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Moralism and Reproduction: Ten Infringements of Liberty

One of the great success stories of British science in the last 30 years was the introduction of In Vitro Fertilisation by Steptoe and Edwards in 1978. They should have won the Nobel Prize. Around 3% of babies are now born after IVF. Testing of and experimentation on early human embryos offers great prospects for improving not only the health of the next generation but how well their lives go. Today, a wide variety of genes which cause or contribute significantly to disease can be tested. Soon, it will be possible to test for all the genes an embryo has and choose embryos which start life with the least prospects of disease and greatest range of talents, abilities and capacities. And IVF has allowed individuals and couples to have children in new ways, expanding procreative liberty. Experimentation on embryos is yielding important knowledge of human development and contributing to the development of regenerative medicine, or stem cell therapies.

Assisted reproduction, including embryo testing, and research involving the embryo has been controlled by the Human Fertlisation and Embryology Authority (HFEA). I recently wrote an evaluation of the performance of the HFEA. I argued that the HFEA was set up on the wrong premise: the embryo was said to have a special moral status. Regulation should be set up on the basis of preventing real, tangible and direct harm. Destroying some embryos but not others is not an example of preventing harm. Secondly, it has operated to enforce public morality, imposing moralism not preventing harm. This was kind of objectionable moralism that was employed by Lord Devlin to justify a ban on homosexuality. Thankfully, HLA famously disposed of that bad justification, at least in the case of homosexuality. Moralism, however, has been alive and well in the case of reproduction.

Here are some examples:

  1. Only allowing genetic testing for major genetic disorders and not minor genetic disorders
  2. Not allowing genetic testing for the genetic dispositions to talents, capacities, abilities
  3. Not allowing testing for sex, except to detect major sex linked conditions. Sex is not even divulged when it has been tested as a part of testing for genetic disorders. The doctors know but the parents don’t!
  4. Not allowing testing for carrier states.
  5. Not allowing gay or single people to use assisted reproduction.
  6. Setting age limits for the use of assisted reproduction
  7. Not allowing freezing of eggs or embyros for lifestyle reasons, such as delaying child bearing for career reasons.
  8. Not allowing the creation of savior siblings.
  9. Not allowing people to use gametes or embryos of people who have died.
  10. Restricting the methods of creation of embryos for research which will be destroyed.

This is just a list off the top of my head. I am sure there are others. But 10 is such a nice round number. The HFEA has limited liberty in all these ways, at one time or another. In most of these cases, it still adopts a moralistic, liberty-infringing position.

Regulatory bodies like the HFEA were set up in part to reassure the public that technology was not moving too fast. The first regulatory body, the Infertility Treatment Authority, was set up in 1984 in my own state of Victoria. It has functioned in the same moralistic way as the HFEA. Interestingly, the neighbouring state, NSW, never set up a regulatory authority. It has continued to function perfectly well. Indeed, for a period, Sydney IVF even offered sex selection before the weight of oppressive conservative moral norms effectively shut that down.

Do we need regulatory authorities like the HFEA to reassure the public at times of rapid technological change? Technology in so many areas, biotech, nanotech, information tech and the neurosciences is now developing at an exponential rate, far faster than ever before. It is simply impossible to set up regulatory authorities as a measure of reassurance. And historically, as the HFEA has shown, they serve as conservative moralistic brakes or shackles.

We need to rethink the relationship between regulation and technological change. I hope that the end of the HFEA is the end of moralistic regulation. We need to focus our limited resources on preventing serious harm through the premature introduction of unsafe technology or the misuse of powerful technology to harm people.

In that opinion piece, I argued there is a need to curtail liberty in the employment of the new reproductive technologies but it should use principles that minimize harm, different to those which have been employed by the HFEA.

Firstly, interventions should be reasonably safe. One thing the HFEA should have done was require audit and follow up of every baby born by IVF to evaluate the long term safety of this procedure. This was not done and so we don’t today have as comprehensive safety data as we could have had on IVF or PGD.

Secondly, we have a responsibility to ensure that exercise of individual liberty does not cause direct harm to others.  For example, parents should not be free to choose in favour of psychopathic or extremely aggressive tendencies (should these be identified), no matter how great the benefit to the child produced.

Thirdly, public access to technology should be distributed according to principles of justice. This however, should only apply to whether to procedure is publicly funded. It should not prevent citizens exercising their liberty to pay privately for procedures which are safe and don’t harm others.

Moral disapproval is a poor basis for legislation and regulation. Our regulatory authorities should focus on preventing clear examples of harm. Protection is what we should expect from our public institutions, not moral approval.

See also: Can Liberals Support a Ban on Sex Selection?

