Children on Demand: The Ethics of Defying Nature 978-0868409108, 0868409103

Table of contents :
Contents......Page 5
Introduction......Page 7
Dealing with infertility......Page 18
Personal, philosophical and political contexts......Page 29
Children and parents......Page 30
Nature and nurture:does biology affect identity?......Page 50
Reproduction and the state: protection, paternalism and prudence......Page 70
Nontechnological responses to childlessness......Page 91
Adoption: ancient and modern......Page 92
Can adoption be rehabilitated?......Page 111
Technological responses to childlessness......Page 129
The ‘art’ of artificial conception......Page 130
The perils of surrogacy: compassion and commercialism......Page 155
Making parents of the dead:is it such a bad idea?......Page 174
Caring for children or just defying nature?......Page 189
Notes......Page 208
Index......Page 219

Citation preview

Tom Frame has a personal and professional interest in alternative forms of parenthood and the ethics of assisted reproduction. He was relinquished at birth for adoption in 1962 and has served on a hospital ethics committee with oversight of a fertility clinic. He was a naval officer from 1979 to 1992 before entering the ordained ministry of the Anglican Church in 1993. He was Bishop to the Australian Defence Force from 2001 to 2007 and is presently Director of St Mark’s National Theological Centre and Head of Charles Sturt University’s School of Theology. Professor Frame’s earlier works include Living by the Sword? The Ethics of Armed Intervention, Binding Ties: An Experience of Adoption and Reunion in Australia and Church and State: Australia’s Imaginary Wall. He lives in Canberra with his wife Helen. They have two daughters and one grandchild.

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NE W SOUTH

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A New South book Published by University of New South Wales Press Ltd University of New South Wales Sydney NSW 2052 AUSTRALIA www.unswpress.com.au © Tom Frame 2008 First published 2008 This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Inquiries should be addressed to the publisher. National Library of Australia Cataloguing-in-Publication entry Frame, T. R. (Thomas R.), 1962–. Children on demand: the ethics of defying nature. Includes index. ISBN 978 086840 910 8 (pbk). 1. Human reproductive technology - Moral and ethical aspects. 2. Parent and child - Moral and ethical aspects. 3. Parenthood - Moral and ethical aspects. 4. Family Moral and ethical aspects. I. Title. 306.874 Design Di Quick Cover design Sandra Krumins Printer Griffin Press This book is printed on paper using fibre supplied from plantation or sustainably managed forests. This book is printed on chlorine-free paper.

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Contents



Introduction

1 Dealing with infertility Part One Personal, philosophical and political contexts

1 12 23

2 Children and parents 24 3 Nature and nurture: does biology affect identity? 44 4 Reproduction and the state: protection, paternalism and prudence 64 Part T wo Non-technological responses to childlessness

5 Adoption: ancient and modern 6 Can adoption be rehabilitated?

85 86 105

Part Three Technological responses to childlessness

123

7 The ‘art’ of artificial conception 8 The perils of surrogacy: compassion and commercialism 9 Making parents of the dead: is it such a bad idea? 10  Caring for children or just defying nature?

124 149 168 183



Notes

202



Index

213

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Dedicated to my daughters, Megan and Kelly, who have taught me so much about being a child and a parent.

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Introduction

Books are neither created ex nihilo nor produced in a vacuum. They are the work of authors who have various motivations for writing them. Some people see literary endeavour as an avenue for fame and fortune, although in Australia few writers experience either. A small group enjoy writing for its own sake and remain grateful that at least someone thinks their work is worth publishing. Others are encouraged by family and friends to share their experience or expertise in the hope of entertaining or educating a small group of readers. Various institutions oblige their members to write and publish books as part of their professional duties. And there are as many authors who will only ever write one book, because it contains all they want to say publicly, as there are prolific writers who start thinking about their next challenge before the current project is finished. In each instance, the writer’s aims and objectives are different. It is important that readers have some idea of why the book they are holding in their hands was written. This is especially the case with works of nonfiction that deal with contentious subjects where an author seeks to persuade others to their point of view. After trying to discern a little about motivations, the reader is entitled to ask a few questions about the author’s background. What have been the critical influences on the author’s life? Who and what has contributed to their outlook and attitudes? Have any particular experiences influenced their views about the subject on which they have written? Does the author have any genuine expertise to justify confidence in their interpretaintroduction | 

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tion of events and assessment of situations? Is he or she trying to conceal anything that might affect the willingness of readers to accept their judgments and/or embrace their conclusions? Is the author biased in some way or prejudiced against anyone or anything? I believe these are reasonable questions that a reader is at liberty to ask and that an author should be, at least willing to answer. These kinds of inquiries are relevant to me as an author and certainly pertinent to this book, given its subject matter. My attitudes towards adoption as a form of alternative parenthood have been shaped by personal experience. I was the unplanned child of a seventeenyear-old girl whose personal circumstances meant that she was unable to nurture me. Shortly after my birth in October 1962 I was relinquished and placed with my adoptive parents. My adoptive father suffered from alcoholism and was violent towards my adoptive mother, adoptive sister and me. Childhood was not a happy time in my life. I was often afraid and confused. Why was my adoptive father treating me so cruelly when I was apparently the child he had ‘always wanted’? In late 1994, after nearly five years of searching, I located my birth mother. We were shortly afterwards reunited. My semi-autobiographical book Binding Ties: An Experience of Adoption and Reunion in Australia, published in early 1999, contains an account of my personal reflections on being adopted, why I sought my birth parents, and what I gained from a reunion with my birth mother.1 This journey of occasional despair and frequent discovery has given me some insights into adoption and helped to shape the thoughts on reunion that appear within this book. My views on assisted reproductive technology (ART) as a form of alternative parenthood are also based largely on experience, in particular my experience of serving on a hospital ethics committee with oversight of a fertility clinic. When I joined the committee in 2000 I did not have any principled opposition to either the use of donor sperm for artificial insemination and IVF procedures, or the practice of surrogacy. I now realise that I had not thought very deeply about the ethical issues they involve. In one sense, there was no compelling reason why I should have devoted much energy to them because they did not directly affect me or my family. But after a highly unusual case was referred to the committee (see chapter 9), I recognised the need to change  | children on demand

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my views for the sake of consistency and to avoid espousing what would have been an absurd position. In brief, I objected vigorously to a woman gaining access to the stored frozen sperm of her deceased husband for use in an IVF procedure. I could not personally condone the birth of a ‘fatherless’ child. And yet, my colleagues on the ethics committee gently noted that I had not previously objected to cases involving the use of anonymous donor sperm. It seemed strange to them that I was quite prepared to allow women to use sperm from someone they did not know (and would probably never meet) but was strongly opposed to a particular woman gaining access to the sperm of someone she did know, in this case her deceased husband. In order to sustain a logical objection to posthumous parenthood, I was obliged to rethink my attitude to donor sperm. I now opposed what I had previously condoned. This was a very unsettling episode which I resolved imperfectly by resigning from the committee in 2003. I felt that I was too opposed in principle to far too many procedures involving ART to be any longer of much use to my colleagues in their deliberations on increasingly complex ethical questions. But I was not willing to abandon these discussions just because I found myself in a minority on one committee. There are other ways of contributing to public discourse with what I believe are valid perspectives. This book is one of those ways. Children on Demand: The Ethics of Defying Nature is intended for a number of audiences with the hope that each will gain something different from reading it. I have not wanted to produce a text for professional ethicists or academic philosophers. Some of the issues and arguments I present here have been the subject of a great deal of technical debate conducted at some distance from the immediate concerns of sincere inquirers faced with personal decisions about human reproduction. There is also a large body of research material dealing with competing claims about what children want and need as they grow up. Rather than outline the contours of this substantial body of literature, I have tried to summarise general trends in thinking and to fairly and accurately detail consensus and disclose agreement when and where it exists. While I write as an Anglican cleric who heads a theological college operating within a secular university, I have endeavoured to produce a volume that introduction | 

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is accessible and of interest to those possessing religious views different to my own, and to those with none. What do I hope this book will achieve? My principal objective is to help those non-specialists with a personal interest in childhood and parenthood to engage in more sophisticated ethical debate about issues arising from adoption and ART which, in my judgment, are of critical importance to human identity, human interests and human destiny, especially with regards to children. Over the past few years I have observed many more emotional reactions than intellectual responses to emerging reproductive technologies and procedures, what they might achieve and how children might be affected by them. While the creation of human life cannot be dissociated from the expression of human emotion, it is vital that ethical, legal and political arguments for and against any new technology, and of its impact on children, are heard before any change to laws regulating its use are proposed and then enacted. My secondary objective is to influence the thinking of legislators and the mood of the electorate. While individuals are free to make up their own minds on the matters dealt with here, access to reproductive technology is regulated by laws that can be changed. In some instances I believe the law should be changed and certain practices banned. If existing legislation is amended or new legislation is introduced, it is important that the parliamentarians being asked to accept or reject changes and innovations are fully conscious of the broader consequences of their decisions. They must balance the desires of couples seeking to overcome infertility with their broader duty to preserve whatever might constitute the common good, including the best interests of children, in each instance. I am not confident that my views or this book will change the minds of some people or amend laws in some jurisdictions. But I am more afraid that maintaining silence on the extension of access to ART will give the impression that there is no opposition to its conduct, and that community consensus is clearly and comprehensively in its favour. The fact that I cannot condone some forms of ART on ethical grounds should not be interpreted as indifference to the plight of childless couples. The opening paragraphs of chapter 1 hopefully embody my appreciation of

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how painful infertility can be for some people. But I would want to assert that adults can live very meaningful lives without children of their own and that, despite growing levels of social infertility, the notion that married couples must have children to be fulfilled is a form of emotional tyranny that should be denounced. From what I observe, many people whose fertility is unquestionable have little understanding or empathy for the feelings of childless couples – especially those who have chosen to remain childless – who tend to be regarded (even if silently) as selfish, immature or lacking in altruism. 2 Reflecting gender stereotypes, men who decline to be fathers tend to be accused of ambition and careerism while women who choose not to be mothers are seen to be lacking a vital feminine quality. The reasons people have for choosing childlessness vary enormously. Some women simply fear pregnancy and childbirth. A small group of men, and some women, believe they are physically or emotionally ill-suited to caring for infants. Some people suspect they would ‘mess up’ the lives of any children they might have as a consequence of their own childhood legacies. Those caring for an aged parent or disabled sibling are already fully occupied. Another group of adults is content with the contact they have with nephews or nieces, or the children of friends. They have no need for children ‘of their own’ when those of others are so accessible. And there are, of course, adults who prefer independence and mobility to parenting. Overall, this group tends to be non-vocal, non-proselytising and non-confrontational about their preferences or the decisions they have made, which partly explains why childlessness is not a subject discussed openly or often. While not quite a matter that is taboo, childlessness, whether chosen or otherwise, does not usually arise in casual conversation. And if it is unwittingly raised, those with children apologise profusely to those without them for such a terrible display of insensitivity. It is also apparent that some couples who find achieving pregnancy relatively easy do not understand how difficult it is for infertile couples to adopt children locally or how hard it is for some couples to conceive even with ART. Perhaps even fewer realise the depth of the emotional traumas (quite apart from the financial cost) endured by

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childless couples who want to become parents by any means. An empathetic response may be beyond some people. |||

Readers will find a mix of ethical arguments in this book. There are, of course, numerous approaches from which to choose in dealing with the moral issues associated with various forms of alternative parenthood. Each has its strengths and weaknesses. Deontological ethics, for example, stress rules based on rights and duties that produce obligations to do what is ethically right. Consequentialist ethics ascribe primacy to the calculation of effects and outcomes with a commitment to the greatest good for the greatest number. Contract ethics are based on a formal agreement between the members of a society. Virtue-based ethics concentrate on the inculcation of the correct virtues, believing that virtuous people behave virtuously. In this instance, I have tended to favour a simple form of ‘non-maleficence’ – the general principle that we ought not to inflict evil or harm on others – on two grounds. First, I am conscious that we live in a world of moral diversity where it is very difficult to achieve consensus, especially about matters dealing with the beginning and ending of life. This being so, there is a need to ‘lower the bar’ in ethical conversation to find sufficient common ground for cogent and workable public policy to be developed or legislation to be enacted. Second, there is almost universal ethical agreement that a person should be restrained by the state from harming another. In this context, harm refers to an injury causing physical pain or mental disability on the one hand or an injustice leading to social deprivation or economic disadvantage on the other. The ‘harm principle’ serves as a useful practical means of determining whether members of our society should be permitted to become parents other than by natural means. A commitment to avoid causing harm will have a bearing on acts of commission and omission, and must include due regard for potential unforeseen effects which could also lead to harm. A potential threat to the long-term wellbeing of a child should be treated as though it were an actual threat. If some harm to the child’s wellbeing can be imagined, it must be deemed to be

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real given the enduring consequences of ignoring it. Given that the best interests of children are the paramount consideration in any discussion of parenthood, anything that harms a child is obviously not in its best interests. Therefore, such an action cannot be countenanced by the state and should not be encouraged among individuals. A concern for threats to the welfare of children and actions contrary to their best interests, in my mind clearly precludes some approaches to family formation and parenthood. But what of more ‘moral’ considerations, involving contested values or competing ideals? By way of example, should a society prohibit same-sex parenting not because such parenting demonstrably harms children but because a majority believes it is morally wrong? Should the notions that undergird such a position be imposed by the state? There is insufficient space in this book to deal adequately with what has become known as ‘legal moralism’ – the use of the criminal law to uphold the moral convictions of a society – or the so-called ‘Hart-Devlin debate’, which was prompted by a proposal from the Wolfenden Committee to decriminalise male homosexual activity in Britain in 1965. I need to make some mention of it, however, in setting some parameters on the outcomes of my position. Lord (Patrick) Devlin (1905–92) argued in The Enforcement of Morals that ‘a recognised morality is as necessary to society’s existence as a recognised government’. 3 Breaching a moral principle was an ‘offence against society as a whole’ because deviation from one part of a moral code would lead to deviation from others. Devlin was willing to outlaw certain private acts, such as sodomy, on the grounds that they offended the moral sensibilities of the majority, detracted from social cohesion and communal harmony, and weakened the entire nation. He believed that ‘society is justified in taking steps to preserve its moral code as it does to preserve its government and other essential institutions’. Law existed for the protection of society, not the protection of the individual. For their part, the citizenry is saved from a tyrannous state by democratic principles that make the ruling party dependent upon the preservation of a popular mandate. The American legal philosopher H.L.A. Hart (1907–92), basing his argu-

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ments on the liberal principles of John Stuart Mill’s celebrated work On Liberty, first published in 1859, took a contrary view in Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965).4 Hart contested Devlin’s belief that immorality jeopardises society because, among other objections, it lacked an evidentiary foundation. In a rigorous application of the harm principle as the test of whether the state’s interference in the lives of its citizens was justified, he contended that state coercion could only be justified to prevent one citizen from violating the rights and interests of another citizen. If a person’s actions did not harm a non-consenting third party, such actions were none of the state’s business. The individual should not be prevented or restrained by the state from exercising his or her liberty. And even if a particular action were deemed to be wrong by a majority of people, however ‘wrong’ was understood in this context, it would not justify state intervention other than when it harmed a non-consenting third party, quite apart from constituting an invasion of privacy. Hart insisted that the enforcement of morality, however its content was determined by the state or a majority within it, was not a legitimate role for the criminal law. He believed that the state was not, therefore, entitled to criminalise homosexual activity between adults when such activity did not harm a non-consenting third party. While Lord Devlin might have regarded respect for individual liberty and personal freedom as components of the moral code that ought to be preserved, I believe the ‘recognised morality’ of any group ought to inform and instruct but not ultimately determine the legal system to which they are subject. By way of example, there is a general abhorrence of incest that is reflected in the common law. On one level, the character of family life would be undermined if incestuous unions were encouraged, quite apart from the likelihood of children being damaged by sexual lust misconstrued as parental or sibling love. On another level, laws forbidding incest also serve a biological function in helping to prevent birth defects. There is no community support for the repeal of laws concerning incest even though they effectively limit the sexual and reproductive freedom of men and women. Similarly, experience has shown that bigamy is certainly emotionally and probably physically harmful to those

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who engage in it, despite the involvement of consenting adults. Those who attempt to manage multiple partners (both acknowledged and adulterous) are rarely able to avoid rivalry and conflict, jealousy and deception. It would seem that human intimacy finds its proper expression in couples rather than in trios. Although it might not demonstrably harm non-consenting third parties, bigamy is prohibited under Australian law. This is paternalism, pure and simple. And yet, there is no groundswell of opinion demanding that these prohibitions be removed. In each instance, these practices offend the recognised morality of the Australian people and undermine the fabric of the civilisation they seek to preserve. Because it is very difficult to gauge either the shape or the extent of moral consensus in contemporary Australia with regard to alternative forms of parenthood, and noting that social attitudes bearing upon moral standards are dynamic rather than static, I have tried to interpret the contemporary social mood in order to discern the existence of any ambivalence or anxiety about those forms of family formation that appear to contradict the traditional structures that have always been thought necessary for the nurture of children. I am only opposed to a form of alternative parenthood when potential or actual harm to children is involved or demonstrated although I have a moral preference for the two-parents-living-together model of parenting. I accept that some readers will find my harm-referenced approach to adoption and ART unfulfilling and will complain that it does not provide a sufficiently broad basis for deliberation and decision-making – in effect, that my approach is deficient in that it allows too much and prevents too little. This is where I would part company with social conservatives who want certain practices and procedures outlawed, for their insistence on prohibitions fails to recognise where the authority of the state ends and the mandate of moral communities begins. Although citizens of a plural secular society might not be able to agree on a great deal, this does not prevent communities bound together by discrete beliefs and practices from promoting their own specific ethical approach in relation to such matters. Irrespective of the presenting issue, the members of moral communities, such as religious congregations and

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even lobby groups (which, I would add, need not be religious in derivation or motivation), must develop and espouse a moral position which goes beyond the minimalist stance taken by the state for the guidance and benefit of their members. The leaders of moral communities should not oblige the state to espouse positions that require an unachievable consensus. Nor should they expect the state to develop policies or enact laws that require assent to the particular beliefs and peculiar practices of the moral community to give these laws and policies coherence. Conversely, communities are themselves moral achievements and they have a place in shaping opinion that runs well beyond what should be permitted and what must be prohibited. They can address questions about what is right and wrong, and provide much richer content for a determination of what is in the best interests of a child. While I am not suggesting that the views of such communities should be enforced on the general community, they certainly should not be ignored when moral questions requiring a policy decision or legislative response arise. The disinclination of governments to liaise with moral communities has led Australian ethicist Margaret Somerville to lament that ‘the combination of moral relativism and political correctness is leading to the annihilation of shared values’. 5 Consensus on ethical questions continues to evaporate in most Western societies, with their citizens left only with law. The problem with relying on court action to settle disputes about values is that it obliges individuals to assert their case rather than to acknowledge discordant voices demanding a continuing search for consensus. Whereas religion once served as the basis for ethics, its relegation to the margins of the public square has left a void that many societies find difficult to fill. Law is not a substitute for religion in the development of ethics. Attempts to make it so have resulted in heavily over-regulated societies and litigious cultures. Most Western societies ask law to perform far too many functions and expect the courts to bear too many burdens. Some things must remain outside the realm of law and be kept within the sphere of ethics. This is why I still place great faith in fostering stronger moral communities who can shape and guide their constituents, together with their moral decision-making, without recourse to law.

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In the preparation of this book I have been greatly assisted by my friend Professor John Seymour, whose clear thinking and rigorous questioning helped to clarify my commentary and conclusions, and anticipate the more likely objections to them. I have much appreciated his generous spirit and genuine compassion because they provided a timely reminder that being concerned for the welfare and interests of children is more important than merely winning an argument among adults. I must also acknowledge the ideas and insights I have derived from dinner table conversations with my wife Helen and daughters Megan and Kelly about the matters considered here. They have brought many feminine perspectives to bear on a book that would have been much poorer without them. The shortcomings and deficiencies of my arguments and conclusions remain my sole responsibility. The appearance of Children on Demand will coincide with Louise Brown’s thirtieth birthday. Louise was the world’s first ‘test tube’ baby. Her arrival was hailed as a modern medical miracle by some; others believed it marked the advent of a grave new world. Children on Demand is intended to prompt conversation and provoke debate. Given the light and heat provoked by Louise’s birth in 1978, I have little doubt that the arrival of this book will not be ignored.

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1 Dealing with infertility

For many of those afflicted by it, infertility is both a curse and a bitter torment. A government inquiry in the United Kingdom described it as ‘a malfunction which causes endless misery’. Australian ethicist Professor Peter Singer considers it ‘a disability’; British fertility specialist Lord Robert Winston has referred to it as ‘a disease’.1 Infertility can cause people to doubt their own worth and the point of their lives. Infertility afflicts both men and women of all social, economic, ethnic and cultural backgrounds. It occurs randomly and inexplicably and without regard to a person’s ability to care for children. Infertility can devastate the lives of men affected by it. Because men often link fertility with virility, ‘sterility’ implies a lack of manhood. Men with no previous history of erectile dysfunction can become impotent on learning they are infertile. They are denied the possibility of being like their father – the most significant man in most men’s lives – and can tend to shun male contact to avoid embarrassment and humiliation. Family traditions can become a tyranny when no successor is available to carry on the business or perpetuate the family name. One man compared his grief at learning he was infertile with the loss of a close relative: ‘It was more grief than I had with … the loss of my adopted grandfather. It was just grief, physical, emotional grief that I had lost this gift, this ability – infertility – the idea that I would never see, never have a child, a biological child that would have some of my characteristics’. 2 Women can feel the pain of infertility even more acutely, for it is commonly but mistakenly believed that women rather than men are infertile and 12 | children on demand

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therefore that they are the cause of most childlessness. In nearly all Western societies, motherhood has been made foundational to women’s identity. Infertility can impinge on a woman’s personal confidence and can influence how others see her. Fertility, of course, is a function of neither intelligence nor beauty, but women can start to question and mistrust every part of their being if they cannot produce a child. Over the centuries, describing an infertile woman as ‘barren’ carried with it an unmistakable inference of deficiency. The American social historian Elaine Tyler May writes: ‘Barren is a term laden with historical weight. It carries negative meanings: unproductive, sterile, bare, empty, stark, deficient, lacking, wanting, destitute, devoid. It is the opposite of fertile, lavish, abounding, productive.’3 The personal despair and sense of despondency caused by infertility is captured in Andrea Belk-Schmehle’s moving reflection entitled ‘Every month a little miscarriage’: I am sterile: sterile as a hospital, white, tiled, shining, clean, smelling of disinfectant. Not a speck of dust, nothing living or which could live. Sterile just like me. Or in plain English: unfruitful. Like a drought-ridden field with thick, cracked clods of earth, where nothing grows, nothing flourishes. Sterility – that is also impotence, for potency means possibility. Sterility, that is a ‘cemetery belly’, as a woman once said to me. A cemetery belly, in which countless possible but defunct children, never to be awakened to life, are buried.4

For many infertile couples achieving a pregnancy becomes an obsession, the only thing in life that matters. Mundane events take on highly symbolic meanings as otherwise rational people become highly superstitious. They see obvious omens where others see absolutely nothing. The infertile blame God and their parents for this dreadful ‘defect’ and its infinite consequences. Having worked with hundreds of childless couples, Winston explains: The blow of discovering that one is infertile is heavy. It is unequalled in any sphere of life because for those who suffer it, it often feels as if, for no good reason, they have been judged inadequate by some supreme will of the

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heavens. Those who are infertile are not only unable to feel and express the emotions that parenthood brings, they are also barred from contributing to the continuity of human existence. Having a child brings parents a kind of immortality which childless couples may only watch with envy. 5

Infertile people fear condemnation from family and possible rejection by their partners. When pregnancy remains elusive, productive friends can become the focus of resentment and their children can even turn into objects of loathing. It is not uncommon for infertile men and women to be brought to despair by the social hype associated with Mothers’ Day and Fathers’ Day, or to drift away from siblings who have produced children and grandchildren. Some infertile couples even try to avoid passing childcare centres, and dislike attending parties where ‘everyone else’s children’ play together. Infertility also brings unforeseen stresses into a marriage. Where one partner is known to be infertile – as was my father in the case of my adoptive parents – the inability to provide viable reproductive material can lead to lifelong feelings of inadequacy and failure in that partner. This ‘failure’ can easily become a ‘fault’, to be turned by the fertile partner into a weapon with which to cause pain during an argument. Where the cause of infertility is inexplicable – both partners are fertile but they simply cannot conceive together – a couple may decide to separate in the hope of finding other partners with whom they might stand a better chance of producing children. And where infertility has afflicted royal marriages, diplomatic crises and bloody wars have been among the more disastrous consequences. According to data presented at a symposium of the Biosocial Society in 1998, in the Western world around 7 per cent of all couples are physiologically or biologically infertile. In some countries the primary infertility rate (‘primary’ denoting non-social causes) is as low as 5 per cent; in others as high as 10 per cent.6 Male factors usually account for 40 per cent of all cases of infertility; another 40 per cent are caused by female factors. (Recent data suggests that the impact of male infertility might now have surpassed that of female infertility in the West, perhaps as a result of environmental and lifestyle factors, and account for at least half of all cases of infertility.) In the remaining 14 | children on demand

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20 per cent of cases there is either a combination of male and female factors or no cause can be identified. Infertility rates are also increasing throughout the Western world because so many women are delaying childbirth until later in life, when they are less likely to conceive. This phenomenon has been dubbed ‘circumstantial’ or ‘social’ infertility. Until very recently, in historical terms, little could be done to overcome the biological dimensions of infertility because so little was known about the complexities of human reproduction. In pre-modern societies, both women and men were subjected to witchcraft and sorcery in the hope of placating the demons and attracting the spirits whose influence was either feared or favoured. Childless couples were encouraged to make sacrificial offerings and to engage in intercourse in certain places at special times to overcome the spiritual forces preventing conception. In the days before medical science began to understand reproduction and infertility, women – and men – were given dubious, possibly poisonous, potions that were thought to assist ovulation and conception. In most instances the failure of unscientific and speculative remedies only added to the disappointment faced by already desperate people. The most common response to childlessness throughout history has been some form of adoption. Women unable or unwilling to nurture children to whom they had given birth made them available to couples unable to produce their own. The ‘adoptee’ was considered in all respects to be the child of its ‘adoptive’ parents. In the vast majority of cases, this appeared to meet the needs of women who did not want to be mothers, the needs of children requiring alternative permanent care, and the needs of childless couples wanting a child to call their own. Millions of people across the centuries overcame childlessness through the adoption of infants, which was seen to be an effective and efficient way of simultaneously meeting a series of pressing demands. But in most Western societies this rather neat arrangement was dramatically disrupted by the 1980s, a result of the interplay of three distinct forces. First, infertility rates steadily increased as men and women began to marry

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later and delay having children. It is now known that women are most fertile when they are aged in their early twenties. Fertility drops by 20 per cent after a woman reaches the age of thirty; by 50 per cent after thirty-five and by 95 per cent after her fortieth birthday. The chance of becoming pregnant at fifty is virtually nil. There is no conclusive evidence to suggest that biological infertility has increased appreciably over the past thirty years but circumstantial or social infertility has certainly been on the rise over the same period. The Australian experience typifies broader Western trends. Twenty-five per cent of Australian women currently of child-bearing age will be childless, although only 7 per cent will choose to be so. Another 7 per cent will face medical infertility. Eleven per cent will want to be mothers but circumstances, predominantly the lack of a suitable partner, will prevent this from happening. This reflects another element influencing fertility – the declining marriage rate. While marriage does not, of course, mean that children are assured, the declining number of couples choosing to formalise their relationship through marriage has affected the number of women willing to have children. The stability and security of a relationship is closely linked to the readiness of a woman to become pregnant. Women are more likely to become mothers within the bounds of marriage because they believe it creates a better environment in which to give birth and nurture children. In sum: the increased rate of circumstantial infertility means there are more couples who have an unmet need for children. At the same time, the number of babies available for adoption has rapidly decreased. There has been a major shift in public attitudes towards the deliberate termination of an unwanted pregnancy. Abortion is now more commonly seen as a decision about health and wellbeing rather than an ethical choice with moral consequences. It is available virtually ‘on demand’ as a woman’s right, and the cost is met by taxpayers as part of national health programs. Despite continuing debate about the status of the fetus and the ethics of abortion, unwanted pregnancies are now much more likely to be terminated. Very few women deal with an unwanted pregnancy by giving birth and relinquishing the child for adoption. At the same time as attitudes

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to abortion were being challenged or changing, many nations expanded their social welfare systems to include payments to single mothers and their babies. This support allowed young women who wanted neither to abort nor to relinquish their children to raise them without excessive financial hardship. Younger women in particular were no longer obliged to rely on family assistance, which might have been withheld by disapproving parents or siblings. In brief: changing attitudes to abortion and the advent of state support for single mothers had a direct and substantial impact on the number of relinquished children. After 1980 there were, quite simply, not enough children available to meet the demands of the growing numbers of infertile couples still desperate to have children. The third factor is that evolving forms of assisted reproductive technology (ART) have been able to overcome some types of infertility. With childlessness affecting so many people, there has been sizeable investment in research aimed at helping couples to conceive, an expense met by individuals and governments willing to pay very large sums to gain access to the fruits of this research. Market forces have also made overcoming infertility big business around the Western world. Technological innovation since the mid-1980s has offered prospects for parenthood that were previously thought unimaginable. The expansion of ART has constituted a virtual revolution, with enormous consequences for human life. Childlessness is no longer a burden to be stoically endured; infertility is merely a challenge for those who can afford to pay for it to be overcome by medical science. Eager researchers have devised ingenious strategies for subverting or circumventing more and more ‘natural’ impediments or barriers to parenthood. And unlike adoption, ART offers men and women the chance to produce their own ‘flesh and blood’. No longer would one need to pretend that someone else’s child was, in fact, their own son or daughter. Once ART demonstrated what was possible in terms of procreation did legislators begin to deal with the contentious matter of which procedures should be deemed legal and which should be banned. But they could only draft legislation when the community was resolved on what might be

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considered prudent and practical. This was not an easy or straightforward undertaking, as ART had also created a series of unprecedented moral dilemmas that attracted emotional responses as well as ethical arguments. Notwithstanding these concerns, within the space of three decades attitudes and approaches to infertility and childlessness have changed almost beyond recognition. Technological solutions are today the principal means of overcoming fertility problems in many Western societies. Now that ART has become an accepted part of life and very few people still object publicly to its use, it is time to reassess the possibilities and problems created by scientific responses to infertility when these techniques increasingly appear to defy the constructs and characteristics imposed on human life by nature and natural processes. Adoption and ART have already been the subject of much discussion. What makes this book different? Although infertility and childlessness have provided the impetus for this work, the emphasis in my commentary is firmly on children and their needs rather than on adults and their rights. I have taken this approach because both Australian law and the international conventions to which Australia is a signatory contain a clear and overriding commitment to promoting and preserving the best interests of children in all situations that affect their care and wellbeing. Beginning with adoption as the oldest form of alternative parenthood and ending with ART as the newest, I will argue that the fulfilment of an adult’s desire to overcome infertility and childlessness should never be contrary to a child’s best interests, and certainly should never cause a child harm. I will consider adoption and ART separately, because the first concerns the actual care of children who have already been born while the second involves the potential needs of children not yet born. In my view, the most pressing issue to be dealt with relates to the significance of information about one’s biological parents and the importance of experiencing their nurture and care. If we regard these things as crucial to being healthy and human, and to living a full and rich life, they need to be critical considerations in any discussion of the practice of adoption and the conduct of ART. While there are children who have no knowledge of their

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biological father (perhaps because paternity is unknown or unacknowledged) or who will be raised by individuals other than their biological kin owing to the death or desertion of their biological parents, we must ask whether a baby should be knowingly placed in these situations by any society which regards the interests of children as paramount. In wanting to keep children in the foreground, I have divided the remainder of this book into three parts. The first provides a social, political and ethical context to the discussion that follows, identifying the most pressing issues to be considered where children’s welfare is involved, irrespective of the form of alternative parenthood being considered. Chapter 2 explores the dynamics of the relationship that exists between children and their parents, in the context of a child’s journey into adulthood. It seeks to define the family and the place of children within families, and assesses whether having children should be regarded as a right or a privilege. The third chapter considers the importance of biological kinship in parenting and the significance that ought to be attached to the place of genetic information in an individual’s evolving sense of their identity. It assesses the importance of a comprehensive personal narrative and the effect of an individual’s sense of belonging on the maintenance of community cohesion. Chapter 4 looks at the role of the state in recognising and respecting the reproductive choices that individual citizens seek to make, and analyses the state’s responsibilities in regulating access to ART. This chapter draws on a more general assessment of the right of states and the power of governments to intervene in the lives of the citizens subject to their authority. Part Two deals with non-technological methods of dealing with childlessness. Chapter 5 explores the ancient Roman custom of adoption and accounts for its enduring popularity in Western societies as a form of permanent alternative childcare. I outline the reasons for the decline in the number of children available for adoption in most Western nations, and examine the increasing pressure exerted on scientists and researchers to develop technologies and procedures that will allow ‘infertile’ couples to have children when relinquished babies are no longer available for placement. This chapter

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also looks at the recent rise in intercountry adoption and canvasses arguments both for and against the relocation of children away from their country of birth. I also consider the desire of same-sex couples to adopt children and interpret opposition to their being able to do so in the context of conflicting claims about the basic ingredients of parenthood. Chapter 6 asks whether adoption might again become an attractive means of dealing with unwanted pregnancy and offer a practical answer to childlessness. Given that most jurisdictions now provide for the reunion of relinquishing parents and their children in adulthood, I ask whether this change in attitude could lead to new attitudes towards adoption and a revival in its popularity. Part Three examines some acute practical issues and a range of emerging ethical dilemmas arising from different technological responses to infertility. Chapter 7 looks at the best-known forms of assisted conception: artificial insemination and in vitro fertilisation (IVF). I outline some of the many diverse objections to these technologies and gauge the strength of feeling against the technologies and the weight of evidence behind the objections. Chapter 8 considers the problems and perils created by both altruistic and commercial surrogacy, tensions arising from the existence of different regulatory regimes and the difficulties faced by legislators wanting to restrict or even prohibit the intrusion of financial considerations into a surrogacy agreement. Chapter 9 examines a number of instances in which people (mainly women) have wanted to make parents of the dying or the dead by using their frozen genetic material for post-mortem procreation. It also notes the desire of some people to store their reproductive material temporarily, to suit their lifestyle, or indefinitely, as a form of immortality. The final chapter contains my principal conclusions and the ethical positions to which they have led me with respect to various forms of alternative parenthood. Children on Demand does not deal with the highly controversial subjects of stem cell research or therapeutic cloning because neither is relevant to the nurture of children, which is my main interest. Nor do I deal with pre-implantation genetic screening or embryo gender selection. Again, as I am principally concerned with babies and infants, adoption and ART, I do

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not deal with step-parenting, fostering or the care of children made the subjects of court orders. Given my interest in children and their care, what should the reader make of the book’s subtitle: ‘the ethics of defying nature’? What do I mean by ‘nature’ and does it possess and exercise a will of its own? I propose that certain human activities and aspirations seem either intended by nature or constrained by natural processes. For instance, the union of a man and a woman was always thought to be required for a child to be born. Is there, then, some innate moral ‘logic’ in this arrangement? I suggest that there is. In Book III of his Treatise on Human Nature, published in 1740, the philosopher David Hume (1711– 76) dealt briefly with the question of whether nature provided a sound basis for moral judgment. If something was unnatural was it also morally wrong? It depended, Hume concluded, ‘upon the definition of the word Nature, than which there is none more ambiguous and equivocal’.7 He contrasted ‘the natural’ with ‘the artificial’ and differentiated it from ‘the normal’, but of greater use to his argument was defining ‘the unnatural’, which Hume understood to be ‘the unusual’. I think Hume’s definition is inadequate in that it infers that the unnatural is unlikely or extraordinary rather than something contrary to, or resisted by, nature itself. Although human beings have interfered in natural processes for centuries, we can differentiate between kinds of intervention, perhaps distinguishing between those things that work with or against what we might call ‘the grain’ of nature. But human beings, I would argue, lack a mandate to change nature. This prerogative, to my mind, remains with God. My definition of unnatural is ‘something which defies nature’. An unnatural act is an act which seeks to overturn or thwart the essence of nature or the dictates of natural processes as they are known and experienced by humanity. It is not unnatural, meaning against the grain of nature, to use technology to assist a man to overcome a low sperm count to produce children with his wife. But it is unnatural (and presently impossible) for a homosexual couple to have children, by any natural process, to whom both partners are biologically related. Nature dictates that a man and a woman are required for procreation and this limitation should be acknowledged and respected because,

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I contend, it discloses something of the purposes and providence of nature: that a child’s best interests are served by it having a mother and a father. When human beings defy the constructs of nature, it is not always possible to ensure that the consequences of such defiance can be contained or controlled. Until men and women can claim to have grasped the totality of their complex physical beings, they have no business altering or re-formatting those parts of their ‘operating system’ which they dislike or which do not adequately satisfy their desires. There is nothing new in sounding this note of caution. It is the main message conveyed in Emile, a novel about a young boy by Enlightenment philosopher Jean-Jacques Rousseau (1712–78). It was published in the same year as his more famous Social Contract (1762), and begins with the profound observation: ‘Everything is good as it comes from the hands of the Author of Nature, but everything degenerates in the hands of man’. According to Rousseau, there was a rightful purpose in nature that ought to be allowed to stand. Nature offers ethical insights and provides moral lessons. It is able to instruct and guide. Despite great advances in medical science, we should not seek to alter nature permanently in ways that merely suit human preferences. As I have already said, this is not to suggest that any interference with nature is prohibited. Medical science routinely interferes with natural processes. It treats diseases which are features of nature and it corrects what might be described as ‘design faults’ in the human body. Medical science stops people dying from preventable conditions and allows them to live longer and more fulfilling lives. But there is a significant difference between the treatment of disease and the healing of injury, and altering the very means by which people are brought into the world and the fundamental circumstances in which they will live. Given that children do not decide to be born and do not choose the circumstances of their birth, and noting that young people are subject to decisions made by adults throughout their nurture, there is every reason for societies and states to be careful in what types of family formation they encourage and what kinds of alternate parenthood they permit.

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Pa r t O n e

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2 Children and parents

Children need adults to be born and to live. Adults are the vehicles by which children are brought into the world and from whom they steadily learn about life. At the time of their birth, babies are helpless and vulnerable. They cannot survive without the care and protection that adults provide. As they grow, infants need to be kept safe from harm until they can avoid injury and defend themselves from aggressors. As responsive beings shaped by the environments in which they grow, children need to be nurtured and educated so they can take their place in the community and derive maximum enjoyment from life. As teenagers, they require reassurance that they are valued and supported while they discover their identity, learn to make their own decisions and begin to accept responsibility for their actions. Throughout their infant, pubescent and adolescent years, children look to adults for food, shelter, clothing, meaning, direction and acknowledgment. In the majority of instances, the adults who principally meet these needs will be their parents – a man and a woman to whom they refer as their ‘father’ and ‘mother’. This is a special relationship that at its best permits a child to believe that its physical, emotional and spiritual needs are not subordinate to its parents’ wants or of secondary importance to those of all other adults. Whereas adults can be relied upon to pursue their own self-interest, children must be confident that their parents will make personal sacrifices for them without prompting or payment. We are often surprised that even selfcentred people find a capacity for selflessness when they become parents 24 | personal, philosophical and political contexts

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and assume responsibility for children. Without the care and nurture that parents provide, children can become anxious and even disturbed. Without the guidance and discipline that parents impart, children can doubt their worth, suffer from low self-esteem and engage in self-destructive behaviour. Parents are an integral part of a child’s life and usually the single biggest influence on what that child will become as an adult. If we wound a child, we scar an adult. Apart from political or practical considerations such as providing for a dynastic succession or gaining access to welfare benefits, and given what is at stake in raising children, why are men and women willing to become parents? Given the cost, inconvenience and unpredictability of children, and being mindful of the considerable time and money associated with their nurture, what do men and women gain from having children? These are crucial questions in the context of understanding why some people are prepared to invest so much money and energy in becoming parents and why they are willing to expend so much of themselves and their resources on their children and their development.

The pursuit of parenthood Like most things that are done by human beings, men and women have children for good reasons, bad reasons or for no reason at all. Sometimes they have had no choice. At different points in human history, governments have obliged citizens to marry and procreate to sustain their society and to contribute to its prosperity. After the three Punic Wars fought between Rome and the Carthaginian Empire (264–241 BCE, 218–201 BCE and 149–146 BCE) left women outnumbering men, Rome enacted laws compelling its citizens to marry and awarding them special privileges according to the number of children they produced. Single people were eventually excluded from inheriting properties or positions. If a person’s hopes for the future were linked to

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children and those children’s children, a childless person had no future and might as well be dead already. To have children in those societies was to preserve one’s posterity. The childless were a burden to the state and the subject of scorn. Apart from political and economic imperatives, some modern observers would argue that the desire to have children is nothing more than a Darwinian urge to perpetuate the species. If human beings did not maintain the habit of having children they would, of course, vanish from the face of the earth within a century. As this is contrary to a deeply held survival instinct, producing children merely reflects a biological impulse. While it is true that we need to reproduce if humanity is to avoid extinction, most people would not find this a persuasive or adequate account of why we have children. It certainly fails to explain why there are many people with no interest in having children. The motives for reproduction and parenthood would thus appear to be much deeper and more profound. Most men and women do not want to be alone or isolated; they seek out others with whom they form close and continuing bonds within which they find mutual sharing and reciprocal care. At the most profound level, a man and a woman have children because children extend the affectionate and compassionate community they established as a couple. Caring for children gives them another opportunity for personal intimacy and a broader experience of companionship. This opportunity and experience provides sublime pleasure and hints at the point and purpose of living: that human beings find meaning and significance for their own lives and for the world in which they live through loving others and being loved by them. Children seem to draw great depths of feeling and a capacity for altruism from their parents that might not otherwise find expression. Survey data does not answer the important question of whether children strengthen marriages or weaken them. On the one hand, couples are brought together when they are obliged to co-operate in the care and nurture of their children. On the other hand, a person’s love for their partner might be closer and more intense if it were not divided or dissipated by the

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presence of children. A poll conducted by the popular American journalist Ann Landers (1918–2002) in her syndicated column in 1975 asked parents whether they would have children if they could choose again. Of the 70 000 respondents, half said ‘no’. While one imagines that the forthright feelings of disgruntled parents would have weighed against this being a fair or reliable sampling, the existence of more than 35 000 parents with this attitude is telling. Over thirty years later, in early 2007, a study involving 2020 American adults, conducted by the Pew Research Center based in Washington DC, asked respondents about the purpose of marriage.1 By a nearly three-toone ratio, respondents said it was the ‘mutual happiness and fulfilment’ of adults rather than the ‘bearing and raising of children’. When given a list of nine contributors to a successful marriage and asked to rank them in order of significance, faithfulness, sexual contentment, sharing household tasks, economic factors such as adequate income and good housing, and shared tastes and interests, were ahead of bearing and raising children. In comparison to a similar survey conducted in 1990, the relegation of childbirth and parenthood to a position towards the bottom of the list was, according to the Center, ‘perhaps the most striking finding in the survey’. But in terms of personal fulfilment, 85 per cent of parents with children under eighteen years of age described child–parent relationships as the most fulfilling, slightly ahead of relationships with spouses and partners, and much more satisfying than relationships with their own parents and siblings. Clearly, there are no guarantees that parenting will be a fulfilling experience for every mother or father. But this clearly does not deter people from having children. To choose to love another adult and then to bring children into the confines of that relationship defies the kind of rational, self-interested decision-making that men and women apply in almost every other facet of life. Loving involves the risk of betrayal and the possibility of rejection. It also requires a different view of oneself in relation to others and assumes the existence and exercising of demanding virtues. The possession of these virtues is presupposed in the well-known words of Saint Paul in his first letter to the divided and strife-ridden Church at Corinth, written around 55 CE:

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Love is patient, love is kind. It does not envy, it does not boast, it is not proud. It is not rude, it is not self-seeking, it is not easily angered, it keeps no record of wrongs. Love does not delight in evil but rejoices in the truth. It always protects, always trusts, always hopes, always perseveres.

