The Nathaniel Centre

Potential and Actual Persons

Alberto Giubilini and Francesca Minerva's paper, After-birth Abortion: why should the baby live? is, as the title suggests, confronting. The authors suggest that the grounds for killing newborns should be no different than the grounds required for an abortion. They form their argument in the following way:

1. A fetus and a newly born baby are biologically no different.
2. While a fetus and newborn are potentially persons (a person is one who is "able to make aims and appreciate their own life") they are not actual persons.
3. Only actual persons have moral status.
4. Therefore, fetuses and newborns are not "subjects of a moral right to life". Only the rights and interests of actual persons should be given consideration.

It is, on many levels, an objectionable argument, one that has provoked responses from many different avenues. I will restrict my response to a discussion on the terms, 'potential' and 'actual' by situating them within the philosophical context in which they derive their meaning. But first, it may help to situate Giubilini and Minerva's argument within the context of differing ethical theories. This may help us to understand how they come to put forward an argument that most people will find abhorrent.

Ethical theory

There are three principal approaches to ethics:

• Utilitarian Ethics considers consequences and asks what the outcome of an action will be. Will it bring about the greatest good, the most happiness? From this standpoint a person will need to be proficient at weighing up what the best course of action will be by imagining future possibilities.
• A Kantian approach will take into account moral rules (laws) and hold that a person is bound to act in accordance with these rules. A person coming from this standpoint is first required to recognize that a rule needs to be applied and then consider how the rule should be applied.
• A third approach – Virtue Ethics – highlights the importance of being a person of virtue. A person who favours this standpoint will ask themselves what a virtuous person would do in this situation.

In short, the emphasis will be on the end result, or on the action itself, or on the person who performs the action. In practice, most ethicists who maintain one approach will also admit that the themes of the alternate approaches cannot be ignored. Thus, a Kantian ethicist will also explain how certain ends are significant and that virtue does have a place and a Virtue ethicist will explain that there needs to be an element of rule-following etc. Giubilini and Minerva put forward a rigid Utilitarian argument, one that lacks nuance. As such, virtue is trumped by adult interests and the occasion of the action itself is stripped of moral significance. When consequences and future possibilities are all that is considered in ethical decision-making, then terms like 'potential' and 'actual' and 'person' will lose much of their moral force.

Disconnecting the notion of 'potential' from the notion of 'actual'

The terms 'potential' and 'actual' have their origin in an ancient and complex philosophical theory about the nature of living beings. It is a theory that originated in the writings of Aristotle and was later adopted and developed by Thomas Aquinas. Aristotle recognised that every being capable of change (trees, cats, human beings etc.) must be composed of two distinct but mutually interrelated principles, what he calls potentiality and actuality.

All of nature, Aristotle realised, is in process – living beings change and there is something about them that enables that change to occur. Living beings advance – by their own power – toward higher levels of potential. A newborn, for example, has a more developed capacity for life than an 8-week-old fetus. Potency, as such, constantly unfolds and also does not cease once something actual comes into being. 'Potential' and 'actual' are not static or unrelated concepts. Rather, all living beings possess, at all stages of growth and change, potency and act.

When Aquinas and Aristotle argue that an entity has 'potency' they recognize that the capacity to become what it will be in the future is already present. The emphasis is not on a future possibility but on a present reality. A fetus, for example, already possesses the potential needed to become an adult human being. It is not as though it could become something else. What is 'potential' and what is 'actual' are necessarily associated. This is particularly important to the present discussion – there must be something about the nature of the dynamic, growing, changing fetus/newborn that makes possible some future actuality of being a person who makes decisions and forms aims.

Giubilini and Minerva accept that fetuses and newborns have potentiality. They do not doubt that a newborn infant is potentially capable of one day making decisions, forming aims and appreciating her own life. They even point out that a baby may potentially live a very happy, healthy and fulfilled life. However, despite the potential a newborn has to become a fulfilled adult, Giubilini and Minerva argue that this should have no bearing on our moral decisions. Only an actual person, already at the stage of making aims and forming decisions has a right to be valued and protected.

To argue in this way Giubilini and Minerva need to mark a sharp distinction between what is potential and what is actual. In doing so, they use the terms, 'potential' and 'actual' in a way that is inconsistent with Aristotle's logic. They ignore the causal link that exists in the transformation that occurs when a fetus becomes a newborn and then becomes an adult capable of making choices. Their description of human life, as such, is fragmented, as if the stages of change and growth were disconnected. They choose to ignore the continual process that is potency and act. As noted, a living being cannot have potential unless it is already an actual something, nor can it reach a point of actuality such that all potency ceases. Potentiality is forever unfolding as long as a living being is said to exist.

