reproduction for same-sex couples and fertility preservation for women with cancer. Despite an increasing recognition of the rights of same-sex couples, in many countries they are still not eligible for assisted reproductive technology. The main justification for excluding same-sex couples from treatment is that the welfare of the future children would be compromised. Empirical evidence, however, shows that this is not the case. Another group of non-infertile women seeking assistance from reproductive medicine are women with cancer who are at risk of impaired or lost fertility as a result of their illness or cancer treatment. In this field, the future holds many promising options. Several of these, however, are currently in an experimental phase, which elicits ethical concerns about participant recruitment and research participation of children.
Introduction
Ethical issues in infertility treatment are plentiful. In this chapter, we begin with a short introduction to normative ethics to clarify the role of ethical rules and principles in the discussion. We will illustrate this by focusing on two current themes: same-sex parenting and fertility preservation.
Normative theories
In normative ethics, one tries to answer the question ‘what should I do?’ Among the numerous schools or approaches in normative ethics, the two most important lines are deontological and consequentialist theories. In deontological theories, an act (e.g. a decision) is right when it is in accordance with a moral rule or principle. This is purely a formal principle, as it does not tell us anything about the rules or principles themselves. The rules are specified by referring to reason, natural law or God. Those who focus on reason and rationality mostly refer to human rights. The human rights, as listed in the Universal Declaration of Human Rights, are prime examples of rules that would be the object of choice of all rational beings. So, a person acts rightly when he abides by the rules and respects the rights of persons.
The biggest problem for deontologists is to determine what the rights and duties of a person are. Given the fact that they rely on different foundations, there will be no consensus among them. People who refer to nature will, for instance, argue that same-sex parenting is unnatural and that, therefore, homosexuals should not have a right to procreate. In a similar vein, women should not be allowed to cryopreserve oocytes in order to counter age-onset (and thus ‘natural’) infertility, but they should be allowed to do so in order to counter infertility that is induced by cancer treatment (and thus ‘unnatural’). Religious people will condemn any act that goes against the rules laid on us by God. All main religions reject homosexuality and exclude same-sex couples from assisted reproduction. Deontology does not necessarily lead to a more conservative position. Deontologists who refer to reason and rationality may well defend the rights of homosexuals or the right to cryopreserve oocytes for non-medical reasons. They may emphasise the principle of respect for autonomy and more specifically the right to reproduce. In these theories, consequences count but they are never decisive in the determination of a right action. When the consequences would be very bad, the deontologist will likely conclude that some rights of the persons (e.g. the so-called birth rights of the child) are violated and that, therefore, reproduction in these circumstances should be condemned.
Consequentialist theories, on the contrary, focus on the consequences of the acts. Its main version is utilitarianism: an act is good when it maximises utility (generally interpreted as happiness, well-being or quality of life). This is a demanding theory, because the maximisation condition requires one to compare all possible acts that one could perform and because one should calculate the balance of the positive and negative consequences for all parties involved. By focusing on the consequences, this theory relies heavily on the human sciences to provide the necessary empirical information. Psychology, sociology and other sciences can tell us whether a certain intervention is harmful or beneficial to the people involved. The ‘welfare of the child’ is a typical consequentialist argument. In the public debate, one frequently takes only the effects on the children into account while the theory demands the inclusion of all parties, including parents and doctors, for example. Denial of fertility treatment may have huge negative consequences on the lives of the would-be parents. This effect too should be part of the utilitarian calculation.
We have defended a weakened version of utilitarianism in previous work. This version is a type of sufficientarianism in which one tries to ensure that people do not fall below a specific threshold, frequently placed at the level of ‘reasonably good health’. The reason for this adaptation is that the maximising condition leads to highly counter-intuitive moral judgments. It would mean, in practice, that nobody should knowingly and intentionally bring a child into the world in less than ideal circumstances. Indirectly, that also implies that medical specialists should not help people to realise their child wish in case they cannot procreate on their own. As ideal circumstances are only seldom present, the overwhelming majority of the population should refrain from procreation. To avoid this conclusion, we defend the position that procreation (and assistance to procreation) is morally acceptable when the future child will have a reasonably happy life. Although different definitions can be found as to what constitutes a decent welfare level, the common core of these definitions is that a person has a reasonable life quality when the person has the abilities and opportunities to realise those life plans that in general make human life valuable.