Although love cannot be explained cogently and its expression might often seem illogical and even counterproductive to furthering individual self-interest, it is within relationships established and maintained by love that men and women, boys and girls become conscious of their worth and significance. Of particular relevance to this book, these loving relationships also help individuals grasp a sense of their identity and destiny. These are important personal markers that impart meaning and disclose obligations.

Families, identity and destiny The earliest recorded account of human origins and fate is found in the first chapter of Genesis: ‘In the beginning, God created … and it was good’ (verses 1 and 25). The universe unfolds according to a plan in which humanity finds its meaning conveyed through two related propositions. The first affirms the sanctity of the human individual as individual. Every person is created in the ‘image of God’. But the second proposition asserts the incompleteness of the individual as individual: ‘It is not good for man to be alone’ (chapter 2, verse 18). Individuals need the companionship of others to complement their living. Life is enriched in and through interaction with other people, particularly those with whom there is a ‘blood connection’, because something of the essence of a man and a woman is transmitted to their children through procreation. The individual is always a discrete entity but his or her meaning as a person is understood in relation to others. In answering the question ‘Who are you?’, there is limited value in an individual responding ‘I am me’. More significant are the answers ‘I am my father’s son’ or ‘I am my mother’s daughter’, because these replies disclose something of an individual’s iden28 | personal, philosophical and political contexts

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tity. These ties are neither unimportant nor are they optional. They are integral to being human. In the Hebrew Scriptures, close biological relationships expand into bonds of kinship, ‘blood ties’ which link clans and tribes to the largest and most significant social entity – the nation. But the wellbeing of the nation depends upon the health of families. They are the primary building blocks of a functioning society. In the Genesis account, families are preserved by covenants, which in their simplest form are statements of privileges and obligations. Covenants are maintained by the identity of those they bind: they express the kinds of persons the covenanted people are to be towards one another. By way of example: I am obliged to care for my daughter because she is my daughter. Relationships define responsibilities: my sister is entitled to my assistance because she is my sister. There are some things to which I am entitled because I am part of a family which is maintained by a covenant. It is not surprising that where biological relationships break down and the privileges and obligations of being part of a covenanted community like the family are disrupted, or even disappear, interactions between all individuals are impaired. There is a loss of trust and respect as each person attempts to assert their significance and to secure their future, very often at the expense of everyone else. It is for these reasons that most societies, including those whose common life is not informed by any religious narrative, place great importance on preserving the biological relationships that undergird the family. History would suggest there must be at least one safe place where people are valued and esteemed on the basis of their personal identity rather than their practical utility. Although individualism – the belief that the location of meaning and purpose in this world is to be found through individual self-fulfilment – is influential in many Western societies, the family has not dissolved as a social entity or been displaced from centrality in the lives of most people. As social commentator Julianne Shultz has noted: Not so long ago conservative commentators were predicting that the permissiveness of a generation – and what they saw as the accompanying rise in divorce, drop in marriage and declining birthrate – would fatally children and parents | 29

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threaten the family unit. Left-wing analysts were inclined to see the rise of individualism in a ‘me first’ society, coupled with wider recognition of the dark side of many patriarchal families, as undermining the family as a viable social unit. The family was predicted to be on its last legs – to be replaced by an individualistic self-society in which traditional values were jettisoned and random couplings and groupings replaced mum, dad and the kids … the dire warnings have not materialised. 2

Families matter to the young and the old, and to men, women and children. Whenever a person achieves a personal milestone or negotiates a new direction in life, such as graduating from university or becoming married, they seek to mark and celebrate these occasions in the company of their family. To be separated from one’s family on Christmas Day is deemed a great personal misfortune and something deeply regrettable. To be absent from family on one’s birthday is a source of disappointment and even sadness. Of those who participated in the 2003 Survey of Australian Social Attitudes, 74 per cent of respondents said that ‘family remains central to personal identity’. 3 The survey also revealed that in the minds of most Australian men and women, children rather than marriage appear to define a modern family. But is this necessarily so?

Who constitutes a family? Defining the family is neither trivial nor straightforward. It has become, in fact, something of an ideological battleground, with assertion and counter-assertion about what are the necessary components of a ‘real’ family. In the absence of formal statements outlining the minimum requirements for a group of people to be designated a family, most Western governments pursue policy agendas that acknowledge and advantage some domestic living arrangements and not others. These policies relate to taxation rebates, childcare subsidies, superannuation payments, property acquisition and

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probate settlements. Some families, mostly those which include dependant children, receive welfare payments or varied forms of financial assistance. Other domestic groupings are overlooked or ignored as either not justifying support or falling outside official definitions of the family. What, then, is a family? The English word ‘family’ derives from the Latin familia, which is more properly translated ‘household’ because in Roman times it included the servants or famuli and others who were dependent on the head of the household for security and sustenance. The Oxford English Dictionary provides four nonmetaphorical meanings for ‘family’: (1) a group consisting of two parents and their children living together as a unit, (2) a group of people related by blood or marriage, (3) the children of a person or couple, (4) all the descendants of a common ancestor.

When people talk about family in Western societies they usually have in mind the first meaning: parents and children living together rather than any other combination of participants. To my mind this constitutes an unreasonably restricted definition because I am not convinced that the presence of children necessarily defines a family. For the purposes of this book, a family is essentially constituted and effectively maintained by relationships with four principal features. First, the individuals involved regard these relationships as permanent. Secondly, the relationships embody a commitment to the total wellbeing of everyone else involved in them. Thirdly, the relationships are based on a person’s identity and not on their utility. In the fourth place, the relationships have an intimacy about them that is not encountered in other attachments. It is possible for these relationships to involve a large number of people, perhaps as many as twenty adults and children, and to span several generations, or to be small and encompass a couple or even two siblings living together. The number of participants is irrelevant. A community sustained by relationships with the four features outlined above is a family and ought to be recognised and supported as such. children and parents | 31

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The existence of dependent children is not, in my view, the defining characteristic of a family despite popular perceptions in the community and the assumptions of much public policy. But I am conscious that a majority of people, for the time being, will continue to believe and insist that the presence of children defines a ‘real’ family or a social entity that deserves special consideration in terms of administrative law and public policy. Furthermore, because children purportedly define a family and, by an extension of the same thinking, everyone is entitled to a family, it is frequently asserted that men and women have a right to children by whatever means are available, including ART, at public expense. Denying anyone access to ART effectively constitutes, so the argument continues, the violation of a basic human right. But do men and women have a right to children? What are we to make of this purported right?

Families and children Article 16 of the Universal Declaration of Human Rights (1948) states: ‘Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family.’ The first part of this right (to marry) is largely free from controversy, the second part (to found a family) less so, because it is susceptible to a range of interpretations. Clear violations of the second part would certainly include the forced sterilisation of married women or the mandatory termination of pregnancy. It might even be possible to declare the long-standing ‘one child’ policy in China to be a violation of human rights, because the state has decreed that it will disadvantage families that have more than one child. But what should we make of situations in which a couple cannot achieve pregnancy without assistance from a third party? Does the denial of this assistance constitute a violation of the couple’s right to found a family, given that Article 16 links marriage with founding a family?

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It must first be noted that no-one has a legitimate right to something that is impossible for them to obtain. There is a memorable scene in the 1979 satire Life of Brian, depicting a disparate group of first-century Jewish revolutionaries plotting the overthrow of Roman imperial rule in Judea. The purpose of the film-makers is to mock the ludicrous and unrealistic demands of extreme political radicals in every generation when their ideals are completely divorced from reality. One of the male characters announces that he has changed his name from Stan to Loretta. He goes on to announce that he wants to have a baby. The leader of the group is incredulous: ‘Where is the fetus going to gestate? Are you going to keep it in a box?’ The only female member of the group suggests that they agitate for the right of Stan-Loretta to have a baby. It is, of course, an exercise in utter futility. Men cannot claim a right to give birth because they cannot become pregnant. It is crucial to distinguish between actually producing children and attempting to produce children. Even with all the assistance that science can offer and the best help money can buy, there may be factors that preclude a couple from producing any children.

Reproductive rights The existence or otherwise of certain reproductive ‘rights’ was considered by an official inquiry into human fertilisation and embryology established by the British Parliament in 1982. The moral philosopher Professor (later Baroness) Mary Warnock of Oxford University served as its chair. Its report, entitled ‘Question of Life’, was delivered to the UK Government in July 1984.4 In a subsequent study entitled Making Babies: Is There a Right to Have Children?, Warnock summarises her own thinking on this question. She notes that ‘a right is an area of freedom for an individual that someone else has a duty to allow him to exercise, as a matter of justice. It is a freedom that one claims, for oneself or for another, and that one can properly prevent other people from inhibiting’. 5 She points to the need to separate legal and moral issues by

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maintaining a distinction between the language of law and rights on the one hand, and moral principles and obligations on the other. If one claims that a right to children comes from nature, the infertile would be obliged to accept that nature was denying them that right unless some non-natural factor was a cause for their infertility. She also notes that no-one needs to have children to express their identity or to fulfil their destiny. Children are not indispensable to life and happiness because those without children ‘have a life’ and the majority claim to be happy. According to Warnock there is, then, no absolute or even partial right to have children. But she also noted that more than two decades of media reporting on nearmiraculous technological achievement had encouraged the mistaken belief that all adults had a right to children whatever their circumstances. She remarked: I would deplore any tendency for people to become so obsessed with their right to have a child, and to have it in the way they want, even with the characteristics they would prefer, that they forget the old sense of astonishment and gratitude that came with the birth of a child. Gratitude to whom? Well, to God or nature, or the midwife or the doctor, or the principle of continuity and the renewal of life itself. It does not matter. But ... gratitude is something you do not feel when all you have got is what is owed.6

Dr Brian English, a former senior lecturer in social work at the University of New South Wales, has made a similar observation in relation to Australian attitudes: ‘It is fair to speculate that many people now believe, with whatever justification, that everyone has a right to parenthood and a right to expect the State to help them achieve it by one means or another’.7 There is, however, strenuous denial of this purported right within some segments of Australian society. TangledWebs, a support and advocacy group for those born through donor conception (DC), is adamant that no-one has a right to children: To claim the right to a child is to treat that child, another human being, as an end to satisfying one’s own desires, as an object and not a person. To

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claim the right to a child is to claim jurisdiction over another human being’s life when they have no say in the matter, when they have not given their consent, informed or otherwise. 8

If, then, parenthood is more of a privilege than a right, attention must be focused on the purpose for which parents exist and on those who are its subjects (that is, children) to ensure the privilege is not abused.

The rights of children Plainly, parenting does not exist for itself although people derive pleasure and satisfaction from parenting. Parenting is primarily about caring for children. Therefore, the first concern of parenthood must always and everywhere be the promotion of the best interests of children. This is reflected in the preamble to the Declaration of the Rights of the Child, proclaimed by the United Nations General Assembly in 1959. It recognises the principle that ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’. This principle is restated in the preamble to the Convention on the Rights of the Child, which was signed by most United Nations member states in 1989. Article 3 states that in all matters concerning children ‘the best interests of the child shall be a primary consideration’.9 It asserts that these interests are not comparable to those of adults, nor are they to be balanced with them. The interests of the child are primary. While this important principle is rarely repudiated, it is susceptible to being undermined in subtle ways. An example can be found in a speech given by a former Victorian Equal Opportunity Commissioner, Dr Diane Sisely, who claimed that ‘in spite of popular belief, there is not a hierarchy of rights. One person’s rights do not automatically override another’s; a child’s rights do not automatically override the mother’s or potential mother’s … We are required

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to make difficult choices and strike a balance among competing rights and interests’.10 Her point would seem to be that the best interests of a child are never primary or paramount and that whatever interests children may have need to be harmonised with those of adults. The notion that the interests of children and adults are competing or that they need to be balanced is, however, contrary to the intention of both United Nations documents quoted above. If we conceded that the interests of children needed only to be balanced with those of adults, who would speak on behalf of children when decisions are made about parenting arrangements that might in the longer term disadvantage them with respect to other children – such as being denied information about their biological father or any opportunity to be nurtured by him? If the child were given a choice about being born with a known father or an unknown sperm donor, one imagines that a child would always prefer to have a known father. As I will argue, it is in the child’s best interests to have a known mother and father and to be raised by them. TangledWebs argues: The fact that donor conceived children cannot give consent because they are not yet alive is not an argument for putting their interests to one side; rather it is a powerful argument for ceasing the practice of DC altogether, or at the very least for being extremely careful about and limited in the ways we practice it … [In the clash] between two sets of rights – the rights of the gamete [reproductive material] provider and the rights of the child – the rights of the child must prevail over those of the provider. The child cannot have his or her rights limited by an implied contract to which they were not a party.11

Therefore, TangledWebs argues that sperm donors should not be allowed to remain anonymous because the best interests of children are served by a child having two known parents. The child’s immediate right to information is, they claim, superior to the donor’s continuing right to privacy. The position espoused by TangledWebs draws attention to what has become the principal point of disagreement in debates about alternative parenthood:

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are the best interests of children always and everywhere best served by a child being raised by the man and the woman to whom it is genetically related? More specifically, given current attitudes and practices which have tended to dispense with fathers and the nurture they provide, do children require a known father who is active in their parenting for their best interests to be served? If so, does this mean that every child actually has the right to a biological father and his love and care, and that to deny them this effectively violates their rights?

Families and fathers There is no doubt that the role of men in parenting and their social significance as fathers has diminished over the past century. This has been both deliberate and inadvertent. In his famous 1957 work Marriage and Morals, philosopher Bertrand Russell (1872–1970) foreshadowed the arrival of a ‘new morality’ in which the patriarchal family would disappear as the father’s duties were gradually assumed by the state.12 Because the protective, economic and educative tasks previously undertaken by fathers were now the domain of government, the only thing left to sustain the family was an emotional tie which, Russell believed, was insufficient to preserve the family as a viable institution. While he was concerned that the decline of the family as the foundational social institution might mean people would no longer have children, there were some tangible benefits in having the state assume the responsibilities of fathers, including a higher level of general education and the provision of superior health care. But there was a notable downside: parents are usually fond of their children and are unlikely to exploit them for political or financial purposes. With greater state control being exercised over them, Russell feared that children would become more patriotic and more willing to engage in the kind of militaristic activities promoted by the state that, as a thoroughgoing pacifist, he deplored. Until a new internationalist order was established,

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Russell found himself left with ‘grave apprehensions’ about a better world that had not yet come of age. Notwithstanding Russell’s concerns, social think-tank founder David Blankenhorn claims in Fatherless America that laws in the United States encourage some women to exercise a preference for donor sperm – what he calls ‘sperm fathers’ – over known men.13 This preference infers, in Blankenhorn’s mind, that ‘children do not need fathers’. He regards the desire to make fathers irrelevant as something of a surprise, because it comes at a time when men are being encouraged to take their family responsibilities more seriously. He alleges: ‘the rise of the Sperm Father constitutes nothing less than father killing, the witting enactment of cultural patricide. For the individual man, being a Sperm Father is … the collaboration of the male in the eradication of their fatherhood’. For some women, of course, the deliberate exclusion of men from families and parenting is an important ideological objective. Radical separatist lesbians have demanded access to anonymously donated sperm because dismantling the cultural and social authority of the patriarchal father in the traditional heterosexual nuclear family is one of their organising principles. Australian lesbian activist Heather Grace Jones asserts that ‘the father can be either sex; it is the emphasis on what is taught that matters’.14 She draws this somewhat curious notion from Andrew Samuels, a Jungian analyst and Professor of Analytical Psychology at the University of Essex, who imagines a ‘sort of psychological information pool or resource for women bringing up children on their own or together with other women. Such women are truly fathers of whatever sex when the father is revisioned as less like a patriarch’. Jones comments: ‘In this model, good-enough does not imply second-best fathering; it means that the fallibilities of all fathers are factored into the expectations of the fathers of either sex.’15 Although neither Jones nor Samuels makes their meaning plain, I think they are simply asserting that men are entirely unnecessary and ultimately dispensable to the nurture of children because gender is irrelevant to parenting, although, if I read Jones correctly, someone in the family home apparently still needs to be the ‘father-figure’. But the more recent trend among

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lesbians is to obtain sperm from a known donor because these women ‘favour the children’s right-to-know over the earlier focus on women’s right to autonomy’.16 Radical feminists say they are giving nothing away to men or to patriarchy in this significant concession. Feminist advocate Renate Klein insists that ‘two women as main care-givers can give a child a very broad view of the world’.17 Klein declines to say whether this arrangement serves the best interests of children or is merely a potential disadvantage that children will learn to overcome. The preference for anonymous sperm donors over known biological fathers has not attracted much public attention despite its bearing on the lives of women and its potential effect on the best interests of children. Writing in the Utah Law Review, the American legal philosopher Daniel Callahan notes: Women have been hurt throughout history by males who abandon their parental duties, leaving to women the task of raising the children. A sperm donor is doing the same thing. The fact that he does it with social sanction does not change the outcome: one more male has been allowed to father without taking up the duties of fatherhood. Perhaps it was the case that fatherhood had already sunk to such a low state and male irresponsibility was already so accepted, that no-one saw a problem. It is as if everyone argued: ‘Look, males have always been fathering children anonymously and irresponsibly: why not put this otherwise noxious trait to good use?’18

Fathers and their children Although men have long been accused of wilfully neglecting their parental duties and being absent from the family home (charges that can be readily sustained), there is a continuing conviction that men still matter when it comes to raising children and that children are entitled to a father because it serves their best interests. The British Human Fertilisation and Embryology Act (1990) states:

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a woman may not be provided with treatment services unless account has been taken of the wellbeing of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other children who may be affected by the birth.

But what evidence exists to demonstrate the importance, if not the necessity, of children having a known father active in their nurture? In his review of research data, John Snarey, Professor of Human Development and Ethics at Emory University in Atlanta, concludes: Fathers who are available provide important experiences and models for children that can help them gain greater competence and maturity … the responsive participation of fathers in their children’s lives, both when they are young and when they are adolescent, has a significant impact on those children’s later lives and will be evident years later during their children’s early adult years.19

Fathers deal with their children in different ways to mothers; they emphasise different aspects of living and have distinct ways of teaching their children about life. The games that fathers play with their sons and daughters are usually rougher and more competitive. From this form of play children gain an experience of when acceptable assertive conduct becomes unacceptable aggressive behaviour – and to know when ‘enough is enough’ – and they learn to lose in sport with good grace and without becoming vindictive. Fathers can teach their children team-bonding, the rudiments of leadership and the necessity of taking risks. They exert a different kind of discipline and elicit a different kind of response from their children. Children who have greater contact with their fathers are capable of greater empathy with other people because it is from fathers that children usually gain a clearer sense of boundaries. A group of researchers from the Institute of Psychiatry at Kings College London found that ‘more frequent and more regular contact [between children and their biological father] was associated with closer more intense relationships … and fewer adjustment problems in children’ than with children separated from their fathers. 20 When chil-

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dren feel secure they are better able to attend to the needs and interests of others. Men have a different view of other people and assist children in gaining a wider ability to interpret the world and negotiate their position within it. 21 In families where the father is present and involved in the nurture of his children, children tend to do better at mathematics and sciences, their overall performance at school is enhanced, and they are more likely to complete their secondary education before seeking some tertiary level study or postmatriculation vocational training. David Popenoe, Professor of Sociology at Rutgers University in New Jersey, contends: Through identification and imitation, sons learn from their fathers, as they cannot from their mothers, how to be a man. Making the shift from boyhood to constructive manhood is one of life’s most difficult transitions, especially since boys as they grow up must break away from the comfortable female arena of their mothers. They typically do this through identifying and bonding with their fathers. 22

The rates of suicide for boys with a live-at-home father are also reduced, as are rates of violent crime. As for teenage girls, they want to be adored and admired by fathers willing to praise their beauty and grace. Young women tend to do better in the workforce and in romantic relationships when they are assured of their father’s respect and encouragement, and when their father is willing to act as a mentor. 23 As children grow, their bodies change and their minds develop. Having a member of the same sex who understands and can explain the subtleties of these changes is vital as they enter a very unsettling and even confusing phase of life. As children form friendships and then close relationships with members of the opposite sex, they need some empathetic advice on how to negotiate these relationships and, at times, some guidance on what constitutes proper conduct. It is not enough to say, as some advocates of parenting arrangements that exclude fathers often do, that fatherless children will have plenty of significant male figures with whom they will interact as virtual substitute fathers.

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Children need the devotion, care and love of their father as an everyday continuing reality. In blended families where custody arrangements might be bitterly contested, most Western societies still make room for the child’s father and insist that he has a right to see his child and that his child has a right to see him. The point I want to make here is not, of course, that men are better parents or that fathers are more important than mothers to the healthy development of a child; it is simply that the contribution of men is different to that of women and, it would appear, vital to the child’s wellbeing in a number of respects. In his survey of studies into the effectiveness of ‘traditional’ nuclear families, Popenoe concludes: ‘Based on accumulated social research, there can now be little doubt that successful and well-adjusted children in modern societies are most likely to come from two-parent families consisting of the biological mother and father’.24 |||

In this chapter I have tried to show that the active participation of two biological parents in the life of a child usually puts that child at an advantage over children living in other parental arrangements. 25 Conversely, the absence of such participation can put a child at a distinct disadvantage. But should the possibility of advantage or the potential for disadvantage preclude a certain parenting practice or procedure on the grounds that it is necessarily contrary to the best interests of a child? Such judgments depend greatly upon the child and the situation. Some children can easily squander the advantage they enjoyed from parental arrangements just as another child can readily overcome whatever disadvantage they might have endured. I am inclined to think that the existence of possible advantage and potential disadvantage does not of itself constitute adequate reason or sufficient grounds for prohibiting certain kinds of family formation, such as single-parent or same-sex families. Some methods of achieving parenthood, such as the use of donor sperm by a single lesbian, might not be encouraged, based on concerns that the child could be disadvantaged by this parenting arrangement, that is, having one parent rather than two. Other more drastic forms of alternative parenthood,

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such as the use of IVF by a single, older-aged post-menopausal woman who could well die before her child reached adulthood, might be more strongly discouraged because there is a much greater likelihood of the child being orphaned and this would be contrary to its best interests. Judgments about whether something should be permitted or prohibited become easier to make, however, if it can be shown that a practice or procedure is potentially or positively harmful to a child. In the next chapter I ask whether the complete absence of information about one’s biological mother or father and the impossibility of experiencing a relationship with that person – which is one consequence of most forms of alternative parenthood – might actually be harmful to a child’s medium-term wellbeing, its long journey into adulthood, and its eventual capacity to form a healthy sense of self.

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3 Nature and nurture: does biology affect identity?

What are the short- and long-term consequences of separating a child from its birth mother and father and withholding information about them? Although most societies presume the answer to this question by expending a great deal of time and effort keeping children with their birth parents, not everyone is convinced that such energy is well spent. A recent correspondent to the Canberra Times claimed: parental relationships are purely a matter of who is there when you are growing up, who wipes your nose and comforts you when crying, who puts the food on the table and whom you turn to for advice in times of stress … you are unique whoever your biological parents were. Get on with your life … and love and bless those who act as your parents – the people who look after you. They are your real parents.1

In relation to a child’s need for its biological father, Bob Montgomery, formerly Professor of Psychology at Bond University, claimed that ‘the most meaningful sense of fatherhood belongs to the man who puts in the time and effort and care to raise the child. That is streets away the most important thing. Not the biological linkage’. 2 In this chapter I argue that both these views are simplistic and mistaken. I explain how separating children from their birth parents could be harmful to the child (other than in situations where the child is being physically, emotionally or sexually abused) and therefore contrary to the child’s best

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interests. My assessment is based on exploration of the relative importance of biology and sociology to an individual’s capacity to make sense of themselves and their place in the world, and the potentially serious consequences of their inability to do so.

Nature and nur ture With the dissolution of traditional kinship patterns through increased social mobility, the demise of extended families as married couples lived separately and individuals lived alone and the consequent loss of a great deal of knowledge of their forebears, it became increasingly common in the twentieth century for a person to ask ‘Who am I?’ This is a question which encompasses basic issues of identity and behaviour. It also implies the possibility of different answers. Whereas the same question could have been readily answered during the nineteenth century in terms of family, occupation or geographic locality, modern responses conventionally draw upon two complex scientific theories usually labelled ‘nature’ and ‘nurture’. The first holds that we are as we are because of our genetic inheritance: that the blueprint is laid down at the moment of conception, when the new individual receives his or her identity from a combination of parental genes. The second contends that human beings cannot be understood without reference to the diversity of their upbringing: that from the moment of conception, it is the environment which shapes who they will become. These theories have been engaged in perennial conflict since the days of Socrates, with each side asserting supremacy by attempting to prove it is more decisive than the other. The modern form of the nature-nurture debate was started in the 1880s by the English polymath Sir Francis Galton (1822–1911), a half-cousin of naturalist Charles Darwin (1809–82). Fascinated by the biological determinism implied in Darwin’s On the Origin of Species (1859), Galton was also interested in the relative importance of nature and nurture. Yet in citing a

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number of celebrated ‘inborn geniuses who owed little or nothing to their social circumstances’ in his 1869 book Hereditary Genius, he seemed to have arrived at a firm view before undertaking empirical inquiry: ‘there is no escape from the conclusion that nature prevails enormously over nurture when the differences of nurture do not exceed what is commonly to be found among persons of the same rank in the same country’. 3 It appeared to him that factors which lay outside the causation of nature were of little real importance. Having sought explanations for human similarity rather than difference, because explaining differences represented an altogether more complex undertaking, Galton believed that with further research the mystery of human origins would be solved and a clearer understanding of human behaviour would emerge. The first real challenge to Galton’s thesis appeared in 1897, with the publication of Social and Ethical Interpretations in Mental Development by American philosopher and psychologist James Mark Baldwin (1861–1934).4 Baldwin was not concerned, however, to widen the parameters of the continuing debate. Although he was interested in human difference, his explanations were expressed in terms of human similarity. Based on principles we would now label ‘social psychology’, Baldwin argued that the self (understood here as self-conscious identity) is essentially a product of social processes. The self is, therefore, a person’s social and cultural milieu concentrated and individualised.5 Those who pursued Galton’s hereditarian interests and approach held sway until the 1920s, when psychologists began large-scale studies of children in different socio-cultural groups and immediately recognised that they behaved differently. This led to the conclusion that environment (aka nurture) was a key factor. Subsequent quantitative research, using studies of identical twins and foster children, demonstrated that at least half of the variance in behavioural development cannot be explained in terms of simple genetics. The new confidence of the environmentalists was reflected in the work of J.B. Watson (1878–1958), whose somewhat extreme views were presented in the 1925 study Behaviourism:

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The behaviourists believe that there is nothing from within to develop. If you start with the right number of fingers and toes, eyes, and a few elementary movements that are present at birth, you do not need anything else in the way of raw material to make a man, be that man genius, a cultured gentleman, a rowdy or a thug.6

There was further quantitative support for nurture in the 1937 publication in the United States of a ground-breaking study of separated monozygotic (identical) twins by biologist H.H. Newman, psychologist F.N. Freeman and statistician K.J Holzinger, which made the claim that marked discrepancies in the intelligence quotient (IQ) of twins were attributable to home and schooling environments.7 After a range of questions was raised concerning the testing mechanism used in the study, in 1941 American psychologist Robert Sessions Woodworth (1869–1962) surveyed the empirical data available up to that point, and concluded that both heredity and environment were important, notwithstanding what he regarded as the demonstrably exaggerated claims for environmental factors.8 The reign of nurture over nature was strongest in the 1950s and 1960s as a consequence of the influence of the theories of Sigmund Freud on the unconscious mind, Canadian psychologist Donald Hebb (1904–85) on cognitive neuropsychology 9 and Swiss philosopher Jean Piaget (1886–1980) on cognitive development. The new impetus was not to prove a definite view of heredity – the Oxford English Dictionary defined it ‘as the tendency of like to beget like’ – but to explain the many instances in which ‘like begets unlike’. For instance, could a geneticist account for the appearance of bright and religiously inclined children with gifts in music in families with dull parents uninterested in religion with no musical ability? And on what empirical evidence or verifiable data would such an explanation be based?10 The contention was that if genetics were to be considered a means of explaining the character and conduct of some people, the empirical nature of the claims made by geneticists about those particular people ought logically to apply to all people. The problem for geneticists, as environmentalists were keen to point out, was that genetic explanations clearly didn’t apply in all instances. nature and nur ture | 47

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A new ascendency for the geneticists was heralded by advances in the understanding of human biochemistry during the 1970s and 1980s. The critical element was a rapidly expanding appreciation of the operation of deoxyribonucleic acid (DNA) molecules, whose structure was first deciphered by James Watson and Francis Crick in March 1953. All human genes, the basic building blocks of human life, are made from DNA and can be arranged in an infinite variety of ways. Humans have between 20 000– 25 000 genes, which are effectively chemical messages of inheritance in the form of a code, arranged on 24 pairs of chromosomes. One of each pair of chromosomes is provided by the ovum, the other by the sperm, in the process of fertilisation. The sequence of the letters in the code, the nucleotide bases, determines the message. The base pairs which link the two strands of DNA are thought to number about three billion in a single copy of the genome. Modern insights into DNA offered the possibility of more precise descriptions of genetic transmission and an opportunity to establish more direct causal links between genes and behaviour. In his account of recent developments in the nature-nurture debate on the genetic side, American psychologist Robert Plomin explains the geneticists’ claim that genotypes inf luence choice of environment, and that modern theories on both nature and nurture are converging. This is highlighted by ‘the common ground [based on] a model of active organism-environment interaction in which nature and nurture play a duet rather than one directing the performance of the other’.11 He is adamant that research on experience ‘does not imply genetic determinism. It refers to probabilistic propensities rather than predetermined programming’.12 But it is noteworthy that the inability to explain genetically some measures of the environment leaves open the possibility that ‘some as yet unstudied factor “X” might eventually explain the genetic contribution to measures of environment’.13 Some traits likely to fit this explanation have been suggested, such as optimism and initiative. Notwithstanding the tentativeness with which he states his case for ‘probabilistic propensities’ and the necessity of allowing for a ‘factor “X”’, Plomin

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nonetheless asserts that genetic factors contribute to many widely used measures of familial and extrafamilial environments. But what mediates the contribution? First, specific mediators can be found using multivariate genetic analyses. Second, genotype-environment (GE) correlation responsible for this genetic mediation appears to be due primarily to the passive type of GE correlation rather than the reactive and active types, at least during early childhood. Third, most of the genetic contribution to environmental measures is not explained by traditional trait measures.14

Thus, Plomin argues that the individual chooses, socially and cognitively, to create many of the micro-environments which give shape to the bulk of the experience which makes up environment. Experience consists of the apprehension of an event and a direct participation in an event. This suggests a unity of cause and effect that he suspects but cannot yet prove.15 Plomin suggests that the prime interest of nature-nurture research is not the ‘how much’ question – the answer to which he thinks is known – but the ‘how’ question – which is not. However, in an anthology entitled Nature, Nurture and Psychology, which Plomin co-edited in 1993, the case in favour of genes seeking an environment was still reliant on correlative rather than causal evidence.16 With respect to certain human attributes, research into the operation of genes has generally been guided by possible correlations, not apparent causal connections. English clinical geneticist Peter Turnpenny also believes that Plomin is ‘optimistic in predicting that behavioural scientists will be using DNA markers as research tools to identify relevant genetic differences between individuals by the end of this decade’.17 Possibly anticipating the renewal of interest signified by Plomin’s approach, the English biologist Cyril Darlington (1903–81) remarked several decades ago in The Facts of Life: In this world no two individuals have to put up with the same environment: we have a choice … It may be a passive choice in which we accept one of the possibilities that is offered to us. Heredity may then indeed be said to

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‘respond’ to the environment as the textbooks tell us. But it may be an active selection. We may even create to a greater or lesser extent the environment we want.18

But neither the theory nor Darlington, as one of its early exponents, are without their critics. Ukrainian-born evolutionary biologist Theodore Dobzhansky (1900–75) and British psychiatrist Lionel Penrose (1898–1972) offered the reminder that: environments in which men live are tremendously diversified and that this diversity influences human personality. To counteract this bias, the author [Darlington] offers a theory of his own, which can be admired as a tour de force of casuistry. It is as follows: man chooses his environment; the environment chosen is determined by the genotype of one who chooses; ergo, the environmental effects are not environmental but genetic!19

And there remains strong justification for Dobzhansky’s claim, made over fifty years ago, that: Natural selection has not propagated genes for ethics, or genes for inventing Euclidean geometry, propounding evolutionary theories, composing musical symphonies, painting landscapes, making a million dollars on Wall Street, loving the soil, or becoming a military leader. Such genes simply do not exist. 20

This was the conclusion reached by Professor Ruth Hubbard and journalist Elijah Wald in their 1993 book Exploding the Gene Myth. In decrying the ‘geneticisation’ of life, the retired Harvard biologist explained that there is no direct relationship between a biological factor and a human behaviour: There are no discrete little balls that carry hereditary traits. Rather, specific traits appear to be mediated by sections of DNA … It is an easy shorthand to call these segments ‘genes’ … When people talk about genes mediating traits such as eye colour … they mean that those traits arise from the activities of proteins whose composition is specified by those particular genes. However, even the simplest traits involve not only a variety of proteins, but

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also other factors, both within and without the organism. It is an over-simplification to say that each gene is ‘the gene for’ a trait. Each gene simply specifies one of the proteins involved in the process. 21

There is also the perennial fear that geneticists will not recognise the limits of their discipline and the extent of what remains unknown. American medical geneticist Victor McKusick expressed this concern in his opening address to the Eighth International Congress on Human Genetics in Washington DC in 1991: The mere existence of the complete reference map and DNA sequence down to the last nucleotide may lead to the absurdity of reductionism, the misconception that we know everything it means to be human, or to the absurdity of determinism, that what we are is a direct and inevitable consequence of what our genome is. 22

While sympathetic to the principle of genetic research, English theologian and scientist Arthur Peacocke (1924–2006) affirms that we still know little about the causal links between specific genes and particular behaviour. Studies of genetic variations and behaviour are in their infancy: ‘We are, therefore, some distance from locating a gene responsible for honesty, love or religiousness’. 23

Making sense of nature and nur ture Three important points are apparent from the foregoing discussion. First, there is much more to explanations of human identity and behaviour than is either supposed or encompassed by the nature–nurture debate. Although he had been a critical contributor to the debate, Dobzhansky contended that researchers should be interested in defining ‘qualities’ in human beings, such qualities being more significant in the identity of the person. 24 Thus, he argued: ‘Moral rightness and wrongness have meaning only in nature and nur ture | 51

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connection with persons who are free agents, and who are consequently able to choose between different ideas and between possible courses of action. Ethics presuppose freedom.’ 25 This raises again the abiding question of how a materially determined human organism can be considered to be morally and spiritually free, which had turned out to be a ‘mystery’ for four of the great Enlightenment philosophers: John Locke (1632–1704), David Hume (1711–76), Bishop George Berkeley (1685–1753) and Immanuel Kant (1724–1804). 26 Until geneticists are able to account for human freedom in biological terms, scope remains for complementary views of identity and behaviour. Secondly, notwithstanding the insights produced by the nature-nurture debate, there is still a great deal about the operation of DNA which remains unexplained. The reticence apparent in Plomin’s ‘probabilistic propensities’ and his willingness to admit an ‘unstudied factor X’ highlights how much geneticists cannot or will not yet say about human identity and behaviour. The circumstances in which children are raised must still be deemed operative factors in how they understand themselves and conduct themselves in the world. Thirdly, there is a need for any explanation of human identity and behaviour to account for human differences as well as human similarities. This has proved to be a more demanding undertaking. Here the Christian belief that human beings are created uniquely in the image of God is worthy of attention. 27 That human beings were fashioned from the one God forms the basis for Christianity’s description of human similarities; that each person is the result of God’s distinct and deliberate creative intention stands behind an account of human differences. Furthermore, to ascribe identity and attribute behaviour to nature and nurture is to undertake a largely interpretative operation, because it involves a vision of human life and community that is itself derived largely from limited observations and subjective judgments. We know that societies attribute vastly differing values to a range of ‘natural’ abilities and esteem an individual’s qualities according to shifting cultural mores. This can exaggerate the actual importance of such informa-

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tion to individuals and their lives or distort an appreciation of their lives’ meaning and significance. I have tried to show that there are limits to what genetic information contributes to an individual’s understanding of self. It does not answer every question nor account for every aspect of a person’s character or conduct. It might help someone to interpret their own behaviour but does not offer a complete explanation. But knowing about one’s biological mother and father is nonetheless vital to a person’s attempts at fashioning a functioning identity, together with gaining a comprehension of their abilities and aptitudes that can be applied to everyday living. A stable identity undergirds a person’s emotional balance and mental health. It allows them to interact confidently with other people and enhances their ability to make the most of the life that is theirs. It is, of course, possible to become a responsible adult and to have a meaningful life without having any knowledge of one’s forebears. Children abandoned shortly after birth on the front steps of orphanages have been able to function as human beings and take their places in society. But is the absence of biological information and the lack of a family tree more than just a temporary disadvantage to be overcome? Might it be it deleterious or even positively harmful to a person’s wellbeing in the longer term?

Who am I? I am the only person able to answer the fundamental question that is asked by every human being at some point in their existence: ‘Who am I?’ Although family and friends may claim some insight from the outer persona of the man or woman they believe they know, I am the only person fully acquainted with my inner being and I alone can give an answer that is both adequate and truthful. But it is not a complete or final answer, because my sense of identity is drawn from an ever-expanding array of sources and insights drawn in their turn from near-constant discernment and redefinition driven by four

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continuing experiences. First, I perceive that I am unique and unparalleled in human history: that there is no-one else like me anywhere in the world. Second, I recognise that parts of me are common to all human beings: certain human characteristics are universal and, in that, I am like everyone else. Third, I am aware that I resemble my biological parents and from them gain a unique genetic inheritance. Fourth, I am conscious that I am also formed and influenced by every person I encounter in life and that I am also marked by the universal experiences that influence every human life. At the beginning of his autobiography (published as Confessions in 1782), Jean-Jacques Rousseau said: ‘I am like no one in the whole world. I may be no better, but at least I am different’. Conversely, the existentialist philosopher Jean-Paul Sartre (1905–80) remarks at the conclusion of his 1964 autobiographical work The Words that he is ‘a whole man composed of all men and as good as all of them and no better than any’. Rousseau stresses uniqueness, Sartre emphasises universality. Despite the argument about whether one is a problem to which the other is a solution, they are not mutually exclusive concepts. Indeed, both offer aspects of enlightenment and truth about the human condition and they need to be held in creative dialogue. American Roman Catholic priest and theologian John S. Dunne provides a very helpful synthesis in his 1977 work, A Search for God in Time and Memory: Consider [an] image of all men standing around the circumference of an immense circle. There are an infinity of points on the circle, and each man stands at a different point, but there is only one centre. The task of each man is to go from the circumference to the centre … the life of a man according to this image … is completely unique. The radial line he must follow to reach the centre from his particular point on the circumference is a line no other man can take. His goal, on the other hand, is to reach the same centre every other man must reach to be integral. 28

One’s position on the radius – the unique point of departure – is ascertained from knowing one’s parents. In journeying to the centre, we become aware of its universality from our intimate fellow travellers – beginning usually with our parents. 54 | personal, philosophical and political contexts

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In the identity-forming experiences outlined above, we inevitably rely upon information about, and experience of, our biological parents. It is from our parents that we gain certain physical attributes and perhaps even disabilities that have a bearing on the choices we make and the preferences we express in our everyday lives. From our parents, who serve as a primary reference point, we begin to understand both our uniqueness and universality together with our continuity and discontinuity with the past and the present. In the continuing task of identity awareness, knowing our parents always surpasses the importance of knowing about our forebears. One derives from the heart; the other from the intellect. It is vital, therefore, that children not only have information concerning their ancestry but an experience of living with both their parents as the foremost foundation from which they can understand themselves and their place in the world. Thus, our society acknowledges something of the dynamics of identity formation and awareness in exerting every effort in helping children remain with their biological parents.