Solving the Puzzle of the Moral Status of the Embryo and Fetus

Nazi Eugenics Returns to Germany: The Paradox of Eugenics

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3 Comment on this post

  1. As to restrictions on Liberty through regulation resulting from Moralism: (1) not all restrictions on Liberty are bad in a free society. Examples that don't involve direct harm to others include restrictions on acts that harm the environment beyond some tolerable level, and incitement to riot. (2) Moralism, which refers to insistence on the relevance of morality to actual situations, lies at the base of many prohibitions on Liberty we generally accept as right. In Julian's post, the relevant moral goals of the prohibitions seem to be discouraging abortion (although no. 9 would encourage abortion, which, to some, includes killing gametes or embryos); preventing the execution of sexism; preventing children from being raised in suboptimal homes (i.e. homes in which there is not a female and a male parent). I suspect no. 7 is sort of related to preventing raising children in suboptimal homes (parents too old?) and discouraging abortion (parents change their minds about having the child). Where the underlying morality is seriously contested in the particular social system, the adoption of the prohibition would exacerbate social divisions reduce discussion of social policy to politics,

    One point about "harm" to "others" that, I think, Julian has missed: these terms are often, themselves the product of a particular stance that might be called "moral". Is a foetus an "other" that is "harmed" by abortion? Am I "harmed" by official acceptance of activities that I abhor and hold to violate the laws of my god? or by the prohibition of such conduct, when if affects my sense what a liberal society should be like? What counts as "directly" may also depend on how much we think people ought to be protected in their daily lives from the acts of others that might affect the value of their property or their access to important information.

    As to the value of restrictions on Liberty to a liberal society: Many restrictions are based on mistakes of fact, including mistakes as to efficacy. Denning's attitude re prohibition on homosexuality rests on both kinds of error. He assumed that person freely chose to be homosexuals and could stop, and he assumed that such a prohibition would be efficacious. Where there is substantial disagreement as to the reasons for the prohibition, and the rightness of those reasons, the prohibitions may be harmful socially by exacerbating social divisions. The prohibitions may be easily enforceable with respect to person providing the relevant service as a business. On the other hand, prohibitions of desired services often yield black markets, which are hard to suppress and provide services at very high cost, and great riskiness to the health and life of the person receiving the services.

    Take prohibition number 3, which is directed at preventing sex-selection through abortion or fiddling with genes. On reflection, we might approve of such a prohibition, even if we don't disapprove of abortion, because of the social consequences of serious imbalances in the ratio of males to females. Chance would be expected to yield a tolerable imbalance. But this may be a service that is very much in demand, which gives rise to black markets and the attendant dangers to the woman.

    In short, in a liberal society, the limitation of Liberty is inevitable. The term, Liberal and the term Society are in tension with one another. There is a fascination in Western culture, and probably all other cultures, with death, sex, reproduction and child rearing. It is not surprising that such cultures include general norms that deal with such matters and give rise to regulation of conduct covered by such norms. It is therefore futile to argue against moralism in legislation, especially with respect to such matters. Drawing the line around protected liberties is easy for a homogeneous population. As things get contentious, for me (a child of the West) the best approach is to limit legislation to rules that solve serious coordination problems, define and protect private property, and minimally further commerce.

  2. Michelle Hutchinson

    While I entirely agree with your insistence that public policies should be concerned with the harm caused by technologies, I do not quite understand the reasoning behind your delineation of which harms we should and should not be concerned with. It seems likely that small amounts of harm are the possible result of almost all policies, and hence that some limitation on which harms to include in consideration – only those likely to occur and which would be bad enough if they did – are important (hence perhaps the qualification of “real” and “tangible” harms). However, the limitation to “direct” harms does not seem equally necessary, or reasonable. In many cases, indirect harms are more difficult to predict than direct ones, and may be less severe. But those do not seem to be intrinsic features of indirect harms. For example, someone goes to their doctor saying that they are extremely depressed, that they have tried counselling and anti-depressants, but they just have nothing to live for. The doctor therefore prescribes a painless, lethal drug, enabling the person to commit suicide. Many will think that the direct harm in this case is very small. However, the actions of the doctor are made public, and it causes everyone who suspects one of their relations or friends of being depressed great anxiety, since it seems to make suicide much easier. This seems to be a case where the indirect consequences of the doctor’s actions are very bad, and relatively foreseeable. This indicates that it may be important to consider the indirect, as well as direct, consequences of policies.

  3. I very much share Dennis's and Michelle's views here. Actually I'm not entirely sure what Julian means by the term "moralist": it looks rather to me like one of those irregular nouns (I'm ethical, you're a moralist, he's a hypocrite). Clearly in order to decide what "harm" is being done in the case of abortion or embryo research we need first to have clarified the moral status of the embryo concerned, otherwise we have an obvious circularity. And as Michelle implies, "harms" are not necessarily less serious or worthy of being regulated away because they are "indirect".

    Dennis's point about "liberty" and "society" being in tension is a crucial one, although admittedly one that Julian appears to accept himself – after all he's not saying there should be no regulation at all. Personally I would not be quite so "small government" – I think there are other reasons to regulate than to "solve serious co-ordination problems, define and protect private property and minimally further commerce", and I think cultural norms and preferences play a legitimate role in influencing just where we strike the right balance. Surely the important thing is to ensure that whatever decisions are made are based on a vibrant but not-too-polemic political discourse in the context of a properly functioning democracy that avoids too much power being concentrated around unaccountable élites.

    That being said, quickly scanning Julian's list of "infringements" I'm inclined to share his view that many of them appear to be based on "moralistic" attitudes that seem difficult to justify unless one is bothered by worries about "playing God" or infringement of (non-utilitarian) rules that are considered sacred or inviolable. For example, even if a fertilised egg has moral status it's not clear why "freezing" it would be harmful. I think it's useful to highlight such examples since this may help us to iron out some unintended (or at least poorly justified) inconsistences in our approach to these issues.

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