Giubilini and Minerva further misrepresent the notion of potential by implying that it is a capacity that lies dormant and inactive in a fetus or newborn infant. In Aristotle's logic potential is in process, so living beings constantly change and evolve toward what is actual. The terms 'potency' and 'act', as such, express a dynamic reality that can be lost when using the equivalent terms, 'potential' and 'actual'. This seems to be a mistake that Giubilini and Minerva make. Their argument can leave the reader with the impression that once actuality is attained, potentiality ceases, as if 'potency' and 'act' are independent, disconnected realities.

Disconnecting the notion of 'human being' from the notion of 'person'

Some of the confusion that arises in this debate occurs because of the narrow definition given to the notion of 'person'. Just as Giubilini and Minerva describe 'potential' and 'actual' as though they were independent and disconnected realities, so too, they discuss what a 'human being' and 'person' are as if they were disconnected entities. It is indeed significant to the moral status of human beings that, unlike other living beings, there comes a point where we are able to form aims and act in response to decisions we make, and to do so under our own volition. In the exercise of freedom, potency and act take on a new and remarkable form. When this occurs human beings are not restrained by mere biological necessity (the rhythms of potency and act as occur in nature), but are able to act in independence from this reality. However, this level of consciousness does not disassociate the human person from her biological nature – the person who can make decisions and act on them is still the same being who is subject to biological change and growth. A person is a human being. When this point is lost – as it is in Giubilini and Minerva's paper – a disembodied capacity to act (called 'person') is affirmed and credited with moral status while the physical, biologically evolving human being is denied moral status.

Conclusion

Giubilini and Minerva's argument is flawed on many levels. I highlight here how it is flawed because they disconnect the notion of 'potential' from the notion of what is 'actual' and make the same mistake in distinguishing between a person and a human being. I have focused on the discussion from a philosophical standpoint. Otago University Ethicist, Grant Gillett sums up well the senselessness of such a stance: "Human potential looks out at us from the eyes of a child. And the ability to recognize and acknowledge the moral demand of human potential fuels education and the healing professions, and it marks the difference between a self-serving society and one that celebrates the human spirit in all its guises." (See Otago Daily Times, 23 March, 2012).

Rev Dr Gerard Aynsley is a parish priest in the diocese of Dunedin. He recently completed his PhD in philosophy at Monash University in Australia.

Alarm over genetic control of embryos

Letter published in The Times 20 March 2013

Sir, We are writing in regard to the HFEA’s recent consultation on what it calls “mitochondrial replacement”, about which we have a number of serious ethical concerns. 

In the procedures being proposed, the chromosomes of unfertilised eggs or of newly conceived embryos are, in fact, replaced, and these are clearly examples, therefore, of germ-line genetic manipulation. The reconstructed egg or embryo will have an altered genetic composition that will be inheritable. It would be the first time such intentional genetic modifications of children and their descendants were expressly permitted and would open the door to further genetic alterations of human beings with unforeseeable consequences. 

Chromosomal replacement would cross the Rubicon into germ-line genetic interventions. Moreover, we are concerned that these proposals for research and possible treatment which rely on egg donation will greatly increase the possibilities for the exploitation of egg donors. 

Because of the implications for all of humanity, intentional germ-line interventions are prohibited in every national jurisdiction that has considered the issue. They are also banned under a number of international legal instruments, such as the Council of Europe’s Convention on Human Rights and Biomedicine which prohibits the genetic modification of spermatozoa or ova for procreation. 

We urge the British Government to consider its international responsibilities. This is because persons created through germ-line interventions, which may subsequently be revealed to be detrimental, will be able to travel and have their own children abroad. For the UK to isolate itself from its duties by allowing “mitochondrial replacement” to take place without consulting its international partners would create a very serious precedent. 

Prof David Albert Jones¹ Anscombe Bioethics Centre, Oxford, UK. 

Prof Emmanuel Agius Dean, Faculty of Theology, University of Malta, Spain. 

Rev Nicanor Pier Giorgio Austriaco, O.P. Associate Professor of Biology, Providence College, RI, USA. 

Prof Stéphane Bauzon State University Roma Tor Vergata, Italy. 

Prof Francoise Baylis Novel Tech Ethics, Faculty of Medicine, Dalhousie University, Halifax, Canada. 

Prof E. Christian Brugger Saint John Vianney Theological Seminary, Denver, CO, USA. 