Information and identity Those who are adopted, or conceived using sperm provided by an anonymous donor, do not have this crucial information, quite apart from lacking the experience of living with their birth parents. Many report feeling an acute sense of loss which can adversely affect their identity-formation and, by extension, their general wellbeing. Some would say they have suffered harm as a consequence of not possessing biological information that most people simply take for granted. In relation to adoptees, social worker Margaret Kornitzer explains: Background knowledge of one’s family is like baby food – it is literally fed to a person as part of the normal nourishment that builds up his mental and emotional structure and helps the person to become acquainted with what he is so that he can seize his inheritance of himself. 29

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She goes on to speak of adoptees’ need to know of the couple ‘who gave them their physical continuity in the chain of life’. In Experiences of Donor Conception, Australian consumer advocate Caroline Lorbach, herself the parent of three children conceived with donor sperm, says children born of reproductive technology ‘without question want more information’. 30 Claire Doig, a child from donor sperm, says she feels angry every day when I think of the rights I am denied. My mother used an anonymous sperm donor. We know only that he was possibly a medical student, possibly a musician. Her doctor told her he didn’t keep any more information and to me that’s a betrayal of my rights to know myself. 31

British fertility specialist Lord Robert Winston attempts to draw a distinction between children relinquished at birth for adoption and those children born through donor conception in an attempt to minimise both the likelihood and the significance of the anxiety felt by donor-conceived children. In The IVF Revolution, published in 1999, he says that adoption implies a kind of rejection. This seems to be fundamentally different from the child nurtured in his or her mother’s womb, but arising from a donated egg or sperm. I seriously doubt whether genetic parentage per se is likely to be a very serious issue for most children in this situation, born into a healthy and stable parental relationship. Moreover, the evidence coming out from some long-term studies of children born as a result of sperm donation – particularly those of Dr [Susan] Golombok of City University – are extremely reassuring. 32

But it is not enough to say, as Winston did then, that ‘we must provide counselling’ when in all likelihood the counselling will be provided by fertility clinics and will imply or convey certain value judgments that serve to rationalise the procedure that created the original need for counselling. Significantly, by 2006 Winston had begun to feel a little differently about donor conception and genetic information. In his most recent book, A Child Against All Odds, he remarked: ‘Until very recently I have felt strongly that

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the removal of donor anonymity was wrong’. 33 He went on to describe a television interview he had conducted with the gifted English artist Stuart Pearson Wright, who was conceived at the King’s College Hospital in London by donor insemination. Wright did not know the identity of his father until recently, when he managed to obtain some biographical information from the hospital’s archives. He told Winston that he was ‘deeply troubled by what he feels is his personal loss of identity. He showed me some remarkable selfportraits – including a particularly moving one, painted with half his face missing’. Wright told Winston that whenever he boarded a bus or train he would look at the faces of those around him in the hope of noticing a physical likeness that might reveal one of his half-siblings. Why was this important? Wright wanted to make a connection with these unknown kin because, he explained, it ‘would fill in so much of the jigsaw puzzle. It would probably be very difficult and very painful as well but may be wonderful, who knows. But it’s certainly almost as strong a desire as the desire to find my father’. In response, Winston said he ‘felt very close to tears during this interview. I wondered what damage I had done during the course of my career in pursuing treatment by donor insemination’. The sometimes controversial American novelist A.M. Homes, relinquished for adoption shortly after her birth in 1961, explains her feelings about a lack of connection with biological antecedents slightly differently: I will always be something glued together, something slightly broken … I think that when you are adopted, in some ways there is a core self – that you are born as the person you are, but then a veneer goes on top and you are always aware there’s a difference between the two. That split in your identity becomes part of who you are, you process things differently because you know there’s more to your story than anyone’s telling you. 34

In sum, there is no shortage of people from around the world living in highly varied social settings who say that the absence of information about their biological parents has been a heavy burden to bear. While many have come to terms with their plight, some have expressed strong feelings about being

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‘harmed’ by the absence of genetic information. By this they mean a sense of being depleted or damaged because they have lacked the basic resources required for identity formation. In not being able to answer the question ‘Who am I?’, a situation that is debilitating for some, they have struggled to find purpose in their lives and to interpret their feelings, emotions, desires and aspirations. People in this situation would contend that the absence of genetic information, whether intended or innocently circumstantial, was clearly contrary to their best interests.

The right to an identity Legislators in many places now recognise that knowledge of one’s biological inheritance is so important to the development of identity and the finding of fulfilment in life that children are entitled to know their parents. Article 8 of the UN Convention on the Rights of the Child requires signatories to ‘respect the right of the child to preserve his or her identity, including nationality, name and family relations’. In contributing to public discussion of what he saw as competing ‘identity rights’, Australian academic Ross Fitzgerald noted that ‘soon, genetic information will be as standard a means of treating patients as blood and urine tests. Unless all individuals have access to their original birth certificates and information about their biological parents, they will be severely disadvantaged’. 35 In the same way that most Australian governments belatedly realised the importance of identity information to adoptees, and went back on promises to preserve the secrecy surrounding adoption arrangements finalised before the 1990s, there has been a general acceptance among these same legislators that donor-conceived children are also entitled to detailed genetic information, including details of the donor’s identity. Given strong opposition to adoption law reform in the 1980s, public resistance to this policy reversal was not surprising. The entitlement of donor offspring to identifying information versus the

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right of sperm donors to anonymity was explored by the Sydney Morning Herald in 2004. The paper highlighted the case of Alan Sykes, then in his mid-seventies, who had fathered six children through sperm donation. He was reportedly ‘frustrated by laws that protect the privacy of the donor offspring’. 36 Apart from what were described as ‘sentimental’ reasons, Sykes was apparently concerned about ‘unconscious incest’, the possibility that his known children might meet his unknown children and want to marry. The laws that existed at the time he became a sperm donor did not permit any form of reunion. While children were entitled to know the identity of their biological parents, the relevant legislation held that a child’s right to privacy was a higher order concern than satisfying the donor’s curiosity. An informal contact register of the kind offered to adopted people before adoption information laws were passed in the 1990s was proposed for donor-conceived children. As for concerns about unwitting incest, most jurisdictions have limited the number of children produced by a single donor to between five and ten to render this possibility almost negligible. In reply to calls for greater openness in relation to the identity of donors, Dr Robert Jansen of Sydney IVF said ‘any moves to allow donors access to identifying information about donor offspring would be too intrusive and not in the best interests of the child’. Notably, Jansen did not explain why he believed that the provision of identifying information was not in a child’s best interests. He did say, however, that ‘parents had a responsibility to inform their children born of donor insemination’. But Jansen is well aware that a number of parents decline to inform their children and knows that nothing compels them to do so. I find his position inconsistent if not contradictory. He wants a child to be told that it is not the biological offspring of one or both of its parents but is prepared to deny the child the very thing such a disclosure prompts: to satisfy the child’s desire to know the identity of the donor and be given some information about them. The lack of a mechanism to compel disclosure makes donor conception a problematic procedure at a number of levels and one that has caused considerable anxiety for some donor-conceived children. As I outline in more detail in chapter 7, my

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foremost concern with respect to donor conception is the deliberate creation of a parental relationship that will be intentionally alienated. In supporting extended access to biological information for children relinquished for adoption and for donor-conceived children, it should not be imagined that this information will necessarily or adequately answer every question posed by the adoptee or the donor-conceived child. This is because, as I have pointed out, any such information will not explain everything about who they are, nor will it give them a script they can follow in everyday life. The information might be more confronting than consoling but it will help. When I sought and obtained information about my biological parents from the government agency that handled my relinquishment and adoption (the NSW Department of Child Welfare), I was unsettled and confused by what I learned. Based on a dossier produced at the time of my birth, I was informed: Your natural mother was seventeen years of age, single and living in an inner city suburb of Sydney at the time of your birth. She was described as being 5 feet 2 inches tall, 7 stone 5 lbs in weight with fair curly hair, hazel green eyes and very fair complexion. She left school at the age of fifteen when she was in second year and was subsequently employed in unskilled occupations. Your first mother was the eldest of a family of nine. These children had a very disturbed upbringing as their mother left the family home when the children were very young. She and her next youngest sister were brought up by their grandmother and her de facto. Both girls suffered from feelings of rejection and a lack of self-confidence. [Your mother’s younger sister] also felt unloved and had feelings of inadequacy which it was felt related back to her disturbed early childhood. She found she was unable to cope in a normal social environment and these feelings eventually led to her voluntary placement in an institution. Unfortunately it is not known what happened to the remainder of the family. There are no details recorded about your father [paternity was listed as ‘unknown’ on my original birth certificate] or his extended family and I am therefore unable to offer you any information in this regard. Medically our

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files show no record of any on-going medical problem which may adversely affect your normal development. I trust this information will be of interest to you.

The final sentence could not have understated my feelings more. Yes, the information was of interest. I was saddened to read (information later confirmed as factual) that my aunt had been sent to a mental hospital because she was disturbed by the lack of information about her birth parents (whom she could not remember) and devastated that her mother did not want to care for her. Given the distressing details of my birth mother’s early life and the ordeal for her of my birth with a 49-hour labour that involved minor surgery and the use of forceps to extract me from the womb, would I have preferred that the government withheld this information from me? Even with hindsight, the answer is no. I gained a great deal of understanding and even empathy from the snippets of information that had been provided. It was hard to read and even harder to absorb. But I was entitled to this information because it helped me to make some sense of where I had come from and the kinds of challenges I might encounter in life. Most difficult to endure was the absence of information about my father. This would become a source of anger when I learned some years later that the staff at the Anglican maternity hospital in which I was born conspired to obscure my father’s identity. His name was known and my mother was prepared to disclose it. But for reasons that are appalling by contemporary standards, the hospital staff wanted to free him from responsibility for my conception by making him effectively invisible. I can say as someone who has never met his biological father, and still knows nothing of him, that I would not want anyone else to live with such a source of uncertainty and anxiety, especially when his anonymity was avoidable. My conclusion in the previous chapter was that children who are not raised by both birth parents are usually disadvantaged in respect of those who do enjoy the nurture of their biological mother and father. I then asked whether the absence of information about a birth parent, in most instances relating to a birth father, might actually be harmful to a child and, therefore, be somenature and nur ture | 61

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thing clearly contrary to that child’s best interests. There is, in my observation, insufficient evidence to prove that children are positively harmed by the absence of information about their birth parents. Some individuals claim to have been adversely affected, perhaps even debilitated, by the absence of information. These people have an enduring sense of bewilderment. They face constant disorientation as they struggle to locate their authentic self within a life featuring few if any signposts. I would not count myself among this group but I can empathise with the feelings they express and the resentment they bear. There are also people who report virtual indifference to the absence of information about their forebears and declare no interest in climbing their family tree. They have bonded with their alternative parents and hardly ever give a thought to those who contribute either half or all of their biology. It is not surprising, then, that researchers are unable to say whether the proportion of children who claim to be harmed by the absence of genetic information is one per cent, 10 per cent or 30 per cent. Nor can I find any research data that assesses the extent of the purported harm or quantitative studies that gauge its seriousness. Precise calculations and confident conclusions will probably always be beyond our grasp. In my view it is virtually impossible to generalise about the reactions and responses of children to the parenting arrangements to which they are subjected. Children are surprisingly resilient and amazingly adaptable. Most children cope during their early years with not knowing about their birth parents and function without this biological information which, however, often becomes more important during their teenage years, when the task of identity formation assumes a higher profile as they begin to separate from their parents. But inasmuch as some children grow into adults who are adversely affected by the absence of information about birth parents, and some children are disadvantaged in not being raised by both their birth parents, the possible coincidence of disadvantage and harm in even one child obliges those who advocate forms of alternative parenthood which knowingly alienate children from their biological parents and genetic informa-

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tion to think very carefully about the best interests of such children and how they can be served before irreversible decisions are made. |||

I argue in subsequent chapters that some types of family formation and alternative parenthood are highly problematic and should be actively discouraged. While there are adults who will not be dissuaded from fulfilling their parental desires regardless of disapproving social attitudes, the refusal of the state to co-operate or assist in their efforts will have consequences that are not so easily ignored. It is to the state’s role in family formation and alternative parenthood that I now turn.

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4 Reproduction and the state: protection, paternalism and prudence In this chapter I set out a possible role for the state in the conduct of adoption, and in assisting with the provision of ART, both in the context of promoting the best interests of children. After a general discussion of the state’s authority and mandate, obligations and prerogatives, I focus on commercial surrogacy arrangements in order to explain why the state must act protectively towards children, paternalistically towards some adults, and prudently whenever it becomes involved in the management of alternative parenthood.

The state’s mandate The state is a political organisation. It has a mandate derived from those subject to its authority to require obedience and loyalty from its citizens to the extent that its actions promote the individual and collective interests of its constituents. But how is the state’s mandate defined? What kinds of things is it permitted to do? What are the limits of its authority and the extent of its power? Are there areas of life in which it has no legislative rights or any entitlement to interfere? And, most importantly for this discussion, is the state a moral entity capable of ethical decision-making? The state is not the sum total of its citizens. States are animated by a will and a spirit that are different, although not entirely dissimilar, to those

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of their constituents. The state can act as a moral agent when the society from which it is drawn reflects a high degree of homogeneity and ideological coherence. The internal complexity of a society means the state cannot be expected to observe all or the same standards of morality applying to any one individual all the time. While states are expected to act in a moral manner, the state’s behaviour conforms to a different moral code. What might be moral if performed by an individual might be immoral if performed by a state, and vice versa. Although the moral demands placed on the state are different from those bearing upon an individual, the state’s conduct must reflect some of the shared values and common virtues of its constituents. I say ‘some’ rather than ‘all’ because the state is obligated, by virtue of its composition and nature, to reflect the diversity of opinion apparent in achieving consensus. Such ‘reflective’ values and virtues are manifest in the policy platforms of democratically elected political parties forming governments that have a mandate to exercise authority. In other words, a state’s conduct could and should be broadly consistent with the behaviour expected of individuals and reflect some widely accepted, if not universally shared, moral norms. The state is, then, capable of encouraging virtue and discouraging vice, commending good and restraining evil, assisting collaboration and resisting self-interest. This involves the promotion and protection of justice, freedom and prosperity through acknowledged conventions and expectations, rules and regulations that govern the interactions between individuals. These rules and regulations are indispensable to the quality of individual living and the enjoyment of domestic harmony. They can take the form of legal statutes and judicial decisions or be defined in public policies and provide, on the one hand, a reliable guide to what the state can and cannot do, and on the other, some indication of those things it should and should not condone. This means the state will enact and enforce certain laws that curtail the actions and restrict the choices of its citizens. While there was good reason throughout the twentieth century to be wary of the state and its tendency towards totalitarianism, both the political Left and the Right demonstrating in countries like the Soviet Union

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and General Franco’s Spain that ideology can degenerate into tyranny and oppression, there is a continuing need to balance individual rights and community responsibilities to ensure the state is able to govern effectively and that society continues to function efficiently.

Limits on state authority The extent of the state’s entitlement to restrict the liberty and freedom of those subject to its authority has been a matter of near-constant debate since semblances of the modern state first appeared in the sixteenth century. In his well-known 1859 work On Liberty, John Stuart Mill (1806–73) attempted to set some limits for the state’s prerogatives and powers. He claimed: The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise … The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.1

Rather than presuming that the state has certain obligations and specific responsibilities in respect of preserving the common good and protecting the public interest that permits it to limit the liberty of its citizens, Mill insisted that the burden of explaining any intervention, justifying any interference and rationalising any intrusion in the lives of citizens resides with the state and its instrumentalities in the first instance. For most of Mill’s disciples,

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the only acceptable departure from this foundational principle concerns children. Irrespective of political systems and philosophical ideals, all societies accept that children need to be protected from harm. Because they are physically vulnerable and emotionally immature, children can be injured by the forces of nature and exploited by predatory adults. In addition to the protection provided to children by families and friends, the state is authorised by its citizens to ensure that children are kept safe and secure as they develop into adults eventually able to protect and care for themselves. In circumstances where a child is at risk of imminent harm or has been the subject of proven abuse, the state is empowered to remove that child from its home and to assume guardianship. In some situations the state even assumes parental responsibilities. While there is often debate about when and how the state should act, there is no disagreement in principle about the state’s mandate to intervene when children are in need of protection and care. There are, of course, other situations involving the welfare of children in which neither the state’s role nor its obligations are as clear. In relation to the arrangement of adoption and the provision of ART, the state would have some definite protective part to play if it could be demonstrated that a child is, or is likely to be, harmed by some form of alternative parenthood arrangement. In this instance, the state could use its authority to prohibit the arrangement because, in causing demonstrable harm, it was plainly contrary to the child’s best interests. The state would justify its decision to invoke a prohibition on the grounds that it was fulfilling its mandate to protect children. But in situations where harm cannot be demonstrated, the state might be justified in refusing to co-operate with, or to assist in implementing, an alternative parenthood arrangement because it was not convinced that the arrangement would serve a child’s best interests or would not cause harm. Refusals of this kind have been interpreted by those promoting the notion of ‘reproductive rights’ as unwarranted and unacceptable intrusions into the private lives of individuals. In Bioethics in a Liberal Society, Australian philosopher Max Charlesworth asserts that the state is not entitled to decline

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co-operation or withhold assistance in relation to ART because, he says, it is neither competent nor mandated to make judgments about human reproduction or parenting.

The state and procreative liber ty Charlesworth begins his argument with the general claim that ‘in a liberal society autonomous individuals are free to live their lives without hindrance. The state does not have the authority to prescribe morality nor the prerogative to coerce individuals to live according to a religious vision of human identity or destiny’. 2 He says ‘the sphere of personal liberty should be maximised and the sphere of paternalistic action by the state should be progressively minimised’ [emphasis added]. 3 In the liberal society there should be no deliberate merging of morality with legality; the force of law should not be used to coerce individuals into embracing certain ethical views. This is because ‘in a liberal society, where a pluralism of values is not only tolerated but actively encouraged, there is no such thing as “the community” view which has some kind of special normative status and which provides a basis for a public morality or for that nebulous entity which judges are fond of calling “public policy”’.4 In his view, and I intend to challenge it, a liberal society has three responsibilities with respect to human reproduction and access to reproductive technology. The first is the ‘right to procreative liberty’. He does not explain the origin of this asserted right nor account for the notion of procreative liberty. He believes that legislative prohibitions on the exercise of this liberty need to be repealed. 5 The second is that ‘access to the new forms of reproductive technology should be open to all and restrictions on access – for example, limiting IVF to legally married couples – should be removed’.6 His third point is that access to adequate health resources should be made possible for all. If the

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state recognises the family as a central social institution it should be prepared to fund alternative forms of family formation in the same way as it funds traditional forms. It cannot, in justice, discriminate against the infertile and those who cannot choose alternative means of procreation.7

The discharge of these responsibilities would, in his mind, work against the possibility of the state intruding with unwanted and unwarranted paternalism. I do not accept that the state has any of the responsibilities that Charlesworth imposes upon it. Nor am I convinced that the state is unable to make decisions about different types of family formation when it has a prior commitment to the best interests of children. This consideration is barely acknowledged in Charlesworth’s book. In the following paragraphs I want to use commercial surrogacy as a case study to show where and why I disagree with Charlesworth, ahead of defending the need for state intervention – which I will describe as protectionism rather than paternalism – in relation to many forms of ART.

Reproduction and the state First, the whole notion of ‘procreative liberty’ requires closer consideration. Human reproduction does not ordinarily require state sanction. Men and women are free to form intimate relationships and produce children. Adults require no-one’s permission for this because the decision to have children, whether well considered or impulsive, is a private and personal one. In fact, adults are free to have as many children as they wish while nature allows them to procreate. Any state intrusion into these natural events would be rightly resisted by every citizen. Why, then, should the state accept some responsibility or assume some role for itself when a couple or an individual finds they are infertile? It does not follow that a desire to express one’s procreative liberty can or should impose additional duties on the state. If the state is not

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required to sanction or support the expression of a couple’s or an individual’s procreative liberty, it is not clear why impediments to its expression necessarily become a burden that the state must share. Secondly, I cannot see why the state should be prevented from promoting certain parenting arrangements and not others. As an example, there is evidence that children raised in single-parent households are more likely to have difficulties at school and to engage in anti-social activity during adolescence. The state is, then, entitled to discourage the deliberate formation of single-parent families as a way of avoiding the additional financial burdens imposed on society by children more susceptible to educational difficulties and aberrant behaviour. I would also argue that the state is not obliged to assist an attempt to form a family when there is reliable research data to show that a particular parental arrangement will probably disadvantage those children subject to it. One kind of arrangement might, for instance, conflict with what widely-held enlightened opinion holds to be essential for human flourishing and what informed belief regards as productive to social harmony. For example, most Western nations outlaw the practice of polygamy. This prohibition is founded on notions of both right and wrong, wisdom and folly, which the state is willing to enforce coercively because it believes polygamous marriages are intrinsically harmful to those who enter into them, quite apart from their disputed moral character. In instances where the state does not want to go as far as a formally legislated prohibition, refusing to assist particular approaches to family formation is a means by which the state can declare its fears that the best interests of the children will not be served. Thirdly, given that infertility is not a life-threatening condition, there is no compelling reason why the state should be obliged to make scarce public resources available to individuals or couples wanting to overcome childlessness. British philosopher D.N. James argues that if infertile couples want a child they should be steered towards adoption, which meets the child’s needs by providing parents, and the adults’ needs by providing a child. This is a mutually beneficial arrangement. But if a couple is adamant that they

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want only a child that is genetically related to them, James believes this is a personal interest the state should not be required to support financially. 8 I explore this argument, one that I agree with, more fully in chapter 7. My position reflects a particular view of the state’s authority and its overriding duty to promote the best interests of children in every situation, including the parental arrangements to which the children will be subject. I now want to develop my argument a little further by concentrating on one form of alternative parenthood – commercial surrogacy. It is a particularly useful case study for several reasons, the first being that it has a direct bearing on the interests of children and on the wellbeing of adults. It also demonstrates a less controversial exercise of the state’s obligation to pursue the best interests of children, and shows quite clearly that the practical necessity of state interference in attempts by some citizens to fulfil their reproductive aspirations is accepted in some situations even by libertarians, who usually resist every instance of state intervention in theory. Additionally, commercial surrogacy allows me to illustrate the distinction between protectionism and paternalism. The following discussion also establishes a general basis for state interference that can be extended to the use of other forms of reproductive technology, and provides a foundation for my argument for closer regulation of various other approaches to family formation.

The state and society Some years ago I engaged in a running public debate with Melbourne philosopher Russell Blackford over the vexed subject of commercial surrogacy (a practice considered in further detail in chapter 8).9 Because Blackford appears to share most, if not all, of Max Charlesworth’s views, my disagreement with him over a specific issue also conveys a sense of my general objections to Charlesworth. Blackford and I disagree on the practice of commercial surrogacy in two reproduction and the state | 71

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respects. Blackford believes that commercial surrogacy is acceptable in certain circumstances while I contend that it is always and everywhere unacceptable. Blackford also argues that my insistence on a legislated prohibition on commercial surrogacy is paternalistic and that paternalism, which he believes is a bad thing, has no place in the ‘genuinely liberal society’ – something he evidently believes is highly desirable and which he wants to promote. Blackford and Charlesworth share a very similar vision of society. Blackford declares that ‘in all cases, the starting point is the freedom of individuals to live their own lives and make their own choices’. This guiding principle is asserted, not argued, although Blackford says over and over again that this point of departure is fundamental to the health of a ‘modern liberal society’. He goes on to say that ‘the state permits freedom of choice unless a compelling reason can be found to do otherwise’. He takes a plainly minimalist view of the state and its prerogatives even as he asserts the secondary importance of the society in which individuals interact. Not unlike the approach adopted by Charlesworth, Blackford’s handling of ethical dilemmas contains a philosophical leaning and a good deal of political ideology that is neither explained nor defended. Blackford asserts the primacy of the individual, and accepts the supremacy of the individual’s autonomy and liberty over and above the primacy of the state and the supremacy of collective social wellbeing. Several significant but unexplained value judgments are contained in this position. Blackford’s stark declarations of the way things are, or ought to be, are reflected in his prescriptions for the general shape of public policy in ‘a society that values freedom of choice’ [emphasis added]. Here we are in broad agreement about the importance of personal freedom and the general limits that should be imposed on the state’s intervention in the lives of its citizens. But we part company when he declares, without explanation or elaboration, that ‘freedom of choice’ is an absolute principle that can never be violated. Consequently, and echoing the outlook of both Mill and Charlesworth, Blackford contends that ‘a liberal society places at least the main burden of

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proof on those who argue that particular conduct should be suppressed by the state’. But he notes (although to me it appears to be a concession) that ‘there may be a need to consider fundamental social and moral norms that are accepted by almost everyone, such as that children must be cared for’. In noting that ‘children must be cared for’ [emphasis added], he nowhere links the state’s obligation to uphold this ‘fundamental moral norm’ to the reproductive aspirations of adults, nor considers how the state might respond to any conflict between them. Blackford is silent on whether a regard for fundamental moral norms relating to the wellbeing of children might curtail the expression of individual liberty among adults. To complicate things further, he recognises that these fundamental norms (how they achieve this important status is not made clear) might not be accepted by everyone. In effect, he admits that not everyone accepts that children must be protected or, if they accept the need for children to be protected, it is not a paramount consideration; in other words, it is but one factor among many to be considered in any situation where some restriction on individual liberty is proposed. Nevertheless, these fundamental norms (significantly, they are not principles or rules) must be enforced, and everyone in a society made subject to them, for what appear to be reasons of principle and pragmatism. In being completely committed to allowing individuals the freedom to do whatever they choose, Blackford (like Charlesworth) denies the attraction of, and eschews the need for, the state ‘finding any extensive moral consensus’ despite conceding the existence of ‘fundamental social and moral norms’ that ought to shape social interaction. In a curious twist, he then says the state should neither seek such a consensus nor reflect its alleged existence in legislation or public policy. To claim or assert consensus on social or moral matters would prima facie curtail the liberty of individuals and their freedom to make choices. It appears that consensus, however desirable to many, inevitably entails the imposition of a tyranny on some. Blackford also seems to believe that because these ‘free’ choices will tend towards the benign (he withdraws his tendency towards value judgments at this point), the state should not even attempt to act paternalistically by preventing individuals

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from harming themselves or their wellbeing. Individuals apparently have a right to be self-destructive and act in ways that might appear to almost everyone else to be against their best interests. I presume this means that Blackford is opposed to restricting personal choice in relation to such diverse matters as sex between ‘consenting’ adults and minors, unfettered access to and use of legal and illicit drugs, driving at high speed on public roads while refusing to wear seat belts, or the proclamation and enforcement of vilification legislation in relation to gender, race or religion. And yet he believes that ‘children must be protected’. Perhaps because his own position deliberately does not contain much positive content, Blackford criticises ‘some social conservatives, often from religious backgrounds’ and ‘some feminists’, who want state intervention in people’s lives to either impose their ‘standards of behaviour’ or ‘particular social vision’ on those who do not share their religious or ideological outlook. By virtue of the ideas and aspirations he rejects and the basis upon which they are rejected, it is apparent that Blackford is trying to prescribe certain actions and particular attitudes in the vision of society he posits. But he is plainly impatient with those who try to ‘smuggle’ certain religious beliefs or ideological convictions into public discourse (although he might not personally disagree with them or find them without merit) because some people made subject to a public policy might not ascribe to the beliefs or hold the convictions on which such a policy is based. How we establish the extent or vehemence of opposition to such views or ascertain the extent of consensus is rather a difficult matter. Presumably the ballot box is a valid although imprecise reference point. Citizens can tell the government what they believe by means of their electoral behaviour. To say that the beliefs and convictions derided by Blackford have no place in public policy is, in my view, to risk overlooking, excluding or discarding some wise and insightful approach to a particular public policy prescription simply because these beliefs and convictions are allegedly marked or tainted by association with some religion or ideology. That he is prepared to take this risk for the sake of preserving a principle – the necessity of individual

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freedom being unfettered – whose relative or absolute value remains undefined is to me inexplicable. Blackford’s commitment to comprehensively minimalist public policy, potentially bereft of the wisdom and insights a society might accumulate as part of its shared experience, places enormous burdens of judgment and discernment on an individual irrespective of their capacity or ability to bear the weight. This is possibly nowhere more onerous than in relation to commercial surrogacy, which affects the interests of children who, Blackford concedes, ‘must be protected’ and of adults who are entitled to exercise their procreative liberty.

The state and commercial surrogacy Blackford is open to the practice of commercial surrogacy – a financial arrangement in which a couple contracts and financially rewards a woman to bear a child on their behalf – as a consequence of his overarching commitment to personal autonomy and individual freedom. But he nonetheless wants to ameliorate the ‘possible harshness of commercial surrogacy’. He accepts the need for an element of paternalism (which leads me to think he is concerned mainly for adults) because he recognises that commercial surrogacy is open to serious abuse, particularly the exploitation of the surrogate, by commissioning couples and service providers. And yet, he and like-minded philosophers are not clear about the content, scope or limits of such intervention or whether it logically extends to a prohibition on the practice because it could be contrary to a child’s best interests. Blackford does not think that ‘any old paternalistic restriction’ is acceptable, but I am not sure how he can construct a cogent argument (as apart from offering a few concrete examples) about where acceptable limits and unacceptable restrictions start and finish. In any event, where do these limits come from, and why should state-imposed restrictions be respected in Blackford’s ‘modern liberal society’? A commitment to protecting children and

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promoting their best interests would certainly require some barriers to be erected around adult aspirations. My position with respect to commercial surrogacy is protectionist and paternalist. I oppose commercial surrogacy because it has the potential, if not the intention, to alienate children from their biological parents. This outcome is potentially harmful and not in a child’s best interests. The alienation can occur potentially, because a surrogate can legally refuse to surrender the child she has been commissioned to gestate, or actually, when a child is not raised by those to whom it is biologically related. I oppose commercial surrogacy on paternalistic grounds because, despite the promise of financial rewards, it has been known to cause emotional trauma and psychological injury to surrogate mothers, and in some instances has led to protracted legal action that has devastated the commissioning couples. There is the possibility for all parties to a commercial surrogacy contract to be hurt.

Protectionism and paternalism Let me now explain and defend the distinction I have made between paternalism and protectionism, and defend my paternalistic attitude towards surrogates and commissioning couples. Protectionism is acting to prevent a person who cannot defend themselves from being injured or harmed by natural forces or another person. Because children are vulnerable and unable, by virtue of their lack of emotional and physical maturity, to act decisively to secure their best interests, they are in constant need of protection. The state is mandated to provide that protection when parents are unable or unwilling to do so. Conversely, I understand paternalism to be ‘the interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the being coerced’.10 In

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effect, paternalism involves a person or a community asserting that they are a better judge of an individual’s interests than the individuals themselves. This difference of opinion commonly arises from two beliefs, both of which assume the subject individual to be an adult. First, that the individual is unaware of some circumstance or consequence that is known to the person or group acting paternalistically and that, had the circumstance or consequence been known, the individual would have acted differently and in accordance with their own self-interest. Second, a person or group disagrees with the individual about what constitutes their best interest in a particular situation and justifies imposing their opinion on the grounds that they are motivated solely by a genuine regard for the individual’s welfare. Philosophers have differentiated between strong and weak paternalism. According to C.L. Ten in Mill On Liberty, strong paternalism is justified ‘to prevent a person from harming himself even when his decision is fully voluntary or totally unimpaired’, while weak paternalism is justified ‘in interfering to prevent a person from harming himself only when there is a defect in his decision to engage in the self-harming activity.’11 My position with respect to surrogates and commissioning couples is much nearer to strong than weak paternalism. In taking me to task in the pages of Quadrant for not adequately defining the limits of the paternalism I am advocating, Blackford misunderstands what I term ‘the burden of freedom’, something I contend individuals should not be obliged to shoulder alone. I need here to explain what I mean by the ‘burden of freedom’. Every adult needs to make their own decisions in determining the course of their life. This is integral to being a mature and ‘response-able’ person. In reality, individuals inevitably exercise some freedoms, even if only by way of expressing a preference notwithstanding the appeal of social, familial or political compliance from time to time. But I know from everyday dealings with people facing difficult moral situations at home or in the workplace that the subtlety or complexity of the issues they encounter can become

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almost overwhelming. Individuals in these acute situations often seek guidance from someone they can trust or lean on the weight of prevailing beliefs and customs. In effect, they either consult someone who shares their core convictions and can interpret the issues at hand or they are led by what the community has traditionally upheld in law or promoted in policy. This strikes me as a sensible way of dealing with a complex moral dilemma when it is difficult to arrive at a resolution or conclusion by oneself. It is unreasonable for philosophers to expect every individual to be fully acquainted with the moral arguments for and against a course of action in relation to issues that even philosophers debate and find ethically complicated. Individuals can, of course, be manipulated by a malevolent guide or misled by entrenched prejudice. My point is simply that people without any training in philosophy and analytical thinking are sometimes paralysed by both the depth and breadth of the issues to be negotiated in making a serious moral decision that will have considerable personal consequences for them and their family. Some people are not equal to the challenge. They demonstrate this by throwing their hands in the air and saying ‘it’s all too hard’ or settling arbitrarily on one competing perspective for the sake of simply making a decision. Neither outcome is very satisfying to the individual concerned. This is where paternalism – chosen or imposed – must be admitted. Blackford says the key question in all this is ‘not about what individuals should do, all things considered, but about what restrictions on their conduct should be enacted as law’. Well, yes and no. While I agree that it is important to explain and justify recourse to law among those made subject to it, there is something much larger and more significant that Blackford overlooks – the emptiness of the society he, and Charlesworth for that matter, seek to promote. Blackford’s depiction of a liberal society contains statements of intent and a hint of its outward form but his vision lacks both content and context. It is, in fact, almost hollow. There is no appeal to a rich philosophical or theological tradition containing ideas, aspirations, virtues or noble sentiments that might inspire individuals to nobility or a com-

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munity to greatness. His arguments are largely organisational. Other than his assertions about the priority of freedom and the primacy of autonomy, and the existence of some undefined moral and social norms which need to be upheld by coercive law when their observance is resisted or ignored, his position lacks internal texture and any positive dimension that would make it appealing, at least to me. In Blackford’s ideal world there are just individuals and whatever they might make of their lives. In being deliberately short on imperatives and plainly apprehensive about imposing moral obligations, his vision of society does not take us very far nor sustain us along the way. The landscape in Blackford’s world is spare and sparse. Another problem with Blackford’s approach is that he makes society interchangeable with the state, and does not attempt to explain the relationship between the two. They are not, of course, the same thing. A society is a group of people sharing language, territory, economic life and a sense of belonging. The state is a political entity whose authority to require obedience from citizens and whose power to secure compliance is derived from the consent of those subject to it. Parliament, the judiciary and the bureaucracy are manifestations of the citizenry. In democratic nations, these institutions connect the state to society and ensure the state is kept responsible and accountable for its actions. In Blackford’s world (and that promoted by Charlesworth), the preference is for small government. The state deliberately has few obligations or responsibilities. It provides public services and facilitates orderly interaction between individuals. Blackford does, however, bestow upon the state an ‘imperative to act, even in the economic sphere’, to avoid certain outcomes. Why? It would be intolerable and perhaps even unthinkable if it did not act on behalf of all its members in some spheres of common life. For instance, and to use a financial example because the focus of this chapter is commercial surrogacy, there is a need for state regulation of the banking sector and the stockmarket because they are highly susceptible to corruption, manipulation and fraud. In contrast to calls for less government involvement in some areas of public life, in Australia there are demands

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for greater state intervention to stamp out collusion, cronyism and cartels. In effect, society concedes that human beings cannot be trusted to act according to rules designed to promote the common good when money and economic power are involved. Because the temptation to exploit a position of public trust for personal gain is too great for some people, the conduct of every person involved in the banking and financial sector, including private companies and sole traders, is subjected to oversight and regulation. This discriminates against honest individuals who have committed no crime nor shown any tendency to act dishonestly. Why should they be subject to such intrusion? Why should their dealings be hindered by compliance regimes? The answer is straightforward: the state has been encouraged (even urged) to interfere in this area of public life by its constituents because sufficient numbers of people have shown a propensity to act contrary to the common good that everyone must have their liberty restricted. The requirement for a similar kind of state intervention with respect to commercial surrogacy has, in my view, been amply demonstrated by the American experience of such arrangements over the past twenty-five years. There have been well-documented cases in the United States of exploitative contracting, breach of contract and utter indifference to the wellbeing of children on the part of commissioning couples, surrogates and service providers alike. In countries like Australia, which has not pursued a more liberal line in relation to surrogacy, concerns about the American experience have prompted demands for any contractual element to be prohibited. As I show in chapter 8, the conduct of commercial surrogacy has led to bitter disputes among adults that the state has been asked to settle. But even the courts have recognised that legal outcomes have been less than satisfactory for the children involved in these disputes. Some of the more unfortunate cases might have been avoided if the regulatory regimes in which commercial surrogacy is conducted in the United States were more rigorous. This means, in many instances, that the state must be more protectionist and more paternalistic if children and adults are to be shielded from harm. The American experience has also shown that commercial surrogacy cannot be

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left completely unregulated if the risk of immediate and long-term harm to those involved is to be minimised. Regrettably, by the time state intervention is sought (and it is usually a last resort following an acrimonious breakdown of communication), a great deal of emotional damage has been done to the innocent victims – the children.

Is paternalism unavoidable? Despite his dislike of state intervention and paternalism of any kind, Blackford admits that commercial surrogacy is in need of some regulation because unscrupulous operators can exploit eager prospective parents and take advantage of women willing to be surrogates. But he is not clear about where or how he would limit or restrict the practice. He does not want to intrude unnecessarily on individual liberty but he wants to ensure that vulnerable people, whether they are children or adults, are not harmed. In the end, he does not say precisely where or how he would limit commercial surrogacy. In my view, the principal problem in the liberal approach promoted by Blackford and Charlesworth, and their inability to speak coherently about essentially unavoidable state intervention, results from a preoccupation with promoting the purported rights of adults, a willingness to accommodate undifferentiated adult desires, and a lack of attention to securing the best interests of children. Both overlook the state’s prior obligation to protect children and are, in my judgment, too ready to dismiss claims that children are disadvantaged, disabled or harmed in their privileging of adult parental aspirations. Charlesworth and Blackford argue that because individuals have the right to procreate coitally, these same individuals also have the right to procreate non-coitally, that is, with the assistance of some form of technology. They further argue that the state rather than the individual carries the burden of demonstrating the possibility or likelihood of harm being caused to the

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children born as a result of ART if these practices are left unregulated or unrestricted. The pros and cons of various technologies and the possible social outcomes f lowing from them have been difficult for tribunals and courts to resolve because the potential or alleged harm concerns a child who has not yet been born or even conceived. In these situations, and as I have conceded, it is impossible to say with confidence whether a child will indeed be adversely affected in any way as a result of the circumstances of its technologically-assisted conception or birth. Therefore, the Charlesworth-Blackford line of argument concludes, an inability to demonstrate the presence of harm means that access to ART should not be restricted on the grounds of mere potential to cause harm. In any event, they allege, the harm caused would be minimal or short-lived and not, in itself, a sufficiently strongly ground for opposing the use of ART. This set of arguments might be sufficient to prevent the state from prohibiting various forms of non-coital reproduction. In effect, the state would not be justified in actively preventing individuals from making decisions about producing children in such circumstances. But because these decisions usually require active technical and financial assistance, involving public officials and an impost on the public purse, the state is asked to participate in procedures which might conflict with its commitment to the best interests of children. In my view, the state is not obliged to assist if such a conflict exists. And in instances where there is disagreement about what constitutes a child’s best interests, the state could, in some instances where resorts to ART are being considered, reasonably decline participation, citing the absence of clear community consensus about what is best for a child. The state might decide that it could not co-operate in the fulfilment of some reproductive desires (I am not willing to accord the status of rights to these aspirations) because the community did not support such action being taken using their money. If the state has misjudged the community’s attitude towards assisting with the provision of ART, the political parties constituting the legislative arm of the state can be changed by democratic processes to those with a better grasp of the community’s actual views and aspirations.

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The state and the prospective child The principal objection to my opposition to various forms of ART will be: why should we not act outside the ideal? There will continue to be claims that people other than those in stable committed heterosexual relationships can provide adequate places of nurture for children. Others will point out that ART is involved in a minority of births (although the number is increasing rapidly) and that the number of proposed surrogacies or cases involving posthumous parenthood will be miniscule. Surely these unusual events do not undermine parenting? Why object to what are uncommon occurrences? In each alternative mode of family formation the community is obliged to make critical judgments about what best serves the interests of children because much about what we imagine embodies or serves their best interest is usually left unsaid. I have argued that the state has an obligation to consider the best interests of the child that is proposed to be born through non-coital reproduction even if it is not yet conceived. To be indifferent or unconcerned about the welfare of such a child would constitute an abdication of the state’s responsibility to all its citizens – past, present and future. It might even be a violation of its duty of beneficence (assuring good and avoiding harm) in those instances where a reasonable person informed of the facts might believe that a child could suffer harm if the state refused to act in relation to its interests. Because a child born through reproductive technology does not have any say in its birth, there is a need for close public regulation of the technology, with the state and the service providers accepting a joint role: the state bearing responsibility for the public interest, including that of the child yet to be born, and the providers representing the interests of their clients. This sharing of responsibility for the regulation is applied to my consideration of adoption and various forms of ART in the chapters that follow.

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Pa r t t wo

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5 Adoption: ancient and modern

Over the ages most societies have resorted to adoption as a form of substitute care for children whose parents have died, become incapacitated, faced imprisonment, found themselves destitute or simply been unwilling or unable to care for them. In these cases, adoptive parents served the interests of children. Adoption has also been used as a means of dealing with childlessness, with babies and infants being accepted into the homes of their extended families, or of other members of the community in the absence of blood relations, and raised as if they were their own progeny. The first recorded practice of adoption was among the ancient Greeks and Romans who, in the face of infertility, adopted children to perform their religious obligations, to inherit property and continue the family line. In these cases, adopted children served the interests of adults.