Normative theories
In normative ethics, one tries to answer the question ‘what should I do?’ Among the numerous schools or approaches in normative ethics, the two most important lines are deontological and consequentialist theories. In deontological theories, an act (e.g. a decision) is right when it is in accordance with a moral rule or principle. This is purely a formal principle, as it does not tell us anything about the rules or principles themselves. The rules are specified by referring to reason, natural law or God. Those who focus on reason and rationality mostly refer to human rights. The human rights, as listed in the Universal Declaration of Human Rights, are prime examples of rules that would be the object of choice of all rational beings. So, a person acts rightly when he abides by the rules and respects the rights of persons.
The biggest problem for deontologists is to determine what the rights and duties of a person are. Given the fact that they rely on different foundations, there will be no consensus among them. People who refer to nature will, for instance, argue that same-sex parenting is unnatural and that, therefore, homosexuals should not have a right to procreate. In a similar vein, women should not be allowed to cryopreserve oocytes in order to counter age-onset (and thus ‘natural’) infertility, but they should be allowed to do so in order to counter infertility that is induced by cancer treatment (and thus ‘unnatural’). Religious people will condemn any act that goes against the rules laid on us by God. All main religions reject homosexuality and exclude same-sex couples from assisted reproduction. Deontology does not necessarily lead to a more conservative position. Deontologists who refer to reason and rationality may well defend the rights of homosexuals or the right to cryopreserve oocytes for non-medical reasons. They may emphasise the principle of respect for autonomy and more specifically the right to reproduce. In these theories, consequences count but they are never decisive in the determination of a right action. When the consequences would be very bad, the deontologist will likely conclude that some rights of the persons (e.g. the so-called birth rights of the child) are violated and that, therefore, reproduction in these circumstances should be condemned.
Consequentialist theories, on the contrary, focus on the consequences of the acts. Its main version is utilitarianism: an act is good when it maximises utility (generally interpreted as happiness, well-being or quality of life). This is a demanding theory, because the maximisation condition requires one to compare all possible acts that one could perform and because one should calculate the balance of the positive and negative consequences for all parties involved. By focusing on the consequences, this theory relies heavily on the human sciences to provide the necessary empirical information. Psychology, sociology and other sciences can tell us whether a certain intervention is harmful or beneficial to the people involved. The ‘welfare of the child’ is a typical consequentialist argument. In the public debate, one frequently takes only the effects on the children into account while the theory demands the inclusion of all parties, including parents and doctors, for example. Denial of fertility treatment may have huge negative consequences on the lives of the would-be parents. This effect too should be part of the utilitarian calculation.
We have defended a weakened version of utilitarianism in previous work. This version is a type of sufficientarianism in which one tries to ensure that people do not fall below a specific threshold, frequently placed at the level of ‘reasonably good health’. The reason for this adaptation is that the maximising condition leads to highly counter-intuitive moral judgments. It would mean, in practice, that nobody should knowingly and intentionally bring a child into the world in less than ideal circumstances. Indirectly, that also implies that medical specialists should not help people to realise their child wish in case they cannot procreate on their own. As ideal circumstances are only seldom present, the overwhelming majority of the population should refrain from procreation. To avoid this conclusion, we defend the position that procreation (and assistance to procreation) is morally acceptable when the future child will have a reasonably happy life. Although different definitions can be found as to what constitutes a decent welfare level, the common core of these definitions is that a person has a reasonable life quality when the person has the abilities and opportunities to realise those life plans that in general make human life valuable.
Same-sex parents
Background
Homosexuality is a highly contentious issue in many countries. It stirs strong emotions and causes heated debates, especially when combined with reproduction. Although discrimination of people on the basis of sexual orientation is condemned in most declarations on human rights, the enforcement of this rule on the ground is much less convincing. A slow evolution is taking place in Europe and the USA towards a certain legal recognition of homosexual relationships, in the form of a registered partnership or semi-marriage; however, this recognition is essentially top-down. The European parliament advocates the extension of marriage-like status for same-sex couples, and takes steps to avoid discrimination of citizens on the basis of sexual orientation. Not all member states, however, are eager to include this extension into their national legislation.