Prof Donna Dickenson Professor Emeritus of Medical Ethics and Humanities, University of London, UK. 

Rev Prof Norman M Ford Catholic Theological College of the MCD University of Divinity, Brunswick, Australia. 

Prof Anne Barbeau Gardiner City University of New York, NY, USA. 

Prof Robert P. George Visiting Professor of Law, Harvard University and McCormick Professor of Jurisprudence, Princeton University, NJ, USA. 

Prof Jozef Glasa Institute of Clinical and Experimental Pharmacology and Institute of Health Care Ethics, Slovak Medical University in Bratislava, Slovak Republic. 

Prof Geoffrey Hunt Centre For Bioethics and Emerging Technologies, St. Mary’s University College, London, UK. 

Prof Christian Illies Chair of Philosophy, Bamberg University, Germany. 

Dr June Jones Senior Lecturer in Biomedical Ethics, University of Birmingham, UK. 

Prof John F. Kilner Franklin Forman Chair of Ethics, Professor of Bioethics and Contemporary Culture, Director of Bioethics Degree Programs, Trinity International University, Deerfield, IL, USA. 

Mr John Kleinsman Director, The Nathaniel Centre/The New Zealand Catholic Bioethics Centre, Wellington, New Zealand. 

Prof Regine Kollek Professor of Health Technology Assessment, Research Centre for Biotechnology, Society and the Environment, University of Hamburg, Germany. 

Rev Joseph W. Koterski Department of Philosophy, Fordham University, Bronx, NY, USA. 

Prof Mette Lebech Department of Philosophy, National University of Ireland, Maynooth. 

Prof Abby Lippman McGill University, Montreal, Canada. 

Prof Natalia López-Moratalla Professor of Biochemistry, University of Navarra, Pamplona, Spain. 

Dr Calum MacKellar Director, Scottish Council on Human Bioethics, Edinburgh, UK. 

Prof Nur Masalha St. Mary’s University College, London, UK. 

Dr Pia Matthews Lecturer in Healthcare Ethics, St. Mary’s University College, London, UK. 

Rev Kevin McGovern Director, Caroline Chisholm Centre for Health Ethics, East Melbourne, Australia. 

Dr John McLean 

Dr Emilio Mordini Centre for Science, Society and Citizenship, Rome, Italy. 

Prof Anselm Winfried Mueller Professor of Ethics at Keimyung University, Daegu, South Korea. 

Prof Dónal O’Mathna Senior Lecturer in Ethics, Decision Making & Evidence, School of Nursing and Human Sciences, Dublin City University, Ireland. 

Prof Craig Payne Professor of Humanities, Indian Hills College, Iowa, USA. 

Prof Hilary Rose Professor Emeritus of Physik, Gresham College, London, UK. 

PD Dr. phil. habil. Ingrid Schneider Centre for Biotechnology, Society and the Environment, Research Group Medicine, University of Hamburg, Germany. 

Dr Joseph Shaw Fellow, St. Benet’s Hall, Department of Philosophy, Oxford University, UK. 

Dr Jiri Simek Chair for Ethics and Philosophy in Helping Professions University of South Bohemia in Ceske Budejovice Faculty for Health and Social Studies, Czech Republic. 

Dr Robert Song Senior Lecturer in Christian Ethics, Department of Theology and Religion, Durham University, UK. 

Dr Trevor G. Stammers Programme Director in Bioethics and Medical Law, St. Mary’s University College, London, UK. 

Dr Agneta Mauléon Sutton Visiting Lecturer, Heythrop College, University of London, UK. 

Prof Rodney Taylor Fellow, Faculty of the History and Philosophy of Medicine, Worshipful Society of Apothecaries, Middlesex, UK. 

Prof Nicholas Tonti-Filippini Associate Dean and Head of Bioethics, John Paul II Institute for Marriage and Family, Lateran University, Rome, Italy. 

Dr Verena Tschudin Visiting Senior Fellow, University of Surrey, UK. 

Prof Günter Virt University of Vienna, Austria. 

Dr Helen Watt Anscombe Bioethics Centre, Oxford, UK. 

¹ All signatories of this letter do so as individuals and their views should not be assumed to be those of any institution or professional body to which they are affiliated. This proviso also holds of the Anscombe Bioethics Centre through whose office the letter has been co-ordinated.  

The abortion debate – an unhelpful dichotomy

The Catholic tradition holds that the right to human life is inviolable. It is based on a notion of human dignity that is ‘intrinsic’ – that is to say, not dependent on, or subject to, any calculation of ‘value’ or values based on values ‘extrinsic’ (or external) to the life in question. These extrinsic factors include human perceptions about the ‘quality’ of this or that life.