The origins of modern adoption The modern practice of adoption owes more to patterns of fostering and wetnursing in sixteenth century England, and the need to define the legal status of the children involved, than to elements of ancient Mediterranean custom.1 The Oxford English Dictionary notes the practices of the British Foundling Hospital, established in 1739 to accept and care for ‘illegitimate’ children, but 86 | non-technological responses to childlessness

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says there was no record of these children being ‘placed for adoption’ before 1802. The term used to describe the plight of these children, ‘illegitimacy’, was derived from the Latin illegitimus, meaning ‘not in accordance with the law’.2 Illegitimate boys and girls were born outside the legally recognised marital unit and were considered to be the innocent victims of circumstance. Like orphans, the illegitimate were entitled to pity and deserving of compassion. While intrafamily adoption (adoption by a relative) was common, private adoption (by a non-relative) did not become popular until the second half of the nineteenth century, by which time it had come to be seen as a convenient means of dealing with the needs of childless couples. Children were placed with adopting families under private arrangements. Lacking a secure legal status, however, such children were often treated as servants and were commonly known as ‘boarders’. Placements were frequently made without reference to the adopting couple’s capacity to care for the child. The key criterion was their marital status. Although it was argued that a child needed both a mother and father to ensure optimum development into adulthood, the strongest imperative was removing the overwhelming social stigma attached to the offspring of unmarried mothers. ‘Fornication’, the term for sexual intercourse before marriage in the Christian religion, was a grievous sin which brought disgrace to those who engaged in it. Pregnant women could do little to conceal their sin, and society felt little remorse in stigmatising them and their children. The parents of young unmarried mothers often banished their ‘fallen’ daughters from the neighbourhood or local community some months before the arrival of the illegitimate child, so that its birth and subsequent relinquishment could take place beyond the gaze of family and friends. The girl’s prolonged absence, commonly passed off as an ‘extended holiday’, allowed the young woman and her nearer family to at least avoid public humiliation. But what of the infant whose birth proclaimed its mother’s failing? A child born out of wedlock was, according to the Bible’s teaching, conceived in sin. Remembering scriptural passages about divine punishment passing from one generation to another, some Christians even believed that

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illegitimate children would suffer further from the consequences of their parents’ sin if they were not removed from its continuing influence. As studies of nineteenth century philanthropic organisations have revealed, even after illegitimate children were taken from their parents many were still shunned by couples fearful of the possibility that ‘bad blood’ might enter families with hitherto unblemished moral backgrounds. It was almost as if a capacity for serious sin could be transmitted biologically. Orphans, children whose legally married parents had died, were preferred over the illegitimate by prospective adopting couples. The stigma of unwed motherhood and illegitimacy was serious and lasting. As most unmarried mothers depended heavily upon their parents for spiritual, emotional and material support, the majority consented, albeit reluctantly, to relinquish their babies for adoption. There were, of course, other young women who believed they were inadequately prepared for the demands of motherhood and who willingly consented to the surrender of their children. In the absence of social welfare, most unmarried mothers were in any event unable to cope alone with the financial burdens of parenthood. Although the relinquished child would not be raised by either of its birth parents, it was assumed that adopting parents could offer it a better material quality of life, with two parents in a financial position to provide for its physical needs. There were few theoretical or practical objections to adoption policies or procedures. Adoption, one Christian ethicist concluded, was ‘under normal circumstances, entirely commendable and to be encouraged’. 3 State involvement in the regulation and arrangement of adoption is a relatively recently phenomenon. In New South Wales, the Child Welfare Act, not enacted until 1923, included reference to ‘adopted boarders’. The effect of the new legislation was to formalise adoption, although negotiating placements remained under the control of individuals and private institutions. The Act also required the complete ‘severance’ of all biological ties. Relinquished children were in every respect the children of those who adopted them. Having placed the child with its ‘new’ parents, the separation of natural (birth) mother and child was intended, by law, to be lifelong. There was no

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expectation that they would subsequently ever be reunited. As one writer explained, ‘[unwed] motherhood was regarded as a mistake to be hidden and their children were made strangers to be sent off into the world with no means of finding their way back to their source of existence’.4 Those who arranged adoptions believed relinquishing mothers would eventually forget about their children and remain quietly grateful that society had accepted responsibility for arranging alternative care. As for the children themselves, conventional wisdom held that the experience of relinquishment left no obvious mark or enduring legacy. Few imagined that adoptees would ever think, given the benefits of their placement and the love of their specially-chosen adoptive parents, of wanting to meet their morally wayward natural parents. They were convinced that adoptees would remain content in the embrace of their adoptive parents to whom, after all, they owed everything. Adoption appeared to meet everyone’s needs. It helped unwed mothers unable to raise their children find alternative care for them; it helped childless couples to obtain the child that nature had denied them; it helped to shield the illegitimate from moral shame by conferring social respectability.5 As an information booklet provided to newly recruited social workers in the NSW Department of Child Welfare during the 1960s stated: Adoption is one of the most satisfying of the Department’s activities. The natural parents of the children surrendered for adoption are unable to provide their children with the normal home environment of mother and father living in harmony which is every child’s right. Legal adoption is a means of ensuring these advantages from birth, provided satisfactory standards of investigation and placement are observed. Adopting parents on the other hand are provided with a means of establishing normal family life within their home … The fact that applications for a second child are so rapidly increasing clearly establishes that adoption is meeting the needs of both child and adopting parents in a very real manner.

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making an application, most prospective adopting couples had received their first child. My adoptive parents, married since March 1947, were advised after more than a decade of marriage that my adoptive father was probably infertile. They made an application to adopt a child in February 1961 and were subsequently visited by a government social worker. With no warning, they were contacted by the Department of Child Welfare in early November 1962 and given immediate custody of me. Because mine had been a birth with medical complications, I was one month old when made available for adoption. When the statutory ‘cooling off’ period, during which my birth mother could have changed her mind about my relinquishment, lapsed in December 1962, my adoption was finalised and my name was formally changed from Ronald Parker to Thomas Robert Frame. (Why I was named Ronald and by whom remains a mystery, as my mother had wanted to give me the names Shane Andrew.) I was told as an infant that I was adopted although I did not understand what that actually meant until I was aged seven. For much of my early life I thought about my birth parents, especially my father, and wondered about why they needed to relinquish me or, to use the phrase that came to mind then, to ‘give me away’. In what sense was my birth ‘complicated’ and how did my mother cope with a labour of 49 hours? Did my birth parents later marry or go their separate ways? Did I have half-brothers and sisters? Were they younger or older, and did I resemble them in any way? Why was I born in an Anglican hospital but given to a father who was Presbyterian and a mother who was Methodist? Like many adoptees longing secretly for answers, I fantasised constantly about what my birth mother and birth father looked like and pondered the cruel twist of fate that must surely have prevented them from keeping me. But I was not alone. Since the 1920s, when comprehensive statistics were first kept in Australia, over 250 000 women have consented to their babies being placed for adoption by both government and private agencies.6 The number of children relinquished annually reached a peak of 9798 in 1971–72. Most observers predicted

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that the figure would pass 10 000 in 1973. They would be proved wrong, for numbers began to plummet early in the year. Three factors combined to disrupt dramatically the convenient symmetry of illegitimacy and infertility.

The decline of adoption The first factor was the decision of the Commonwealth Government to introduce the Supporting Parents Benefit in 1973. It proved to be a popular innovation which caused the number of children available for adoption that year to decline sharply. This suggested that many unwed mothers had previously relinquished their babies because they were unable rather than unwilling to raise them. Not only that, but unwed mothers began to speak out about the treatment they had received from families and friends, and from the public and private agencies with which they had contact after they became pregnant. They complained of coercion, intimidation and condemnation. Had the majority of these women been given a real choice, it was claimed, they would have kept their children. That society had conspired to deny them that option was the source of much enduring bitterness and anger. The second factor contributing to the drop in numbers was the growing availability of pregnancy termination services, reflecting a major change of attitude in the Western world. Although it had not become an offence under British law until 1803, in 1861 conducting an abortion was elevated to the status of a felonious crime which carried a penalty of life imprisonment. Laws were relaxed in 1929, when it became no longer an offence to perform an abortion when necessary to preserve a mother’s life. The Abortion Act was finally enacted in Britain during 1967, permitting the performance of an abortion by a registered medical practitioner when certain conditions were met. In Australia the legislation remains state-based and inconsistent. The only jurisdiction to have effectively decriminalised abortion is the Australian Capital Territory. Law reform elsewhere has not completely removed ambigu-

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ities or vagaries in abortion laws that are, in any event, subject to very broad interpretation. In general, abortion in Australia is not illegal when performed in a hospital or registered clinic to protect the life and health of a pregnant woman. Despite the concerns of legislators and the community, abortion is essentially available on demand without fear of prosecution throughout the Commonwealth. There was a third factor influencing the declining number of babies relinquished for placement although its affects were not apparent until the 1980s. Adoption was starting to receive some very bad press. The most strident criticisms of adoption policy and practice originated with professionals who counselled and supported women seeking guidance on dealing with an unwanted or unplanned pregnancy.7 In Death by Adoption, Joss Sawyer compared the traumatic results of adoptions with the comparatively simple remedy of early safe abortion. In my view, there is no contest … Adoption is a violent act, a political act of aggression toward a woman who has supposedly offended the sexual mores by committing the unforgivable act of not suppressing her sexuality. 8

Putting aside the advocacy of abortion, and the confusion of pleasure and sexuality with reproduction and parenthood, Sawyer’s assertions appear to leave little room for alternative parenting arrangements and certainly none for adoption. One relinquishing mother asked: Why does the Australian Government continue to promote a policy that is against the very fabric of life? Adoption in my opinion is unnatural and is not the best alternate arrangement for children in distress and definitely no service to their mothers … Adoption is like a sinking ship, the more holes you plug up the more holes appear. It is useless to build a new adoption act on the foundations of one which is rotten. Best we say this social experiment has failed and let’s implement procedures which really do address fundamental issues. Let’s put in place systems of support that will guarantee that the bond between mother and child will be unbroken.9

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Concerned United Birthparents (CUB), told the Los Angeles Times in 1985 that ‘adoption is worse than abortion. You’re giving up your flesh and blood. It permeates your entire life’. In its continuing campaign to end adoption, CUB claims that adoption ‘is a form of child abuse, in that it unnaturally separates a child from its mother and forces the child into a situation in which it must barter its identity for food, shelter and a semblance of parental affection among genetic strangers’.10 In 1994 the British Independent newspaper reported on the experience of a brother and sister reunited more than fifty years after they were separated by adoption. The siblings contended that adoption had the potential to be an institutional ‘abuse of the rights of a child, giving other people the power to change its surname, sometimes its first name and even its birthday, figuratively scrubbing out any previous life or links’.11 Furthermore, it was alleged that community perceptions of adoption were still dominated by the needs of adopters rather than the adoptees. The persistence of a series of ‘disabilities’ at law for ex nuptial (the legal term that replaced ‘illegitimate’) children has perpetuated the feeling among some of those conceived outside wedlock that they are not treated equally. They allege that their parents’ marital status confers on them an enduring disadvantage before the law.12 Although these disabilities have largely been administrative in character, a series of testimonials published by the British National Council for One Parent Families highlights the deep and enduring psychological scars inflicted on the illegitimate by these legal provisions.13 Further still, the Council contends that the stigma of being born ex nuptial remains for the illegitimate while their birth mothers continue to be punished for ‘contravening the moral code’.14 It believes societies ‘can and must remove both the stigma and discrimination from the child and the further burden these impose upon the parent’.15 As public debate about the ethical character of adoption continues, two new and controversial challenges have emerged in the area of adoption policy. The first is the increasing number of ‘overseas’ adoptions being arranged in Western countries. The second is the demand that the entitlement to adopt children be extended to same-sex couples.

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Intercountr y adoption The adoption of children from Third World nations by wealthy American celebrities has made intercountry adoption a subject of discussion in tabloid newspapers and gossip websites. Are these adoptions to be welcomed as demonstrations of altruistic selflessness or condemned as ostentatious displays of economic power? Although it is illegal to engage in slavery, are the rich and famous effectively ‘purchasing’ disadvantaged children from poorer countries for their own selfish pleasure? Aside from these much-debated and very public cases, many childless couples in the Western world who were or would have been unsuccessful in obtaining a child through local adoption agencies have sought to adopt children from countries where there is a serious lack of adults willing to care for the babies and infants of others. In 1980–81, there were 127 overseas adoptions to Australia. In 2005 the figure was 434, with most of the children coming from China. The number of intercountry adoptions since reliable statistics began to be kept in the 1980s now exceeds 6000. In December 1998 Australia signed the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption – an agreement that established standards on international adoption and bound signatories to their observance – with the Commonwealth Government assuming responsibility for a number of intercountry adoption programs with nations like Bolivia, South Korea, Chile, Columbia, Costa Rica and Taiwan.16 Intercountry adoption means a child is separated from family, culture and ethnic resonances. In a society which is largely Caucasian in makeup, the origins of children adopted from overseas will be very obvious indeed. Indeed, it will become a talking point. Children adopted from Asia and Africa by Caucasian adults will not be able to hide the fact of their adoption and will need to live with the inevitable questions about their origins and whether they ‘miss’ living in their country of birth. It is difficult to gauge public opinion on the growing incidence of intercountry adoption. Responses to a recent feature article in The Australian were 94 | non-technological responses to childlessness

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mixed.17 While there was obvious delight at the generosity and compassion of adopting parents, Meg Lewis complained that overseas adoption ignored: the cultural imperialism of believing children will be better off in our country just because we are richer. If anyone thinking of adoption were truly concerned about children they would invest the tens of thousands of dollars they pay to satisfy their own wants into supporting large numbers of children in their country of birth.

Lee MacRae thought: [a] mother and child’s unique relationship happens for every child and every mother in every country, and with appropriate support, this should be where a child is immersed, no matter how imperfect the situation – simply because it is real and honest and it is where the child belongs.

These two responses overlooked several important points. First, the majority of children available for adoption in Third World countries are abandoned anonymously and are unwanted in their country of origin. Without the offer of alternative parenthood from childless couples in the First World, these children are probably destined for long-term institutional care and the consequences that flow from this less than ideal situation. I am not sure that a child raised by the Chinese state would be better off remaining in the Peoples’ Republic than a child adopted by an Australian couple and nurtured in their home. One of my colleagues recently adopted an infant from a Third World country. In recalling a visit to an ‘orphanage’, he and his wife: went upstairs to find a corridor packed with thirty children all about one year of age and most of them sitting in plastic walkers with their feet just touching the ground and scooting around bumping into each other, protected from getting close to the stairwell by a thirty centimetre high plank of wood across the corridor. One female worker was sitting on the floor in the corridor with a bottle of milk in each hand feeding two of the children at the same time and with her foot rocking the walker of a third child. The only other worker on that floor was attending to a child on a

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potty in a side room. I came away with the overwhelming feeling that there was just not enough human touch for these dear little children. I am quite sure that every child adopted into a well chosen family anywhere in the world, is far better off emotionally, mentally, physically and in every other way compared to the vast number of children in third world orphanages.18

There is no doubt that institutionalised children like these will enjoy greater economic advantage and have an experience of parental love in countries like Australia. Is this a bad thing, given that the welfare of vulnerable children is concerned? To suggest that childless couples in Australia should contribute to Chinese childcare agencies a sum equivalent to the cost of arranging an overseas adoption and caring for an adopted child is impersonal and impractical. Critics of intercountry adoption should also say whether they believe children born in depressed rural areas of Cambodia or war-ravaged towns in Somalia should remain in their country of birth because, deep down, they are really Cambodians or Somalis who belong there rather than in countries like Australia? Of course, children born in the First World are sometimes raised in countries other than their country of birth when their parents relocate for employment or personal reasons – and there is no opposition to these relocations of which I am aware. While it is impossible for every child in every poorer country in need of alternative permanent care to be offered for intercountry adoption, there is much to commend the practice. In a widely quoted article published in 1978, Barbara Joe suggested that intercountry adoption should be seen as a ‘system of universal family assistance … a comfort for parents everywhere to know that should they ever face death or find themselves unable to provide for their children’s care, somewhere other arms would be ready to embrace those children and take up the task’.19 It is a means by which private individuals can effectively make contributions to the alleviation of poverty, distress and need when First World governments might be unable or unwilling to do so. But, just as with local arrangements, couples seeking to adopt from overseas should be screened to ensure they are suitable parents and have sufficient financial means to care for their adopted children. There should be 96 | non-technological responses to childlessness

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a willingness among adopting couples to allow their child to have contact with people from their country of origin and, if possible, to visit the place where they were born and in which they were nurtured until their intercountry placement was arranged. An ‘Inquiry into Adoption from Overseas’ conducted by Federal Parliament in 2005 received several submissions from advocacy groups recommending that First World couples be required to provide evidence that they were clinically infertile before they were permitted to adopt children from overseas. The principal concern seemed to be preventing anyone from arranging an overseas adoption just because they wanted to avoid the personal inconvenience of childbirth. 20

Same-sex adoption The choice of suitable parents for relinquished children is crucial for the success of any adoption placement. The practice of matching relinquished children with the most suitable parents, irrespective of a couple’s place in the queue of applicants, is the most welcome reform to adoption policy in recent years. The small number of children now available for placement means there is a very large number of childless couples with whom to match the relinquished child. Given the large pool of potential adopters and the legal obligation to ensure that the needs of children correspond with the capacities of adoptive parents, relinquished children now have a much greater chance of being placed with the ‘right’ couple rather than just an ‘available’ couple. But what judgments can and should be made about how ‘rightness’ is determined, and do these judgments immediately disqualify same-sex couples? The abiding principle in every adoption is the assumption by all parties that ‘the welfare and interests of the child shall be regarded as the paramount consideration’. 21 In its Final Report, the Royal Commission on Human Relationships conducted in Australia during the mid-1970s went much further adoption | 97

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when it stated explicitly that ‘the needs and rights of the natural and adoptive parents are secondary’. 22 It also concluded: We do not consider that single people should be excluded from consideration [as adoptive parents], particularly in cases where there is already a relationship with the child. While it could be a disadvantage for a child to be brought up by partners in a stable de facto relationship, the possible benefits to a child may outweigh these disadvantages; we do not consider that couples who have a relationship of three years standing should be automatically excluded from consideration ... While there is no evidence that homosexuals or bisexuals are ineffective parents, we do not support the proposal that homosexual couples, male or female, should be entitled to adopt. To do so would be to risk imposing an additional source of stress on a child who may already be vulnerable because of the adoption. 23

Most Australian legal jurisdictions do not allow same-sex couples to adopt children. In Queensland, Northern Territory and Tasmania only married couples can apply to adopt. De facto couples are eligible in other jurisdictions. Same-sex couples can apply to adopt children only in Western Australia and the Australian Capital Territory. The deliberate exclusion of homosexuals, lesbians and single people from those eligible to adopt children has become a focus for vigorous debate and political advocacy among those wanting the exclusion removed and those equally committed to its retention. The Gay and Lesbian Rights Lobby asserts that 20 per cent of lesbian women and 10 per cent of homosexual men are parents. It notes that current legislation prevents both same-sex partners from being formally recognised as parents although both may be a child’s primary carers. The Lobby wants definition of de facto relationships made neutral so that ‘consenting co-mothers of Donor Insemination babies born to lesbian couples’ are deemed to be the child’s parents in all relevant legislation. It also wants the introduction of ‘a simple and inexpensive mechanism by which lesbian mothers can seek child support from one another if their relationship breaks down’. The Lobby proposes changing adoption laws to allow a child to have ‘more than two legal parents’. A report produced for the group in 2003 claimed that: 98 | non-technological responses to childlessness

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it has been clearly demonstrated that the sexuality of a child’s parents has no connection to the child’s moral and cognitive development, well-being or happiness. When comparing children of heterosexual parents to children of lesbians and gay men no significant differences have been found in the social adjustment, social acceptance, or sociability of the children … The most important factor in a child’s upbringing has been identified as the care and love put into a child’s life. Lesbians and gay men display matched capability at loving and caring for their children as their heterosexual counterparts. 24

The removal of legislative exclusions on same-sex couples adopting children should be seen as part of a wider movement aimed at ending discrimination on the grounds of sexuality in all aspects of public life. In terms of employment conditions and property ownership, this is uncomplicated and largely uncontroversial. It is much more complex in the case of same-sex parenting because there is a deliberate decision to negate one biological parent (usually a father) and a conscious denial of any rights that parent might have with respect to the child who always remains their son or daughter. This negation and denial is justified on the grounds that a child does not need both a mother and a father. In criticising my published review of Sperm Wars: The Right and Wrongs of Reproduction25, a single lesbian posed a number of questions on her blog: What exactly is it that fathers can give children that mothers can’t? The obvious inverse of this question is: what is it that mothers can give to children that fathers can’t? … Do same sex couples have what it takes to have children? Well, what does it take to have children? Must children be indoctrinated with stereotypical ideas of sex, gender and family from the time they are born? Do children have some congenital need for a matched pair of parents to give them the right idea of things? Or do kids just need safety, security and love, the freedom to be nurtured and accepted for who and what they are? More importantly, do those families not fitting into the neat nuclear model deserve acceptance and support from society?

Signatories to an on-line petition promoted by the Gay and Lesbian Rights

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Lobby said they ‘do not accept the view that gay marriage or the adoption of children from overseas would rock the foundations of “traditional family values”’. There were those who thought otherwise, based on their concern for the best interests of the children raised in such circumstances. In response to public calls for the legitimation of same-sex parenting, a correspondent to The Australian newspaper argued that, given ‘homosexual family formation deliberately cuts children off from the full meaning and range of familial relationships, the legal recognition of homosexual unions as marriages would, at the very least, be an unwise step to take’. 26 The Australian Jesuit priest, Father Frank Brennan, concludes that ‘when there is a shortage of children available for adoption and when all other factors are equal, the state is entitled to have a preference for an opposite-sex couple in a stable relationship as the adopting parents of an unrelated child, over a same-sex couple or a single person’. 27 This has been the view of successive Australian governments. Australian ethicist Margaret Somerville, who supports the creation of a civil unions register for homosexual and lesbian couples, is against same-sex marriage because it will infer that such couples have, in the words of the 1948 Universal Declaration of Human Rights (Article 16), ‘the right to found a family’. She says such a right ‘simultaneously takes away the right of children to have a mother and a father, to know who their biological parents are and to be reared by them’. 28 This approach, she says, ‘rejects all of the following’: The idea that any type of family relationship, no matter how desirable for the adults involved, is as good as any other for their children; that family organisation is no one else’s business – certainly not that of the state or the law to give preference to some modes over others; and that anyone who challenges the ‘politically correct’ stance is, thereby, automatically, intolerant, a bigot or hatemonger. 29

There is empirical evidence to show that children are better raised by two parents rather than one, and that children raised in single-parent families are more likely to be affected by poverty, crime and social exclusion. In terms of

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time and energy, who could possibly argue that one parent is to be preferred over two? This does not, of course, diminish our esteem of the commitment and selflessness of a single parent. But there is a widely held view, supported by centuries of human experience, that mothers and fathers provide complementary care and nurture. As I argued in chapter 2, they offer different things to children and their development. There are some contributions that are necessary for a child’s nurture that flow from femininity and others from masculinity. The critical issue is not, therefore, whether homosexuals or lesbians have the capacity to be loving and caring parents. It is the belief that same-sex couples cannot provide for a child’s need to experience both male and female parental love. I think it is important to emphasise here that humankind consists of men and women. They are distinct beings. Their individuality is symbolised by their sexual differentiation. Their unity, however, is symbolised by their coming together as one flesh in procreation. Human sexuality is an intrinsic ontological given; it is not a human preference or a social project, chosen and alterable by the exercise of human will, but a function of natural purpose. Because the totality of humanity is expressed in masculinity and femininity, there continues to be much that commends the view that children need a mother and father if they are to be enveloped by the full expression of humanity. The Gay and Lesbian Rights Lobby’s claim that neither ‘gender nor the sexuality of the adults’ has a bearing on the child’s development I would contend is contrary to the experience of most people and not supported by reliable data. Furthermore, there is no substantial body of evidence supporting the claim that same-sex couples are just as effective as heterosexual couples with respect to a range of measures over a longer period of time. Same-sex parenting is a recent phenomenon. It is still untried and untested in all respects that are relevant to the care and nurture of children. Father Frank Brennan argues: Until it can be proved that children adopted into homosexual families are not placed at a disadvantage compared to children adopted into other family units, the state has an ongoing legitimate interest in restricting the

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availability of adoption to homosexual couples, at least when the child is not related to either homosexual partner. To hold such a view until there is compelling sociological evidence to the contrary is not to act only out of animus towards people who are gay or lesbian. 30

There is, then, a need to be cautious and prudent before legislating against the long-standing insistence that children should be placed with heterosexual couples who are preferably married. The best interests of the child, which remain paramount, cannot be imperilled because of an unrelated desire to remove discriminatory provisions in administrative law or public policy. The state’s refusal to consider legislative reform of this kind also shows the determination of legislators to resist political pressure based on the notion that any group has a right to adopt children. The question of the adoptive couple’s suitability is fundamental to successful adoption placement. Although there are children who, without any assistance from the state, find that they have two mothers (one biological and the other social or gestational) or two fathers (one biological and the other social), the state should neither encourage nor condone the creation of any situation in which a child does not have a known mother and a known or at least acknowledged father. Federal legislators have yet to be convinced that the current arrangements need to be changed. In 2004 the Labor Opposition said it would support the Commonwealth Government’s amendments to the Marriage Act to confirm the legal definition of marriage as the union of a man and a woman, and would support the Government’s decision to prevent same-sex couples from adopting children from overseas. The Family Law (Same Sex Adoption) Bill, first drafted in 2004 but scheduled for introduction to Parliament at the time of writing, would amend the Family Law Act to state ‘that adoptions by same-sex couples of children from overseas under either bilateral or multilateral arrangements will not be recognised in Australia’. The Commonwealth claims the power to do this because it has effective jurisdiction in intercountry adoption arising from its statutory responsibilities in relation to immigration. The Attorney-General said in 2004 that same-sex adoption was ‘not in the best interests of the child’ because the government believed children 102 | non-technological responses to childlessness

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needed ‘the care and affection of both a mother and a father’. Prime Minister Howard stated in 2007: ‘Children ideally should be brought up by a mother and a father who are married. That’s the ideal.’31 I believe the policy of most Australian governments to limit the pool of prospective adoptive parents to married couples in stable relationships clearly serves the best interests of children and should be maintained.

Abor tion and adoption In relation to dealing with unwanted pregnancy there is one other issue that cannot be allowed to pass without comment. Advances in medical technology have made it easier to terminate pregnancies. Whereas adoption has been the traditional means of dealing with unwanted pregnancies until recently, many women are no longer willing to endure a full-term pregnancy and childbirth before relinquishing a baby for adoption. Most prefer immediate termination. It is not possible to arrive at a reliable figure of the number of abortions performed in Australia each year, but estimates range from 80 000 to 100 000. 32 For every five babies born, two pregnancies are terminated. More than a million pregnancies have been terminated legally in Australia since 1985 when reliable records began to be kept. The typical woman seeking an abortion is single and in her twenties. She is educated and employed. It is likely that she was using some form of contraception and has not been pregnant before. Although one effect of the easy availability of abortion has been a substantial reduction in the number of children available for adoption, my reaction is not that women with unwanted pregnancy should consider the ways in which they can assist infertile couples. This is to presume a stronger sense of altruism than exists or is likely to ever exist in the Australian community. The point I would want to make to women concerned about the welfare of a relinquished child is that he or she can be effectively and humanely placed with a suitable couple desperate to adoption | 103

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have children. In any event, the choice for women dealing with unplanned pregnancy is not simply between traumatic adoption and easy abortion, as it is sometimes depicted. The long-term grief frequently associated with abortion is captured vividly in Melinda Tankard Reist’s Giving Sorrow Words, an important book in which eighteen women describe abortion’s enduring emotional legacy. 33 Adoption and abortion involve decisions that are extremely difficult to make and both have enduring consequences. |||

For women concerned about the ethics of abortion, the prospect of giving birth and relinquishing a child might become a more acceptable proposition if adoption could be made a more attractive alternative to abortion. But given the objections of some birth parents and child welfare advocates, does adoption really have a future? Should it be promoted as an ethical form of alternative parenthood? There are two critical matters that must be addressed here: does adoption serve the long-term best interests of children, and can we avoid harming women and men who choose to relinquish their children by changing the practice of adoption? These questions are considered in the next chapter.

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6 Can adoption be rehabilitated?

After centuries of being the main means by which infertile adults and childless couples could become parents, adoption faded rapidly from view. In Australia the number of local adoptions reached a peak in 1972, then plummeted for the next three decades. In 2004–05 there were only 65 local adoptions and the downward trend continues. Of the most recent adoption placements, 40 per cent were male and 60 per cent female; 88 per cent involved infants aged under one year; 75 per cent were arranged by government agencies and 25 per cent by private organisations. The mean age of relinquishing mothers was 24 years (30 per cent of relinquishing mothers were aged under 20) of whom 91 per cent were unmarried and 9 per cent were married. Only 35 per cent of consents for adoption were given by both the child’s mother and father. The vast majority of adoptions had an element of ‘openness’ about them (the relinquishing mother wanted contact or an exchange of information), with only 8 per cent of mothers requesting ‘no contact or information exchange’. It is likely that by 2020 there will be just a handful of babies available for local adoption. But given the bad press it has received from disgruntled birth mothers and anxious adoptees over the past thirty years, can adoption be rehabilitated? And if so, how?

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Adoption and women’s liber ty Social commentator Bettina Arndt has expressed dismay that adoption had been ‘rejected’ by contemporary Australia as a means of providing permanent alternative care for children. In response to a letter from a pregnant teenager printed in her newspaper advice column in 1993, Arndt pointed out that twenty years earlier she ‘would have been advised to consider the best interests of the child, now the woman’s own desires are paramount. That’s quite a shift in social attitudes’.1 And whereas young women were once commended for putting the needs of their children first, Arndt believed that ‘women who consider this course now risk social censure for placing other considerations – such as their concerns about providing for the child – ahead of the natural maternal urge to raise a child’. As something of a lone voice, Arndt felt ‘there are still very good reasons why adoption may still be the best choice for some young pregnant women’. Her greatest concern was [the] poverty, isolation and stress faced by many young single mothers – circumstances well known to have adverse effects on children … It seems strange that it is no longer acceptable to talk to young women about the dramatic risks to their own lives that come with single motherhood. Restricted educational opportunities and subsequent loss of income, reduced job prospects, the greatly increased stress a child places on future relationships – early single motherhood means starting adult life with a massive handicap.

Although this could be interpreted as an invitation to self-centredness, I agree with Arndt’s final observation that ‘our society’s current rejection of adoption denies them [unmarried birth mothers] the right to an informed decision’. Nearly five years later, Arndt was saying the same things in newspaper feature articles and still claiming that few wanted to hear or heed her message: The secrecy and coercion, the denial of identity, the locking out of the birth parents – that is all gone in modern adoption. Now most birth mothers choose the adoptive parents and are encouraged to maintain contact with 106 | non-technological responses to childlessness

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the child. The results are often far more positive, although open adoption can clearly present complications, particularly for the adoptive parents. Of course, today huge numbers of prospective parents wait in vain for a child; adoption is a rare event in Australia. Yet this option is better placed then ever before to offer new hope to some women and their children. 2

I find myself sharing many of Arndt’s views. In every society there will be times when the relinquishment of an infant for adoption at the time of birth is a better course of action than leaving the child to suffer the inadequacies or shortcomings of its birth parent or parents, particularly those who suffer from addictions and mental disorders. The subsequent separation of mother, father and child would be difficult but necessary in the long term for the child’s best interests to be served. The availability of childless couples with the means of caring for children is a convenient but nevertheless attractive factor in the equation.

Abuse and neglect In contrast to the decreasing number of children available for adoption, increasing numbers of children are forcibly taken from their birth parents because society deems them at demonstrable risk of physical, emotional or sexual harm or because their parents are incapable of or unwilling to provide a level of care and nurture that the state considers adequate. According to the Australian Institute of Health and Welfare, there were 266 745 reports of child abuse in Australia during 2005–06. This amounts to 700 new reports every day. While the figures might be inflated by a community prepared to err on the side of prudence in such a matter, more than 55 921 cases of child abuse were substantiated in the same period. The annual increase in the number of reports where abuse was confirmed over the six years to 2006 was around 5200 cases, with children under twelve years of age most at risk of suffering harm. Perhaps the greatest tragedy is the number of reports concerning the can adoption be rehabilitated? | 107

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same children being repeatedly abused, and the number of adults who have consistently shown a wanton disregard for the children in their care. Adoption is available as an alternative form of parenting when there is potential rather than demonstrated inability or unwillingness to care for a child. The key issue here is when separation takes place: how does a society determine that separation is advisable before taking steps to encourage relinquishment? Few communities have been prepared to tackle this problem head-on, although all societies recognise that some children need to be taken into state care and have embraced legal provisions allowing it to take place. It is, of course, almost always preferable that a child remain with its birth parents. But there are occasions when the state, responding to social expectations and community concern, decides this is neither mandatory nor absolutely essential. In cases where parents are ill-equipped to care emotionally or financially for their children, keeping parents and child together can be a gamble with very high stakes. There could be other instances in which the child might not suffer abuse or inadequate care but could face severe disadvantage as a result of remaining with immature or indolent parents. While the permanent separation of an infant from such birth parents might not be absolutely necessary, it might be considered preferable for the child’s overall future wellbeing. If the needs and best interests of children are placed above the aspirations and desires of adults, as Arndt has suggested, there will be more adoptions, if only because birth parents have been honest with themselves and decided to err on the side of prudence in seeking what is best for the children they have produced.

Does adoption harm children? Adoption ought, then, to be discussed and promoted as a solution to unwanted and unplanned pregnancy for the sake of the infant and his or her longterm wellbeing. In the majority of cases there is nothing to suggest that a

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child relinquished for adoption and separated from its mother at birth will necessarily engage in perennial anti-social behaviour or face unrelenting emotional struggles. The child will, of course, need to deal with some difficult questions and come to terms with some of the same uncertainties in relation to self-awareness as must donor-conceived children as they reach adulthood. In their essay ‘The adopted children syndrome: fact or fallacy’, Dean Byrd, Clinical Professor of Medicine at Utah University, and Peter Howell, Professor of Psychology at University College, London, assess the major studies made of adoptee psychopathology over the last forty years. They conclude: there is little evidence supporting the view that there is anything intrinsically harmful about adoption for the majority of children. Certainly it is of concern that some adopted children have serious difficulties but it is unwarranted to blame the act of adoption for this. It is more likely that a complex interaction of variables is responsible … it is important not to discard adoption prematurely. Some are suggesting that children should not ever be legally separated from their natural parents. Given the importance of attachment in positive mental health development and given the need of some children to feel a sense of belonging, it is vital that there be permanent placement options which provide this. Adoption has a track record. 3

British adoption policy researcher John Triseliotis shares their view: Joining a new family through adoption still remains the preferred option for some vulnerable children with no-one else to turn to. There are strong pressures … to see the abolition of adoption, especially for older children, for the wrong reasons. This should be resisted … Its discouragement could prove detrimental to many children who would be condemned to a life of rootlessness for ideological reasons.4

This was also the considered view of the NSW Law Reform Commission in its 1993–94 Review of the Adoption of Children Act 1965 (NSW). It concluded that: the research does seem to support the benefits of adoption for adopted children. According to various measures of development, adopted children

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appear in general to do as well as other children in the community, and better than children in the underprivileged circumstances which at least some adopted children might have experienced had they not been adopted. 5

The Commission was persuaded, however, that ‘adoption be recognised as the most extreme form of order for children in need of permanent care and that it is only used where the circumstances of the particular child dictate that it is necessary’.6

The essence of parenting The Commission’s conclusion raises a number of general questions about the essence of parenting and how a society goes about determining a child’s best interests. Confidence in what were thought to be well-known answers was eroded in the United States during 1993 by controversial, highly publicised court cases involving two children, Jessica Deboer and Kimberly Mays. In the first case, the courts refused to grant continuing custody of two-year-old Jessica to her adoptive parents, Jan and Roberta Deboer, because her birth father, Dan Schmidt, had never relinquished his parental right to custody. Jessica’s birth mother, Cara Clausen, had not told Schmidt he had fathered a child until she had a change of mind about Jessica’s relinquishment. Lawyers for the adoptive parents presented a number of studies which claimed that the child would be irreparably harmed by removing her from them. In the end, however, the court ruled in favour of Schmidt, who by then had married Clausen. In this ruling, the courts sought to preserve the rights of the birth parents at the same time that it upheld the necessity of this particular child being raised by one or both of her birth parents. Jessica, renamed Anna, lives with her now-divorced birth father and younger sister Chloe. There is nothing to suggest that she is not a normal and well-adjusted teenager. In a later twist to the story, the Deboers divorced after seventeen years 110 | non-technological responses to childlessness

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of marriage partly because of the traumatic events surrounding their onetime daughter Jessica. They reconciled and remarried a year later. In the second case, fourteen-year-old Kimberly Mays sought to sever all ties with her birth parents, Ernest and Regina Trigg, after it was discovered that she and their baby Arlene (who later died) had been swapped at birth in November 1978. Kimberly sought to ‘divorce’ her birth parents so that she could stay with the only father she had known, Robert Mays. Lawyers representing the birth parents responded by claiming that they had ‘a God-given, constitutional right to visit their daughter’.7 Advocates for the ‘adopted’ father claimed the problem was ‘the definition of parenthood in terms of biology. That’s a myth. Once a child is nurtured and cared for, you’ve got a family’. In this case the courts were asked to rule in favour of what was referred to as ‘psychological parenting’ by acknowledging that the essence of parenting is, in fact, social bonding. In effect, the plaintiffs claimed that a child’s association with its birth parents was not crucial to its adult development. The courts rejected the Triggs’ application for access. Although Kimberly resumed her life as the daughter of Robert Mays, subsequent media reports revealed that, not surprisingly, she was traumatised by the court case. She subsequently spoke of suicide and her public behaviour was erratic. After her fifteenth birthday, Kimberly decided she wanted to live with the Triggs after all. When a Florida court refused her request, she accused Robert Mays of sexually abusing her. She retracted the allegation after conceding she had manufactured it in the hope of having her contested custody case reopened. Prosecutors decided not to lay charges against her when the court restored full custody rights to the Triggs, who then denied visiting rights to Robert Mays. In a subsequent reverberation, the then 20-year-old Kimberly lost legal custody of her son after she attacked her estranged husband. There can be little doubt that the protracted legal proceedings associated with parental custody have had a deep and continuing effect on this unfortunate woman and those with whom she has lived. The cases of Jessica Deboer and Kimberly Mays involved contrary assessments of both the potential and actual importance of birth parents in the

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nurture of children. Perhaps the real significance of these incidents was the decision of the courts not to determine whether biological parents were superior to ‘social parents’ or whether biological parents were ultimately essential for a child’s long-term wellbeing. Neither case sounded the death-knell for adoption. Rather, they pointed to the need for further research about the ways in which biology and sociology interact in the nurture of children.

Adoption information But before adoption can again become a viable form of permanent alternative childcare, in the minds of many birth parents and relinquished children the issues of access to adoption information and, indeed, the openness of the adoption placement itself, need to be resolved to the satisfaction of all three parties in the adoption triangle – the adoptee, the relinquishing parent/s and the adoptive parents. As Peter Boss, formerly Professor of Anthropology and Sociology at Monash University, has contended, this means society must ‘acknowledge that adoption is a legitimate part of family formation, rather than the poor cousin as it is now ... [and] find a way of reconciling the “complete-break” principle with the principle of open adoption’.8 If public administrators can find a way of improving their handling of personal information and provide better confidentiality arrangements, adoption will have a much better chance of regaining some of its lost respectability. These two features of adoption are inseparable. In most facets of life, and certainly in social interactions, confidentiality is a necessary commodity; secrecy is not. The secrecy attached to adoption for the past century has, in a very general way, discouraged and hampered community discussion. In terms of creating and sustaining the mythology surrounding adoption secrecy was simultaneously both cause and effect, a self-generating measure whose rationale was lost in largely misguided efforts to ensure its preservation. Rather than being the means to an end, secrecy

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became an end in itself. However, the importance of achieving and perpetuating anonymity between the participants in adoption has been neither recently explained nor adequately explored. In the colonial period of Australian history, children were readily adopted and records of the transaction were publicly accessible. A need for secrecy in adoption was not recognised until the early part of the twentieth century, when the shame of unwed motherhood and the stigma of illegitimacy increased. To ensure adoption remained an attractive means of placing the large numbers of relinquished children, public officials sought to withhold information, whether or not such information was wanted at the time of the adoption or subsequently. The identity of each party in the adoption triangle remained secret. Justification of the secrecy which permeated all aspects of the ensuing adoption legislation in all states was not well articulated, however. There seems to have been a multi-faceted fear: that the child would be presented with a conflict if the birth parents came forward; that the authority and status of the adoptive parents with respect to the adopted child would be challenged by the presence of the birth parents; and that the birth parents might wish to regain custody of the adopted child at some point subsequent to its relinquishment. In effect, the objective was to create and perpetuate an environment in the adopted family which was as near as possible to the ‘normal’ situation. Furthermore, the secrecy provisions were inviolable. Even when the child attained majority, the commitment to anonymity remained regardless of anyone’s known views or stated preferences about its continuation. Secrecy provisions were enforced by government ostensibly to protect the best interests of all parties. But was this degree of paternalism justified? Certainly the rigidity with which it was applied attracted articulate opposition in Australia as other countries slowly changed their adoption practices.9 By 1982, two American social workers, Kathleen Silber and Phylis Speedlin, could claim, from their experience of reforms in American adoption law, that: All members of the adoption drama benefit from lifting the veil of secrecy. Adoptive parents are not denied information about the

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individuals who gave their child life. Stereotypes of the child’s birthparents are replaced with actual facts and personal data about the birthmother and birthfather. Through individual communication via the letter exchanges, adoptive parents learn about and empathise with the birthparents. The insight that develops will be invaluable to the adoptee as he begins to question his adoptive parents about his heritage and his birthparents.10

Whatever the origins of the adopted child or the circumstances in which he or she was relinquished, these details are part of a person’s story and integral to who they understand themselves to be. Is it, then, better for the adopted person to be buffeted by fantasies or driven by myths about their origins when it is possible to have accurate information which they can deal with as best they can? The arrangement of adoption is, in my view, quite properly supported by pledges of confidentiality (as distinct from secrecy) to each party in the adoption triangle. That a child is ex nuptial, that it was surrendered at birth and that its adoptive parents were infertile remain matters of interest only to those immediately involved. As the child needs to be told of its adoption for a healthy relationship with its adoptive parents to develop, information about its origins, relinquishment and placement should not be withheld – ever. A recent study, conducted jointly by academics from the University of Queensland and the University of Southern Queensland and published in Family Relationships Quarterly, showed that children raised in an open atmosphere tended to feel closer to their adoptive parents when they reached adulthood.11 Based on a sample of 144 adult adoptees, it was clear that relationships between adopted parents and their children are invariably damaged by secrecy. Children who were told of their adoption at an early age dealt much better as adults with the fact of the relinquishment, the openness of their parents’ relationship with them providing a good model for their own relationships with others in later life. Adoptive parents who did not tell their children that they were adopted risked a loss of trust and sense of betrayal when the children eventually learned the truth as adults. Adoptive parents who fail to disclose all they know of their children’s origins and relinquishment are more likely to be seen by 114 | non-technological responses to childlessness

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them as controlling and uncaring. While the truth might be difficult for some adoptees to bear, as children and even as adults, greater harm is done when they feel they have been misled or information to which they are entitled is withheld. The truth is always preferable to rumour, suspicion, insinuation or overwrought imagination. These research findings have direct relevance for donor-conceived children as well. It should, in my view, be left for those involved in alternative parenthood arrangements to determine how and when information about relinquishment and adoption is disclosed. All the indicators suggest that children should be told early in life that they were adopted and information about their origins and placement shared with them as they become able, and old enough, to cope with its significance and absorb its meaning. Given that illegitimacy and unwed motherhood no longer attract the opprobrium of the past, and being mindful of children’s need to have the biographical and genetic information that is integral to their overall wellbeing, there are no longer any adequate grounds for maintaining secrecy provisions in adoption legislation. Indeed, there is every reason for making the process more open so that information is made available to the adult parties involved when they are in agreement about the way information will be handled. The advocates of this practice say that it: merely refers to open channels of communication between birthparents and adoptive parents. Of course, there are as many varieties and degrees of communication as there are people involved, ranging from single one-way letters sent through an intermediary, to annual letter and picture exchanges, to actual face-to-face meetings … we also support open placements when appropriate. An open placement involves the face-to-face meeting of birthparents and adoptive parents at or near the time of an adoptive placement.12

Christie Sorich and Roberta Siebert, two American social work researchers with considerable experience in adoption placement, have commented on the importance of a written contract to manage the extent of contact acceptable to all parties in an open adoption.13

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The case for open adoption To date there has not been a great deal of publicly-expressed interest in more open adoption in Australia. For open adoption to come about, legislative change is required. The contentious issue, an aspect requiring new laws, is allowing the relinquished child to have contact with both birth and adoptive parents before reaching adulthood. The legislation will need to answer a series of complex questions. Who will ultimately decide what is best for the child and who will arbitrate disputes between birth and adoptive parents? Can the child ask to be returned to its birth parents if it is unhappy with its adoptive parents? Can birth parents ask for their child to be returned if they are dissatisfied with the adoptive parents? Who has the final say on when and how much contact is permitted between the child and its birth parents? How might the practice of open adoption affect custody arrangements, the sharing of legal liability for the child’s welfare? What financial claim might an adopted child have on the assets of its birth parents if they have contact? What inheritance rights will the child have with respect to its birth parents’ property? Because it potentially involves large amounts of money, the latter question requires a high degree of legal certainty. If the curtain [separating birth parents and their children] is totally lifted will the basic legal provisions of severance of one family from another need changing? If an adopted child moves back wholly or in part into the original family should he/she then have those rights of succession or inheritance originally held? Conversely, should the child yield the rights of succession or inheritance gained by adoption into a second family which he/she now wishes to leave? The answer is probably that most adopted children will not so dramatically ‘move across’, and will remain part of the adopting family; so that the present legislation remains appropriate in this area. Some exceptional cases may cause hardship; but to amend the law for those cases may create greater hardship for others. The cure may be worse than the disease.14

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As a relinquished child who was reunited with a birth parent in adulthood, I have strong reservations about the practice of open adoption. While I would not allow personal contact with a birth parent until a child has reached legal adult age, there is no reason why non-identifying information cannot be made available and exchanged until the child attains majority and birth parent/s and relinquished child both feel a desire for some form of reunion. Noting the growing acceptance of a more open form of adoption in the United States and Canada, public discussion will lead inevitably to calls for its consideration elsewhere in the Western world. The philosophy underlying adoption would be changed, with the adoption placement being seen as a temporary separation rather than a permanent one (‘temporary’ is understood here to be the period between the placement and the child’s majority) which acknowledged the diversity of the child’s emotional, psychological and intellectual composition and the likelihood that children will want to know something about their past and their genetic inheritance. But the right of birth parents to privacy must not be overlooked. They should not be compelled to provide information or pushed into making contact with a relinquished child. The Adoption Information Act (NSW) of 1990 stipulates that birth parents who do not indicate a specific desire for reunion must have their privacy protected against an adoptee’s desire to seek a reunion. This seems to be a reasonable approach. But the basis of this protective attitude is, in America at any event, apparently rejected by most birth parents. According to Silber and Speedlin: ‘Very few want anonymity. Besides which, they rightfully remind powerful individuals in control that they have a right to be asked, before their privacy is automatically protected and their child is denied access to them’.15 The American lobby group, Concerned United Birthparents, echoes this sentiment in their pamphlet, The Birthparents’ Perspective: Adoptees have the absolute right to full and accurate information about their origins, including identification of, and meeting with, the birthparents, whenever and whatever age there is a need … Our experience – and researchers and activist groups who effect reunions agree – shows that only a scant minority want anonymity … Most birthparents are overjoyed to

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finally know the fate of their birth-child, and to close a long, painful chapter of wondering.16

The Australian experience of adoption law reform has been largely positive. A review of the Adoption Information Act by the NSW Law Reform Commission found that: implementation of the Act has been accomplished successfully … the vast majority of adopted persons and birth parents welcome the rights to information, and exercise them responsibly … compliance with the contact veto system is very high … post-adoption contact and reunions are seen as beneficial by almost all who initiate them.17

The Commission concluded that: there is no need to change the basic principles of the Act, which provide a reasonable and workable resolution of the conflicting interests involved. However, the evidence of real distress and anxiety caused to many adoptive parents and some adoptees and birth parents justifies some modifications to current law and practice.18

These modifications related mainly to the handling of information and the extension and restriction of access in specifically defined instances. I believe that the modifications recommended by the Commission provide adequate access to information for birth parents and adoptees while reasonably protecting the privacy of other parties, notwithstanding the state government’s decision to suspend its pledge to keep secret the identities of both birth parents and adoptees. Since the NSW Adoption Information Act was enacted in 1991, up to 30 June 2005 the number of vetos in place totalled 9069. This figure was made up of 5582 contact vetos and 3487 identifying-information vetos. The majority were lodged by the adopted person (55 per cent of contact vetos and 59 per cent of information vetos) and the birth mother (38 per cent of contact vetos and 39 per cent of information vetos). Only 56 vetos were lodged in 2004–05, the numbers having decreased steadily from the high of 426 in 1995–96. 118 | non-technological responses to childlessness

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Access to medical information One other area of information remains a special consideration in adoption policy reform – access to medical information. The same consideration applies to those born through ART, where one or both biological parents are ‘anonymous’. Should adoptees be granted limited access, perhaps exercised through a medical practitioner acting on their behalf, to health and medical records relating to their birth parents? Where an adoptee is aware that their birth parent has undergone genetic screening, should they, together with any siblings that were not adopted, be entitled to notification of the results of such tests? I believe that access should be granted in both instances even when a contact veto has been placed. However, to preserve the privacy of the birth parents and other birth relatives involved, an independent regulatory body would need to be established to consider applications from adoptees and donor-conceived children wanting access to otherwise confidential and private information. This body would need to be given statutory powers to grant access to information when it was demonstrated that the adoptee possessed both a verifiable and indispensable need for the information on medical grounds. In cases where it ruled in favour of the adoptee, the information supplied would be the absolute minimum required for the nominated therapy or treatment to be undertaken and would be supplied to the adoptee’s medical practitioner. The guiding principle would be to preserve the birth relatives’ anonymity while limiting intrusions into their privacy to an absolute minimum. This principle is vital to ensuring that information obtained through such an amendment could not be used for the purposes of identifying or tracing a birth relative when that would not otherwise be possible. This would be, in my opinion, the absolute limit of the adoptee’s right to information. But problems nonetheless remain for which there are not obvious solutions. It is likely that none of the parties to adoption will ever be fully satisfied with arrangements for access to information. This is inevitable. In societies where individuals cannot insulate or dissociate themselves from the pursuits and interests of others, there is a constant effort to ensure that laws can adoption be rehabilitated? | 119

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and public policies achieve the greatest benefit when the claims of one individual or group cannot be given absolute priority and complete precedence over those of another. When those claims relate to human emotions and sensibilities, the unavoidable outcome is a juggling act in which reputed benefits are weighed against alleged injuries.