The acceptance of same-sex parenting proves to be even more challenging than acceptance of same-sex marriage. Haimes explained that lesbian parents transgress several boundaries simultaneously: ‘the ideological, because of its apparent flouting of the importance of fathers; the structural because of its advocacy of either one-parent or two-mother households; and the biogenetic, because of its avoidance of sexual intercourse’. The same applies, in an even stronger way, to gay men. In the mean time, homosexual households are here to stay. In the USA, 594,000 same-gender households were recorded in 2010. Out of these households, 115,000 reported having children and 73% of these had only biological children. More and more homosexual, and especially lesbian, couples take the step toward medically assisted reproduction in order to have a child within their relationship. In some countries, such as the UK, the new law allows both partners in lesbian and gay couples to be registered as the legal parents of the child.
Empirical evidence on the welfare of the child
When people discuss alternative family formations, the focus is almost always on the welfare of the child. This is remarkable because the emphasis in the debate on the acceptability of techniques for medically assisted reproduction is normally on the parents. The move from heterosexual to non-heterosexual families clearly triggers different concerns. The reason for this shift is that reproduction in a setting that does not conform to the heterosexual married parents with their genetic children is assumed to have negative consequences for the children. This argument is split into several more specific parts. We will discuss three parts: (1) a child needs a mother and a father; (2) the children will become homosexual; and (3) homosexuals have more psychological problems.
A child needs a mother and father
The first and most difficult point is the belief that a child needs a mother and a father. According to the opponents of same-sex parenting, children need dual-gender parents to learn appropriate gender-role behaviour and to develop normally. Although this claim seems intuitively plausible, there is little evidence to support it. For decades, a debate raged on the UK on the need of the child for a father. This clause was originally part of the ‘welfare of the child’ clause in the Code of Practice of the Human Fertilisation and Embryology Authority. The conclusion of the debate was that the presence of a father is not essential and that the absence of a father does not causes significant harm to the child. Interestingly, the clause about the father has been replaced in the new Code of Practice by the need for ‘supportive parenting’. Up till now, we have not seen any debate about the child’s ‘need for a mother’. Everyone seems to accept this as self-evident but, if it is, then the discussion on parenting by gay couples is closed before it even starts. Some studies suggest that the outcome for the children and the quality of the parent–child interaction can be explained by the gender of the parents rather than by their sexual orientation. At the moment, we know relatively little about gay fathers, and the existing studies are mostly limited to gay men who became fathers in a heterosexual relationship or who adopted a child. This situation introduces several confounding variables that influence family dynamics, such as family conflict and divorce, and renders the findings difficult to extrapolate to the situation where two men decide to father within their relationship. While lesbians are struggling with the moral views and prejudices in society, gay men undoubtedly have a manifold harder time convincing people of the acceptability of their wish to parent. Especially gay men have to fight against a culture of homophobia and heterosexism that considers a ‘gay father’ as a contradiction in terms. The idea that gay men should not be in close contact with children and that men in general are unfit to raise a child also pervades.
Children raised in homosexual families are more likely to become homosexual
The argument that children raised in homosexual families are more likely to become homosexual themselves would not be an argument unless one assumes that being homosexual is a type of harm. For a long time, homosexuality was considered a mental illness. It certainly is a disadvantage, but this disadvantage is almost completely due to hostile reactions from a homophobic society. It is ironic that, especially in highly homophobic countries like Islamic countries, discrimination is used to reinforce discrimination. Samani et al. argue that putting a child in a homosexual family in a homophobic society is harmful to the welfare of the child. This is no doubt correct, but this harm is conditional on the attitude of society. A condition is a handicap or disability when it prevents people from doing things that most people consider important in life, and which are part of normal functioning. Societal reactions frequently come on top of that, but that is the part that we, as a democratic society, try to amend based on respect and equality. Regardless of the evaluation of this disadvantage, the only longitudinal study carried out on the prevalence of homosexuality reports no statistical difference in sexual orientation between children raised in homosexual and heterosexual families.