In Catholic teaching this approach is applied consistently from the moment a unique human life begins. “A life is begun [at fertilisation] which is neither that of the father nor the mother. It is already the human being it will always be and will only grow in size and complexity. On that basis, all embryos are entitled to be granted a place in the human family and treated with the same respect as persons.”(New Zealand Catholic Bishops, Submission on the use of gametes and embryos in human reproductive research, 2007.)

While this stance is rejected by many, it is arguably the most philosophically coherent of all approaches. When we consider that all human embryos are biologically and ontologically the same kind of being, it is actually illogical to accord greater or lesser respect based on their perceived status as routinely occurs within the IVF industry. The highest status, for example, is reserved for ‘wanted’ embryos by couples anxious to conceive a child. Over time the same embryo can become ‘unwanted’ if a couple no longer desire to have more children. Then again, in some countries, an 'unwanted frozen embryo' may, if the parents agree, be granted a certain (although much reduced) status as a potential object for donation or research – wanted by others on the basis of its usefulness as ‘experimental laboratory material'. In this scenario dignity for human life is directly linked to subjective human preference, i.e. to extrinsic factors.

It is of grave concern that there are moves afoot by some members of Young Labour to persuade the Labour Party to make the decriminalisation of abortion an active part of its 2014 policy platform. This move is derived from the view that the present law denies women their rightful autonomy; abortion is subject to the judgements and favour of others when it should, quite simply, be a woman’s choice. It is further argued that this reflects a lack of trust towards women; a woman’s own judgement is discounted in favour of ‘state mandated control over women’s bodies’ – seen as an unwarranted assault on women’s freedom.

The most vocal proponents of abortion decriminalisation advocate that access to abortion should be subject to nothing more than a woman’s choice, with no necessary consideration of the rights of any other party, including the father or the unborn child. For these people, the very existence of any law is seen as too restrictive and therefore unacceptable. Thus, Alison McCulloch writes of the “real freedom to choose.”[1] McCulloch and others hold this view even while they acknowledge that New Zealand women already have access to safe and legal abortion services – a situation described by persons on both sides of the debate as virtually ‘abortion on demand’.

While not considered as inviolable, the rights of the unborn child are nevertheless acknowledged in the current abortion law which, in its longer title, speaks of providing “for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child.”[2] As noted above, the right to life of the unborn child is a fundamental tenet of those opposed to abortion. It has led to what may be described as a ‘competing rights narrative’ in which the right of the woman to choose has been pitted against the right to life of the newly conceived human being.   

I would not want to disregard arguments centred on the embryo and its right to life. However, closer consideration of the facts reveals that the existence of a robust process requiring critical discernment by the woman and some form of external evaluation, far from restricting a woman’s choice, is in fact a necessary component for protecting women’s choice. Why? For a variety of reasons, including relationship stress, family and financial pressures and a real or perceived lack of support, many women make the ‘choice’ to have an abortion under real duress and even coercion. This figure is said to be as high as 64% - almost two out of every three women. In another survey of women who sought help after abortion, 83% said they would have carried to term if they had had greater support. In other words, pitting the ‘right to choose’ against the ‘right to life’ is an unhelpful dichotomy.

True freedom for women demands a transparent robust process that includes a high degree of professional and compassionate scrutiny in which women are provided with real alternatives and the support needed to carry a baby to term. Decriminalisation will not achieve this – it will only further undermine the authentic choices of women.

Dr John Kleinsman is director of The Nathaniel Centre

Beneficiary birth control: Just enough of me – way too many of you

Richard McLeod

The idea of using birth control to prevent undesirable populations being born and burdening society has been around for a long time. It goes back to the founding godmother of Planned Parenthood, Margaret Sanger who wanted “More from the fit, less from the unfit,” or words to that effect. By the late twentieth century, however, the job was not quite finished. A new class of undesirables, the welfare dependent, was proliferating.

Enter Norplant, the long-acting contraceptive that would relieve welfare mums of the bother of taking a daily pill and give them a strong hint that, paraphrasing Lady Bracknell, “To have one child without visible means of support may be regarded as a misfortune, but having two looks like carelessness.” As for three… A Kansas legislator seems to have been the first in the United States to suggest that states could actually give mothers on welfare an incentive payment to get their implants. The idea is de facto policy in most western countries.

