The Australian Family, July 2002, p. 13
Ethics And Fertility Treatment
Dr Joe Santamaria is a former National President of the Australian Family Association.
Late last year a furore developed over the question of changing the guidelines for infertility treatments in Victoria. A feature article appeared in the Herald Sun on Wednesday, November 14, 2001, in which it was reported that radical new guidelines would be approved by the Infertility Treatment Authority to allow for "psychological infertility" as an acceptable diagnosis for access to publicly funded infertility services.
The writer stated that the Authority was encouraged by the State Minister for Health to add this indication to the Guidelines without debate in the Parliament; this was on the pretext that such a change was necessary to bring the Victorian legislation into line with a decision of a Federal Court judge. The judge had declared that the existing legislation was in violation of the Federal Antidiscrimination Law and that infertile single women (and lesbians) must be allowed access to artificial insemination and in vitro fertilisation. While the Prime Minister, Mr.Howard, opposed this decision and said that he would seek to have it overturned by Federal Parliament, the Brack's government in Victoria did not appeal against the decision.
Because no-one seemed to care about the rights of children conceived by "assisted reproduction", the Australian Catholic Bishops' Conference then took the initiative. On behalf of the rights of children to be conceived in the context of having a father and a mother, the bishops sought to have the High Court of Australia quash the earlier decision. The bishops then received a "fiat" from the federal Attorney-General to guarantee their legal standing to bring such an action in the High Court. In the end, several other organizations received permission to address the High Court, such as the Federal Government, the Women's Electoral Lobby, the Australian Family Association, and the Human Rights and Equal Opportunity Commission. The High Court reserved its judgment in the matter.
In April 2002, the High Court unanimously announced that the matter raised was beyond the jurisdiction of the Court.
There are several aspects to this controversy and quite a lot of history. The rapid development of "assisted reproduction" began in the early 1980s with the hype surrounding the promotion of "in vitro fertilisation." At the time, there was a great deal of community concern about the ethics and implications of this procedure, although artificial insemination with donor sperm had been practised in several major women's hospitals for many years without much challenge. In 1982, the first Waller Committee was set up to inquire into the wide ranging implications of the new technology and in 1984, the Victorian Government passed the Infertility (Medical Procedures) Act which limited the scope of availability of such services. At the same time, the Act provided for the formation of a regulatory body popularly known as SRACI.
Ever since, the scientists have consistently sought to expand the availability and nature of assisted reproduction as well as to make research demands in this field unhampered by regulation. Such lobbying resulted in a review of the legislation and the eventual promulgation of The Infertility Treatment Act (1995). This was amended in 1997 and 2001. Under this Act, a new regulatory Authority was appointed known as the Infertility Treatment Authority, consisting of up to nine members.
Section 5 of the Act sets out the guiding principles of the legislation in a descending order of importance and application.
-The welfare and interest of any person born or to be born as a result of a treatment procedure are paramount.
-Human life should be preserved and protected.
-The interests of the family should be considered.
-Infertile couples should be assisted in fulfilling their desire to have children.
In Victoria, a licence is required to undertake the following infertility treatment procedures:
-In vitro fertilisation (IVF)
-Gamete intra-fallopian fertilisation transfer (GIFT)
-Donor insemination (DI).
Until the Federal Court decision, the Act required that these licensed services only be made available to married and defacto married (heterosexual) couples who were genuinely infertile.
The proposal that the category of the infertile include people supposedly "psychologically infertile" brought a flurry of activity. There was a backlash from the community, the Opposition and two independent members of the parliament. The Catholic Church released two scathing press statements. According to the Herald Sun (November 21), a leading lawyer advised the Victorian Government that the Federal Court judgment left the infertility requirements of the Act intact and did not in any way refer to any "psychological conditions."
The claim that a woman is "infertile" because she is emotionally or psychologically averse to having a heterosexual relationship is not recognised in the Victorian Act and is not a clinical diagnosis of infertility. It is related only to a preferred lifestyle which excludes the possibility of human conception. A poll conducted by the Herald Sun (November 16) revealed that 90% were opposed to the proposition of "taxpayer funded IVF for 'psychologically infertile' women."
