Throwing the Baby Out With the Amniotic Fluid
Not All Reproductive Choices are Morally or Legally Equivalent
When assisted reproductive technologies (charmingly, ARTs) first came on the scene, some conservatives recoiled at the thought of separating sex and procreation, and insisted that there is wisdom in such repugnance. Some on the far left saw ARTs as so threatening to women, especially lower socio-economic women and women of color, that they agreed with the right that at least some ARTs should be legally prohibited. But most on the left generally defended ARTs, rightly decrying the “yuck factor” as an acceptable form of “argument,” and engaging in a fair amount of hand-wringing over the social justice and other issues, but ultimately declining to engage in what seemed like paternalism. Such moderate liberals won the day, and ARTs are now a multi-billion-dollar—and almost wholly unregulated—business. There has always been much for liberals to complain about with respect to this business, of course, but by and large liberal bioethicists have moved on to other things, and many ARTs, like in vitro fertilization, are now ubiquitous, and even quaint.
Put simply, not all reproductive choices are morally or legally equivalent.
Every once in a while, though, something truly bizarre occurs in the ART world, and when it does, the sense of anxiety on the left is almost palpable. That anxiety is doubled, especially among feminists, when the object of ethical concern is not so much the women involved as the prenatal life they carry. Part of what may fuel this discomfort is a lack of specificity in arguments about reproductive rights. Put simply, not all reproductive choices are morally or legally equivalent. One important distinction that may seem obvious, but is not made often or clearly enough by either ethicists or lawyers, is that between decisions to procreate and decisions not to procreate.
Witness, for instance, the liberal feminist reaction to Nadya OctoMom™ Suleman (about whom as little as possible will be said here; readers who have been living in a cave or trapped under something heavy for the past few months and wish to learn more of her exploits may do so, well, almost everywhere). Everyone agrees that the result in this case—fourteen children under the age of eight, including eight premature newborns, some with disabilities and others statistically expected to develop them, being raised by a single, unemployed parent already dependent on food stamps who lives in a three-bedroom, pre-foreclosure house with her unsupportive mother—is, to put it mildly, not one that anyone should attempt to replicate.
Yet while few like the substance of Suleman’s choice, many on the left were among the quickest to defend her right to make it, arguing—sometimes vehemently—that it’s none of our business what she does with her body. Of course, others on the left did criticize Suleman’s choice, and when they did, they were accused, whether with scorn or glee, of being traitors to the cause. For instance, when Pulitzer Prize-winning syndicated columnist Ellen Goodman, who had only months earlier lamented the stigmatization of women who have abortions, suggested that Suleman’s decision was “close to mal-mothering,” “more than an individual decision,” and “nuts,” feminists and conservatives alike implied that Goodman was engaged in hypocrisy of the highest order.
(One might have expected more I-told-you-so’s from the anti-choice crowd, except that the fact that Suleman got into her predicament precisely by choosing life made it rather awkward for pro-lifers to use her as an example of the inappropriateness of the choice framework for thinking about reproductive freedom. On the other hand, the fact that her children face daunting health challenges and will almost certainly cost society millions, not to mention the notable absence of a husband, makes her a poor poster child for the pro-life, fiscal conservative or family values crowds. Indeed, the right has experienced its own, equally fascinating anxiety over how to respond to Suleman.)
Underlying the left’s anxiety over L’Affaire OctoMom™—and the right’s corresponding delight—is a shared assumption that all reproductive freedoms rise or fall together, such that supporting, say, state regulations restricting the number of embryos that may be transferred into a woman’s uterus is tantamount to supporting a return to the days of back-alley abortions. As one of the more eloquent commentators put it:
If, as feminists, we can argue that women have the right to choose to have an abortion, then the right to choose motherhood should be equally validated; furthermore the right to privacy extends to Ms. Suleman’s decision as well. Choice does not only involve abortion, it also extends to actively seeking to reproduce. While we may feel dismay at the number of children Ms. Suleman has conceived, the moment we begin to question whether she had the right to make this decision, we invalidate the argument that reproduction is a private issue and that a womans [sic] body should at all times be under her control. We do not have the right to place a limit on when female agency ends.
Although I think that this anxiety must ultimately give way, for reasons I discuss below, it is hardly the product of mass paranoia on the part of the left. Conservatives have indeed hijacked events like the Suleman drama to attempt to define back personhood to the embryonic stage as part of their “winning strategy” to erode Roe v. Wade.
Back Doors to Back Alleys
For instance, Republican senators in Georgia introduced legislation drafted by the pro-life Bioethics Defense Fund, with the help of Georgia Right to Life and the anti-ART National Catholic Bioethics Center, in direct response to the Suleman fiasco. Proposed Senate Bill 169 purportedly aimed to limit the number of embryos that could legally be transferred into a woman’s uterus, thereby “protect[ing] the mother and child” resulting from IVF. However, as suggested by its title, the Ethical Treatment of Human Embryos Act had nothing to do with the welfare of either women or the children who result from IVF, and everything to do with protecting embryos as such—as well as reducing the overall use of ARTs.