Now it’s New Zealand’s turn. The conservative National Party led government has announced a policy of granting free long-term contraception to women on a benefit and to their daughters. It is designed to complement its policy of penalising those beneficiaries who have further children: “We certainly have concerns about children being born to those on welfare and we see the access to contraception as being a barrier, particularly the cost around it,” says Minister of Social Development Paula Bennett, herself once a solo mum on a benefit. Bennett glibly portrays the initiative as a kind of gift for beneficiaries, “so they’ve got choices”. Many agree. Prime Minister John Key has endorsed it as “pragmatic and common sense”, while a prominent TV talk-show host called it “a sincere attempt to discourage pregnancy amongst the most vulnerable women”.

It’s all a ghastly problem, we’re led to believe, this “beneficiaries-having-babies” syndrome. Leading media are worried. The Dominion newspaper, published in the shadow of the national legislature, has pointed to evidence “that overwhelmingly shows that those born into welfare-dependent homes have far worse health, educational and social outcomes than those born into families with parents who work”. The Listener magazine, beloved of middle-class liberals, tells us that some 220,000 children in this country depend on welfare. Apparently, that’s far too many “far worse outcomes”.

The government’s solution is to contracept the whole class out of existence, by providing beneficiaries with free contraceptives on the one hand, while penalising them financially if they don’t use them effectively. It is difficult in all of this to see what the “choices” are that Bennett speaks of. Of course, it’s well-known that Maori and Pacific Island communities dominate New Zealand’s unemployment statistics, so it is no wonder that the Maori Associate Minister of Social Development, Tariana Turia, has reacted strongly. Perhaps she detects the insidious form of Kiwi-style eugenics the initiative espouses -- a baby born in upmarket Ponsonby is a valuable New Zealand citizen, a baby born in working-class Porirua is some beneficiary’s contraceptive failure.

It all has that “just enough of me – way too many of you” whiff to it, a sanctimony aptly attributed to the UNFPA in PJ O’Rourke’s 90’s bestseller, All the trouble in the World: “Going around the poor parts of the world shoving birth control pills down people’s throats… is to assume that those people don’t want babies as much as we do, that they won’t like those babies as well as we like ours, and that little brown and yellow babies are not as good as the adorable, pink, rich kind.” It seems they are just not producing enough Ernest Rutherfords or Jane Campions in Rotorua.

If eugenics isn’t alarming enough, there’s demography and the economy to consider. Although we are one of the few developed countries to have near-replacement level fertility (with a TFR of 2.07) we suffer a net migration loss of one New Zealander every 2 hours, 47 minutes, and some 50,000 Kiwis leave the country each year, many of them young, many to Australia. And there are barely 4.4 million of us, all up. We abort on average 16,000 children each year (that’s 160,000 per decade). And by the 2030s, one in four New Zealanders will be aged over 65 years (compared with almost one in ten in 2005) while our population growth will be slowing. Who’s going to be around then to support John Key and PC talk-show hosts and their generation?

It’s not the time to have cynical, eugenically-driven government contraception drives when our country is inexorably headed towards a crisis involving a scarcity of children and a burgeoning elderly population. New Zealanders instead need to wake up to the reality that people are the world’s greatest resource, and that we need more of them. Tariana Turia certainly sees it that way: "I've always supported the growing of our population, the growing of our hapu and iwi and so I'm certainly not one who's ever believed that we should be controlling people's fertility."

It’s a no-brainer. History shows that people of all socio-economic conditions build countries, societies, cultures, political systems and economies. Mr Key and Ms Bennett are hardly the ones to tell us they don’t, seeing they’re both successful products of the very welfare system they now seek to eugenically modify. Only last August our Prime Minister Mr Key told the country (in a speech on building a more effective welfare system), “I believe very strongly in the welfare state. When I was growing up, my mother was on the widow's benefit for a time and we lived in a state house. I'm really grateful for the opportunities the welfare state gave me.” Key is living proof that a country that cares about its needy children – rather than coercing their parents to stop having them - produces great success stories. No doubt many other successful Kiwis – and not a few All Blacks, Super 15 rugby players and Warriors - would agree.

It’s at times like this our Prime Minister would be well advised to borrow a little wisdom from the old Maori adage, He aha te mea nui? He tangata. He tangata. He tangata. “What is the most important thing? It is people, it is people, it is people.” As the low fertility countries of Europe head towards demographic and economic oblivion, the one thing our government should not do is tell any New Zealander to stop having kids.

Richard McLeod is an Immigration & Human Rights Lawyer based in Auckland.