In the face of these responses from the community and the legal advice of a senior counsel, the Victorian government and the Infertility Treatment Authority backed away from the radical new guidelines. The Premier was reported as saying that science was running ahead of community attitudes and legislators and the Chairman of the Authority announced that the guidelines which were in draft form were now being withdrawn altogether.
Another notable event occurred about the same time. In a talkback radio programme, the ABC interviewed an articulate young woman who has written a thesis based on a study of adults who were conceived by donor sperm insemination. The author was also conceived in this way herself. She lamented the fact that she could not trace one half of her genetic makeup because the sperm donor was protected by an agreement with the treatment centre that he would remain anonymous. Moreover she was keen to know about her half siblings. She believes that she has a right to have this information, quite apart from any psychological attachment that she may feel towards her biological father and half brothers and sisters.
On another day (November 20), the matter was aired once again. One sperm donor stated that to his knowledge he had fathered 11 such children and he was willing to meet his offspring but not to become "culturally" involved. A woman also rang who is the wife of a man who donated sperm as a student before he was married some years later. The woman was anxious about the implications for her family should her husband lose his anonymity as a sperm donor and the offspring be informed of their biological father.
Moreover she did not know if the sperm were still being used to generate more children. The host of the radio programme then talked briefly about competing rights and the commercial inducement of young university students in the 1970s and 1980s.
All this brings me back to the order of the principles set out in the Infertility Treatment Act. It is now nearly 20 years since the introduction of IVF. It is even longer for the procedure of Donor Insemination. Some of the earliest successes of reproductive technology are now adults claiming rights to their identities, to normal human relationships and psychological attachments, to a sense of kinship and of being a unique person born out of committed parental love.
Should their cry not be heard? Or does our society consider the developing child as a commodity, one that can be kept in suspended animation, disposed of if not up to our specifications, called by fabricated names to serve the interests of the scientific community or the ideology of those who reject our basic social institutions?
Has reproductive technology served to foster the institutions of marriage and family or are the scientists celebrating their control of human reproduction and their deeper penetration into the commercialisation of the human embryo? Can we just continue to expand the bank of frozen embryos and exacerbate a growing moral dilemma as the scientists press ahead and attempt to disguise what is really happening to the principles set out in the Infertility Treatment Act?
The decision (or rather the non decision) of the High Court on the rights of children who are conceived throws the whole question of Assisted Reproductive Technology back into the field of public interest and debate. It is clear that the priorities given in the purpose of the Infertilty Act are not being observed. Over the last 20 years, the scientists have exercised a powerful effect on our decision making bodies by exploiting the media through a sophisticated public relations campaign on their "achievements" in overcoming infertility whilst showing a singular disregard for the moral status of the human embryo. The high loss rate of such embryos (over 90%) is coupled with an expanding bank of frozen embryos (60 -70,000 in Australia) created by the preferred technology of superovulation. The international race to use embryonic stem cells (and to form embryos by somatic nuclear transfer) has stimulated interest in the bank of frozen embryos as a commercial commodity, disguised by the altruistic claim, as yet unsubstantiated, that their use can serve mankind better than allowing them to die.
Over the years, the scientists have obfuscated the scientific evidence to win public support and legislative approval for their ambitious ventures into reproductive medicine and research. This has been done by semantic gyrations and widely publicised "successes." Once they have gained the first foothold, it becomes difficult to dismantle their operations as the community lapses into indifference after their initial intuition has been overcome by a promise to review the outcomes.
The first claim was that the human embryo is not a person and therefore not worthy of the respect that we accord to human beings who have been born. In this assertion, the Monash Bioethics Centre under Peter Singer played a vital role, especially as the high embryo wastage rate became known. Singer's criteria for personhood were challenged as was his idea of specieism and this challenge remains on the table but carefully hidden under the mountain of public statements and widely proclaimed purity of intention that have accumulated over the years.
The second claim is that the embryo is not a person until it has passed the stage of possible twinning or the nervous system has begun to form. This too has been challenged and the challenge has not been answered.