A recent study on gender identity in children in heterosexual and lesbian families did not support the ‘no difference’ consensus. They found that children in lesbian families feel less parental pressure to conform to gender stereotypes, are less likely to consider their own sex as superior, and are more likely to question future heterosexual involvement.
Homosexuals have more psychological problems
Homosexual people suffer more from certain psychiatric disorders. Studies indicate that both gay and lesbian people have more mental and physical problems than the general population. Theoretically, characteristics such as depression and substance abuse may have a detrimental effect on parental competence, and they are a reason for concern. Such findings, however, have to be interpreted with caution. First, it is revealing that the ‘best interest of the child’ standard is used inconsistently. Although numerous clinics are banning postmenopausal women, lesbian couples and other contentious groups, these very same clinics accept a high multiple pregnancy rate. The risks of these parents for the children pale into insignificance when compared with the risks involved in being born as part of a multiple pregnancy. Second, although some characteristics may be present in a certain group, these studies do not always indicate (most do not) whether this also applies to parents in that group. Finally, the greater prevalence rate of these characteristics does not justify a blanket exclusion of homosexuals. If these characteristics are detrimental to the psychological development of the children, we would have found this by now in the studies. The evidence, however, indicates that the psychosocial development of the children and the quality of parenting in homosexual families do not differ from heterosexual families.
Ideological bias in research
Research on same-sex parenting has been criticised for being biased either for or against homosexual parenthood. The opponents of gay parenting, in particular, claim that many existing studies are methodologically flawed. Most studies are carried out by researchers sympathetic to homosexual people and they strongly emphasise the ‘no difference’ view: more similarities than dissimilarities exist between heterosexual and homosexual parents and, whatever differences there are, they are unimportant or irrelevant. We want to give one example to illustrate this attitude: ‘The fact that none of them [studies] indicated that the offspring of lesbian mothers had worse emotional functioning or more behavioural problems than other children supports the notion that the offspring of lesbian mothers do not suffer more than other children’. These researchers are extremely cautious when they present data about differences because, whether they like it or not, these data will have a direct effect on policy decisions and legislative initiatives regarding custody, adoption and access to medical assistance in reproduction. Differences turn into deficits. Researchers downplay findings indicating differences between children raised in homosexual families and children raised in heterosexual families. The bias, however, goes deeper. Owing to the pervasiveness of social prejudice and discrimination against homosexuals, even research that is blamed for being too pro-homosexuality is directed at detrimental effects and possible risk factors. This highly defensive position of researchers leads to an impoverished approach. They are missing chances to study family development in different settings and to learn more about the mechanisms underlying these processes. In fact, these alternative families offer unique opportunities to explore the formation of gender identity and sexual identity.
Most studies on children in lesbian families have used heterosexual families as control groups. This is standard practice in experimental design: the influence of the variable (parental sexual orientation, gender, or both) is determined by looking at the variable in different settings. The problem is that, because of the homophobic atmosphere and heterosexist rule, the control group (i.e. heterosexual family) is perceived as the gold standard. As a consequence, when a group does not reach the same level of performance as the control group, it is automatically classified as sub-standard or inferior, and consequently, should not have access to medically assisted reproduction. This reasoning is based on several underlying premises that are hard to defend. First, it assumes the rightness of the maximum welfare standard between family types, and we have shown above that this standard cannot be maintained. Second, a lower quality of life of the children does not automatically mean an unacceptable quality of life. Sufficientarianism relies on a threshold system: children should not be created in family types that present a high risk of serious harm for the child. Finally, the significant differences in self-esteem and psychological well-being that were actually found between children in lesbian families and heterosexual families were in favour of lesbian parents. The conclusion from this finding would be that heterosexual couples should not have access to assisted reproductive technology. We have never met anyone willing to accept this conclusion. But if one rejects it, one needs to explain why that conclusion can be drawn when children in lesbian or gay families are doing worse.
We conclude that we need to measure psychosocial development and cognitive capacities without reference to heterosexual families. Our concern should not be whether one type of family or one kind of parent is better than the others. We should determine which parents and families have a high risk of serious negative outcomes for their children and what we can do about this.
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