This article was first published on MercatorNet.com on 11 June 2012 under a Creative Commons Licence.

Perinatal Palliative Care and Support

Professor Dr Nicholas Tonti-Filippini and Dr Mary Walsh

The concept of perinatal palliative care for women who experience a diagnosis of a pregnancy of a life limiting abnormality is well developed in the literature but seemingly not so in practice in Australia and New Zealand. 

Introduction

Perinatal care palliative care is a system of interdisciplinary “care to prevent and relieve infant suffering and improve the conditions of the infant’s living and dying. It is a team approach to relieving physical, psychological, social, emotional, and spiritual suffering of the dying infant and the family”^[i] when a diagnosis of a life limiting condition is made in the child during pregnancy.

There is a significant dislocation between medical perceptions that prenatal testing^[ii] is for the purpose of providing the option of termination and the perspective of those women who opt for the tests in the false belief that the test results provide reassurance. It seems that women who do receive a positive screening result may be shocked and unprepared for its significance and the sequel of being offered invasive diagnostic tests^[iii].

As a matter of some urgency women need to be offered supportive decision-making counselling before they embark on a course of prenatal testing that may lead to invasive tests, risk of miscarriage and the predicament of being offered termination of pregnancy.  

Perinatal palliative care

In Australia, a perinatal death is one that occurs between 20 weeks gestation and a month after birth^[iv]. In 2008, there was one perinatal death for every 100 births. 73% were dead at birth and 27% after being born alive. 2,921 women experienced perinatal loss.^[v] It is not a huge number nationally but still significant.

In recent years an extensive literature has developed about the concept of ‘perinatal palliative care’. Perinatal palliative care staff assist families who have a diagnosis of a life limiting condition for their fetus or unborn child to plan for and cope with the remainder of their pregnancy and the time around delivery. The goal is to support families as they face the unimaginable and to help them down a path of healing.^[vi]

This is done in a multidisciplinary way by:

• Helping prospective parents create a birth plan that is consistent with their hopes, goals and values
• Exploring the possible pathways that lay ahead
• Bolstering the family's coping strategies
• Exploring medical decisions
• Considering memory making options
• Providing a safe environment for families to talk about what they are experiencing.^[vii]

The term ‘life limiting condition’ has been adopted by the Murdoch Children’s Research Institute^[viii], instead of ‘lethal abnormality’ still used in some publications.  Prognosis is often uncertain in circumstances in which the diagnosis may refer to a range of conditions of variable severity and when there may also be intercurrent illnesses.  Death may be expected at or before birth, but the child may survive against that expectation. 

Unfortunately, there is a misconception in our community that palliative care is basically the management of death. The National Health and Medical Research Council describes palliative and supportive care as including a multi-disciplinary range of professional services that are focussed on supporting a person and his or her family physically, socially, emotionally and spiritually; and on relieving painful or uncomfortable symptoms, while maintaining function including, when possible, lucidity. Palliative care may be engaged when there is no hope of curing the underlying condition, but it may also be an adjunct to curative intervention.  The NHMRC insists that palliative care should happen throughout a person’s illness, not just in the terminal phase.^[ix]  This is true also of severe perinatal conditions: multidisciplinary support is needed throughout the process: in preparation for testing and from diagnosis until birth, and then from birth and throughout the life of the child until death.

The above list reflects important aspects of perinatal palliative care in which the parents are given the option of continuing with the pregnancy, and care being provided, as appropriate, for the fetus or unborn child to minimise any distress caused by the condition, while assisting the family to cope with the diagnosis and prognosis and then providing the care necessary when the child is born. As an option, perinatal palliative care is much less certain than the alternative of termination of pregnancy, or early induction and feticide, where the aim is to end the life of the child.  What it offers, however, is the opportunity for the woman and her partner to feel that they have done the best to care for their child. For women who have recognised the identity of the fetus as a child and have begun to bond with him or her, this may be important. Offering perinatal palliative care is also an alternative to the powerlessness that women who terminate a pregnancy on medical grounds often report.^[x]

False reassurance and the need for counselling prior to testing

Prenatal testing identifies abnormalities in approximately 5% of pregnancies that are tested. Despite testing, a further 2-3% of abnormalities are not identified until after birth.^[xi] Approximately 15,000 Australian women receive a diagnosis of congenital abnormality during pregnancy each year.  Anecdotally, approximately 90% of women who receive a diagnosis of a life limiting condition in their fetus/unborn child will choose to have the pregnancy terminated.