Reconciling competing rights I have argued that neither an adoptee’s entitlement to information nor a birth parent’s right to confidentiality are absolute. They are essentially in competition, a reality which recent legislative reform generally recognises. The key issue has become evaluating the extent of the reputed benefit in comparison with the seriousness of the alleged injury. Through the accumulation of a vast body of evidence concerning the effects of adoption policies and procedures, over the past three decades has come recognition of the premium adoptees place on information about their origins. Their entitlement to such information has been made easier to honour owing to the rapidly declining stigma of unmarried motherhood and the judgment that birth mothers will not now be as troubled as they once were about the possibility of contact with a child they conceived out of wedlock. But the availability of that information should continue to be handled with care. |||

Many myths continue to be associated with adoption and reunion. They are commonly founded on, and perpetuated by, ignorance and fear. With an increase in community discussion and awareness, there is every likelihood that in the not too distant future these myths will be dispelled and the image of adoption as an attractive form of permanent alternative childcare rehabilitated. My plea in this chapter is not that we should encourage the hasty separation of children from their parents by adoption. Nor should

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society underestimate the pain this separation causes for the women and men involved in making such a decision. But society is right in maintaining that not all women who have an unwanted pregnancy should keep their children or even be encouraged to do so. They did not choose to be mothers; society should not demand they be parents. Those with an interest in the welfare of children and in preserving the sanctified quality of life can rightly insist that adoption be considered a very real alternative to abortion on demand, something to which many people remain generally opposed, and that it be portrayed as a humane and caring decision for a mother to make; perhaps, given the absence of harmful long-term effects and the positive benefits which accrue from careful placement with the right adoptive parents, a decision more humane and more caring than deciding to keep a child.

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Pa r t t h r e e

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7 The ‘art’ of artificial conception

Whereas adoption has a long history, ART has a very short one. And in contrast to adoption, where the range of issues that needs to be considered is finite, the steady emergence of new technology means that ART is constantly posing new questions and producing fresh dilemmas. We must also recognise that reproductive technology is not just another area of evolving medical science with practical consequences needing to be managed. It is highly specialised work which generates a great deal of emotional energy and ethical controversy. In contrast to adoption and the needs of a child who was unintended but who now exists and is in need of care and protection, the purpose of ART is the intentional creation of a human person, in circumstances that defy nature, whose needs and preferences must be considered although their desires and opinions cannot be ascertained. Because ART has a bearing on our general regard for human life, making ethical judgments about its objectives and outcomes requires close attention to the views of a range of interested parties, including parents and children, feminists and scientists, legislators and jurists, philosophers and priests, psychologists and social workers. In this chapter I deal with various forms of ART and the ethical questions each has prompted. Given that the use of ART involves many implicit assumptions and explicit assertions that have a bearing on a child’s development, there is a need for some consensus to be reached on the various 124 | technological responses to childlessness

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combinations and permutations of parenthood that ART makes possible to ensure that, at the very least, a child is not forced to suffer avoidable disadvantage or inadvertent harm.

Gamete donation The most basic forms of reproductive technology involve gamete donation. Gametes are specialised reproductive cells – sperm and ovum – that combine to form a zygote designed to develop into a new individual. The first recorded use of gamete donation for the purpose of artificial insemination occurred in 1790. In this instance sperm from the recipient’s husband was used. An early (possibly the earliest) case of artificial insemination by an ‘anonymous’ donor was recorded in 1884 when Dr William Pancoast, professor of descriptive and surgical anatomy at Jefferson Medical College, inseminated the wife of a wealthy Philadelphia merchant with sperm from one of his medical students after she was unable to conceive with her husband’s sperm. The couple was not told that anonymous donor sperm was used. Thereafter, artificial insemination was employed quietly and surreptitiously to avoid any embarrassment to the couple involved or stigma attaching to the child produced. Human sperm was first frozen for the purpose of artificial insemination in the early 1950s, with the first successful pregnancy using the technique reported in 1953. Freezing sperm has since become very common in fertility clinics throughout the world. A sperm sample is collected, mixed with a cryoprotectant and drawn into thin plastic straws. Between five and twenty straws can be prepared from a single ejaculate. The straws are placed in a freezing machine and subsequently stored in liquid nitrogen at –196ºC in a state of suspended animation. The average survival rate of thawed frozen sperm is around 67 per cent. Sperm can be stored indefinitely in this manner without, it is believed, any detrimental effect before being used for reproductive purposes. the ‘ar t’ of ar tificial conception | 125

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In Artificial Insemination by Husband (AIH) sperm is placed in the vagina through mechanical means to overcome sexual performance deficiencies, to circumvent sperm–mucus interaction problems and to maximise the potential of too few or insufficiently motile sperm to fertilise an egg. A variant of the process is called Intracytoplasmic Sperm Injection (ICSI), a procedure in which a single sperm is injected into an ovum to enable fertilisation when the male partner has a very low sperm count or non-motile sperm. Opposition to AIH and ICSI is based on the separation of intercourse from procreation, and the probability that semen will be acquired through masturbation – which some Roman Catholic ethicists regard as inherently wrong, even though its purpose is purely procreative. Artificial Insemination by Donor (AID) is used when a male partner cannot produce viable sperm or is likely to transmit serious monogenetic conditions such as Tay-Sachs disease, Huntington’s disease, haemophilia, myotonic dystrophy or chromosomal abnormalities. There are two options concerning the donor. The first is to use sperm from an anonymous person obtained from a sperm bank. (The term ‘anonymous donor’ is a misnomer because the name and personal details of the donor are now recorded by the sperm bank but not disclosed to the recipient.) Donor sperm is screened for HIV, hepatitis and sexually transmitted diseases. Most jurisdictions require donors to be under 40 years of age and to have previously fathered a child. The legal position of the anonymous donor has not been determined in all jurisdictions for all legal purposes, which is not without its immediate and latent complications. It is generally accepted that unknown donors have neither parental rights nor responsibilities. But what should happen if the donor-conceived child needs a transfusion or transplant of compatible bodily fluids or organs? What if the child’s ‘social parents’ become completely incapacitated or die? Should the previously anonymous donor be approached for assistance because he has a biological relationship with the child? Is anonymity therefore absolutely necessary, and should it always be preserved in relation to sperm donation? The second artificial insemination option is to use a known donor. Friends, or more distant or non-biological family members, are often asked to assist.

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This has the advantage of medical history being documented and a known person being on hand should the child ever require an organ transplant or a blood transfusion. The donor might also agree to act in a prescribed parental role, although it is usual for the woman’s partner to be deemed the father unless he did not consent to the insemination. But the disadvantages of using a known donor are legion. Familial relationships can become blurred. In a recent case in the United States, a woman was artificially inseminated with her son-in-law’s sperm so that her daughter and son-in-law could have a child genetically related to both of them. The woman who gave birth is both the child’s mother and grandmother. With known donors there are other questions to be considered. How will the donor-conceived child react to its social father when it possibly knows (or, more likely, probably knows) the identity of its biological father? Within the family, will the donor-conceived child relate differently to the exercise of parental authority by privileging the biological over the social and possibly deferring to its biological mother rather than to the social father to whom it is not biologically related? This could create a warped expression of parenthood not too different from what can happen when divorce removes one partner from the household and the child’s upbringing, and remarriage introduces a biological stranger into familial relationships. The relationships between the child and its biological parent, and the child and its step-parent, are unequal and function differently. This prospect concerned the Warnock Committee more than twenty years ago. It concluded: It could be argued that there is something potentially damaging in the situation of any child who has been born by means of AID or surrogacy … There is an asymmetry built into the family relationships: only one of her two parents is biologically related to her, the other, though legally a parent, is not ‘really’ so. In this respect, it is argued, adoption is preferable to this kind of ‘artificial’ family. For in adopting a child, both parents are in the same boat; both have committed themselves to bringing up a child who is biologically not their own. There is no temptation for the non-related parent to blame all the child’s unattractive characteristics on the other party,

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whose biological offspring she partly is. In a family that has been created by assisted reproduction, there may be a danger that the parent who is not related to the child except legally may feel jealous of the other parent or inadequate in relation to the child; this does not occur in families with adopted children.1

In both forms of AID there is a clear separation of the relational and procreative dimensions of an intimate relationship. Genetic material from outside the relationship is being introduced so that one partner is involved in procreation and the other is not. The child conceived with donor sperm is a constant reminder of the male partner’s infertility, while the ‘unequal’ relationship that exists between the mother and the father could cause resentment and drive a wedge into and through the relationship between husband and wife. In 1958 the then Archbishop of Canterbury, Dr Geoffrey Fisher, told the synod of the Convocation of Canterbury that AID ‘violates the exclusive union set up between husband and wife. It defrauds the child begotten, and deceives both his putative kinsmen and society at large’. With respect to the exclusivity of marriage, however, the courts have generally agreed that AID does not constitute adultery. In a 1958 test case in Scotland, Margaret MacLennan successfully defended herself against a charge of adultery brought by her estranged husband Ronald. After the couple separated, Margaret had travelled to the United States, where she conceived by donor insemination and gave birth. Lord Justice Wheatley noted that ‘the idea that adultery might be committed by a woman alone in the privacy of her bedroom is one with which earlier jurists had no occasion to wrestle’. He concluded that Margaret MacLennan’s actions did not constitute ‘adultery in its legal meaning’ because physical intercourse had not taken place. There are also concerns about the kinds of men who are willing to provide sperm. Because sperm banks usually reimburse donors for their travelling expenses and pay a fixed sum for each sample, it is probably more accurate to speak of sperm ‘providers’ than ‘donors’, given that money changes hands. But because these payments are not substantial, there is a residual fear that sperm donation might attract a particular group of men rather than a broad cross128 | technological responses to childlessness

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section of society. There is also evidence that medical students are over-represented because they are more aware of the need for donor sperm, know where sperm banks are located and need to raise money to pay for their tuition. Sperm banks are also rightly concerned with the motivations of genuinely altruistic would-be donors, many of them older men (aged over 40) who have faced fertility problems in their own families. In addition to the likelihood of having a lower sperm count than the desirable optimum, these men are more inclined to want to meet the women involved in the insemination process and to express an interest in knowing about the child they have ‘fathered’. The vast majority of women using donor sperm prefer anonymity, however; they show little desire to allow a ‘stranger’ into their homes and lives. Ovum donation is the female version of AID. It is used for women who cannot produce ova but whose uterus will sustain a pregnancy. A donated egg is fertilised and placed in the woman’s uterus where it will gestate until birth. Ovum donation is far less common because sperm is much easier to collect than eggs are to harvest. This being so, the demand for donated ova usually exceeds supply. Eggs are also more difficult to store because they consist of cells full of water that tend to crack or burst when frozen. At the time of writing only ten babies have been born in Australia using frozen eggs. Several clinics are prepared to offer egg-freezing as a commercial service to women facing treatments that might damage or destroy their ovaries but, as IVF Australia explains on its website, it is still ‘technically less successful’. But it is inevitable that some women aged in their twenties, especially those involved in elite sports or physically demanding artistic activities like ballet, will try to delay motherhood by freezing their eggs for use a decade later when their first career is over and their fertility has declined. To avoid unwanted factors intruding on AID procedures, most jurisdictions prohibit the marketing and sale of sperm and ova. To avoid the large number of abnormalities that tend to affect children born from incestuous unions, Australian legislation requires that sperm from one provider cannot be used to produce more than ten children. In South Africa the maximum is five. The American Fertility Society recommends a limit of fifteen. the ‘ar t’ of ar tificial conception | 129

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There are many unanswered questions about the criteria that ought to be used for matching donors and recipients. Should some members of society – those with less intelligence, of a particular ethnicity, with a history of mental illness, or a disability – be banned or at least discouraged from donating reproductive material? If so, on what ethical basis should they be excluded? Should donors or recipients be able to make decisions about donations or transfers based on skin colour or complexion? Should a couple be allowed to insist, for instance, that the donor be of a specific sexual orientation or profess a particular religion? Although this kind of discrimination is illegal in most Western societies, what kind of regulatory framework would need to be established to prevent couples seeking a donor whose characteristics they preferred for what could be described as politically incorrect or racially biased reasons? In most jurisdictions, these questions have not been settled in either policy or legislation. Nor has much attention been given to the feelings of donor-conceived children. As only now are they beginning to reach adulthood, only now are their views beginning to be heard. TangledWebs is an action group ‘advocating equal rights and protection for all donor conception (DC) people’ and those who are adopted in Australia and internationally. 2 It claims that ‘DC practices throughout the world contravene the rights of the child who is created in these circumstances’ and is committed to ‘ensuring that all DC people have adequate emotional, practical support to assist them with their life experience of kinship loss and possible reconciliation with disconnected kin’. The group wants to shift the focus of DC from meeting the needs of adults, including donors, to defending the rights of people born as a result and protecting them from the intrinsic injustices of the practice … [and claims that] social and psychological research overwhelmingly supports the proposition that it is in the best interests of every child to know and to be raised by his or her genetic parents … The desire to provide children for infertile couples does not override the child’s need for and right to this vital relationship.

This being so, TangledWebs insists that DC children have ‘a right to infor-

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mation about their genetic parents; moreover, this right is retrospective and applies to all children irrespective of the date of their conception’. The views of donor-conceived children have not gone unnoticed. The Victorian Infertility Treatment Act of 1995 stated that children born after January 1998 would be able to know the identity of their donor when they reached eighteen years of age. This is entirely consistent with the intention of much adoption information legislation passed in the 1990s, which allowed adult adoptees access to identifying information about their birth parents. National guidelines introduced during 2004 recommend to Australian fertility clinics that they accept sperm donations only from men willing to be identified to their donor offspring in future. But where anonymity has been removed, clinics are reporting a downturn in donations of 80 to 90 per cent, which is creating a severe shortage in the quantity and quality of sperm available for infertility treatments.

In vitro fer tilisation In vitro fertilisation (IVF) does not deal with or reverse the underlying causes of infertility, but is used to overcome infertility, mostly in women. The procedure begins with the harvesting of a woman’s eggs. Several are harvested at the one time because doing so is less expensive and less traumatic than harvesting just one on several occasions. Fertilisation of the ovum takes place outside the body in a small glass (or now more commonly plastic) dish. With the woman having undergone prior treatment to increase the likelihood of pregnancy, a number of embryos between two and five days old are implanted in her uterus (the number can vary between one and four) while the remainder are frozen for later use. If the implantation is unsuccessful, there will be several more cycles until the woman is pregnant or the supply of available embryos is exhausted. Most clinics try to use all frozen embryos within a six-month period although many regulatory regimes allow their storage for

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up to ten years. About 60 per cent of couples who have used IVF successfully have remaining embryos. Fewer than 10 per cent offer them to other couples; 20 per cent ask for their destruction; the remainder express no view. Embryo donation, also known as ‘prenatal adoption’, involves the transplant of embryos produced from donor sperm and ova and is much less common than other donor procedures. When IVF was first developed, its principal use was for women whose fallopian tubes were blocked, damaged or missing. It is now used to treat infertility problems caused by endometriosis, certain types of male-factor infertility, imbalances in the woman’s immune system and unexplained infertility. More recently it has also been used for cases of genetic screening, where only ‘healthy’ embryos are implanted to prevent transmission of a genetic condition. The world’s first IVF or ‘test tube’ child was Louise Brown, born on 25 July 1978 in England. Her birth was reported in The Lancet three weeks later, on 12 August. The scientists involved in her birth predicted ‘new horizons in human reproduction’ which would contribute ‘to the benefit of humanity in directions which we do not apprehend today’. But not everyone was pleased. Professor Leon Kass, a biochemist and later chairman of the U.S. President’s Council on Bioethics (2002–05), described the birth of Louise Brown thus: ‘the blind assertion of will against our bodily nature, in contradiction of the meaning of human generation it seeks to control – can only lead to self-degradation and dehumanisation’. 3 The Roman Catholic Church objected to IVF because it deprived ‘human procreation of the dignity which is proper and connatural to it’. A collection of contemporary opinion pieces edited by William Walters and Peter Singer, entitled Test-Tube Babies: A Guide to Moral Questions, Present Techniques and Future Possibilities and published in 19824, revealed the extent of concern that IVF was the first step on an ethical slippery slope that would lead ultimately to human reproductive processes of the kind terrifyingly predicted fifty years earlier in Aldous Huxley’s futuristic novel, Brave New World. These criticisms and reservations did not prevent further research or devel-

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opment in similar techniques elsewhere. The first Australian IVF baby was Candice Reed, who was born at the Royal Women’s Hospital in Melbourne in 1980. The first IVF twins were born in 1981. The first IVF triplets were born in 1983, also the year the first child was born from a donated egg. The first IVF quads were born in 1984. The following year the first child which started life as a frozen embryo was born. More than 41 000 IVF cycles now begin in Australia each year. Four per cent of all babies born in Australia are the products of IVF with the figure bound to rise if the social infertility caused by delayed motherhood continues to increase at its present rate.5 The overall IVF success rate is now around 25 live births for every 100 cycles, although some clinics make exaggerated claims of success rates around 40 per cent. For women aged under 35 years the percentage is 30–35 live births for every 100 cycles, a rate which decreases to 20 per cent for women aged 38–40 years, ten per cent for women aged 38–42, and four per cent for women aged 42 years and older. The average cost of an IVF cycle in Australia exceeds $7000, with the Medicare rebate set at 85 per cent of the schedule fee. There is no shortage of legal dilemmas created by IVF technology. A recent case serves to illustrate both the extent of their complexity and the depth of feeling provoked. English woman Natallie Evans learned she had ovarian cancer in October 2001. She was told that both her ovaries needed to be removed due to the presence of serious tumours. She and her then fiancé, Howard Johnston, agreed to produce six embryos by IVF and have them frozen. When the couple terminated their relationship in May 2002, Johnston refused his permission for the embryos to be implanted in Evans’ uterus and brought to birth. He wrote to the fertility clinic where the embryos were held, asking for them to be destroyed, in July 2002. Evans protested that these embryos were the only chance she ever had of becoming a mother. Johnston was resolute: he did not want to become a father in these circumstances. Evans took legal action but failed when the British courts ruled that the consent of both parties was needed at each stage of the IVF process. In a desperate bid to gain access to the embryos, Evans took the matter to the European

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Court of Human Rights in Strasbourg in March 2006. When the Court ruled that she did not have a right to bear children using the embryos, she lodged an appeal claiming that the embryos had a right to life. The matter ended when the Court’s Grand Chamber ruled that ‘the embryos created by the applicant and [her fiancé] did not have a right to life within the meaning of Article II of the European Convention on Human Rights’. Despite the tearful protests of Natallie Evans and her public denunciations of Johnston, the embryos have since been destroyed. IVF has also given rise to court cases so morally divisive and socially complicated that the resulting litigation is potentially intractable. In California a lesbian couple decided to have a child together. One partner donated eggs that were fertilised by an anonymous donor and implanted in the other partner. The resulting pregnancy produced twins in 1995. The two women decided to go their separate ways in 2001, with the children accompanying their gestational mother. The egg donor sought to be recognised as the twins’ mother for the purpose of securing access and custody rights. Although she had waived all parental rights at the time her eggs were donated as part of a ‘standard’ procedure, she claimed this document did not apply to her because she knew the recipient and the two women were in a relationship at that time. The courts nonetheless rejected her application. She was denied access and custody rights although she is biologically the twins’ mother. The ruling is being appealed. In a similar case in New York, a court ruled: ‘We decline to read the term parent to include categories of non-parents who have developed a relationship with a child or who have had prior relationships with the child’s parents and who wish to continue visitation with the child’.6 Other IVF innovations, while not conflicting with the law, nonetheless trouble the community deeply. Retired Romanian literature professor Adriana Iliescu gave birth via IVF when she was 66 years old. Her daughter Eliza Maria was produced from donor egg and donor sperm after Iliescu had tried for ten years to become pregnant. At a press conference held 48 hours after her daughter was born by caesarean section, more than six weeks before full term, Iliescu said: ‘You don’t have to be concerned, [the baby’s future] is my con-

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cern’. She added that the girl ‘will have a beautiful future’, although Romanian commentators were concerned that Iliescu, who was single, might leave behind an orphan should she fail to live to the age of 84, which is when Eliza Maria will reach adulthood. Other than Iliescu and her doctors, no-one was publicly prepared to welcome her achievement. Deborah Orr, a columnist with Britain’s The Independent newspaper, commented: Ms Iliescu has undergone a medical intervention which allowed her to experience the physical reality of carrying children and growing them in her womb. This is nothing but an elaborate, expensive, grotesque form of adoption, carried out to persuade an obsessed old woman, quite erroneously, that she’s somehow, miraculously, reproduced herself.7

Iliescu was unconcerned by media scorn. She remarked: ‘Each person has a mission on earth. To be honest, I myself don’t understand all my motivations … but maybe this was my mission, to show that women can, and must, have children.’ Perhaps inspired by her example, in December 2006 a 67-year-old Spanish woman became the world’s oldest new mother when she gave birth to twins by caesarean section in a Barcelona hospital. She had become pregnant after IVF treatment in South America. These, too, were her first children. Despite the potential for disputes and dilemmas and the complex problems created by commercial promotion of the technology, more than 40 000 babies have been born in Australia using IVF. The Australian Institute of Health and Welfare reports that the death rate for IVF babies is twice that of infants conceived naturally, with one in 50 IVF babies stillborn or dying within a month of birth. There is evidence that children born through IVF are at a higher risk of congenital abnormality, although this might be a parental rather than technological factor. But there is no evidence in prolonged studies of IVF children to suggest that their ensuing life is any different as a function of having been born through ART. There is some slightly higher risk of complications at birth, but this is largely explained by their mothers already being located within a high-risk group. Older women are, for instance, more likely to give birth to smaller babies. There is a slightly increased risk of miscarriage and the ‘ar t’ of ar tificial conception | 135

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ectopic pregnancy along with the chance of multiple births (the likelihood of this had been nine times greater because, until recently, a number of embryos were implanted at one time) and premature menopause. The majority of IVF mothers switch to bottle-feeding within three months of their child’s birth because they have trouble establishing an adequate supply of breast milk. Some preliminary studies indicate that IVF parents tend to be less confident with respect to their parenting skills, and three times more likely than parents of children conceived naturally to seek assistance from a parenting advisory service. There is also a risk to the general health of women undergoing IVF from the effects of hormone treatment and its physically invasive procedures. To harvest her eggs, a woman is subjected to a chemical menopause and then given drugs to hyper-stimulate her ovaries. The dangers associated with this procedure include stroke, organ failure, respiratory distress and even death. Ovarian hyper-stimulation (OHSS) can sometimes occur as a reaction to some other drugs used in IVF, while the menstrual cycle can be disrupted, albeit for a short duration. Evidence is also inconclusive as to whether infertility drugs increase the chance of ovarian cancer or cause damage to ovarian blood vessels and surrounding tissue. These risks, which are not irrelevant to ethical assessments of ART, have been at the heart of feminist objections to technology-based alternative means of becoming a parent. Notably, such objections do not relate directly to either the best interests of children or the competing claims of various parenting arrangements.

Feminist objections to ART Feminists have noted that research into the development of reproductive technology was hastened and made more urgent by market forces – the increasing incidence of abortion and the concomitant decreasing availability of relinquished children for adoption. Had there not been a rapidly expand-

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ing commercial demand for technological means of overcoming infertility and childlessness, investment in research and development would never have been made. But the potential appeal of ART to overcome childlessness went well beyond the appeal of adoption, in that would-be parents could be related genetically to their child. The craving for a child which is one’s own flesh and blood was recognised by IVF providers as a promotional tool which enlarged their commercial opportunities. But above all else, IVF represented another major change in the management of human reproduction. In the early 1960s the contraceptive pill had allowed women to have sex without producing babies; in the early 1980s IVF technology made it possible for women to produce babies without having sex. It also held out the prospect of motherhood to the permanently socially infertile – single women and lesbians. Developments in reproductive technology, intended and unintended, have generated consistent streams of favourable and hostile viewpoints. Both the technology, and concerns about its use, have gone through four discernible phases. The first was from 1978 to 1984, when the possibilities created by ART were demonstrated, initial anxieties were declared and opposition began to be mounted.8 The second phase was from 1984 to 1994, when problems with ART were identified and specific protests were made. The third phase was from 1994 to 2005, when legislators tried to regulate what was an expanding field (including ‘granny mothers’ and ‘posthumous parenthood’) by throwing up new fences. We are presently in the fourth period, which is marked by recognition that reproductive technologies (which are much more refined and less experimental than twenty years ago) are here to stay, and that they have raised even bigger questions about overcoming infertility and family formation. Other than the first phase, which was launched by the birth of Louise Brown in 1978, the subsequent stages were not defined by specific events but by swings in public opinion. It was not until around 1983 that concern and scepticism about the new technologies came to be translated into public criticism and community opposition. This prompted official inquiries into the social, ethical, religious, economic and political dimensions of what was being done

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and what was being proposed. Objections were based on: the separation of intercourse from procreation; claims that the technologies treated women as incubators; concerns that IVF dramatically increased the likelihood of multiple births; and worries that embryos were being created that, in all probability, were destined for destruction or, worse, experimentation. By the end of the 1980s there was new legislation around the world and in Australia regulating access to ART, and an array of supervisory bodies ensuring compliance from service providers. Reproductive services are now among the most heavily regulated medical activities conducted anywhere in the world. Feminists were and remain divided about the costs and benefits of all forms of ART although they do not speak with one consistent voice. There are those who totally oppose ART for political reasons, those who want even stricter regulation with additional health warnings, and those who believe the technologies give women better options for dealing with infertility. Those arguing for prohibition are probably the largest group; they are certainly the loudest in Australia and elsewhere in the Western world. Robin Rowland, formerly foundation director of the Australian Women’s Research Centre, and Renate Klein, a social scientist and health researcher formerly located at Deakin University, were the first Australian feminist writers to argue strongly against uncritical acceptance of emerging reproductive technology.9 In her book Living Laboratories: Women and Reproductive Technologies, Rowland complains that women’s bodies are being used as test sites for medical experimentation, and laments that women are being exploited in pursuit of profit and at the expense of humane social values.10 She contends that: Supported by the ideology of the ‘patriarchal family’, the ‘control myths’ of self-sacrificing motherhood and womanhood, and male definitions of women as irrational, incompetent, defective, dangerous and an object to the male subject, men as a social group are using the vehicles of science, medicine and commerce to establish control over procreation. It is therefore within the power dynamic of the oppressed and the oppressor that men will not allow women to retain their monopoly over reproduction and birth.

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But IVF is not the only problem. Rowland also contends that surrogacy (dealt with in detail in chapter 8) assumes there are no power dynamics within a family; that a surrogate is less connected to the child because she did not provide the egg although the child draws its life from her throughout the pregnancy; and assumes that genetics provide the foundation of a relationship and that gestation is irrelevant. Worst of all, Rowland believes, is that reproductive technology embodies a movement ‘towards the dehumanisation and commodification of living beings’. She seeks a prohibition on processes that turn ‘women into living laboratories and children into products for sale or exchange’. She wants to ‘counter the thoughtless pursuit of scientific control and the greed for profit which current reproductive and genetic engineering represent’.11 One does not need to be a feminist to share her concern for the wellbeing of women who, for whatever reason, feel pressured or compelled to resort to procedures that will harm them in body, mind and spirit, all for the sake of having a baby that may not even be theirs. These concerns are echoed in The Ultimate Colonisation: Reproductive and Genetic Engineering by Renate Klein: The increasing medicalisation of reproduction via the new technologies will affect all women’s control over their lives in the very near future and resistance is urgently needed. There is a great deal at stake for doctors, scientists and pharmaceutical companies who make their fortunes – and/or gain academic fame – from experimenting on women or, as in the case of surrogacy, selling women’s bodies as incubators for the ‘product’, the child. ‘Infertility’ as a complex and variable state of being which is not ‘second best’ and which does not necessarily have to be ‘overcome’ by having one’s own biological child, needs to be acknowledged by a larger part of society, including people with a fertility problem. Only then will women have a real choice to say ‘no’ to conventional fertility treatment as well as IVF.12 [emphasis retained]

According to Ann Pappert, an American journalist based in Brooklyn who has covered fertility issues for a number of popular magazines, ART is simply part of a wider campaign against women:

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Reproductive technology turns the desire of infertile women for children against us. Infertility, even when the infertile partner is not the women but the man, becomes the woman’s problem. Her body becomes the laboratory where the procedures of reproductive technology are carried out. If she fails to become pregnant, the failure is not perceived as a failure of science, but a failure of her body.13

She objects to any activity that denies the intrinsic worth of women as human beings and any process that deems them valuable principally because they have reproductive worth. Janice Raymond, self-proclaimed radical feminist and Emeritus Professor of Women’s Studies at the University of Massachusetts, makes even stronger claims in Women as Wombs: New reproductive arrangements are presented as a woman’s private choice. But they are publicly sanctioned violence against women. The absoluteness of this privatized perspective, especially as emphasized by the medical profession and the media, who present women as having unconditioned free will, functions as a smoke screen for medical experimentation and, ultimately, for the violation of women’s bodies. Choice so dominates the discourse that it is almost impossible to recognise the injury that is done to women.14

She is in no doubt as to the right response for women: the best legal approach to reproductive technologies and contracts that violate women’s bodily integrity … is abolition not regulation. The starting point for the protection of women’s bodily integrity is the abolition of technological reproduction by penalizing its vendors and purveyors and by preventing women from being technologically ravaged.15

Raymond claims that women who use contraception and abortion have a ‘true consciousness’ but that they exhibit a ‘false consciousness’ when it comes to IVF and surrogacy – apparently they simply cannot see the exploitation they are suffering. Australian women’s rights advocate Lorraine Hepburn concedes that ‘feminists who try to look beyond individual cases appear heartless and cold. The most difficult task appears to be to convince both infertile women

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and the wider public that the medium and long-term thrust of the technology is not about infertility at all’. She says it is not about choice but about control, and the existence of structures that ‘do not offer women full choice or control, and which tie together the institution and experience of motherhood as the ideal fulfilment for Australian women’.16 But there is a growing diversity of feminist views on reproductive technology with the emergence of liberal and cultural feminist positions.17 Postmodern and ‘third wave’ feminist positions, some of which are presented in Breeder: Real-Life Stories from the New Generation of Mothers, edited by Ariel Gore and Bee Lavender, have argued that earlier feminist views were based on fear and denied women choices they were rightly entitled to exercise.18 These writers contend that ART does not curtail women’s autonomy, that in fact the technology expands the realms of its exercise and pays more attention to individual differences and the varied contexts in which people live. American lawyer Lisa Ikemoto contends that: Non-coital, collaborative procreation presents a greater set of choices than reproduction through sexual intercourse, giving the participants the opportunity to determine the source of genetic material, the timing and method of conception, the individual who will bear the child and the persons who will raise the child. Availability of the expanded set of choices invests individuals with greater control over their genetic, biological and psychosocial destiny and hence greater autonomy.19

Other writers have suggested that access to reproductive technology allows women to exercise more control over their reproductive capacities and decide when and how they can use what they refer to as their ‘procreative power’. While most ethical and many feminist objections to IVF have not changed a great deal in shape or substance over the past twenty years, the debate has shifted to the entitlement of the state to deny some people access to ART and the contested basis of this alleged discrimination.

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Disputed access to ART Most jurisdictions require those seeking access to ART to first be deemed infertile. Although this might seem a straightforward matter, a report entitled Access to Reproductive Technology, produced by the National Bioethics Consultative Committee, explained that it was anything but. Its compilers noted that even the question of who is infertile is a matter of judgment. Is a fertile woman whose partner has had a vasectomy ‘infertile’ in the sense that she is in an infertile situation? Is a couple who have four children, two each from their previous marriages, who cannot now conceive a child together, ‘infertile’? Is their inability to conceive another child judged to be the same as that of a woman with no children who has experienced a decade of unsuccessful treatment for blocked tubes? Is a fertile woman for whom pregnancy is a risk to her health, perhaps her life, ‘infertile’?20

Some of these questions are yet to receive an adequate answer from regulators. Debate over access to ART has concentrated on the continuing exclusion of three groups: heterosexual couples who are not infertile, lesbians, and single women who do not have male partners. In Australia the number of lesbians seeking assisted conception is estimated to be around 150 per year, which represents approximately one per cent of all IVF treatments. 21 There are many more single heterosexual women also wanting access to the technology. In the United States, where the numbers are naturally much larger, it is estimated that 10 000 children have been born to lesbian women using some form of ART while 30 000 single women attempt donor insemination annually. 22 In Australia, there is no uniform legislation regulating access to ART, and in some states it is illegal to provide IVF to a woman who is not deemed clinically infertile. This promotes what has been referred to as ‘reproductive tourism’, with excluded women travelling to places where they can access reproductive services denied to them elsewhere. 142 | technological responses to childlessness

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There are, for instance, very few restrictions on reproductive technology in the American state of California, with the result that reproductive tourism from Britain, France, Australia and Costa Rica (where any kind of IVF treatment is illegal) has created many business opportunities for medical entrepreneurs. There are over fifty fertility clinics in California, with some advertising ‘Ivy League’ academic, professional, high-achieving gamete donors. Post-menopausal women can also achieve pregnancy using donor eggs. The average charge is around US$8200. The growing demand has led many American university students to donate eggs annually to help meet the cost of tuition, and in California there is no limit to the number of embryos that can be produced, stored or implanted – it is estimated that there are 400 000 frozen embryos available for ‘adoption’. Clinics also offer pre-implantation sex selection and commercial surrogacy services. Californian legislators are concerned, however, that the children of foreigners using American donor gametes or embryos might attempt to claim U.S. citizenship for their children. 23 This possibility has yet to be tested in the courts. More recently, Spain and Russia have become popular as plentiful sources of donor eggs, although they are less concerned about possible future citizenship claims. But the question remains: should medical solutions be provided to women who do not actually have medical problems? Does resorting to ART in response to social circumstances conflict with the genuine purposes of medicine? A Research Paper produced by the Commonwealth Parliamentary Library in 2001 considered ‘social infertility’ from a purely medical rather than a strictly ethical perspective, suggesting that: if providing medically assisted artificial insemination to physiologically infertile women falls outside the legitimate scope and purpose of medical practice or clinical activity, then this would be sufficient ground to exclude these women [the socially infertile], no matter what the force of the other arguments for or against their access. Being properly within the domain of legitimate medical concern is a logically necessary condition for justified access to medical treatments and interventions. 24

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This paper very effectively demonstrated the weaknesses in the preceding cluster of arguments. In addition to being susceptible to the charge of inconsistency, there is also the indefensibility of many arbitrary determinations about who should and should not be granted access to ART. Objections from an ethical perspective are even stronger. But, as the paper notes, while there are no sound medical reasons for excluding these women [it] does not mean there are no sound reasons of some other sort for excluding them (either on some occasions or in every case). So it has not been shown that socially infertile women ought to simply be granted access to ART. 25

I accept that some women want access to this technology because, in part, they want the sperm they use to be medically screened for genetic defects and transmissible diseases. But there are other women who simply want to avoid having a child with known paternity or the possibly that paternity might be asserted in the future. It seems to me that socially infertile men and women must accept the reality of their circumstances and that, as a society, we should not seek medical remedies to what are purely social dilemmas. One final objection to ART must be mentioned: the financial burden it imposes on taxpayers.