The proposed bill did restrict to two or three (depending on maternal age and, irrationally, whether the embryos were created from the gestating woman’s own eggs) the number of embryos that could be transferred into a uterus. But it also provided that no more than this number be created in the first place, such that the many women whose first trials of IVF fail to produce a term pregnancy must endure the risky hyperovulation process again rather than the standard procedure of creating as many viable embryos as possible the first time and cryopreserving the untransferred ones for possible future use. And if doctors fertilize the maximum number of eggs permissible under the bill (two or three) to increase the chance that at least one of them will be viable, and then all of them turn out to be viable, the bill ironically implies that all embryos must be immediately transferred into the woman—precisely what Suleman chose to do. While triplets (assuming that none spontaneously twin, as did two of Suleman’s embryos) are not as dangerous as octuplets, such multiple gestations do carry significant risks for both mother and children.
Moreover, along the way, the bill also managed to outlaw therapeutic cloning and stem cell research and, depending on how one interprets its language, prohibit or severely restrict a host of what might be viewed as some of the ickier ARTs, including IVF using donor gametes, surrogacy, and IVF for fertile individuals who use it in combination with preimplantation genetic diagnosis, or PGD, to avoid passing on certain genetic conditions to their offspring. Perhaps most striking, the bill provided that fertility specialists owe a “high duty of care” to embryos—which were defined to include prenatal life at the single-cell stage—and required courts to use a best-interests-of-the-embryo standard in resolving any dispute among any parties regarding an embryo. Amid criticism from, among others, the leading professional society for practitioners of ART and a prominent infertility advocacy group, the bill was substantially defanged. The amended version, which passed the Senate and is now pending in the Georgia House, prohibits therapeutic cloning and the creation of embryos for stem cell research (and possibly PGD); the provisions aimed at protecting the mother and child from the risks of high-order multiple gestations, which supposedly animated the bill in the first place, are nowhere to be found.
So the anxiety on the left is understandable. But while there is clearly reason to fear that the right will use any attempt to limit one aspect of reproductive freedom as a backdoor to eroding Roe v. Wade, progressives have an opportunity to reject the oddly unquestioned assumption, shared by many on both the left and right, that reproductive freedom is one monolithic right, a constitutional on/off switch.
Although many on the left are committed to the view that embryos and fetuses (perhaps until relatively late in pregnancy) are not persons or otherwise the kinds of entities that have interests of their own that merit independent protection, decisions to procreate are decisions to bring such persons into existence. Because what occurs during pregnancy, and even prior to pregnancy, can significantly affect the long-term interests of those future persons, parental moral responsibilities arguably kick in not at birth, but whenever the woman decides to bring a pregnancy to term—that is, decides to become a parent.
Women and their procreative partners have no more right, under the banner of privacy, to engage in actions that unduly harm children than men have under the same banner to subject women to domestic violence and “marital” rape. To be clear: The intentions and, often, background circumstances of women who make irresponsible procreative decisions are usually very different from those of men who sexually and physically abuse women. But in both cases, the notion that there is a moral or legal right to be let alone to harm others is equally unsound.
Of course, if not all reproductive decisions are morally or legally equivalent, neither are all regulations of procreation. A nearly infinite number of decisions parents make before, during, and after pregnancy potentially affect their children, and while we expect parents to make some sacrifices for their children, we do not expect—or even wish—them to be self-abnegating saints. Regulations should not require otherwise, though determining the difference between reasonable parental responsibility and unreasonable sacrifice may not be easy. Moreover, history has shown that regulations of procreation may infringe bodily integrity, be based on pseudo-science, and ultimately serve as little more than a pretext for various prejudices. Other regulations may implicate the First Amendment’s Free Exercise Clause. It may even be that the law is generally too blunt an instrument to feasibly effect our goals of ensuring responsible procreation.
But to say that state regulation of procreation is often or even always a bad idea as a matter of policy is not to say that individuals have either a moral or legal right to procreate in any way they choose, without regard to the welfare of the resulting children or other third parties. As long as we continue to think of decisions not to bear children as on a moral and legal par with decisions to bear children, it will be difficult for progressives who wish to criticize practices like nonmedical trait selection (including sex selection), posthumous procreation, reproductive cloning, genetic enhancement and diminishment, and germline genetic modifications to do so without undermining their likely commitment to the rights to contraception and abortion.
Even if the best policy position is that the state should engage in little or no regulation of procreation, the law has an important expressive role to play in shaping societal mores. This is especially so in the context of substantive due process jurisprudence—the area of constitutional law that governs the rights to contraception and abortion as well as any right to procreate—where the law explicitly tracks social mores. Most courts and legal commentators to have addressed the matter assume that the U.S. Constitution protects a “right to procreate.” Although, under the best reading of existing case law, this is arguably an open question, eventually a law will be passed that infringes on the purported right to procreate, someone will mount a constitutional challenge to that legislation, and the Supreme Court will be squarely confronted with this question. It is thus crucially important that progressives start shaping moral discourse by distinguishing between the firmly established (if ever-threatened) right not to procreate and any right to procreate.
For those tired of discussing OctoMom™, then, take heart: This isn’t really about her. It’s about the next person’s procreative decision to spawn national outrage, the next proposed piece of reactionary legislation, and whether the left and the right will collectively succeed in forcing the Supreme Court to make an all-or-nothing choice in the area of reproductive freedom. Given the current composition of the Court, that’s a(nother) choice progressives should be wary of.
Michelle N. Meyer is a Greenwall Fellow in Bioethics and Health Policy at the Georgetown University Law Center and the Johns Hopkins Berman Institute of Bioethics, an Institute Fellow at the Nelson A. Rockefeller Institute of Government, and Associate Faculty of the Union Graduate College–Mt. Sinai School of Medicine Bioethics Program. The views expressed here are hers alone.
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