In one United Kingdom (UK) study, most of the terminations occurred within 72 hours of the woman receiving the news of the abnormality.^[xii]

Despite this connection between prenatal testing results and termination of pregnancy, for many expectant couples, the link between prenatal testing and abortion, at least initially, does not exist.^[xiii] Even when birth defects and abortions are explicitly discussed, the pregnant woman and her partner often simply do not link this outcome to prenatal diagnosis.^[xiv]  There often appears to be dissonance between the practitioner's understanding of the purpose of prenatal diagnosis and the pregnant woman's perception of the procedure. While the practitioner may view the diagnostic tests as a way of preventing the birth of a ‘defective’ child, pregnant women seek them out for reassurance that their babies are well and healthy.^[xv]

Antenatal testing is important in the management of pregnancy, identifying matters that are relevant for the management of delivery and, in some circumstances, allowing for in utero procedures to treat problems that might not be so well managed if left until birth, and in some cases preventing still birth. The major ethical issue concerns prenatal tests for conditions for which there is no treatment and for which the current major medical justification is termination of pregnancy. Though the possibility of termination is the medical justification for the test, it appears that women who have the tests do so to seek reassurance, rather than with termination in mind. There is, therefore, a gap between the medical justification and the understanding of the women. This is most obvious in the timing of the tests. Tests done during the first trimester, especially invasive tests which have greater risks when done early, are done at that time for the medical reason that termination is easier the earlier that it occurs.  There is no other medical reason for doing the tests so early.

The chances of a serious abnormality at birth are relatively low, approximately 3%, but they may be higher where there are risk factors or a family history of genetic disease. Often, the desire for reassurance is based on false beliefs; a negative result of a test does not mean that the baby will be born healthy, and may only indicate a marginal difference in the probability that the child has serious abnormality.  Not only are there false negatives, the tests are only for a limited range of conditions and there remains a 2-3% chance of abnormality despite negative tests.  Thus, an average 3% risk that prompted the tests may still remain only slightly changed by a negative test result. Further, the invasive tests themselves have risks of morbidity and of miscarriage. Thus, if fully informed, the testing is not likely to be reassuring and may even add to anxiety.  The aim of eliminating some diseases by termination may justify a 1% risk of miscarriage in some medical minds but, for a woman, miscarriage is usually devastating and even more so if she is aware that she may have caused it simply because she wanted reassurance.^[xvi] The assessment of risk depends very much on the acceptance and expectation of termination and the difference between the medical justification and the women’s desire for reassurance is relevant and reflects a lack of knowledge on the part of the women in seeking the tests for the purposes of reassurance rather than for the possibility of termination.  

Therefore, women who opt for the tests for reassurance and without expectation of termination in the event of abnormality are choosing the tests without adequate information and therefore without informed consent. The difference between their expectations and understanding and the medical perception is thus of grave concern.

In the experience of providing shared care for women during pregnancy, on many occasions the receptionist has booked the prenatal tests ahead of the appointment with the obstetrician. It seems that the tests are regarded as so normal and routine that they do not even warrant a discussion with the obstetrician of the risks and the possible outcomes. In those circumstances there is thus no opportunity for a discussion with the obstetrician about the purposes of the tests, what may be expected from them, and what the sequel may be in the event of an indication of abnormality. 

The effects of offering perinatal palliative care

In a recent United Kingdom study^[xvii] women and their partners were offered perinatal palliative care, following a diagnosis of lethal foetal abnormality, as an alternative to termination of pregnancy. The article shows that perinatal palliative care is a significant alternative, because 40% opted for perinatal palliative care compared to the usual 90% who opt for abortion. The study included 20 pregnancies and of the eight parents who chose to continue the pregnancy and pursue perinatal palliative care, six of these eight babies were live born and lived for between one hour and three weeks.

The numbers are too small and the sampling not reliable enough to make it possible to draw general conclusions. But it does seem significant that 40%, when offered an option of perinatal palliative care, chose not to terminate compared to the 10% who would normally be expected not to do so. There is a need for more research into whether offering perinatal palliative care would affect women’s choices and what the comparative outcomes would be for those women and their families who chose to continue to birth and those who chose to terminate.

This study would seem to indicate how important it is for women to be well informed and given genuine options to continue with their pregnancies. Prenatal palliative care would seem to be insufficiently developed in Australia and New Zealand. Much needs to be done to make genetic counselling routinely available prior to women entering into the screening and diagnosis pathway so that they have the time and space to make well informed decisions in accordance with their own beliefs.