The cost of ART Overcoming infertility is big business. Fertility clinics, often set up as chains, and employing thousands of people around the world, are companies that exist to produce substantial profits for proprietors and shareholders. The services they provide are heavily subsided by rebates from governments and private health insurers. Fertility clinics are growing in number because there is an increasing tendency for couples to go straight to technological remedies, particularly IVF, as soon as they have any difficulty conceiving, rather

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than first exploring and exhausting all the available non-medical options. It is now known that fertility can be adversely affected by stress, obesity, smoking, alcohol and a generally poor diet. Infertility is also caused by a number of diseases, most commonly Chlamydia infections and pelvic inflammatory disease, although funding for research into these common causes has not achieved parity with funding for reproductive technology. A range of alternative and complementary therapies designed to deal with infertility has also emerged, including homeopathy, herbalism, acupressure, aromatherapy, reflexology, feng shui and traditional Chinese therapies. There is no clear evidence that such therapies have actually resulted in successful pregnancies, but they may have some benefit. The rush to medicalise infertility leads Robert Winston to comment that: While most clinics pay lip service to the idea of offering comprehensive investigation and treatment, almost invariably patients (or, to use the regrettably fashionable term, clients) attending them will be offered IVF – irrespective of whether or not it may be the most appropriate treatment for their condition. 26

Dr Robert Norman, Director of the Research Centre for Reproductive Health and Professor of Obstetrics and Gynaecology at Adelaide University, laments that in some places IVF is almost becoming a production line whereby diagnosis is ignored merely to get a patient into the IVF process and thereby produce a baby. With this, couples are happy to have a healthy baby but a diagnosis is never made and no research investment occurs to improve our knowledge. 27

Quite apart from the potential for fertility clinics to engage in over-servicing, some commentators see ART as either a complete waste of money or a seriously mistaken allocation of public resources. Why? There are over six billion people in the world, perhaps too many given contemporary consumption patterns, and there are many children without parents in a number of countries. If

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the current global birth rate is maintained, the pressure on natural resources could become so acute that wars will be fought over potable water, breathable air and arable land. Because ART involves expensive procedures with less than a 50 per cent chance of success, critics contend that these funds could and should be used in saving existing lives rather than creating unnecessary new ones. For this reason, they ask, why should the increasing cost of ART be borne by governments and private health insurers? This is less a question of access and more one of equity and compassion. Robert Winston contends: [Unless] you have suffered from infertility yourself it is extraordinarily difficult to understand the misery that this disease process can cause. Although we may not hear of people dying from infertility, it is none the less a condition which causes most of its victims extraordinary pain, a pain which is private and difficult to express (and therefore to resolve) because it is so personal. 28

He advocates imposing few restrictions on who can access ART and is adamant that the cost should be subsidised by taxpayers because he is moved by the ‘misery’ faced by ‘infertile women and couples’. Mindful of his insistence that ART should be publicly subsidised, it is noteworthy that Winston described infertility as a ‘disease’ in 1999 but had come to see it as ‘a symptom, not a disease’ by 2007. 29 If access to ART is ultimately determined by the ability of individuals, couples or states to fund the procedures, and service providers are not permitted to decline or exclude anyone, it is certain that some new and even more distressing ethical dilemmas will be posed. What will happen when a service provider is approached for assistance by an infertile couple where both partners carry the genes for a hereditary condition or one or both has a history of mental disorder? If the service provider is concerned for their potential offspring, can treatment be denied or withheld? And what action should a provider take if a profoundly deaf couple wants to ensure their IVF child will also be deaf, on the grounds that it would better fit into their family? Would a desire to produce children for the sole purpose of securing inheritance, for 146 | technological responses to childlessness

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instance, be an acceptable reason for treatment to be declined if this were disclosed? And what would be a reasonable response to a couple in their early forties wanting IVF because they had delayed having children until they had achieved certain objectives, such as wealth or status, even though they were conscious that this decision would reduce the likelihood of their ever having children? Should the taxpayer be obliged to fund their infertility treatment? These kinds of cases are exceptional. They are certainly not common. But they oblige society to make some critical determinations about procreation and parenthood, determinations on which the state will base its decisions on whether or not to provide financial and material assistance. There will be those who say that neither society nor the state has any role in making such determinations or judgments because human reproduction is purely a matter for personal decision-making which, in any event, should not be settled by appeals to consensus. But this position overlooks two important principles. First, the societies in which children are raised have a continuing responsibility for promoting the best interests of each and every child. While men and women are free to have children, those children are born into a society which generally accepts certain responsibilities for their wellbeing. Discharging these responsibilities costs money. If children become sick or unwell, society agrees to care for them and hopefully to restore them to good health. If children are mistreated or abused, the state claims authority to take them from their parents, and uses coercive powers to do so. The notion that society has no part to play in questions about ART is to isolate reproduction from the purposes for which it exists, and from the full range of its outcomes and the full extent of its consequences. Second, if a state is asked to assist in human reproduction and does not hold to any values or principles that will inform, guide or shape that assistance, other than a general principle of non-discrimination, it follows that such a society believes that any parenting arrangement is as worthy or commendable as another – when there is considerable evidence to demonstrate that this is simply not the case. Claiming a right against interference does not produce an entitlement to assistance.

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In most Western societies a succession of surveys has shown that men and women are increasing likely to approve the use of assisted reproductive technologies of which they had previously disapproved. It is important, then, that discussion and debate continue as the reproductive combinations and permutations created by ART, such as those outlined in the next two chapters, are enlarged and expanded.

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8 The perils of surrogacy: compassion and commercialism

The most radical social and technological ‘remedy’ for infertility is gestational surrogacy, through which a commissioning couple arranges for a surrogate to give birth to a child that they will ‘adopt’ shortly after it is born. The commissioning couple does not necessarily provide egg and sperm – either or both could be donated. Surrogacy potentially creates three types of mothers: genetic, gestational and social; and two types of fathers: genetic and social. A single child could have as many as five known parents: its genetic mother and father (the man and woman who provided the gametes), its social mother and father (the man and woman who will raise the child), and its surrogate mother (the woman who brought the child to birth). A recent highly publicised case in Australia nearly produced this outcome. It involved a well-known parliamentarian and his partner, who had suffered from ovarian cancer and was unable to bear a child. A friend provided an egg which was fertilised with the parliamentarian’s sperm. Another friend agreed to be the surrogate. The parliamentarian said this friend had merely ‘incubated’ the embryo. The decision to have three sets of parents was intended, a leading newspaper reported, ‘to reduce the chances of the baby forging a bond with the surrogate mother’.1 Although gestational surrogacy is a very expensive and complicated procedure, it has become increasingly attractive to many couples unable to have children because the woman cannot bring a pregnancy to term. But what of the moral, social and emotional costs to those involved, particularly the the perils of surrogacy | 149

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surrogate and the child? Might this be a situation in which society should not encourage a person to carry another’s burden?

Regulating altruistic surrogacy Gestational surrogacy has been an option for almost as long as IVF has been available. In places where it has been legalised, the practice has been subject to strict supervision, with guidelines regulating every aspect of its conduct, guidelines which relate to commissioning couples, the surrogate mother and her family, and the clinic providing the procedure. The guidelines are evolving constantly as attitudes change and technology develops. Most regulatory regimes require that the commissioning mother suffers from a medical condition making pregnancy unlikely or successful gestation impossible. She is usually required to be aged between 18 and 38 years; to be able to provide competent care for a child throughout its life; and to have not more than one live child from her present relationship. The surrogate mother is usually required to be aged between 18 and 40 years and in good health. She should have at least one live child by her partner in her present marriage or de facto relationship, or if widowed, separated or divorced she should have at least one live child; she should be able to cope with pregnancy without adverse consequences for the care of her other children; and be nominated by the genetic parents as the surrogate. If these requirements are met, all parties are subjected to a counselling process facilitated by the clinic offering the procedure – this is to make them aware of the legal and psychological demands and the emotional consequences of the surrogacy agreement they propose to enter. Most surrogacy guidelines consciously and deliberately curtail the personal freedom of individuals in relation to access to and participation in the arrangement. They do this because much has already been learned about the difficulties that can arise with surrogacy, both through person150 | technological responses to childlessness

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al experience and legal proceedings. But there are still people who believe that most regulatory regimes are far too restrictive. Couples with a number of children from previous marriages, and who may have had a vasectomy and/or their tubes tied, want access to ART to produce children from their new relationship; many jurisdictions, however, require that such couples have no more than one previous child between them. Other couples want to vary the upper age limit of either or both the commissioning and surrogate mother from late thirties to mid-forties, even though IVF pregnancy rates for women over 40 are negligible. The problem of vastly different ethical perspectives on surrogacy is a complication that legislators have also addressed in an effort to overcome reproductive tourism. Childless couples in Australia have already demonstrated a willingness to travel to, and reside in, legal jurisdictions imposing fewer restrictions on surrogacy arrangements. Dealing with inconsistencies in regulatory regimes will continue to be an issue for legislators internationally well into the future.

Objections to altruistic surrogacy There are a number of practical and philosophical objections to altruistic surrogacy. They begin with concerns for the welfare of the surrogate mother. In many instances, the surrogate will be a sibling motivated by compassion to assist someone she loves. The first case of successful surrogacy in Australia was reported on 23 May 1988, after Linda Kirkman gave birth to Alice, the genetic child of her older sister Maggie, who was unable to carry a child. Maggie provided the egg, which was fertilised with donor sperm because her husband was infertile. But a sibling is not always available as a potential surrogate, and it requires an especially close non-filial relationship for one woman to be willing to bear the child of another. One must also consider that no surrogate, however altruistic, can possibly

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know how she will feel once the child is born and she is required to relinquish ‘her’ baby. This makes the likelihood of ‘informed consent’ highly problematic. As Susan Dodds and Karen Jones, two philosophers working in the areas of feminism and bioethics at the University of Wollongong, explain: No two women experience pregnancy in quite the same way and the same woman can experience different pregnancies differently … Thus, how can a woman give fully informed consent to part with a child she will have felt growing and developing inside her, that she will have given form to through her body, before she knows the feelings these experiences will have produced?2

Although surrogacy has been conducted for some time, it is only recently that studies have been undertaken to monitor its effects on surrogates, whether altruistic or commercial, and other interested parties. It is clearly a heartwrenching experience for the surrogate, with many women declaring that they did not know how difficult it would be to ‘give away’ the children they had carried inside their bodies for nine months. They were, after all, ‘their children’. Without the protection and nourishment provided by their wombs, the children would not exist. The child owes its existence to the surrogate. This might explain evidence which suggests that a slightly disproportionate number of surrogates have either had an abortion, or relinquished a child for ‘adoption’ and subsequently deal with undischarged feelings of guilt or remorse by acting as a surrogate.3 In my view, surrogacy does play down and minimise the importance of gestation to parenthood. Experience makes plain the essential link between them. The woman who bears the child is the child’s mother for a period of nine months. There is no other means of describing surrogacy than motherhood. The surrogate mother’s whole being is oriented towards a child that will be born only to be relinquished. Additionally, the law regards the woman who gives birth as the child’s legal mother. However much we might try, the biological cannot be separated from the relational. Controversial Australian ethicist Peter Singer was clearly mistaken when he declared his 152 | technological responses to childlessness

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support for surrogacy on the ground that surrogates would ‘get over’ their experience: [T]he surrogate who receives an IVF embryo has no genetic relationship to the child she carries. Attachment may still, of course, occur, but it is plausible to suppose that the lasting effects of separation will be less severe when the surrogate has no reason to think of the child as ‘her’ child, but rather as the child [she] ‘looked after’ for nine months of its life.4

The evidence overwhelmingly suggests quite the contrary. Women are deeply affected by surrogacy and very few are willing to even think about serving as a surrogate a second time, should they be asked. Some feminist writers have argued that altruistic surrogacy is just as ethically problematic as commercial surrogacy, in addition to the implicit political messages about motherhood that its practice conveys. American lawyer Anita Stuhmcke insists that ‘altruistic surrogacy is more exploitative than commercial surrogacy’. She believes that the existence of ‘family dynamics may make it impossible for her [the surrogate] to keep the child if she so desires – the loss of her family as retribution may be too much for her to give up’.5 She also claims that: commercial surrogacy is treated more punitively than altruistic surrogacy by legislatures as it is considered a less desirable form of behaviour. Conversely, altruistic surrogacy is left unregulated as it is perceived as more palatable to society, as posing less danger to the parties involved in the arrangement and as conforming more closely to the convictions we hold surrounding reproduction.6

As Flinders University legal sociology professor Sharyn Roach Anleu notes, altruistic surrogacy depends upon having a family or friendship group which is ‘based on affection and emotion which are private, irrational sentiments, thereby inappropriate subjects for legal regulation’.7 In her view altruistic surrogacy is more likely to be accepted than commercial surrogacy, on objectionable ideological grounds. She concludes: the perils of surrogacy | 153

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In a sense surrogacy is an extension of the kinds of nurturing related activities women have always performed, such as child rearing, which have not always been recognised as compensatable work, but treated as resulting from natural female emotions and instincts. Paid surrogacy breaks the myth of the maternal instinct; not only can women have babies and give them away, but they can also enter into a contract that actually rewards them for having babies. Anything less than that is exploitation because the notion of altruistic choice is socially constructed and reinforces gender norms; payment for services questions gender norms. 8

But some feminists also reject all forms of surrogacy. Carol Pateman alleges that ‘motherhood has been separated from womanhood – and the separation expands patriarchal right. Here is another variant of the contradiction of slavery. A woman can be a “surrogate” mother, only because her womanhood is deemed irrelevant and she is declared an “individual” performing a service’.9 Elizabeth Kane, America’s first legal surrogate mother, became an advocate with the National Coalition Against Surrogacy after she gave birth in November 1981. She insists that ‘the transferring of one woman’s pain to another woman is not the solution in any society’ to infertility, and regards surrogacy as ‘reproductive prostitution’.10 One might presume that she was not well-prepared emotionally for the experience, and possibly conclude that she would be rejected today as a potential surrogate.

Paralleling surrogacy and adoption I am not convinced that there is an ethical parallel between surrogacy and adoption, as is frequently claimed. There is something questionable about producing a child for the purpose of adoption, which is precisely what a commissioning couple is arranging. Surrogacy involves a decision being made in favour of relinquishment before conception rather than following the birth of a child. Speaking as an adoptee who has been reunited with a

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birth parent, I have little doubt that a child kept by a surrogate would inevitably want contact with one or both of its genetic parents. And as children born through surrogacy could potentially have three sets of parents – biological, gestational and social – this could cause a range of identity developmental difficulties that can and ought to be avoided if the best interests of the child are a primary consideration. Max Charlesworth would disagree with me, on the basis of his commitment to upholding personal liberty. He is not convinced that the state has a right to interfere in these arrangements, citing a lack of evidence that surrogacy harms the child born by this means: Some have claimed that alternative modes of family formation will necessarily have such bad effects upon the children brought into being that it would be better were they not brought into existence at all … But apart from the paradoxical nature of this argument – that the ‘best interests of the child’ dictate that it should not be born at all! – there is no conclusive empirical evidence that surrogacy or other modes of family formation would necessarily have such massively deleterious effects on the children involved that they should be legally prohibited.11

Charlesworth argues that if opponents of surrogacy want to appeal to principles they need to be consistent; if they point to consequences, then a requirement exists for them to cite actual evidence. He also dismisses the charge that surrogacy is essentially a form of adultery, contending that using ART constitutes a refusal to countenance divorce or to engage in adultery – it is a means of showing greater respect for marriage, not less. Charlesworth claims the arguments offered by more radical feminists against surrogacy are patronising and illiberal. He believes they deny women a choice that is properly theirs to exercise. In his opinion, if radical feminists are pro-choice when it comes to abortion they cannot be anti-choice about surrogacy. He claims that surrogacy does not necessarily involve harm to anyone, and that less than one per cent of surrogacies end up in disputes that the courts are called upon to resolve. Although bitter disputes can be cited, he does

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not think their existence justifies a complete prohibition on surrogacy. But it is not an argument in favour of surrogacy to say that because most adopted children are not affected by their relinquishment, children born through surrogacy will be unaffected by their experience. There is an important distinction: children relinquished for adoption were not intentionally brought into the world for another mother’s benefit. Adoption is used to deal with unplanned, unintended and unwanted pregnancy. Adoption is a solution to a problem; surrogacy (where the child will not know its parents) creates a problem that is looking for a solution. At least in adoption, unlike anonymous donor situations, the child might meet its biological parent. Charlesworth’s willingness to condone surrogacy because this and other family formation modes do not have a ‘massively deleterious’ effect on children reveals what I regard as a lamentable lack of concern for those who have no say in asserting their interests in the context of these arrangements. If children are in need of protection and their needs are paramount, I cannot see how Charlesworth can be indifferent to the potentially adverse effects such arrangements can have other than when the effects are massively deleterious – to use his term. If certain modes of family formation have the potential to harm children, being mindful that such children cannot be consulted in advance and their consent cannot be assumed, they should not be countenanced. This is where, I suspect, my position and that espoused by Charlesworth cannot be reconciled. It is regrettable that adults are able to pursue any mode of family formation they prefer because they know that children have no choice but to accept whatever family they are brought into. Many adults also believe that most children are highly adaptable and will accommodate whatever they encounter at home, including highly complicated parenting arrangements such as surrogacy. I would contend that those adults who hold such a view are mistaken and self-interested. But the potential dilemmas associated with altruistic surrogacy are minimal when compared to the controversies that can be created by commercial surrogacy.

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Objections to commercial surrogacy Commercial surrogacy has been available in some countries for many years. It has been associated with some very tangled webs of belonging and led to long and expensive court actions when the contracting parties disagree. A good example of the complexities created by commercialising surrogacy is the case of Jaycee Buzzanca. Her birth in California in 1995 reflected the full range of alternate parenthood possibilities. She was conceived by IVF using anonymously donated ovum and sperm. The embryo was implanted into a surrogate, Pamela Snell, who had entered into a commercial arrangement with John and Luanne Buzzanca and had agreed to waive all parenting rights. But before Jaycee was born, John divorced Luanne and refused to accept any responsibility for the baby on the grounds that she was not the child of the marriage. The matter was handed over to the courts, which decided on a genetic interpretation of parenthood, ruling that neither the surrogate nor Luanne was the child’s mother. John was deemed not to be her father. Jaycee was deemed to be a child without parents although Luanne had physical custody of her despite John’s claim that she was not the child’s mother. When the ruling was overturned on appeal, John and Luanne were declared to be Jaycee’s legal parents. By this time she was three years old. It is difficult to imagine that Jaycee will not be affected by the knowledge that two of the people most closely concerned with her existence wanted nothing to do with her when she was born. There are at least ten ethical concerns and practical problems arising from the practice of commercial surrogacy. Some concern children and principles of parenting; others relate to the wellbeing of commissioning couples and surrogates. None is easily or readily resolved. In the first place, what happens if and when the relationship between the commissioning couple and the commercial surrogate deteriorates? If the relationship is not undergirded by kinship or a long-term intimate connection it is more likely that the parties will decline contact with each other and the child after its birth and surrendering. The providers of surrogacy services tend

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to assume that a surrogate will have a continuing and close relationship with the child as part of an extended family. Taking this view of the surrogate’s role (and even her entitlement) means that surrogacy ought to be restricted to blood relations or very close friends of a similar age. What happens if and when the commercial surrogate demands additional payments, during the pregnancy and before the child is surrendered, to ‘compensate’ for previously unforeseen discomfort or personal expense? This can amount to coercion and lead to blackmail. I share the view that surrogacy arrangements, in so far as they require that a surrogate mother give up a child she has gestated, should not be legally enforceable. Commissioning parents in surrogacy agreements in Australia are told that they cannot legally take custody of ‘their’ child. Yet, once a ‘contract’ is finalised the child becomes the object of that contract and may be considered under laws pertaining to property – something widely seen as abhorrent. There is also the difficulty of achieving redress should a commercial surrogate not honour the agreement and retain the child. Such a conflict would be extremely difficult to resolve, quite apart from creating an enduring legacy of ill-will and acrimony between the parties. The third problem concerns what happens if and when the commercial surrogate’s personal circumstances change and she wants an abortion for the sake of convenience or because the pregnancy has become more difficult, either emotionally or physically, than she imagined? This will present considerable difficulties for the commissioning couple should they be morally opposed to an abortion that is not required on strict medical grounds. It would not be possible in most jurisdictions to legally prevent the commercial surrogate having an abortion. Nor would it be wise for the commissioning couple to attempt to do so. If a surrogate wants an abortion and is able to travel, she is likely to be successful. In places where abortion is regarded as a woman’s right, litigation would embroil the commissioning couple and the surrogate in controversy that would not serve anyone’s best interests, especially given the strong likelihood that the surrogate’s right to an abortion would be upheld. 158 | technological responses to childlessness

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Fourthly, commissioning couples choosing an altruistic surrogate with whom they maintain a family tie can much more easily cope with a bond of love developing and remaining between that surrogate and the child than with a bond developing between the child and a commercial surrogate.12 A commissioning couple is under no obligation to allow a surrogate any access to the child she has produced, and might even decide to relocate far from the surrogate’s home in order to preclude any relationship beginning or developing. The case of the parliamentarian outlined at the beginning of this chapter makes it clear that at least some, and possibly most, commissioning couples are concerned about such a bond (whether the surrogacy is altruistic or commercial) and want to avoid the problems it might cause. The fifth objection to commercial surrogacy is that a woman who finds pregnancy inconvenient or distasteful, because she wants to maintain a career or avoid the pain of childbirth, might commission another woman to have her child. There is no doubt that some women delay and then decide against having children because, notwithstanding the provision of maternity leave in many societies, having a small child frequently requires them to leave the workforce for a longer period than maternity leave allows, and may adversely affect their promotion prospects. In avoiding pregnancy, that part of the bond between mother and child that is formed through pregnancy and childbirth cannot develop. This also happens in adoption, but we should not make exceptions the rule or endorse a practice that can be avoided. Additionally, when we start to use the language of the production line and the marketplace to describe childbirth and parenthood, the truth is that alien concepts have been allowed to intrude. The market is about money, while the family is animated by love. The attitude one takes in relation to ‘acquiring’ a child could become part of the mindset applied to its nurture. If we think of children as commodities and pregnancy as a process, we are entitled to feel that the relationships formed between parents and their children might be debased as a consequence. My seventh point relates to the fact that most countries prohibit the sale of either human organs or body fluids. For analogous reasons we should not

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allow women to sell their wombs and reproductive capacities. There are limits that most societies rightly place on an individual’s freedom to ‘sell themselves’. We may tolerate and even allow prostitution, but we do not encourage it or commend it, because it devalues women and debases sexuality. Commercial surrogacy also creates a certain attitude towards reproduction, pregnancy and children that is liable to suffer a range of ethical mutations and moral perversions. Eighth, in the event that a child born through surrogacy (whether altruistic or commercial) is disabled and rejected by the surrogate and not accepted by the commissioning couple, who will determine custody arrangements and provide for its long-term care? In the famous case of ‘Baby Doe’, born in Michigan in 1983, the child was effectively abandoned by both the commissioning couple and the commercial surrogate because it had microcephaly. The case provided plenty of work for lawyers and demonstrated that a disabled or ‘imperfect’ child was more likely to be rejected in a commercial transaction than in altruistic surrogacy. In effect, the commissioning couple do not get what they ‘have paid for’, and believe they have grounds for refusing to accept damaged or deficient ‘goods’. Related to this point, what happens if and when the commercial surrogate acts in a manner that might cause in-utero harm to the child, possibly leading to birth defects? Can the commissioning couple refuse outright to accept the child, or accept the child and then seek damages from the surrogate for reckless behaviour? Whatever the outcome, the child is made an innocent victim or treated as a commodity. Finally, what happens if and when one member of the commissioning couple dies, or the couple divorce before the child is born, and the commercial surrogate (who might herself be single or divorced) believes the child’s best interests are served by remaining with her? Would the courts be able to determine the child’s best interests in this and comparable instances? Will the courts be sufficiently confident to declare that the decisions made when a child is an infant will serve that child’s best interests until it reaches majority? If the courts cannot be confident about the ethical and practical longevity

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of any orders concerning parenting arrangements, when and how will such decisions be reviewed? Experience has shown that many more dilemmas arise when the commissioning couple and surrogate are not biologically related (or close personal friends) and some commercial element is allowed to intrude. These dilemmas cannot be easily overlooked or lightly dismissed. Public officials and medical practitioners involved in the management of surrogacy in most jurisdictions have found that there are strong reasons and, indeed, ample grounds for prohibiting commercial surrogacy arrangements. The prohibitions include entering into a commercial agreement and advertising for a person willing to become a surrogate. While most regulatory guidelines accept that reimbursement of expenses connected with a surrogate pregnancy would not of itself make the agreement a commercial one, the payment of large sums would make it difficult to prove that there was no commercial element involved. But the non-commercial requirement is virtually impossible to enforce, for two reasons. First, there is almost limitless scope for ‘gifts’ to be made to the surrogate without a supervising ethics committee or the serviceproviding clinic being aware of such transactions. Second, the interpretation of what might constitute reimbursement is very broad, and will depend not just on medical contingencies but on personal preferences and individual tastes. Would extending a surrogate’s house to provide a ‘relaxation room’ during pregnancy, or buying her a luxury car to travel more comfortably to medical appointments, constitute commercialisation? The possibilities and the problems they can cause are endless.

Surrogacy and reproductive tourism Despite being involved in a commercial operation, many providers of surrogacy services are themselves opposed to commercial surrogacy. Sydney IVF, for instance, does not recommend the practice. Although its reluctance to

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endorse commercial surrogacy could be dismissed as merely the exercise of sound business acumen, its principled opposition, which I am prepared to accept is sincere, embodies some rather confused logic and ambiguous reasoning. Its website states: In the United States, it is possible for women to commission a previously unknown woman to act as surrogate through a commercial surrogacy agency. Sydney IVF does not recommend that you take this course. Because IVF is much cheaper in Australia than in America, Sydney IVF has, however, helped a number of couples with IVF. The embryos that result have then been frozen and carried to America for such a surrogacy arrangement. This is a very expensive path for you to take and we do not recommend it without a great deal of research (and soul-searching) on your part. There is more to it than money. It means the baby being born in America, and it means the risk of emotionally exploiting the surrogating woman if she then loses contact with the baby she given birth to. At the very least you should visit the agency and get to know the women before committing yourselves.13

In effect, Sydney IVF does not like the practice but is ready to offer some assistance all the same. Surrogacy has been the subject of several government inquiries in Australia. Each inquiry has come to three similar conclusions, quite apart from expressing reservations about the whole practice. They are: there should be no advertising or soliciting for surrogates; surrogacy contracts should not be enforceable; and commercial considerations are unwise and should not be a feature of any surrogacy arrangement. Having considered the serious implications of commercial surrogacy and the differences in practice between the United States and Australia, the Commonwealth Government has prohibited the export of embryos for purposes of entering into a commercial surrogacy arrangement, while couples wanting to export an embryo for non-commercial surrogacy require a permit from the Federal Minister for Customs. This regulation replaced, the Sydney Morning Herald reported on 28 March 2003, ‘a short-lived regulation that banned all

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embryo exports … aimed at preventing commercial exploitation of Australian embryos for stem cell lines overseas’. There was a surprising array of objections to the new regulation. Sandra Dill, representing the infertility lobby group ACCESS, claimed ‘the Customs Minister is now going to decide whether people can be parents’. Senator Natasha Stott Despoja claimed the regulation ‘represents a grave intrusion into women’s reproductive rights’, while Dr Robert Jansen of Sydney IVF thought it ‘oppressive for the Government to tell parents what they can and can’t do’. These objections were little more than simplistic slogans that lacked either philosophical substance or ethical subtlety: the first objection completely misconstrued the Minister’s intentions; the second claimed a right whose existence is contested, while the third disingenuously implied an intrusion on parental discretion in the absence of parental responsibility.

Antipathy towards commercial surrogacy Although I cannot claim the support of comprehensive polling and consistent survey data, I suspect that the attitude of the majority of informed Australians towards surrogacy would be similar to that observed by the Warnock Committee in its report to the UK Parliament nearly two decades ago: The weight of public opinion is apparently against surrogacy … there is an implied attack on the value of parental relationships by the introduction of a third party into the process of procreation, there is a distortion of the relationship between the mother and child in surrogacy, there is a difference between the single act of semen donation and the more intimate and personal role of gestation and there is the degradation of the child who is ‘bought’.14

British theologian Oliver O’Donovan fears that making the gestation of a child the subject of a transaction will have wider consequences:

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Humanity will be made under contract, with all the component parts legally conveyable. There will then be no reason to insist that parental ownership should reside in a person who had any physical stake in the child at all. One could conceive of a couple arranging to have a child put together, choosing the three contributors they thought most competent for the work.15

This is a prospect we must guard against if being human is not to be debased. While I concede that my opposition to commercial surrogacy in particular contains many ‘mights’, ‘coulds’ and ‘maybes’, the history of surrogacy to date suggests that these possibilities do need to be considered as practical and pastoral matters which cannot be overlooked or left to the discretion of people who have little understanding of the process (commissioning parents) and virtually no idea of how it will leave them feeling (surrogate mothers). As I have argued in earlier chapters, the state routinely makes decisions for and about individuals. In doing so, it must accept the need to act prudently when curtailing individual liberties even as it recognises a broad duty of care towards all citizens. In most societies there are people who will seek a way out of financial desperation by attempting to sell their bodies. In some countries, women are prepared to market their eggs and rent their wombs despite warnings of the associated risks and the emotional costs of such transactions. For the sake of human dignity and the preservation of individual integrity, there must be a complete ban on any commercial element to these procedures.

A personal perspective Having been a participant in the ethical management of surrogacy, I have come to the following five-pronged position: Given its potential to cause psychological, emotional and spiritual harm, surrogacy must be deemed a last response to infertility that should be pursued only in extreme circumstances.

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Given the complexity of the social context into which the child is born, the implanted embryo should be produced from gametes derived only from the commissioning mother and father, thus excluding donors, whether known or anonymous, and those who cannot provide the optimal social conditions for raising children, including same-sex couples and single women. Given the anguish and anxiety reported by surrogate mothers during and after their pregnancy, and their natural desire to bond with the child born through the arrangement, the surrogate should be closely related to the commissioning couple, with the surrogate’s husband or partner also needing to indicate his strong and continuing support for her decision. There should be no commercial element associated with the arrangement, and the state should be closely involved in the regulation and monitoring of all surrogacy arrangements at every stage in their execution. There is, of course, a difficulty when dealing with matters like surrogacy of not examining the specifics of existing regulations or proposed public policy. The devil is perennially in the detail. Principles are not easily converted into policies, and policies are not readily given substance in legislation. Conversely, the application of law can encourage actions or produce outcomes that might never have been intended or imagined by legislators. I am acutely aware of three specific objections to my proposals for limiting surrogacy. Why must surrogacy be a last resort? As an extreme response to infertility, surrogacy is about necessity, not preference. Society must confirm that a woman seeking surrogacy cannot become pregnant and give birth before sanctioning any form of surrogacy, as a means of ensuring she is not wishing to avoid gestation and labour on the grounds of personal convenience. As for the commercial element that must inevitably feature in an arrangement not prompted by necessity and fostered by altruism: once surrogacy has even the smallest commercial element, the character of the activity is altered and the relationship between the commissioning couple and the surrogate changes. Both parties to a surrogacy agreement inevitably become demanding, and altruism is rapidly replaced by contractualism. People are then hurt. Generosity is squeezed out by compliance. It is already very difficult to detect

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the presence of financial dimensions in arrangements that are meant to be purely altruistic. While we might try to limit the commercial element by legal means, I think it would be almost impossible to define limits that would be widely acknowledged and universally respected. Why restrict surrogacy to traditional heterosexual couples? My concern here is both practical and pastoral. Experience has shown that surrogacy places great stress on the relationships of all parties involved in the arrangement. Because stable, long-term heterosexual relationships are demonstrably the most resilient in our society, the commissioning couple ought to be in such a relationship for their own sakes and that of the child to be born. I would even want the couples to be legally married to undergird further the relationship in what will be a difficult time for all concerned. Surrogacies that have been permitted outside these strict parameters have been less than successful. Why should we only encourage family formation in optimal conditions? Notwithstanding declining birth rates in most First World countries and the increasing economic imperative for more people to have more children in more affluent nations, we do not demand that people marry, nor do we require them to form families at all. Individuals are free, for instance, to remain with their parents until parted by death or to live in a religious community under the discipline of celibacy. In any event, the main thrust of my argument is not an insistence that children should only be born in optimal conditions – whatever these might be. In fact, I am not prescribing any action. My point is not that we should expect anyone to form a particular kind of family but that our society should not assist in some instances – such as those involving commercial surrogacy using donated material from persons other than the commissioning couple – simply because people want to defy nature. |||

Throughout this chapter, and indeed this book, my paramount concern is the wellbeing of the child. Put simply: no child needs to be born. Surrogacy meets the desire of adults who want to be parents. Our society must first consid-

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er the needs of the children such adults wish to produce by this means. The issue here is not one of harming a child born through surrogacy but one of potentially adding to the burdens that make living more difficult, especially given the strong maternal instinct that is known to persist within the surrogate long after the child is ‘adopted’ by the commissioning couple. There are, of course, instances where people other than biological parents raise children and, as I have already conceded, this is unavoidable. Parents sometimes die, are imprisoned or desert. But these children are not deliberately born motherless or fatherless. Children should certainly not be born when and where society is called upon to assist in their conception, gestation and delivery. Furthermore, there is a need for continuing research into the long-term psychological and emotional price that is predominantly paid by the surrogate mother in these arrangements. This appears to be one occasion in which we ought not to encourage or commend a person for offering to carry another’s burden.

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9 Making parents of the dead: is it such a bad idea?

Most societies believe that children are best raised by those who gave them life – their biological parents – and that every effort ought to be expended in sustaining and strengthening parental relationships. While continuing to uphold the important and complementary roles of mothers and fathers, our society also acknowledges that it might not always be possible for children to be nurtured by both biological parents. One might die or the relationship between them collapse. But public policies making it possible for one parent to care for a child do not deny or detract from society’s overarching commitment to the ideal of children being raised by both their biological parents. We do not turn an exception into a rule nor do we abandon a principle simply by responding to diverse contingencies. Nor is the material assistance offered to single-parent families encouragement for their deliberate formation. Compassion should not be confused with conviction. But what are we to make of recent cases in which women have sought to become pregnant using the sperm of dead or dying partners who cannot ever play any part in the care and nurture of their children? The following four cases depict the circumstances in which requests of this kind have been made during the last decade. |||

Case A The fiancée of a man who had died in an accident in Brisbane on New Year’s Eve 2003 applied to the Queensland Supreme Court for permission for 168 | technological responses to childlessness

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sperm to be taken from the man’s body before it lost its productivity because she wanted to have the child that they both planned to have once they were married. The judge hearing the case said he could not make an order of the type sought because the fiancée was not the man’s next-of-kin, and he had left no instructions in his will or elsewhere to suggest he would have approved of his sperm’s removal. The judge was also concerned that having a child using the dead man’s sperm might prolong the plaintiff’s grief and her ability to start a new life. |||

Case B The widow of a Canberra man who died suddenly in July 1998 in Victoria sought to have semen and associated tissue removed from her husband’s body while it retained productivity. Counsel for the widow argued that there was no legislative prohibition on removal of semen. The judge gave permission for the material to be removed and stored until he had given a further order in relation to its use (to do otherwise would have been effectively to decide against the woman’s application) but did not subsequently authorise its use, which was prohibited under the relevant Victorian legislation. The woman made a new application in the Victorian Supreme Court in May 2005 to have the sperm exported to the Australian Capital Territory, which did not prohibit posthumous use of gametes. The original court order was set aside but the woman still did not gain access. She lodged an appeal with the Victorian Civil and Administrative Tribunal in December 2005, and was given access to the sperm on the condition that it be used to create an embryo or embryos outside Victoria. There have been no public reports of whether the woman, who was aged 36 when her appeal was successful, has managed to conceive and give birth to a child using the sperm. |||

Case C A Victorian man who had just returned from his honeymoon was diagnosed with leukaemia and advised to store some of his sperm prior to chemotherapy because the procedure was likely to render him sterile. He

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died in September 2001. His sperm was subsequently exported to the Australian Capital Territory, where a hospital ethics committee deferred and then declined approval of a request for it to be used by his widow for IVF. The committee initially felt that she needed to wait twelve months in order to deal with her grief before making a decision about possible pregnancy, and noted that the man had not given formal or written approval for his sperm to be used after his death. A document authorising transportation of the sperm to the Australian Capital Territory for a purpose expressly prohibited by Victorian legislation was subsequently found to be irregular and the woman was denied access. |||

Case D In 1996 the wife of a British man dying from meningitis directed hospital staff to remove semen from his body before his death. Despite the anxiety of the medical staff carrying out the procedure, the semen was removed. The man later died. After extensive litigation, the courts found that despite his wife’s insistence that they were planning to have children, the semen had been taken illegally, as the man had not provided his written consent as required by law. Although it could not be used for insemination or IVF in the jurisdiction that had deemed its removal illegal, the sperm was nonetheless exported to another country where local law allowed for the woman to be inseminated. She has since conceived using the sperm and given birth to two children. |||

There have been press reports of Australian Defence Force personnel storing their sperm prior to overseas deployment as a safeguard against inoculations that might render them sterile, or exposure to chemicals that might lead to abnormalities in their progeny. There are also recorded cases of servicemen providing sperm for storage and possible use in the artificial insemination of their partners should they be killed in action. Only in Case D, that of British woman Diane Blood, is it known that the

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applicant did become pregnant – and only then because the sperm that was illegally taken from her dying, comatose husband and stored contrary to British law was not destroyed because of protracted legal proceedings and escalating political controversy. Her application for access to it was eventually considered in the European Court of Human Rights, where the case was treated as an application concerning the free movement of ‘goods and services’. Diane Blood was subsequently inseminated in Belgium because she had a right under European Union law to be treated in another member state.1 In Australia the situation differs significantly, as several jurisdictions have already legislated to prohibit the removal, storage and use of sperm from a man who is dying or has died. Typical is the Victorian Infertility Treatment Act 1995. Section 43, entitled ‘Ban on procedures involving gametes of people known to be dead’, states: A person must not (a) inseminate a woman with sperm from a man known to be dead; or (b) transfer to a woman a gamete from a person known to be dead; or (c) transfer to a woman a zygote or an embryo formed from a gamete from a person known to be dead; or (d) form a zygote with sperm from a man known to be dead; or (e) form a zygote, if the woman who produced the oocyte used to form the zygote is known to be dead.

The penalty is 240 penalty units (which translates into approximately $27 000 in fines) or two years’ imprisonment or both. But what are the ethical concerns that have manifested themselves in the Victorian legislation and others like it? There appear to be four main objections to posthumous parenthood.

Presuming consent: do the dead have interests? The first objection has to do with consent and the rights of the deceased. In 2000, Justice Barry O’Keefe of the NSW Supreme Court refused the

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application of a woman who wanted to harvest sperm from her comatose husband. Justice O’Keefe commented: ‘Even if the patient had wanted children, there is nothing to suggest that he ever turned his mind to artificial insemination, let alone the prospect of a child posthumously conceived by such means.’ Although some Australian jurisdictions might permit the posthumous use of sperm where written consent was given and there was further sanction in a legal will, we might ask whether written consent is sufficient given the gravity of the proposed action. Indeed, could such consent ever be considered adequate and could it ever be fully informed? Noting that the deaths of the men in these cases are usually sudden and untimely, is it possible for a man giving consent to be able to predict or assess the emotional state of his partner following the inevitable trauma created by his death, or to be sure of her capacity to care for ‘their’ child? The woman may believe she ‘owes’ the dead man a child to preserve his memory, or feel in some way ‘obliged’ to have his child in fulfilment of a plan devised or a promise made in less traumatic times. If the particular emotional state of the bereaved woman following the death of her partner could have been known when consent was given, the man might not have consented to his sperm being used. He might have decided to free her from any sense of obligation or even actively opposed a pregnancy in these circumstances. It is doubtful whether Stephen Blood would have wanted his wife to endure lengthy, costly and controversial legal proceedings when they reportedly discussed posthumous parenthood prior to his death. And what of the dead man’s enduring interests? We cannot determine his thoughts or presume his consent on a range of specific matters relating to the possible use of his stored sperm. What ought to happen after the sperm has been used for an initial insemination or IVF procedure in accordance with his wishes? How do we know that he would have agreed to multiple pregnancies or to the termination, for instance, of female embryos? What if there were to be some tragedy after the birth of the first child, or if that child were to be born with a genetic defect or an abnormality? What would the man have thought in those circumstances, and what change might

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this have made to his continuing consent? Would he have agreed to the possibility of his sperm being used by his partner’s sister? Then there is the question of any frozen embryos created for IVF, before his death, to be considered. Would he have agreed to their implantation after his death? Would any such consent have included a surrogacy arrangement or the possible donation of the embryos for implantation by another couple? There is also the matter of the dead man’s bodily integrity, which deserves to be respected. Might not the procedures used to obtain sperm be considered the exploitation of a corpse? We do not allow people to have their organs removed without express consent; why should we allow sperm to be harvested without consent? Conversely, consent to donate organs does not extend to or include the harvesting of sperm. And would the man have agreed to his sperm being used to fertilise a donor egg? Will we now see men asking for the eggs of their deceased wives to be retrieved as well? The courts have usually been reluctant to presume a dead man’s consent. In commenting on Case B, involving a woman identified in court documents only as AB, Monash University philosopher Helga Kuhse thought there were ‘no good reasons for thinking that AB’s husband had an in-principle objection to becoming a father or for not wanting to have a child with AB’. She concluded that it was ‘an unwarranted restriction on AB’s reproductive autonomy to prevent her from seeking to bear her husband’s child’. But this is a weak argument that rests on a presumption that cannot be proved – that the husband of AB wanted to have a child with AB no matter what the circumstances. He had not indicated that he did not want a child to be conceived after his death, but neither are there grounds for assuming that he did. His consent was not obtained and it is logically invalid to argue on the basis of an untested presumption. Robert Jansen of Sydney IVF believes it is ‘very reasonable for society to assume, in the absence to specific instructions to the contrary, that if they were married with the intention of having children, [the man] would not mind’. 2 How can he be sure? There is a big difference between actually

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‘agreeing’ and ‘not minding’. The presumption that a dead man would want his widow to bear his children runs contrary to our commitment to informed consent, which is itself a crucial element in our respect for an individual’s freedom of choice. Given that many men make wills when they are in the prime of life, it is not unreasonable to believe they would have dealt with this matter in a legal document had they felt sufficiently strongly about posthumous parenthood for their consent to be assumed. The removal and use of sperm without consent involves a gross violation of the dead man’s autonomy and personal integrity. An editorial in the Medical Journal of Australia concluded that the dead do have interests. These include the preservation of their reputation and the fulfilment of the decisions they made concerning the dispersal of their assets in the execution of a will.3 The editorialist also thought that posthumous conception affects their interests because it recasts the content and contours of the deceased’s life. When it occurs without the person’s consent, it deprives an individual of the opportunity to be the conclusive author of a highly significant chapter in his or her own life. Indeed, this is one of the reasons why any attempted analogy between posthumous conception and organ donation fails. Controlling the fate of gametes is different from – and more significant than – controlling the fate of cadaveric organs because procreation is central to an individual’s identity in a way that organ donation is not.

It is inconsistent with the way our society regards other aspects of life to allow a person’s gametes to be used after their death other than when they have declared that such use would be in accordance with their wishes. Most people would not, in the normal course of events, think about this issue or come to a considered position on what they would want to occur after their death. The natural presumption is that most men and women do not want their gametes to ‘outlive’ the rest of their bodies. We also need to determine whether a living person ought to be able to exercise any rights over a dead

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person’s reproductive material, and whether custody or ownership of such material can ever be divested, transferred or sold? This leads to the vexed question of the maximum length of time that sperm ought to be stored. The Concept Fertility Centre in Western Australia stores semen for five years and, on special application, for longer periods, to a maximum of fifteen years. After five years and without further consent, the sperm is destroyed. But there is no technical reason why sperm could not be stored indefinitely and a child produced a century after his or her father’s death. This possibility has potentially menacing consequences for human civilisation and political life. One can readily imagine pressure being applied to dynastic patriarchs such as hereditary monarchs and paramount chiefs to store their sperm in order to ensure an unbroken line of succession. It is just as easy to envisage political despots, like Robert Mugabe or Kim Jong Il, determined that their heirs should rule forever, making the same provision. Even after their overthrow or death, their sons and daughters could become the focus of disruptive dissident movements determined to reassert their entitlement to rule. This fear was the core concern of Ira Levin’s 1976 novel The Boys from Brazil, in which Adolf Hitler’s offspring, produced by the Nazi physician Dr Joseph Mengele, were adopted by couples around the world to ensure the perpetuation of the Aryan race and the eventual re-formation of the Third Reich. This terrible scenario was ameliorated by the insistence of the main character, the Jewish Nazi-hunter Yakov Liebermann, that it would take three things to reconstitute the National Socialist State: ‘a new Hitler and social conditions like in the thirties … and the people to follow Hitler’.4 Liebermann claimed the last element was missing because ‘people are better and smarter now, not so much thinking their leaders are God. The television makes a big difference. And history, knowing …’ But in effect, other than the refusal of medical specialists and technologists to cooperate, there is nothing presently preventing such a nightmare scenario from eventuating in many parts of the world.