Then came the argument that fertilisation is not achieved until about 24 hours after the sperm has entered the ovum – at an invented stage called syngamy. And so was born the concept of the "pre-embryo." However, syngamy is a term used to signify the fusion of the gametes to form the zygote, the first fully programmed cell of human development. After the sperm has entered and activated the cytoplasm of the ovum, two pronuclei form, soon to become one nucleus, with full genetic instructions.
The zygote is not a pre-embryo but the first cell in the line of embryogenesis. About 20 hours after this event occurs the chromosomes align themselves for the first cell division. This is not syngamy as biologists know it and there is no such thing as a pre-embryo. But the scientists knew that there was an intuitive repugnance to experimentation on the zygote and so invented a being somewhere between a gamete, with no moral significance, and an embryo with great moral implications.
The argument that the unwanted embryos are headed for destruction after a statutory period of storage and should be used to help mankind is a specious claim. There are several aspects to this claim. The first is why there are so many unused frozen embryos. It is due to the fact that those engaged in Assisted Reproductive Technology (ART) have never conceded that the human embryo has any moral status. To improve their poor pregnancy rates with single embryo transfer, they have hyperovulated their patients and created a bank of embryos so that they can transfer several embryos in each procedure.
Banks of frozen embryos have been justified on the basis that a woman can make several attempts at pregnancy from the one procedure of superovulation. It is not true to say that everybody has accepted this philosophy for concern has been expressed many times but rarely gains expression in the public media which is besotted with the exciting technology.
Secondly such "unwanted embryos" could be made available for "adoption" by other infertile couples rather than be allowed to succumb. It is interesting that many parents of such embryos are reluctant to give such permission as if they know that they are relinquishing their begotten child. Whilst they may have little understanding of the ethical reasoning about the moral status of the embryo, they have an intuitive appreciation that their embyo is really their child implanted in their womb. However,once created in the laboratory, these embryos have nowhere to go if they are not put into the womb of an adult woman. Such "surplus embryos" are then unable to achieve their full potential, not due to any inherent disability to do so but because they have been excluded from gaining access to the necessary environment for continued development.
Freezing such embryos therefore becomes a form of life support that is futile. Defreezing them and allowing them to succumb to the natural process of an unanchored existence is a hard moral choice but it is not of the same order as to destroy them for a so-called altruistic purpose so that scientists can harvest the living inner cell mass. It is the same principle that we apply to the withdrawal of futile burdensome treatment in the management of the terminally ill patient.
Despite what Pater Singer and his followers assert about the moral status of the early stages of human life, the human embryo is the beginning of life of a human being which is on a continuum of a long course of development that will take years to unfold. Singer's criteria for assessing the moral worth of a human being and his concept of speciesism have been described as monstrous by many who do not profess a religious belief. They do not argue from a theological viewpoint but are closer to the Universal Declaration of Human Rights and the Declaration of Helsinki on Human Experimentation.
The argument that there are 60-70,000 frozen embryos and many will be destroyed each year according to the provisions of the Infertility Act and it is therefore preferable to use them to experiment for the good of others is a dangerous "principle" to apply.
The fact is that the bank of frozen embryos grows year by year and each year "existing embryos" will pass beyond the statutory period to remain frozen. Whilst we allow the technicians and obstetricians to hyperovulate their patients in the manner that they have done for years, the issue of surplus embryos will continue to challenge our ethical standards and our political responses. A review in 3 years time is mere subterfuge to conceal an inability under the pressure of vested interests and political expediency to focus on the options now available and on the vagaries of Assisted Reproductive Technology. Once surplus embryos can be used by the scientists for experimental purposes, there is no rational argument to prevent the formation of "Dolly" embryos for experimental and transplantation purposes.
Central to the ethical questions that we must address are the first 3 guiding principles of the Infertility Act:
1. The welfare and interest of any person born or to be born as a result of a treatment procedure are paramount.
2. Human life should be preserved and protected.
3. The interests of the family should be considered.
It means that we must establish yet again the moral status of the human embryo however formed and the rights of all children to be born into a natural family, with a father and a mother joined by the marriage bond. No-one owns anybody and no one is simply an exploitable commodity; no-one can be treated like a slave. No-one can give permission for a human embryo to be destroyed for speculative altruistic purposes. The scientific imperative is subject to the rights of each person to live and to the integrity of the social institutions that underpin a human society.