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Connecting relationships with procreation The second ethical concern has to do with our understanding of conception. In the four cases outlined above, each of the women expressed a desire to give birth to a child related to the man they had loved and lost. Their reasons varied. Quite apart from the empathy and compassion we might feel for them, does a response that includes allowing them access to their dead partner’s sperm eventually lead to more long-term harm than immediate good? In my view, the answer is yes. Acceding to such requests seriously damages our understanding of conception and terminally fractures the link between parental relationships and infant nurture. Whatever the circumstances, there are social, psychological, religious and political dangers in separating reproduction from relationships. Where a spouse or partner has died, there is no continuing relationship between the two people. The surviving partner will still feel deeply for their dead loved one but their relationship has ended. In the four cases above, the men are dead and the women are widows. To permit posthumous parenthood is to make human reproduction an isolated and ends-driven activity. Our society regards sexual intercourse as a sublimely significant act because it bears directly upon the dignity of the persons involved and has a procreative dimension whether or not conception results from each and every act. This is why we associate sexuality with marriage and commend the expression of the former within the confines of the latter. Marital intercourse is ideally a symbolic expression of a couple’s unconditional love and mutual acceptance. It also incorporates the possibility of bringing a new human life into being, demonstrated through a preparedness to welcome a child into the relationship. Marital relationships are the best foundation for parental relationships. Mindful of this ideal, we should note the essential differences between this social context and the circumstances enveloping a child who comes into being through the clinical manipulation of gametes. Such a child is not the fruit of

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a loving relationship but the outcome of a technological process. This is not procreation but production. Consequently, especially when posthumous parenthood is proposed, there is a real danger that the child produced by the manipulation of gametes may be perceived as an object or possession. (Tangentially, this mindset justifies, in the minds of some commentators, scientific experimentation on embryos ‘produced’ by non-sexual conception, something to which I am strongly opposed.) As Dr Helen Watt, Director of the Linacre Centre for Healthcare Ethics in London, has argued: ‘There is therefore nothing abstract about concern to protect the symbolism of natural procreation; such concern is amply justified by the way many children (though not, of course, all children) are treated after non-sexual conception.’5 When we propose to use the sperm of a dead man, we must be fully conscious that there is no continuing relationship between the parents and that the child must be ‘produced’ through artificial insemination or in vitro fertilisation. This deprives the child of personal significance, for it is not, as I have argued, the fruit of an act declaring the continuing mutual love of its mother and father. Nor will the child enjoy the security and sustenance of the relationship that exists between loving parents. In proposals for posthumous parenthood, there is recognition that the child’s father was plainly essential for the production of the child but is apparently unnecessary for the child’s continuing care and nurture. In effect, the man providing the sperm is a participant only to the extent of his paternity. He is the child’s father only in name. He can never ‘be’ a father. In one sense, the child has no father.

The plight of the fatherless child This leads to the third ethical concern, which is related to the standing and wellbeing of the fatherless child. The commitment of our society to children being raised by both biological parents has been mentioned in relation to other forms of ART. By an extension of principle, our society should not,

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therefore, condone the production of children who will be denied any opportunity to know or to be raised by one of their biological parents. To treat a man as merely the provider of gametes is to overlook the child’s need to form relationships with both of those people who gave them physical continuity in the chain of life. Admittedly, there are children whose fathers die before they are born or prior to their developing any lasting memory of their fathers’ influence. We feel deep sympathy for such children and lament their continuing misfortune in being ‘denied’ their father. But to produce a child whose father is already dead is to create consciously a situation of permanent parental deprivation. Given the difficulties that confront lone parents, especially single mothers, why should society contribute to a situation likely to lead to hardships which are not strictly necessary? One might add to the list of deprivations faced by the posthumous child the inability to obtain compatible donor organs and fluids from one of its parents. In this context we must consider the legal status of the fatherless child. In Australia, it is possible to interpret several state Acts concerning artificial conception in a way that renders a baby born using the sperm of a dead man fatherless. If a woman whose husband has died is a widow (rather than a married woman), the dead man is not considered to be her husband. Given that living men who provide sperm for artificial insemination cannot be presumed to have caused the pregnancy and therefore cannot be declared the ‘father’ of any child born using their sperm, most jurisdictions would also conclude that a dead man could not cause a pregnancy and therefore should not be regarded as a child’s father. Put another way, can a man be called a father in the full or proper sense of that term when he does not exist at the time of conception, may not have consented to the procedure and cannot contribute to the child’s welfare? And yet, in cases of posthumous parenthood it would be illogical to deny paternity when plainly this is widely known and readily attributable. This leads to the complicated question of whether the name of a posthumous father should be included on a child’s birth certificate. On 28 March 2003, the British House of Commons considered this question during its debate of

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the Human Fertilisation and Embryology (Deceased Fathers) Bill. The proposed legislation permitted a dead man’s name to be entered on a birth certificate when a child was conceived as a result of infertility treatment using his sperm. Under the extant law, the birth certificate stated that the child’s father was ‘unknown’. Speaking in favour of the Bill, Stephen McCabe MP asserted the entitlement of an individual to ‘a basic right – a right to identity; a right to know who we are and where we came from; a right, as one mother put it, to make sure the birth certificate tells the truth’. The Bill was amended by the House of Commons and passed into British law during June 2003. But there must be consistency. The husband of a woman who gives birth to a child using donor sperm would still be shown on the birth certificate as the child’s father, although he is not the child’s biological father and did not cause his wife’s pregnancy. Some fictions were evidently still permissible. There was another area of concern prompting the British legislation. As posthumous children were previously deemed ‘illegitimate’ because they were born outside a legally contracted marriage, a number of related legal issues such as succession and inheritance needed to be resolved. This was previously uncharted territory. Parliamentarians were concerned about inheritance rights in instances where a dead man’s estate or property might be dispersed before a posthumous child were born. Does a posthumous child have some subsequent claim over the estate of its dead father even if there is no mention of such a child in the man’s will? What effect would such a claim have on property rights with respect to children living at the time of their father’s death or other ex nuptial children the man might have produced? Although not thoroughly tested in the courts at the time of writing, legal opinion diverges on these questions. Some authorities believe that the posthumous child is entitled to a share of undistributed property, whereas others are adamant that such a child should be disregarded. The Canadian courts have even implied that a man can validly make a gift from his estate to an anticipated posthumous child with the gift held in trust for this unborn child. There is also legal speculation about custody and guardianship. In the event of the birth mother’s death, could the parents of the posthumous father make an application

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for custody and guardianship of ‘his’ child when the couple were not married when the child was posthumously conceived? To avoid creating problems that legislatures battle to predict and the courts struggle to resolve, these kinds of complicated issues must be dealt with satisfactorily before posthumous parenthood is permitted, for the sake of children born in such circumstances.

The burden of care for the posthumous child The fourth ethical concern has to do with the welfare of the posthumous child. Australian legislation applying to the custody, fostering and adoption of children affirms that the child’s welfare is always paramount. The point has already been made in chapter 4 that the fatherless child suffers certain disabilities that impact upon his or her welfare, disabilities which are frequently dismissed by those who compare posthumous children to infants relinquished at birth for adoption. I do not believe there is a parallel with the conduct of adoption. Children born after unplanned pregnancies and later relinquished for adoption were not deliberately brought into being. Posthumous parenthood is intentional. And although they are relinquished at birth, there is the possibility that adoptees might eventually be reunited with a birth parent because that possibility still exists, at the very least, in theory. As chapter 5 made clear, adoptees speak with great conviction about the need to meet their birth parents. While such contact might not always be mutually desired, it is nonetheless frequently possible and rarely utterly impossible. To bring a child into being with the full knowledge that it will not know (understood here as experience), as apart from know about (meaning having access to information), one of its parents should not be condoned. This does not stop Helga Kuhse from arguing in favour of posthumous parenthood: ‘experience shows single women can be competent and loving parents’, and finds it odd that ‘we should – in the child’s so-called best inter-

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ests – act in a way that prevents it from coming into existence and thus from it ever having any interests’.6 She contends that existence is better than nonexistence and so the question of the child’s wellbeing and interests is irrelevant.7 And yet, in our willingness to allow abortion on demand we give the fetus no choice and, in the process, dismiss whatever interests it might have. Abortion is plainly contrary to the interests of the unborn child. Allowing abortion means it will not be allowed to live. And in cases where a fetus is severely deformed or suffers some dire condition in utero, doctors routinely recommend that the pregnancy be terminated. In effect, there are occasions when we are prepared to accept non-existence before existence irrespective of what the unborn child might have later decided about life or death in relation to its own best interests. In my view, the right of a widow to have children ‘with’ her deceased husband does not override a child’s right to have two living parents at the time of its conception. The pastoral challenge in dealing with this issue concerns the obvious grief of the bereaved widow struggling with an enormous sense of loss. There is a natural empathetic inclination to comfort and console her by giving her the object of her desire – a child related to her dead partner – especially where the couple has not yet produced any children. There is also the significant pressure the widow might be subjected to from other family members, to provide a child to ‘replace’ the man who has died. With this pressure being exerted at a time when the woman is emotionally vulnerable and deeply affected by grief and loss, both she and the dead man’s family can mistakenly believe that a child will replace a husband, a son or a brother. It cannot. |||

The ethical objections to posthumous parenthood provide a very compelling case in support of its prohibition. Posthumous parenthood is demonstrably inconsistent with society’s commitment to the welfare of children in several respects. I would argue that posthumous children should not be born because, in the vast majority of cases, they do not need to be born. It is quite making parents of the dead | 181

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possible, even likely, that those wanting to use the reproductive material of a dead partner will in the future be able to have children with a living partner who can be known by those children and participate in their nurture. Further, in addition to rejecting the alleged existence of an individual’s ‘right to a child’, our society should reject the desire of some individuals not to have a child but a particular child as a legacy of a deceased partner. In this instance, as in many others involving ART, complicated ethical dilemmas have created the need for complex laws which have, in turn, created even more complicated ethical dilemmas.

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10 Caring for children or just defying nature?

There seem to be few limits to what assisted reproductive technology can achieve or to the challenges that reproductive specialists are willing to tackle. The recent creation of gamete-like cells from mouse embryonic stem cells in three different laboratories has created the possibility of somatic-cell nuclear transfer for the treatment of infertility. In these experiments, researchers have successfully created oocytes (immature ova) from both male and female mouse cells. If gametes can be made from stem cells, it is likely that they would initially be used for ‘medical’ reasons, such as avoiding mitochondrial disease, or to allow men and women who lack testes or ovaries to have children. It is not difficult to imagine that eventually the technology would be used to help same-sex couples produce children to which both were related, children who would have either two biological mothers or two biological fathers.1

Revolutionising and recasting reproduction If it is eventually possible to develop an artificial uterus, the American writer Edward Grossman thought it would mean ‘that the awfulness associated with pregnancy and childbirth will have nothing to feed on, and

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motherhood, if it continues to excite any awe at all, will not do so more than fatherhood’. 2 He went to say that ‘an efficient artificial womb, far from increasing the incidence of birth defects, would reduce them by keeping the fetus in an absolutely safe and regular environment’. It might even be possible for a fertilised egg inserted into the male abdominal cavity to survive with hormonal treatment to mimic the womb. This could mean that a transsexual male could provide sperm to fertilise a donor egg, with the resulting embryo implanted in his abdomen and thereby allowing him to give birth via laparotomy to his own child. Professor Alan Trounson of Monash University was untroubled by the prospect of male mothers: ‘I think it is a challenge to women’s roles but then women have challenged men’s roles in the community. I don’t see it as something we should be frightened of ’. 3 There is, of course, a range of responses other than fear. When human reproduction is concerned, society is entitled to be concerned about the wider implications of involving technology. Certain types of activity are transformed, if not obliterated, by the intrusion of technological instrumentalism determined to counter or overcome any ‘natural’ impediment to whatever human beings might desire. It is clear that some forms of alternative parenthood made possible by ART have redefined, if not transformed, parenthood itself. As British theologian and moral philosopher Oliver O’Donovan points out: The bond of natural necessity which tied sexual union to engendering children, engendering to pregnancy, pregnancy to a relationship with the child, gave us the foundation of our knowledge of human relationships in this area. Now that we have successfully attacked the bond of necessity (and artificial insemination was the first blow struck against it), we have destroyed the ground of our knowledge of the humane. From now on there is no knowing what a parent is.4 [emphasis retained]

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But what about the children? In many of the scenarios dealt with in this book, infertility is viewed as a problem for adults and ART is portrayed as the solution. I have argued consistently that use of these technologies should not be permitted to create longterm disadvantages or possibly debilitating difficulties that either conflict with, or are plainly contrary to, children’s best interests. Although most societies hosting fertility clinics in theory insist that the best interests of children are always paramount, debates about the legal and ethical aspects of ART are usually dominated by the desires and aspirations of adults. These debates have often sought to produce a consensus that is most convenient for adults while relegating children to the status of bystanders who are without a voice as their future is decided. This is evident in philosopher Leslie Cannold’s belief that ‘reproductive freedom accords us our privacy, our dignity, and the freedom to choose what we define as a meaningful life. This is why we believe it is so wrong for a society – through act or omission – to deprive its citizens of such freedom’.5 She is concerned purely about adults; there is no mention of children. In my view there is routinely far too much attention given to so-called procreative rights at the expense of hard-headed analysis of what constitutes a child’s best interests. Individual adult autonomy is less significant, in my view, than the circumstances in which a child develops and the quality of life it subsequently enjoys. A child will be an adult for much longer than an adult will be a parent. Worse still, in many arguments about ART we find that children are spoken of as if they were possessions to which adults have some obvious entitlement that no one can reasonably deny them – not even nature. Children and parents belong with one another but not to one another. Children should not be seen as a vehicle for adults to secure self-fulfilment. A child is a gift, not a commodity. Its life ought to reflect the loving relationship of its parents and be an expression of mutual belonging. And because the structure of that relationship is challenged, contested and even changed by many forms of

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ART, rather than affirming a clear position about what is best – not adequate or minimal but best – for children as they grow and mature, there has been a notable tendency among ART’s advocates to blur the substantial benefits of conventional parenting arrangements by attempting to claim that all forms of family formation are equivalent in terms of their effects on children, when demonstrably they are not. In many forms of ART a clear definition of parental roles and family relationships is simply impossible. ART has in too many instances produced confusion and uncertainty about the status of various individuals involved in the care of the children resulting from its use, and created conditions that have proved ideal for confrontation and conflict. A recent court case illustrates my point. A lesbian couple in Ireland persuaded a male friend to provide sperm for artificial insemination. The two women and their friend signed an agreement acknowledging that it would be in the best interests of the child to know its biological father. It also stated that in the event that the child’s birth mother or her partner died, the man would continue to have contact with the child and that he would be consulted with respect to guardianship. A boy was born in May 2006 and given his father’s first name as his second name. Over the next four months, the couple began to believe that their friend was becoming too close to the child, and restricted his contact to monthly visits. In March 2007, they decided to take a holiday in Australia, as the birth mother’s partner was Australian. Believing that they were considering relocating to Australia permanently in the hope of alienating the child from their now former friend, and dissolving the parental bond that had begun to develop, the donor father launched legal proceedings seeking guardianship and joint custody. In the ensuing court action, two of the judges hearing the case believed the child needed to remain in Ireland, finding that it was in the child’s best interests to be near his father. In granting an order that restricted the couple to a six-week visit to Australia, after which they had to return to Ireland and surrender their passports, Justice Henry Abbott found that the father had developed a bond with the boy, which would be ‘reciprocated imminently’ by the child, who was then fourteen months old. The court made this decision fully 186 | technological responses to childlessness

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aware that the lesbian couple had celebrated a civil union in England in January 2006 and were concerned that the man’s continuing presence would have an adverse effect on their relationship and on the quality of home life experienced by the child. In this and comparable cases, the courts have upheld the necessity of a child knowing the identity of his or her biological parents, and affirmed the importance of a bond developing between a child and those parents. We can only regret the existence of parental tensions of the kind that will surround this small boy and hope they can be contained as he tries to make sense of himself and his place in the world. Throughout this book I have expressed my concerns about any form of ART that deliberately alienates a child from its biological parents because it has the potential to, at the very least, cause anxiety and, at the very worst, inflict harm. I am not alone in declaring my unease about the circumstances in which some children are born through ART and the potential consequences that flow from those circumstances. Bioethicist Margaret Somerville insists that children have a right to a natural biological heritage – that is, a right to be conceived from the union of a natural sperm from a living, identified, adult man and a natural ovum from a living, identified, adult woman; a right to know what that heritage is; and unless an exception is justified in the best interests of the particular child, as in some cases of adoption, a right to be reared by their own biological parents within their wider biological family.6

Father Frank Brennan has reached similar conclusions on the basis of his understanding of a child’s inalienable human rights: The rights to a natural biological heritage and to knowledge of biological origins are natural rights of the human person in that they are not dependent for philosophical cogency on the positive or common law of the state. No matter what our jurisprudential disposition, we cannot postulate a just law that denies either of these rights. Each of these rights is constitutive of the human person’s self-identity, which precedes citizenship and which cannot be denied by other citizens or the state, even in the interests of

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other citizens who seek the prerogative to bear children without these rights. The right to bear children does not include the right to bear children denied their natural rights of biological identity and knowledge.7

The absence of information about one’s genetic inheritance can be seen as a form of disability – which adults are apparently willing to inflict on a child. And yet many of those same adults will attempt to restrain a couple who want to produce a child that is physically disabled. To restate an earlier example, the mood of most societies would be against assisting a profoundly deaf couple who were determined to have a profoundly deaf child because a child with this disability would be more compatible with their home life. There are some things, such as deafness, that we believe should be avoided if and when possible despite contrary parental desires. Despite protestations to the contrary, most societies practice some form of positive eugenics by urging individuals and couples with a range of conditions to use pre-pregnancy genetic screening, often followed by pre-implantation genetic screening, as part of an IVF process, a practice defended on the grounds that transmitting a genetic condition to a child should be avoided if at all possible.8 After all, who would want a defective or disabled child when it was possible to have a perfectly functioning able-bodied one? If this is the prevailing social attitude, and I would contend that it is, why is there so little concern about producing children alienated from their biological parents? This void is not a physically disabling condition, but it has deleterious effects on a child in terms of its self-awareness and identity-formation. As I have shown, adolescents and adults denied information about the identity of their biological parents feel strongly about the potentially dire situation in which they have been placed. One donor-conceived child remarked: I don’t agree with donor conception full stop, not in any circumstance, not even if donor-conceived people can know their donor growing up. I think that donor conception should be banned. I know this will not happen in a hurry as the medical profession are more eager to make money from the treatment than they are to find a cure to infertility. Like anyone who

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has been denied their right to grow up with their biological parents or to know them, I feel that what I have lost is so much more than my biological father’s medical history. I have lost part of my identity.9

I sympathise with these sentiments for reasons outlined later in this chapter. But the belief that some connection with one’s forebears has deep and abiding significance for the creation of a personal narrative, and that its absence can be experienced as a form of disability, is neither a new idea nor a novel claim. Many centuries ago the Roman philosopher Cicero commented: ‘To be ignorant of what occurred before you were born is to remain always a child. For what is the worth of human life, unless it is woven into the life of our ancestors by the records of history?’ Part of the problem is that we think of children as people under eighteen years of age – but we remain the children of our parents until we die. There are dimensions of parenting that can affect us for generations. In terms of identity formation, there is ample evidence that when men and women are in their twenties and thirties they begin to ponder questions of identity very deeply. The answers require, at the very least, accurate information about biological antecedents. I am, then, unable to condone any reproductive procedure which precludes the possibility of an individual knowing both their biological parents. This is not always possible but it is the ideal we ought to preserve and promote. Children so born did not agree to the conditions to which they are subsequently exposed; they did not agree to any denial of their entitlement to know their biological parents. It is for these reasons that I advocate prohibition also of any research that might enable scientists to develop gene-splicing and chromosome-combining techniques which will make it possible to create children with extraordinarily complex genetic backgrounds. This will further blur fundamental familial distinctions and further upset the two-biological-parents-living-together model that I have advocated. Put simply, the multitude of questions posed by these possibilities will be almost impossible to resolve. Will the child’s parents be those who have provided the most genes or chromosomes or will the child have multiple parents, each with a legitimate claim

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to parental access and supervision? Given their track record in less complex cases, I do not trust the courts to arrive at answers that will serve the best interests of children, notwithstanding my conviction that their interests were not, in any event, best served when they were ‘created’ in this way.

Some conclusions and anxieties In terms of existing procedures, I cannot condone artificial insemination by donor. This is not because I am concerned that it is a form of adultery but because, in cases of unknown sperm donors, it denies the donor-conceived child’s entitlement to be raised by its biological father and because, in the case of a known donor, association with the donor has every chance of fracturing the relationship between its biological mother and her partner. I have no objection to the use of IVF or allied technologies to overcome infertility when the reproductive material comes exclusively from the man and woman who will be the child’s parents. This is where I differ from the official position of the Roman Catholic Church (although as an Anglican I share its concern for the fate of unused embryos) and the opinions of some radical feminists. But I am opposed to embryo donation, and to delaying the implantation of any embryo for a period exceeding five years. I am opposed to posthumous parenthood because it involves creating a singleparent family, which must be deemed inconsistent with a child’s best interests. I am opposed to surrogacy – whether or not the reproductive material comes from those who will raise the child – because it has great potential to both damage the surrogate and pose potentially intractable and unresolvable legal problems that can harm the child. I also oppose the extension of ART to individuals where there is no medical or physical impediment to conception and a successful pregnancy – a desire to delay pregnancy for lifestyle reasons is not sufficient justification for the use of ART. My preference for the two-biological-parents-living-together family model would also pre-

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clude surrogacy for the benefit of single men who want children, and IVF for single women.10 In instances where a couple is unable to have a child because one is infertile, adoption is a valid alternative (although I acknowledge that in Australia at least sufficient numbers of children are unlikely to be available in the foreseeable future). The need to relinquish children is always and everywhere regrettable, but it is preferable to abortion, which is always and everywhere harmful. One way of reducing the incidence of abortion is to promote the alternatives. In my view, adoption is much better managed now than when I was adopted 45 years ago. It should, however, be seen as a long-term custody arrangement rather than life-long, because the prospect of reunion remains open. Intercountry adoption is, in my view, a laudable practice and a commendable act. I am opposed, however, to the adoption of children by same-sex couples, purely on the grounds that such couples cannot replicate the care provided by a heterosexual couple. This is consistent with the UN Declaration on the Rights of the Child, which notes that boys and girls need the complementary care of a man and a woman. I am conscious that there is much disputed evidence about what children need as they are growing, and about the immediate and long-term adequacy (or otherwise) of various forms of alternative parental arrangements. Some of the arrangements I have considered might have no discernable effect on a child in either the short or medium term. Other arrangements could disadvantage a child in the long term or leave them virtually disabled. In the worst situations, men and women claim to have been emotionally harmed or mentally destabilised because they have lacked a mother or a father, and/or to have been denied access to information about their biological forebears. But will it ever be possible to isolate the lack of parental information or interaction and attribute their absence to reported disability or reputed harm with any reliability? I suspect the answer is no. Some work has, however, been undertaken on the experience of younger children. In their study of 41 IVF and 45 AID families, each with a child between four and eight years of age, a group of British researchers led by Dr Susan

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Golombok reported that there was no reason to believe that modes of family formation made possible by the new reproductive technologies had adverse consequences for children and parents.11 The authors claimed that genetic ties are less important for family functioning than a strong desire among adults for parenthood. But the authors did not factor into their research the strong probabilities that same-sex couples who were facing difficulties would decline to participate, or that respondents could have had a prior personal commitment to ensuring the research produced the desired results. Apart from the potential for distorted results, I do not dispute Dr Golombok’s findings in terms of the sample group and the questions being asked, noting that the children were still young and only early childhood development was being assessed. It was not until I was seven years old that I understood, in an emotional and intellectual sense, what it meant to be adopted. My experience, and that of many other adoptees, is that identity questions arise and become more important much later in life. For me, it was not until I was in my twenties, when my adoptive father died and I had children of my own, that existential questions began to demand answers. Of course, not every child alienated from its biological parents by ART declares their opposition to the circumstances in which they were born. But enough of these children do express concern to suggest that adults should exercise more caution before deciding to bring children into the world by this means. There is sufficient evidence, however, to show that the structure of a family does have a bearing on the wellbeing of its members. In an article entitled ‘Do moms and dads matter? Evidence from the social sciences on family structure and the best interests of the child’, published by Margins Law Journal in 2004, Joshua Baker and Maggie Gallagher, respectively policy director and president of the Institute for Marriage and Public Policy in the United States, conclude that ‘children do better, on average, when they are raised by the household of their own married mother and father’.12 Of course, no family is perfect and there will always be some flaw in the parenting provided. But the two-parents-living-together arrangement is a structure that has consistently proved better for children than any other, without exception. The most press-

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ing need is clearly for detailed longitudinal studies into alternative parenting arrangements. Until these are produced and their findings and conclusions are discussed and debated, it is not possible for anyone to affirm that alternative parenting arrangements do not have an adverse effect on children. In wanting to dissuade people from having children because they cannot provide the parenting arrangements that the best interests of children require, I have argued that childlessness is not a plight that must be overcome by everyone at all costs. Childlessness is not a tragedy. It is not a basis for condemning anyone or urging them to try ART. The absence of children in a marriage does not necessarily make adult life less purposeful, nor should it make living any less fulfilling. We need, therefore, to be more liberal and generous when it comes to attitudes and assistance in relation to families that do not include dependent children. I suspect this will require a substantial shift in perceptions and a realignment of values if we are to recognise that a person’s ultimate worth is not determined by their ability to be a parent. This is especially so for women. Women have an identity apart from their role in bearing and raising children. Mothering is not critical to a woman’s identity; pregnancy is not the culmination of female sexuality; and fertility is not the substantiation of human dignity. I do not believe that all women must have children for the sake of the human race or that they must give birth to be in any sense complete as human beings.

Retailing reproduction In addition to the pressures often exerted by their families, childless couples are exposed to advertising from many (but not all) ART service providers, who engage in promotion dressed up as compassion. Some service providers are clever business people with clear commercial interests, which usually makes them highly unreliable as interpreters of community attitudes and entirely unsuitable as ethical guides. Some ART service providers do not

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like regulation, supervision or oversight because compliance regimes restrain their exploitation of market demand. In my albeit limited experience of ART service providers I have seen a tendency to probe, prod and push every legislative limit on the services they are able to provide. They interpret ethical guidelines in a manner that suits them and their clients, and perennially seek a broadening of the services they are allowed to offer and to whom. They might be professional but they are not altruistic. Fertility clinics are focused entirely on delivering a baby to their clients. This is their reason for existence, and it is unrealistic of society to think that they ought to conduct themselves otherwise. There are also ART service providers who evidently believe that a client’s willingness to sign a consent document frees them from any ethical responsibility for doing whatever the client might want. A number of commentators have long expressed concern that insufficient attention is given to the health risks associated with ART, and that inadequate information is provided on the likelihood of procedures being successful. In the absence of consensus about whether various forms of family formation and alternative parenthood have adverse effects on those involved, taxpayers should not be asked to subsidise the highly profitable procedures offered by ART service providers. There are many other needs that deserve higher priority and a larger slice of the health-care budget. If public resources are to be made available for ART, then married couples are entitled to priority because they provide the most stable and proven platform for parenting, thereby ensuring a child’s interests are optimised. The case against public subsidies for ART is strengthened by the number of instances in which the infertility that is treated is not caused by disease or a physical disorder but is a consequence of earlier lifestyle decisions. Given the growing incidence of childlessness, there needs to be greater public awareness of the phases of life through which human beings pass and the ways in which people might live differently in order to reduce social infertility. To put it bluntly, adults must decide to have children earlier in life when their chances of producing children are greater. The problem is that having children and

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becoming a parent is too often made subservient to economic priorities and career choices. To delay parenthood until later in life on the grounds that it is more expensive to raise children now than in past decades is simply mistaken. People in my parents’ cohort, and in their parents’ cohort, had far fewer resources at their disposal – and yet they managed to raise larger numbers of children. It is both heightened material expectations and warped personal priorities, manipulated by retailers and economists, which have led many people to think they must ‘establish themselves financially’ (all too often a goal not reached in time) before having children. This delay is contributing to fertility problems and carries its own cost. Some readers might dismiss these views as mere conservatism or simple fear of change. I believe them to be neither. Having closely observed various forms of alternative parenthood, I believe the positions I have embraced are prudent and consistent. The protection of children always comes first in my thinking, and I have endeavoured to apply this principle to each situation where some form of alternative is proposed. With respect to adults and the affects of ART, I recognise that some of my views are paternalistic but, I would contend, such paternalism is justifiable given the stresses and anxieties associated with technological solutions to natural problems. I accept, too, that my views reflect the beliefs of a particular faith community – which itself might not embrace entirely the ways in which I have applied them to alternative forms of parenthood. It is for this reason that I am not advocating that the positions I have taken become law or public policy to be imposed on those who do not share the beliefs on which they are based. I have not demanded that the state use its legislative powers or coercive capacities to prohibit access to, or use of, ART. But the state can, and I have suggested in some instances should, decide to withhold material and financial assistance. If individuals are determined to do things which the majority of society suspects might lead to disadvantage or cause harm to a child, I believe it is entirely reasonable to insist that private resources and not public money be used. There is already, however, a widely recognised residual need for some regulation of ART to prevent wanton exploitation of the vulnerable, and to ensure that health and

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safety standards are upheld by service providers. Although I would want to persuade most infertile couples not to head in the direction of ART, I support the benefits of uniform national legislation and the development of consistent operating guidelines and policies. Infertile couples, who have already made some difficult decisions, should not have to navigate their way through administrative muddles or around jurisdictional complexities.

A personal perspective My views on alternative parenthood are, of course, a function of my own experience of being relinquished at birth and raised as an adopted child. The particular perspective I bring to the discussion is an understanding of what it means to have two sets of parents – one social and the other genetic. I am conscious that both have played a part in the person I have become. Although I have made much in this book of the importance of genetic information and the necessity of a child being raised by those to whom it is related biologically, I recognise that both nature and nurture are operative in the formation of identity and in determining one’s destiny. This has led me to consider the fascinating interactions between psychology and philosophy which I believe will assist those who are adopted – until recently the largest group of people to have experienced alternative parenthood – and donor-conceived children, whose numbers are swelling. In the work of the German developmental psychologist Erik Erikson, identity is to be discovered rather than created. Individuals are implored to uncover their beginnings, to locate what is immutable, and to recognise what is fixed. Much of this activity is introspective and retrospective. It seems constricting rather than liberating in concentrating on similarities rather than on the essential differences between people. By way of contrast, the Canadian philosopher Charles Taylor depicts a dynamic evolution of identity formation in his acclaimed works, The Sources of Self and The Ethics of Authenticity.

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Taylor is concerned with the social dynamics of identity, asserting that identity is formed from a range of available and competing sources but principally ‘by the people we love’. This is an important distinction, in that identity and its formation are not contingent upon biology. In a chapter entitled ‘Inescapable horizons’, Taylor contends that it would actually take a great deal of effort to ‘prevent our identity being formed by the people we love’.13 While recognising that this might seem repugnant to some, Taylor claimed it is unavoidable because ‘the making and sustaining of our identity … remains dialogical throughout our lives’.14 Thus, each person has their own way of being human. However, Taylor comments, this is a new idea because before the late twentieth century no one thought that the differences between human beings had this kind of moral significance. There is a certain way of being human that is my way. I am called upon to live my life in this way, and not in imitation of anyone else’s. But this gives a new importance to being true to myself. If I am not, I miss the point of my life, I miss what being human is for me.15

In traditionally organised societies, personal identity is conferred on an individual by the society they enter at birth and by which they will be farewelled at death. In modern industrial urban societies, identity is either not conferred or must be discovered or re-conferred constantly. A similar concern lies behind the assertion of uniqueness. This has led to a fresh assessment of what it means to be human in a society which regards individuals as anonymous and treats them impersonally. Thus, the twenty-first century quest for identity must be cognisant of a larger global setting – to see human beings as cosmic entities – in addition to the narrower provincial contexts which locate an individual within intimate and loving personal relationships.16 Taylor goes on to develop what he calls the ‘ethics of authenticity’, which rest on the premise that how I understand myself will determine how I relate. This is because, for Taylor, the sense of the good and the sense of ourselves are somehow related.17 In Taylor’s work, identity is created rather than discovered. Individuals caring for children or just def ying nature? | 197

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are encouraged to discern the range of diverse sources from which they are derived, to interpret and reflect on those which have been existentially most significant, and to challenge those things which prevent them from being true to what they believe is ‘the good’. Much of this activity derives from initiative and ingenuity, as it dwells on differences between people rather than similarities. Taylor describes a process of liberation leading to a proper sense of identity as a means of avoiding dependencies.18 His approach focuses on factors external to the individual and is even speculative in concentrating on the present and the future rather than the past. A critical reading of psychology and philosophy, of Erikson and Taylor as representatives of both, leads me to the synthesis that identity is discovered and created; that some things are given while others are changing. Identity is therefore best understood functionally. Identity formation, then, is a continuing process of coming to know oneself and others, of recognising oneself and others as being essentially similar but also fundamentally different. Combining the work of Erikson and Taylor also admits a place for both sets of parents – biological and social – to play a constructive role in the formation of identity of the adopted and donor-conceived child. Therefore, as personal identity is unavoidably located within history but also inextricably bound to culture, individual biographies or ‘stories’ are highly significant in beginning to understand those parts of an individual’s sense of self and behaviour which are inexplicable in terms of either nature or nurture. There is thus nothing surprising in the number of biographies featuring the subtitle ‘The life and times of …’. Human beings recognise that they are captives of time and place. This makes struggle a central theme in human existence, because all people strive at some point in their lives to defy some boundaries while learning at another point to respect limitations. The boundaries and limitations people recognise are as important as their appreciation of personal abilities and potential. This process of virtually grasping one’s humanity is tied to the circumstances of one’s birth and the condition of the world one enters. Thus, personal biography is indispensable to how individuals understand themselves and how they perceive themselves in relation to

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the world. When a child expresses an interest in knowing about the circumstances of their birth, we are faced not just with curiosity but with fundamental questions about human identity, through the answers to which are refracted a person’s approach to life. As Charles Taylor properly observes, the question ‘Who am I?’ can’t necessarily be answered by giving name and genealogy. What does answer this question for me is an understanding of what is of crucial importance to us. To know who I am is a species of knowing where I stand. My identity is defined by the commitments and identifications which provide the frame or horizon within which I can try to determine from case to case what is good, or valuable, or what ought to be done, or what I endorse or oppose. In other words, it is the identity within which I am capable of taking a stand.19

This makes personal biography important for all children. Our stories are invaluable because each imparts a sense of identity and ‘prevents us from being lost in a world where the story is that we have no story’. 20 Identity is also related to feelings of affinity and consciousness, and the development of values and preferences. It makes us intelligible to ourselves. Our lives, therefore, are bound by many stories but those which incorporate our parents – our forebears – are crucial and primarily formative of identity and individuality. This has been affirmed by developmental psychologist John Sants’ work on the concept of ‘genealogical bewilderment’21 and Erikson’s exploration of ‘identity formations’. 22 Uncovering our stories is part of a continuing process that is not restricted to late adolescence. It is a curiosity of human society that individual lives are continually interpreted and re-interpreted. As the French social theorist Henri Bergson has shown, memory itself is a ‘reiterated act of interpretation’. 23 Consequently, we understand ourselves in terms of both where we are now and where we have come from. This has led some adopted children to claim that the secrecy surrounding their birth parents’ stories has deprived them of a vital component in understanding who they are, and has prevented them

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from formulating an authentic identity for themselves. I am sympathetic to this claim. Nor is there any reason for children born through donor gametes to be denied their linkage to the physical world and history of those donors. These donors are a reference point and part of the individual’s life narrative. Having been born in a particular place at a particular time, these circumstances should not be overlooked in an individual’s struggle to decipher the meaning of their life. It is, of course, more than merely a matter of nature and nurture, as might be suggested by uninformed readings of Erikson and Taylor. Indeed, there is much argument within the nature-nurture debate about their relative and absolute influence on identity, as I explained in chapter 2. Genes may modify the effects of other genes; they may modify the effects of the environment. Environmental events, both internal and external, may modify the effects of genes, and may modify the effects of other environmental events. But as a synthesis of Erikson and Taylor shows, there is a need to stress that the development of a healthy sense of identity is not entirely dependent upon knowledge of biological antecedents, or limited to the experience of nurture, as though these were self-evident givens. The interpretation of this information is an integral part of a larger undertaking. British ethicist Ian Ramsey notes: the unity of personality … is to be found in an integrating activity, an activity expressed, embodied and scientifically understood in terms of its genetic, biochemical and endocrine, electronic, neurological and psychological manifestations. What we call human behaviour is an expression of that effective, integrating activity which is peculiarly and distinctively ourselves. 24

In undertaking this activity myself, of greatest interest to me has been my biological father’s identity and character. In what ways did I resemble him? Where did he live? What did he do? How did he handle life’s struggles? What were the values and virtues that animated his life? When I met my biological mother in late 1995, I asked the first in a series of questions about my father. She told me his first name and eventually his second name. She thought he

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was a lawyer. Although she did not know it at the time of my conception, he was already married and had two children. This was and is all I know of my biological father. And that his name might be Charles Murphy and that he was probably born in 1937. At the conclusion of her final letter to me before contact between us ceased in 1997, my biological mother wrote: ‘I guess I owe you an apology for everything I have done to you … and I apologise to you.’ There was no need for her to apologise. She had given me the gift of life and I will always be grateful for that. I continue to hope that my father might one day materialise as the missing piece of the mosaic that is my life. Some years ago I read the autobiography of the great British actor Sir Alec Guinness, entitled Blessings in Disguise. Guinness explained that he ‘was born to confusion and totally immersed in it for several years’. 25 His father’s name was not recorded on his birth certificate and his mother married several times, each marriage prompting a change of name. Several men were possibilities but he never gathered enough evidence to be sure. As he came to the end of his story, Guinness said: ‘I have to admit that the search for a father has been my constant, though fairly minor, speculation for fifty years.’26 Guinness purchased a gold pocket-watch with earnings from a play after his dream of receiving something from his father when he turned twenty-one did not materialise. He had engraved on the inside, ‘The readiness is all.’ It seemed a rather odd sentiment until he explained: ‘Not that I have ever felt really ready for anything; but in an obscure way I suppose I felt I had arrived – somewhere, somehow, and from God knows where.’27 It is out of concern for people who have felt this way that I have written this book. I hope its message is heard by everyone who proposes some form of alternative parenthood that involves defying nature.

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Notes

Introduction 1 2 3 4 5

Tom Frame, Binding Ties: An experience of adoption and reunion in Australia, Hale & Iremonger, Sydney, 1999. A very useful study of why some couples choose childlessness is Helen Marshall’s Not Having Children, Oxford University Press, Melbourne, 1993. Patrick Devlin, The Enforcement of Morals, Oxford University Press, London, 1965. H.L.A. Hart, Law, Liberty and Morality, Stanford University Press, Stanford, 1963 and The Morality of the Criminal Law, Oxford University Press, Oxford, 1965. Margaret Somerville, ‘Talking ethics, doing ethics’, pp. 68–98 in Jonathan Mills (ed.) Ethically Challenged: Big questions for science, Miegunyah Press, Melbourne, 2007, p. 95 quoted.

1 Dealing with infertility 1 2 3 4 5 6

See P. Singer & D. Wells, The Reproductive Revolution: New ways of making babies, Oxford University Press, Oxford, 1984; Robert Winston, The IVF Revolution: The definitive guide to assisted reproductive technology, Vermilion, London, 1999, p. 164. Russell Webb, ‘Men and infertility: the pain of not being a biological father’, http:// members.tripod.com/wearethewebbs/infertility.htm. See also Mary-Claire Mason, Male Infertility, Men Talking, Routledge, London, 1993. Elaine Tyler May, Barren in a Promised Land, Harvard University Press, MA, 1995, p. 11. Andrea Belk-Schmehle, ‘Every month a little miscarriage’, in Renate D. Klein (ed.), Infertility: Women speak out about their experiences of reproductive medicine, Pandora, London, 1989, p. 30 quoted. Robert Winston, The IVF Revolution, Vermilion, London, 2000, p. viii. These statistics are very broad. In their editors’ introduction to Infertility in the Modern World: Present and future prospects, Cambridge University Press, Cambridge, 2000, Gillian Bentley and Nicholas Mascie-Taylor explain that ‘it is impossible to compute the incidence of human infertility as a raw statistic or to reduce it to a simple figure. Infertility varies from country to country and from cohort to cohort, depending on the sample, the population surveyed, whether males are included together with females, and whether these figures include “social infertility” (such as childlessness by choice) as opposed to physiological infertility’ (p. 1).

202 | notes to pages 2–14

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7

David Hume, Section III of A Treatise on Human Nature: Being an attempt to introduce the experimental method of reasoning into moral subjects. See reprint introduced by L.A. Selby-Bigge, Oxford University Press, Oxford, 1978.

2 Children and parents 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

22 23 24 25

The survey and its findings were first reported in the Washington Post with a syndicated version appearing in the Sydney Morning Herald, 2 July 2007. Julianne Shultz (ed.), ‘Family first’, Griffith Review, Summer 2005–06, pp. 6–7. Deborah Mitchell, Australians’ Social Attitudes, UNSW Press, 2005. Question of Life: Report of the Committee on Human Fertilisation and Embryology, Blackwell, Oxford, 1985. Mary Warnock, Making Babies: Is there a right to have children?, Oxford University Press, Oxford, 2002, p. 17. ibid, p. 113. Brian A. English, ‘Intercountry adoptions: the context of recent developments and the need for research’, Children Australia, pp. 16–20, 15(1), March 1990, p. 18 quoted. TangledWebs, http://www.tangledwebs.org.au/dc.php United Nations General Assembly, A/Res/44/23, 1989. Heather Grace Jones & Maggie Kirkman, Sperm Wars: The rights and wrongs of reproduction, ABC Books, Sydney, 2005, p. 124. TangledWebs, http://www.tangledwebs.org.au/dc.php Bertrand Russell, Marriage and Morals, Liverwright, New York, 1957, p. 89. David Blankenhorn, Fatherless America: Confronting our most urgent social problem, Basic Books, New York, 1995, p. 18. Andrew Samuels, ‘The good-enough father of whatever sex’, Feminism & Psychology, no. 5, 1995, p. 528. Heather Grace Jones, ‘High heels, fur collars and foul creeds’, pp. 31–51 in Jones & Kirkman, Sperm Wars, p. 46. Jones & Kirkman, Sperm Wars, p. 193. ibid, p. 106. Daniel Callahan, ‘Bioethics and fatherhood’, Utah Law Review, 1992, pp. 735–46. John Snarey, How Fathers Care for the Next Generation, Harvard University Press, Harvard, 1993, pp. 163–64. Judy Dunn, Helen Cheng, Thomas G. O’Connor & Laura Bridges, ‘The Avondale longitudinal study of parents and children’, Journal of Child Psychology and Psychiatry, vol. 45, no. 3, 2004, pp. 553–66. See Trevor Cairney, ‘The role of fathers’, Case Quarterly, no. 12, 2007, pp. 10–15; J.H. Pleck & B.P. Masciadrelli, ‘Parental involvement by US residential fathers: levels, sources and consequences’, in M. Lamb (ed.), The Role of the Father in Early Childhood Development, 4th edn, John Wiley, New Jersey, 2004; Rebecca Goldman, Fathers’ Involvement in Their Children’s Education, National Family and Parenting Institute, London, 2005. David Popenoe, Life Without Father, Harvard University Press, MA, 1996, p. 142. See also David Gilmore, Manhood in the Making, Yale University Press, New Haven, 1990. See Victoria Secunda, Women and their Fathers: The sexual and romantic impact of the first man in your life, Cedar Books, London, 1993. David Popenoe, ‘Can the nuclear family be revived?’, Society, no. 36, pp. 28–30, p. 28 quoted. Over a number of years and according to a number of measures, researchers from a

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range of disciplines have attempted to measure the existence of potential advantage and actual disadvantage in relation to parenting arrangements and family structure. While a child raised in a single-parent family might not be adversely affected by the experience, there is a greater statistical likelihood that the child will suffer disadvantage and even harm. The following is a cross-section of reports, studies and literature surveys: L. Remez, ‘Children who don’t live with both parents face more behaviour problems’, Family Planning Perspectives, vol. 24, no. 1, Jan–Feb 1992, pp. 4143; ‘Children with single parents: how they fare’, Census Brief, no. 1, September 1997, U.S. Department of Commerce; Jan Pryor & Bryan Rodgers, Children in Changing Families, Blackwell, 2001; David Wroe, ‘Children more at risk living with one parent’, Sydney Morning Herald, 25 January 2003; Lauren Martin, ‘Single, still sane, with kids’, Sydney Morning Herald, 13 February 2004; Bob Birrell, Virgina Rapson & Claire Hourigan, Men and Women Apart: Partnering in Australia, Monash University and the Australian Family Institute, March 2004; Anu Sauvola, ‘The association between single-parent family background and physical morbidity, mortality and criminal behaviour in adulthood’, http://herkules.oulo.fi/isbn9514259416/html/index.html; Rosemary Bennett, ‘Proof marriage is good for you’, The Times (London), 6 October 2007, quoting data published by the British Office for National Statistics showing that children who live with their married parents are, on average, healthier and stay in full-time education for longer irrespective of their economic background.

3 Nature and nurture 1 2 3 4 5

6 7 8 9 10 11 12 13 14 15

E.E. Cook, letter to the editor, Canberra Times, 26 November 2006. Reported in the Sydney Morning Herald, 23 July 1998, p. 11. Francis Galton, Hereditary Genius, Macmillan, London, 1883, p. 241. J.M. Baldwin, Social and Ethical Interpretations in Mental Development, Macmillan, New York, 1897. There was encouragement here for sociologists like C.H. Cooley, Human Nature and Social Order, Scribners, New York, 1902, who asserted that individuals did not consist of a single self or a unitary identity. In that individuals performed a number of different roles in diverse social settings, they discovered distinct ‘selves’ in each context. The possibility of a unitary personality derives from the commonality of characteristics found within each social role and its concomitant identity. J.B. Watson, Behaviourism, Norton, New York, 1925, p. 74. H.H. Newman, F.N. Freeman & K.J. Holzinger, Twins: A study of heredity and environment, University of Chicago Press, Chicago, 1937. R.S. Woodworth, Heredity and Environment, Social Science Research Council, New York, 1941. D.O. Hebb’s neuro-psychological or ‘interactionist’ theory was set out in The Organisation of Behaviour, Wiley, New York, 1949. Attempts to deal with this phenomenon during the twentieth century are dealt with in Hans Jurgen Eysenck, Genius: The natural history of creativity, Cambridge University Press, Cambridge, pp. 15–19. Robert Plomin, Genetics and Experience: The interplay between nature and nurture, Sage, Thousand Oaks, 1994, p. 40. ibid, p. 160. ibid, p. 162. ibid, p. 152. Plomin seems to suggest an ordered explicable pattern directed at some ultimate outcome. While this might be useful as an organising supposition, it represents a

204 | notes to pages 42– 49

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16 17

18 19 20 21

22

23 24

25 26 27

28 29

level of confidence not found among researchers a decade earlier. In 1974, Richard Lewontin argued that the evolution of an organism does not proceed towards a fixed point or a consistent pattern of development. He contends that the organism is more reactive and is more closely influenced by those things which impact upon it. See Richard Lewontin, The Genetic Basis of Evolutionary Changes, Columbia University Press, New York, 1974. This position is closer to that adopted by Richard Dawkins in The Selfish Gene, Oxford University Press, Oxford, 1976. Robert Plomin & Gerald McClearn (eds), Nature, Nurture and Psychology, American Psychological Association, Washington DC, 1993. Peter Turnpenny, ‘Genes, identity and adoption’, pp. 35–43 in BAAF Selected Seminar Papers 1994–95, p. 41 cited. Plomin’s claim was made in an article co-authored with M.J. Owen & P. McGuffin, ‘The genetic basis of complex human behaviours’, pp. 33–9 in Science, vol. 264, no. 17, 1994. Writing in 1993, Maddox suggested that one consequence of the increasing media interest in genetic science is ‘a growing belief in a kind of genetic predestination’: J. Maddox, ‘Has nature overwhelmed nurture?’, Nature, 366, 1993, p. 107. C.D. Darlington, The Facts of Life, George Allen & Unwin, London, 1953, p. 302. Theodore Dobzhansky & L.S. Penrose, ‘Review of the facts of life’, Annals of Human Genetics, No. 19, 1953, pp. 75–7, quoted in Plomin, Genetics and Experience, pp. 2–3. Theodore Dobzhansky, The Biological Basis of Human Freedom, Columbia University Press, 1956, p. 132. In 1993 Ruth Hubbard and her son Elijah Wald wrote Exploding the Gene Myth: How genetic information is produced and manipulated by scientists, physicians, employers, insurance companies, educators, and law enforcers, Beacon Press, Boston. The book and this particular claim were favourably reviewed in New Scientist, 23 October, 1993, p. 38. An edition that includes an updated Afterword was published in 1997. Page 6 in the earlier edition has been cited. The genome is simply the total inheritance material – all the DNA. Proceedings of the Eighth International Congress on Human Genetics, published by American Society of Human Genetics, Chicago, 1991 (as a supplement to the American Journal of Human Genetics, vol. 49, no. 4, 601 pp.) The text of this speech was reported in the New York Times, 8 October 1991. See also McKusick, The Mendelian Inheritance in Man, John Hopkins University Press, Baltimore, 1986. Arthur Peacocke, God and the New Biology, Dent & Sons, London, 1986, p. 67. It is noteworthy that a leaflet produced by BAAF entitled If You Are Adopted comments in a brief discussion of nature and nurture that adoptees ‘are more likely to take after [their] adoptive parents through being with them than to inherit tendencies from birth parents [they] cannot remember’, op. cit., p. 5. Dobzhansky, The Biological Basis of Human Freedom, p. 152 In 1693 John Locke published his influential work, Some Thoughts Concerning Education: Practical advice for the ‘sons of gentlemen’, concluding that a child’s mind was a clean slate upon which anything could be written. The problem of how human beings can be considered unique when they are created in the image of God is addressed by John Haldane in ‘Incarnational anthropology’, pp. 191–212 in David Cockburn (ed.), Human Beings, Cambridge University Press, Cambridge, 1991. Haldane resolves this problem by attempting to eliminate a mortal/ divine dualism within incarnational anthropology. John S. Dunne, A Search for God in Time and Memory, University of Notre Dame Press, Notre Dame, 1977. Margaret Kornitzer, ‘The adopted adolescent and the sense of identity’, Child Adoption, no. 65, 1971.

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30 Caroline Lorbach, Experiences of Donor Conception: Parents, offspring and donors through the years, Jessica Kingsley Publishers, London, 2002. 31 Caroline Overington, ‘Children of a lesser god’, The Australian, 2 June 2007. 32 Robert Winston, The IVF Revolution: The definitive guide to assisted reproductive technology, Vermilion, London, 1999, p. 182. 33 Robert Winston, A Child Against All Odds, Bantam, London, 2006, pp. 194–95. 34 A.M. Homes, The Mistress’s Daughter: A memoir, Granta, London, 2007. 35 Ross Fitzgerald, The Australian, 13 February 2003. 36 Sydney Morning Herald, 19 April 2004.

4 Reproduction and the state On Liberty by John Stuart Mill was first published in 1859. I have used the edition edited by R.B. McCallum, published by Basil Blackwell, Oxford, 1947, pp. 8–9. 2 Max Charlesworth, Bioethics in a Liberal Society, Cambridge University Press, Melbourne, 1993. 3 ibid, p. 17. 4 ibid, p. 27. 5 ibid, p. 102. 6 ibid, p, 103. 7 ibid, p. 103. 8 D.N. James, ‘Artificial insemination: a re-examination’, Philosophy and Theology, no. 2, 1988, pp. 305–26. Paul Lauritzen, Pursuing Parenthood: Ethical issues in assisted reproduction, Indiana University Press, Bloomington, 1993, offers a contrary view. 9 Russell Blackford, ‘Surrogate motherhood and public policy’, Quadrant, March 2003, pp. 31–5; Tom Frame, ‘The perils of surrogate motherhood’, Quadrant, June 2003, pp. 37–41; Russell Blackford, ‘Liberty and paternalism’, Quadrant, June 2004, pp. 40– 46; Tom Frame, ‘Moral communities and the state: a rejoinder to Russell Blackford’, Quadrant, September 2004, pp. 38–43. 10 G. Dworkin, ‘Paternalism’, in R.A. Wasserstrom (ed.), Morality and the Law, Wadsworth, California, 1971, p. 108. 11 C.L. Ten, Mill On Liberty, Clarendon, Oxford, 1980, p. 110. 1

5 Adoption 1 2 3 4 5 6 7 8

P. Aries, Centuries of Childhood, Peregrine, London, 1979. Jenny Teichman, Illegitimacy: A philosophical examination, Basil Blackwell, Oxford, 1982. John Macquarrie (ed.), A Dictionary of Christian Ethics, SCM Press, London, 1967, p. 5. Kate Inglis, Living Mistakes: Mothers who consented to adoption, Allen & Unwin, Sydney, 1984, p. xi. See John Triseliotis, ‘Issues in child care practice’, Child Adoption, vol. 73, no. 3, 1973, pp. 15–21, and Margaret Craig, Not a Big Deal, Scottish Adoption Society, unpublished report. An overview of adoption policy and practice is provided by Shurlee Swain, ‘Adoption: was it ever thus?’, in Phillip & Shurlee Swain (eds), To Search for Self: The experience of access to adoption information, Federation Press, Sydney, 1992, pp. 2–17. This issue is discussed in Susan Powell, Be My Family: A guide to adoption in Australia, Harper Collins, Melbourne, 1995, pp. 11–17, 22–3. Joss Sawyer, Death by Adoption, Greenslade, Auckland, 1984, p. 73.

206 | notes to pages 56 – 92

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9 10

11 12

13 14 15 16 17 18 19 20

21

22 23 24 25 26 27 28 29 30 31

Chris Cole, ‘Exposing adoption fraud’, Has Adoption a Future? Conference Papers of the 1994 Australian Adoption Conference, Post-Adoption Resource Centre, Sydney, 1994, pp. 86–7. Concerned United Birthparents, The Birthparent’s Perspective, CUB, Dover, New Hampshire, undated pamphlet held by the author. See also Choices, Changes, Chances: A guide to making an informed choice about your untimely pregnancy, CUB, Dover, New Hampshire, 1983. Lynne Curry, ‘Time only strengthens the ties that bind’, Independent, 22 March 1994. The author, as the adopted child of a British subject, was not entitled to British citizenship because the United Kingdom Nationality Act (1983) specifically limits citizenship to the ‘legitimate’ children of British subjects. This ‘disability’ was not introduced until the proclamation of this Act. Deborah Derrick (ed.), Illegitimate: The experience of people born outside marriage, Redesign, London, 1986. ibid., p. 16. ibid. See the House Standing Committee on Family and Human Services, ‘Overseas Adoption in Australia: Report on the Inquiry into Adoption of Children from Overseas’, Parliamentary Paper no. 450/2005 tabled on 5 December 2005. Weekend Australian, Feedback, 21 April 2007. Private and confidential correspondence dated 7 September 2007. The country in which this occurred has been deliberately omitted. Barbara Joe, ‘In defence of intercountry adoption’, Social Service Review, March 1978, p. 16. House Standing Committee on Family and Human Services ‘Inquiry into the Adoption of Children from Overseas’, Final Report, tabled on 21 November 2005. For the report and public submissions see: http://www.aph.gov.au/house/committee/fhs/adoption/ report.htm This principle was expressed in the uniform adoption legislation which was enacted generally throughout Australia during the mid-1960s. The only difference is in Western Australia’s Adoption of Children Amendment Act 1971, which aims to ‘protect the rights of children and to promote their welfare’. Royal Commission on Human Relationships, Final Report, Vol. 1, AGPS, Canberra, 1977, paragraph 61, p. 70. ibid, paras 74 & 75, p. 71. ‘And then the bride changed nappies’, Final Report, April 2003, Gay and Lesbian Rights Lobby: http://www.glrl.org.au/publications/major_reports.htm Sperm Wars: The rights and wrongs of reproduction, Heather Grace Jones & Maggie Kirkman (eds), ABC Books, Sydney, 1995. My review was published in the Canberra Times, 16 April 2005. Peter Coghlan, letters to the editor, The Australian, undated clipping held by author, c. 2005. Frank Brennan, Acting on Conscience: How can we responsibly mix law, religion and politics?, UQP, Brisbane, 2007, p. 187. ABC TV, 7:30 Report transcript, 7 June 2007. Margaret Somerville, ‘Talking ethics, doing ethics’, pp. 68–98 in Jonathan Mills (ed.) Ethically Challenged: Big questions for science, Miegunyah Press, Melbourne, 2007, p. 94 quoted. Brennan, Acting on Conscience, p. 195. ‘PM to fight States on gay adoptions’, The Australian, 2 August 2007.

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32 See Research Brief No. 9, ‘How many abortions are there in Australia? A discussion of abortion statistics, their limitations, and options for improved data collection’, Social Policy Section, Parliamentary Library, 14 February 2005. 33 Melinda Tankard Reist, Giving Sorrow Words: Women’s stories of grief after abortion, Duffy & Snellgrove, Sydney, 2000.

6 Can adoption be rehabilitated? 1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18

Bettina Arndt, ‘When baby comes first’, Weekend Australian, 13 November 1993. Bettina Arndt, ‘Giving up baby’, The Australian, 9 May 1998. A. Dean Byrd & Peter Howell, ‘The adopted child syndrome: fact or fallacy’, Has Adoption a Future? Conference Papers of the 1994 Australian Adoption Conference, Post-Adoption Resource Centre, Sydney, 1994, p. 490. John Triseliotis, ‘Permanent planning: perceptions of permanence’, Adoption & Fostering, vol. 15, no. 4, 1991, p. 15. NSW Law Reform Commission, Discussion Paper No. 24, Review of the Adoption of Children Act 1965 (NSW), New South Wales Government Printer, Sydney, 1994, p. 31. ibid., p. 38. Quoted in the Weekend Australian, 14–15 August 1993, p. 22. Peter Boss, Adoption Australia: A comparative study of Australian adoption legislation and policy, National Children’s Bureau of Australia, Melbourne, 1992, p. 28. Peter Fopp, Adoption in Australia: Present status, likely trends and policies, South Australian Department for Community Welfare, Adelaide, 1979; Kate Inglis, Living Mistakes: Mothers who consented to adoption, Allen & Unwin, Sydney, 1984; Cliff Picton, Persons in Question: Adoptees in search of origins, Monash University, Melbourne, 1982; Rosie Snow, Understanding Adoption: A practical guide, Collins, Sydney, 1983; Robin Winkler & Margaret van Keppel, Relinquishing Mothers in Adoption: Their long-term adjustment, Monograph no. 3, Australian Institute of Family Studies, Melbourne, 1984. Kathleen Silber & Phylis Speedlin, Dear Birthmother, Corona Publishing, Texas, 1982, p. 1. Nola Passmore, Alexis Foulstone & Judith Feeney, ‘Openness and secrecy in adoptive families and possible effects on interpersonal relationships of adult adoptees’, Family Relationships Quarterly, issue 3, 2007. ibid, p. 5. C.J. Sorich & R. Siebert, ‘Toward humanising adoption’, Child Welfare, vol. 61, 1983, pp. 207–16. The Honourable Austin Asche, Chief Justice of the Northern Territory, in his foreword to Peter Boss, Adoption Australia, pp. vi–vii. Silber & Speedlin, Dear Birthmother, p. 46 Concerned United Birthparents, The Birthparents’ Perspective, CUB, Dover, New Hampshire, undated pamphlet held by the author. NSW Law Reform Commission, Review of the Adoption Information Act 1990, Report No. 69, July 1992, p. viii. ibid, p. ix.

7 The ‘art’ of artificial conception 1

Report of the Committee of Inquiry into Human Fertilization and Embryology, London, HMSO, 1984, p. 63.

208 | notes to pages 103 –128

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2 3 4 5 6 7 8 9

10 11 12 13

14 15 16 17

18 19 20 21 22 23 24 25 26

http://www.tangledwebs.org.au Leon Kass, Towards a More Natural Science: Biology and human affairs, Free Press, New York, 1985, p. 114. William Walters & Peter Singer, Test-Tube Babies: A guide to moral questions, present techniques and future possibilities, Oxford University Press, Melbourne, 1982. For a very useful discussion of recent trends see Nichola Bedos, IVF and Ever After: The emotional needs of families, Rockpool, Sydney, 2007. Quoted in Eric Marcus, Is It a Choice? Answers to 300 of the most frequently asked questions about gays and lesbians, Harper Collins, New York, 1993. Quoted in The Australian, ‘Close-up: Adriana Iliescu’, 22 January 2005. See Rita Arditti, Renate Klein & Shelley Minden (eds), Test-Tube Women: What future for motherhood?, Pandora, London, 1984. Robyn Rowland, Living Laboratories: Women and reproductive technologies, Pan Macmillan, Sydney, 1992; Renate Klein, The Ultimate Colonisation: Reproductive and genetic engineering, Attic Press, Dublin, 1992. See also Renate Klein, Exploitation of a Desire: Women’s experiences with IVF – an explanatory survey, Deakin University Press, Geelong, 1989. Rowland, 1992, p. 13. ibid, pp. 302–3. Renate D. Klein (ed.), Infertility: Women speak out about their experiences of reproductive medicine, Pandora, London, 1989, pp. 6–7. Ann Pappert, The Reproductive Revolution: On the social and policy implications of reproductive technology, Ms. Magazine, New York, 1988, p. 199. See also ‘I was a teenage feminist’, Linewaiters Gazette, New York, 24 July 2002 and ‘What price pregnancy?’, Ms. Magazine, June-July 2000. Janice Raymond, Women as Wombs: Reproductive technologies and the battle over women’s freedom, Spinifex, Melbourne, 1994, p. ix. ibid, p. 208. Lorraine Hepburn, Ova-Dose: Australian women and the new reproductive technology, Allen & Unwin, Sydney, 1992, pp. 102–3. In trying to understand this diversity I was informed by Laura Martha Purdy, Reproducing Persons: Issues in feminist bioethics, Cornell University Press, New York, 1996, and Susan M. Wolf (ed.), Feminism and Bioethics: Beyond reproduction, Oxford University Press, New York, 1996. Ariel Gore & Bee Lavender (eds), Breeder: Real-life stories from the new generation of mothers, Seal, Toronto, 2001. Lisa Ikemoto, ‘Providing protection for collaborative, non-coital reproduction: surrogate motherhood and other new procreative technologies, and the right of intimate association’, Rutgers Law Review, No. 4, 1988, pp. 302–3. National Bioethics Consultative Committee report, Access to Reproductive Technology, Adelaide, 1990. David Molloy (IVF Directors Group of Australia) & Benjamin Haslem, ‘IVF battle over just 150 women’, Weekend Australian, 5 August 2000. Office of Technology Assessment, U.S. Congress, Artificial Insemination: Practice in the United States, summary of a 1987 survey, U.S. Government Printing Office, Washington DC, 1988. ‘Fertility clinics spawn baby tourism boom’, The Times (London), 18 August 2005. Research Paper produced by the Commonwealth Parliamentary Library, Canberra, 2001, p. 4. ibid, p. 28. Robert Winston, A Child Against All Odds, Bantam, London, 2006, p. 87.

notes to pages 130 –145 | 209

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27 Professor Robert Norman, Rights and responsibilities in IVF, http://www.abc.net.au/ news/stories/2007/09/03/2021897.htm 28 Robert Winston, The IVF Revolution: The definitive guide to assisted reproductive technology, Vermilion, London, 1999, p. 164. 29 Winston, A Child Against All Odds, p. 86.

8 The perils of surrogacy 1 2

3

4 5 6 7 8 9 10 11 12

13 14 15

The Australian, 7 November 2006. Susan Dodds & Karen Jones, ‘Surrogacy and autonomy’, Bioethics News, vol. 8, no. 3, 1989, pp. 6–18, p. 12 quoted. On the moral significance of a surrogate’s ‘unpredictable’ response, see Lynn Gillam, ‘Surrogacy, Autonomy and Promising’, CAPPE Working Paper No. 2002/2. Daniel Goleman, ‘Motivations of surrogate mothers’, New York Times, 20 January 1987; Hilary Hanafin, ‘Intended parents: surrogate parenting reassessing human bonding’, Center for Surrogate Parenting, Annapolis, MD, http://www.creatingfamilies.com/ IP/IP_Info.aspx?Type=106 ‘Comments on the Report on the Disposition of Embryos Produced in IVF’, response by members of the Monash University Bioethics Centre to the Social Responsibilities Commission of the Anglican General Synod, 18 February 1985. Anita Stuhmcke, ‘For love or money: the legal regulation of surrogate motherhood’, Murdoch University Electronic Journal of Law, vol. 3, no. 1, May 1996, p. 14. ibid, p. 14. Sharyn L. Roach Anleu, ‘Reinforcing gender norms: commercial and altruistic surrogacy’, Acta Sociologica, No. 33, 1990, p. 70. ibid, p. 72. Carol Pateman, The Sexual Contract, Polity Press, Oxford, 1988, p. 216. Renate Klein, The Ultimate Colonisation: Reproductive and genetic engineering, Attic Press, Dublin, 1992, p. 163 Max Charlesworth, Bioethics in a Liberal Society, Cambridge University Press, Melbourne, 1993, p. 69. See New South Wales Law Reform Commission, Artificial Conception: Surrogate Motherhood, Discussion Paper 18 (1988); D. Pretorius, Surrogate Motherhood: A worldwide view of the issues, Charles C. Thomas, Springfield, Ill., 1994; S.B. Rae, The Ethics of Commercial Surrogate Motherhood: Brave new families? Praeger, Westport, Conn., 1994; Liezl van Zyl & Anton van Niekerk, ‘Interpretations, perspectives and intentions in surrogate motherhood’, Journal of Medical Ethics, no. 26, 2000, pp. 404–409; Bryn Williams-Jones, ‘Commercial surrogacy and the re-definition of motherhood’, Journal of Philosophy, Science and Law, vol. 2, February 2002. Sydney IVF, http://www.sydneyivf.com/documents/surrogacy.pdf Report of the Committee of Enquiry into Human Fertilization and Embryology, Cmnd. 9314, HMSO, London, July 1984. Recommendations, pp. 80–86. Oliver O’Donovan, Begotten or Made?, Oxford University Press, New York, 1984, p. 47.

9 Making parents of the dead 1 2 3

B. Simpson, ‘Making “bad” deaths “good”: the kinship consequences of posthumous conception’, Journal of Royal Anthropological Institute, no. 7, 2001, pp. 1–18. Sydney Morning Herald, 23 July 1998, p. 11. ‘Posthumous conception and the need for consent’, Medical Journal of Australia, no.

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4 5 6 7

170, 1999, pp. 53–4. Ira Levin, The Boys from Brazil, Pan, London, 1976, p. 233. Dr Helen Watt, ‘The Diane Blood Case’, http://www.linacre.org/dblood.html The Australian, 23 July 1998. C. Strong, J.R. Gringrich & W.H. Kutteh, ‘Ethics of sperm retrieval after death or persistent vegetative state’, Human Reproduction, no. 15, 2000, pp. 739–45.

10 Caring for children or just defying nature? 1 2 3 4 5 6 7 8 9 10 11 12

13 14 15 16

17

J. Harris & G. Testa, ‘Ethical aspects of embryonic stem cell-derived gametes’, Science, no. 305, p. 1719. Edward Grossman, ‘The obsolescent mother: a scenario’, Atlantic Monthly, vol. 227, no. 5, May 1971, pp. 48–9. Quoted in Robin Kent, ‘The birth of the male mother’, Weekend Australian, 17 May 1986, p. 15. Oliver O’Donovan, Begotten or Made?, Oxford University Press, New York, 1984, p. 48. Leslie Cannold, What, No Baby? Why women are losing the freedom to mother, and how they can get it back, Curtin University Books, Fremantle, 2005, p. 319. Margaret Somerville, ‘Talking ethics, doing ethics’, pp. 68–98 in Jonathan Mills (ed.), Ethically Challenged: Big questions for science, Miegunyah Press, Melbourne, 2007, p. 78 quoted. Frank Brennan, Acting on Conscience: How can we responsibly mix law, religion and politics?, UQP, Brisbane, 2007, p. 189. For a discussion of this trend see Melinda Tankard Reist, Defiant Birth: Women who resist medical eugenics, Spinifex, North Melbourne, 2006. ‘Narelle’s story’, in Heather Grace Jones & Maggie Kirkman, Sperm Wars: The rights and wrongs of reproduction, ABC Books, Sydney, 2005, pp. 175–76. I am aware of the High Court case involving Ms Leesa Meldrum but have chosen not to discuss it. Much has already been written about it and I have nothing substantial to add. Susan Golombok, R. Cook, A. Bish & C. Murray, ‘Families created by the new reproductive technologies: quality of parenting and social and emotional development of the children’, Child Development, no. 66, 1995, pp. 285–89. Maggie Gallagher & Joshua Baker, ‘Do moms and dads matter? Evidence from the social sciences on family structure and the best interests of the child’, Margins Law Journal, no. 4, 2004, p. 180 quoted. This research and the article from which it is drawn is cited, quoted and discussed in Brennan, Acting on Conscience, pp. 254–56. Charles Taylor, The Ethics of Authenticity, Harvard University Press, MA, 1991, p. 34 [original emphasis retained]. ibid, p. 35. ibid, p. 28. The clash between Taylor’s communitarianism and the type of liberalism he wishes to discredit is ably deconstructed in an article by Stephen Mulhall & Adam Swift, ‘The social self in political theory: The communitarian critique of the liberal self ’, in David Bakhurst & Christian Sypnowich (eds), The Social Self, Sage, London, 1995, particularly pp. 110–14. Taylor is not, of course, without his critics. His advocacy of classical ‘negative liberty’ – that the only coherent idea of liberty is a negative one of being unconstrained – within a communitarian framework has been criticised most strongly by Quentin Skinner (in Richard Rorty, J.B. Schneewind & Quentin Skinner, Philosophy in History, Cambridge

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18 19 20 21 22

23 24 25 26 27

University Press, Cambridge, 1984), who argues that the notion of connecting the concept of ‘individual liberty with virtuous acts of public service (which he says Taylor does in ‘What’s wrong with negative liberty’ in A. Ryan (ed.), The Idea of Freedom, OUP, Oxford, 1979, p. 193) … is a mistake’. Skinner’s criticisms here, and his general philosophical approach to social realities as expressed in a much earlier work, ‘Social meaning and the explanation of social action’, chapter 6 in Peter Laslett, W.G. Runciman & Quentin Skinner, Philosophy, Politics and Society, Basil Blackwell, Oxford, 1972, deprive Taylor of a coherent structure for his discourse of both self and social meaning by linking, in a Machiavellian sense, civic duty and self (and selfish) interest. Taylor’s defence of what he contends is his philosophical realism is offered in the essay ‘Philosophy and its history’ in Richard Rorty et al (eds), Philosophy in History, pp. 17–30. Taylor, The Ethics of Authenticity, p. 34. Charles Taylor, The Sources of Self: The making of modern identity, Harvard University Press, Cambridge, MA, 1989, p. 27. ibid. H.J. Sants, ‘Genealogical bewilderment in children with substitute parents’, British Journal of Medical Psychology, no. 37, 1964, pp. 133–41. Erik Erikson, Identity: Youth and crisis, Norton, New York, 1968. One of Erikson’s dimensions for viewing the development of a person’s identity is the psycho-historical that relates to their sense of genealogy, i.e. the sense of continuity linking the various stages of life common to all people. The importance of this concept for adoptees in search of their origins is described by A.D. Sorosky et al, The Adoption Triangle, Anchor Press, New York, 1978, p. 14. See Peter Berger, Invitation to Sociology: A humanist perspective, Anchor, New York, 1963, p. 70. I.T. Ramsey, ‘Human personality’ in I.T. Ramsey & R. Potter (eds), Personality and Science: An interdisciplinary discussion, Churchill Livingstone, Edinburgh, 1971, p. 128. Sir Alec Guinness, Blessings in Disguise, Hamish Hamilton, London, 1985, p. 1. ibid., p. 224. ibid.

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Index

Abbott, Justice Henry 186 abortion 16-7, 91-3, 103, 138, 140, 152, 155-6, 159, 181, 190 Abortion Act UK (1967) 91 ACCESS 163 Access to Reproductive Technology 142 A Child Against All Odds 56 adoption 15–6, 18, 55–60, 64, 70, 83, 86–103, 104, 106–7, 109, 113–4, 120, 135–6, 152, 180, 191–2 children at risk 108, 147 information 112, 118–9, 131 laws 98, 102, 116 open 115, 116–9 overseas 93–7 same-sex couples 93, 97–103, 191 secrecy 112–3, 114, 199 Adoption Information Act NSW 117–8 Adoption of Children Act NSW (1965) 109 Anleu, Sharon Roach 153 Arndt, Bettina 106–8 ART 83, 119 access 142, 144, 146, 190 cost 32, 133, 144–7 ethical issues 124, 136, 144, 146, 182, 185 health risks 136 legal dilemmas 133, 185 legislation 17, 72, 82, 137 multiple births 133 state interference 71, 82, 141, 195 state provision 64, 67–8, 71, 82, 133, 145–7, 194 artificial womb 183–4

A Search for God in Time and Memory 52 Australian Institute of Health and Welfare 107, 135 Australian Women’s Research Centre 138 Baker, Joshua 192 Baldwin, James Mark 46 Behaviourism 46 Belk-Schmehle, Andrea 13 Bergson, Henri 199 Berkeley, George 52 Biblical references 1 Corinthians 13 28 Genesis 1 28 Genesis 2 28 Hebrews 29 bigamy 8–9 Bioethics in a Liberal Society 67 biosocial society 14 Blackford, Russell 71–5, 77–9, 81 Blankenhorn, David 38 Blessings in Disguise 201 Blood Diane 170 Stephen 172 Boss, Peter 112 Brave New World 132 Breeder: Real-Life Stories from the New Generation of Mothers 141 Brennan SJ, Frank 100–1, 187 British National Council for One Parent Families 93 Brown, Louise 11, 132, 137 Buzzanca

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Jaycee 157 John 157 Luanne 157 Byrd, Dean 109 Callahan, Daniel 39 Cannold, Leslie 185 Charlesworth, Max 67–9, 71–3, 78–9, 81, 155–6 Child Welfare Act NSW (1923) 88 Cicero 189 Clausen, Clara 110 Concerned United Birthparents (CUB) 93, 117 Confessions 54 contraception 140 pill 137 Convention on the Rights of the Child (UN) 35–6, 38 Crick, Francis 48 custody arrangements 42 Darlington, Cyril 49–50 Darwin, Charles 45 Death by Adoption 92 Declaration of the Rights of the Child (UN) 35–6, 191 Deboer Jan and Roberta 110 Jessica 110 Despoja, Natasha Stott 163 Devlin, Lord Patrick 7–8 Dill, Sandra 163 Dobzhansky, Theodore 50–1 Dodds, Susan 152 donor conceived (DC) children 109, 115, 119, 126–8, 130–1, 188, 190, 196, 200 citizenship rights 143 Dunne, John S. 54 Eighth International Congress on Human Rights (1991) 51 embryos 138, 143, 149, 157, 190 donation 132, 190 export 162 frozen 131, 122, 143, 173 Emile 22 English, Brian 34 Erikson, Erik 196, 198–200 ethics 10, 64

of ART 18, 124, 136, 144, 146, 182, 185 of abortion 16, 104 contract 6 consequentialist 6 deontological 6 insights 22 virtue-based 6 European Convention on Human Rights 134 European Court of Human Rights 134 Evans, Natallie 133–4 Experiences of Donor Conception 56 Exploding the Gene Myth 50 families 29–32, 37–8, 45, 68–9, 83, 100, 111 adoptive 95, 113, 128 blended 42 environments 49 formation 71, 137, 155–6, 166, 186, 192, 194 nuclear 42 ‘right to children’ 32 same-sex 42, 99, 183, 192 single parent 42, 70, 101 Family Law Act 102 Family Law (Same Sex Adoption) Bill 102 Fatherless America 38 fertility 16 fertility clinics 56, 131, 133, 143–5, 150, 185, 193–4 Concept Fertility Centre (WA) 175 Sydney IVF 59, 161, 173 Fisher, Geoffrey 128 Fitzgerald, Ross 58 Freeman, F. N. 47 Freud, Sigmund 47 Gallagher, Maggie 192 Galton, Sir Francis 45–6 gamete donation 125, 129, 134, 143, 157 ethics 130 Gay and Lesbian Rights Lobby 98, 100–1 genetic inheritance 45, 47, 54, 58, 117, 188 information 56, 60, 62, 115 DNA 48 Giving Sorrowing Words 104 Golombok, Susan 56, 192

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Gore, Ariel 141 Guinness, Sir Alec 201 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 94 Hart, H.L.A. 7, 8 Hart-Devlin debate 7, 8 Hebb, Donald 47 Hepburn, Lorraine 140 Hereditary Genius 46 Holzinger, K. J. 47 Homes, A. M. 57 homosexuality 8 couples 98, 134, 186 lesbians 38, 42, 137, 142 marriage 100 Howell, Peter 109 Human Fertilisation and Embryology Act (1990) 39 Human Fertilisation and Embryology (Deceased Fathers) Bill (UK) 179 Hubbard, Ruth 50 Hume, David 21, 52 Huxley, Aldous 132 Ikemoto, Lisa 141 Iliescu, Adriana 134–5 illegitimacy 87–88, 91, 115, 179 ex nuptial 93, 114 impotence 12 incest 8, 59 individualism 29, 30, 68 modern liberal society 72 infertility 12, 34, 69–70, 86, 91, 97, 103, 139, 142, 145–6 business/commercial 17 circumstantial 16 female 13, 16, 131, 140 male 12 primary 14 social 15–6, 133, 137, 143–4 sterilisation 32 therapies 145 Infertility Treatment Act Vic (1995) 131, 171 inheritance rights 116, 146, 179 ‘Inquiry into the adoption from overseas’ Aust. Federal Parliament (2005) 97

interests of children 7, 11, 18–9, 22, 35–7, 39, 42, 44, 59, 62, 67, 69–70, 83, 97, 100, 102–3, 106, 130, 147, 185, 190 adoption 100, 102–3, 106–7, 114–5 posthumous parenthood 180 state jurisdictions 67, 73, 82 obligations 71, 81, 108 surrogacy 75–6, 81, 155–6, 160, 166–7 James, D. N. 70 Jansen, Robert 59, 163, 173 Joe, Barbara 96 Johnston, Howard 133–4 Jones, Heather Grace 38 Jones, Karen 152 Kane, Elizabeth 154 Kant, Immanuel 52 Kass, Leon 132 Kirkman, Linda 151 Klein, Renate 39, 138–9 Kornitzer, Margaret 55 Kuhse, Helga 173, 180 Landers, Ann 27 Lavender, Bee 141 Law Liberty and Morality 8 legal moralism 7 rights 33 legislation 58 ART 17, 72, 82, 137 Levin, Ira 175 Lewis, Meg 95 Life of Brian 33 Living Laboratories: Women and Reproduction Technologies 138 Locke, John 52 Lorbach, Caroline 56 MacLennan, Margaret 128 MacLennan, Ronald 128 MacRae, Lee 95 McCabe, Stephen 179 McKusick, Victor 51 Making Babies: Is There a Right to Have Children? 33 marriage 14, 16, 25, 27, 32, 128 childless 87, 94–7, 107, 130

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right to children 32, 185 Marriage Act Cth (1961) 102 Marriage and Morals 37 May, Elaine Tyler 13 Mays, Kimberly 110–1 Mays, Robert 111 Mill, John Stuart 8, 66, 72 Mill on Liberty 77 Montgomery, Bob 44 morality 8, 9, 37 morals 7, 8 consensus 9 dilemmas 18, 78 diversity 6 issues 33 judgement 21, 51 lessons 22 relativism 10 state responsibility 64–5

127, 130, 149, 156–7, 168, 187, 189, 198 gestational 149 male 37–41, 44 responsibilities 67 social 112, 149, 196, 198 Pateman, Carol 154 paternalism 9, 69, 71–3, 75–8, 80–1, 113, 195 paternity 19, 36–7, 61, 144, 177 Peacocke, Arthur 51 Penrose, Lionel 50 Pew Research Center 27 Piaget, Jean 47 Plomin, Robert 48–9, 52 political correctness 10 polygamy 70 Popenoe, David 41–2 protectionism 69, 71, 76, 79–80

National Bioethics Consultative Committee 142 National Coalition Against Surrogacy 154 Nature, Nurture and Psychology 49 Newman, H. H. 47 NSW Department of Child Welfare 6, 89, 90 NSW Law Reform Commission 109, 118 Norman, Robert 145

‘Question of Life’ 33

O’Donovan, Oliver 163, 184 O’Keefe, Justice Barry 171 organ donation 173–4 On Liberty 66 On the Origin of Species 45 Orr, Deborah 135 ovum donation 129, 134, 143, 149, 184 Pancoast, William 125 Pappert, Ann 139 parenthood 35, 37 posthumous 3, 20, 83, 137, 168–182, 190 birth certificate 178–9 ethical concerns 171, 176–7, 179– 81 parenting 68, 100, 110 arrangements 36, 41–2, 62, 70–1, 83, 92, 147, 156, 186, 191–4 biological 44, 54–61, 76, 100, 111, 119,

Ramsay, Ian 200 Raymond, Janice 140 Reed, Candice 133 Reist, Melinda Tankard 104 reproductiive relationships 176 rights 32–4, 67–9, 185 tourism 142–3, 151 Roman Catholic Church 126, 132, 190 Rousseau, Jean-Jacques 22, 54 Rowland, Robin 138–9 Royal Commission on Human Relationships – Final Report 97 Russell, Bertrand 37–8 Ryan, John 92 same sex adoption 97–103 parenting 7, 20–1, 33, 42, 98–102, 165, 183 Samuels, Andrew 38 Sant, John 199 Sartre, Jean-Paul 54 Sawyer, Joss 92 Schmidt, Dan 110 Seymour, John 11 Shultz, Julianne 29 Siebert, Roberta 115 Silber, Kathleen 113, 117

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Singer, Peter 12, 132, 152 single parents 42, 71, 142, 165, 178, 180 Sisely, Diane 35 Snarey, John 40 Snell, Pamela 157 Social Contract 22 Social and Ethical Interpretations in Mental Development 46 Somerville, Margaret 10, 100, 187 Sorich, Christie 115 Speedlin, Phylis 113, 117 sperm donation 36, 38–9, 42, 55–6, 98, 125– 6, 129, 131, 134, 142, 149, 151, 163, 190 payment 128 privacy 36, 39, 56–7, 59 freezing 125 screening 144 storing 175 Sperm Wars: The Right and Wrongs of Reproduction 99 Stuhmcke, Anita 153 surrogacy 20, 139–40, 149–6, 165–7, 190 abortion 158 commercial 64, 69, 71–2, 75–6, 78–81, 143, 153–4, 157–162, 164 commissioning couples 76, 150, 154, 157–61, 164–6 ethical issues 151, 153–4, 157, 160–1, 164 government enquiries 162 guidelines 150, 164–5 mother 76, 149–53, 160–1, 164 Survey of Australian Social Attitudes (2003) 30 Sykes, Alan 59 TangledWebs 34, 36, 130 Taylor, Charles 196–200 Ten, C. L. 77 Test-Tube Babies: A Guide to Moral Questions, Present Techniques and Future Possibilities 132 ‘The Adopted Children Syndrome: fact or fallacy’ 109

The Birthparents’ Perspective 117 The Boys from Brazil 175 The Enforcement of Morals 7 The Ethics of Authenticity 196 The Facts of Life 49 The IVF Revolution 56 The Morality of the Criminal Law 8 The Sources of Self 196 The Ultimate Colonisation: Reproductive and Genetic Engineering 139 The Words 54 Treatise on Human Nature 21 Trigg Arlene 111 Ernest 111 Regina 111 Triseliotis, John 109 Trounson, Alan 184 Turnpenny, Peter 49 United Nations General Assembly (1959) 35 Universal Declaration of Human Rights (1948) 32, 100 Utah Law Review 39 Victorian Equal Opportunity Commissioner 35 Wald, Elijah 50 Walters, William 132 Warnock, Mary 33–4 Warnock Committee 127, 163 Watson, J. B. 46 Watson, James 48 Watt, Helen 177 welfare child 67 payments 30, 31 single mothers 17, 88, 91, 168 Wheatley, Lord Justice 128 Winston, Lord Robert 12–3, 56, 146 Wolfenden Committee 7 Women as Wombs 140 Woodworth, Robert Sessions 47 Wright, Stuart Pearson 57

index | 217

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