If they have had tests that provide a diagnosis of a life-limiting condition in the child, then the evidence suggests that many would choose to continue the pregnancy rather than choose termination of pregnancy.  Without being offered that option around 90% are currently reported as choosing termination.  Many who do make that choice report feeling powerless in the face of the advice that termination is medically required. 

Thus there are two important services to be made available – genetic counselling and non-directive counselling prior to embarking on prenatal screening and testing and, second, the offer of perinatal palliative care and support in the event that testing does indicate a life limiting condition. These are choices that tend not to be offered to women and their partners in Australia and New Zealand. Recently, Catholic Health Australia acknowledged the problem and advertised a website for perinatal palliative care, but at time of writing it was not functioning. There was no suggestion included that women should be offered genetic counselling before embarking on screening and testing.

Professor Nicholas Tonti-Filippini BA (Hons) MA (Monash) PhD (Melb) FHERDSA KCSG is Associate Dean and Head of Bioethics at the John Paul II Institute for Marriage and Family, Melbourne.

Dr Mary Walsh MBBS FRACGP is a general practitioner who undertakes shared obstetric care with the Mercy Hospital for Women in Heidelberg, Victoria.

Editorial: Single mothers are saints

Catholic bioethicist Bernadette Tobin writes: “In order to understand the teachings of the Catholic Church in relation to questions about the beginning of life, we need to identify and appreciate the one idea that informs all of these teachings. This is the idea that the life of every human being is, in and of itself, valuable or sacred.”[1]

For Catholics, the unconditional respect due to human life begins when an ovum is fertilised. Embryos become children not by some addition to what they are, but simply by developing further as the kind of beings they already are. No matter how undeveloped or damaged the potentialities of a human being may be, that life is sacred. This view runs counter to that of many people for whom the embryo is nothing more than a ‘clump of cells’. ‘How can we possibly accord the same moral status to a group of cells as to a person?’ it is asked.

The claim that a four or eight-celled embryo is a human being clearly takes us beyond empirical observation. As Gerry Gleeson and Tobin explain: “The common understanding of person in our culture has been shaped by modern philosophy’s emphasis on self-consciousness as the mark of personhood. A much older understanding of person, however, located personhood in the dignity of a being’s rational nature, irrespective of whether that being is conscious at a particular phase in his or her life. On this traditional view there is nothing problematic about saying that an unborn child is a person, for they are truly our fellow human beings, sharing our rational human nature … the key to understanding what a human embryo is lies in the connection between a human embryo and an adult member of the human species.”[2] Therefore, to judge something solely at the ‘material’ level (it is only a clump of cells) is to ignore an important truth.

It is this view that underpins the Catholic position regarding abortion. But, to merely articulate such a position is not enough.    

Some time ago I found myself on the fringes of a group of Catholics discussing the impending birth of a baby to a teenage girl. I detected just the faintest whiff of scandal in the air – nothing said, but plenty implied. I quipped: “Isn’t that great.” Faces turned, eyes probing. “Isn’t it great that she is keeping the baby? Most girls and their families would have organised an abortion.”

These days, any single mother who decides to keep her baby is a heroine … even a saint. Ironically, for those who identify as Catholic, greater courage may be required if they find themselves fighting not only a prevailing negative cultural attitude but, sadly, the critical judgements of the very community that should provide unquestioning, unconditional support. These judgements are no less damaging for being non-verbal. Consider the story of Katrina who, at 19, found herself unexpectedly pregnant:

“To say this news was unexpected would be an understatement. I went into shock … Mark cried ... To us, this was a disaster. Everything we had planned, everything we were working towards was shattered ... We knew our parents would be severely disappointed and that mine might actually disown me. We were both from religious families and most of our friends were religious – WE were religious. We felt that all our friends were likely to judge or even not be our friends anymore. We didn’t know what to do. Keeping the baby would mean potential ostracism from our friends and Church community. Not having the baby would mean going through with a termination, but escaping all the shame and our lives trotting on as planned ...”[3]

As Catholics we need to honestly ask: ‘How many young single Catholic women and their partners and/or families would feel like Katrina did about her faith community – whether parish or school?’ John Paul II writes in Evangelium Vitae: “As well as the mother, there are often other people too who decide upon the death of the child in the womb.” (n. 59) Many Catholics have probably never considered that our parishes and/or schools may well fall under that category.

The rhetoric that characterises Catholic teaching about abortion is unequivocal.  But Donum Vitae also teaches that every child is a gift of God no matter the manner in which its conception is achieved (Part II,B,5). It is not enough to be committed to only half the message! Critically, what we believe needs to be translated into attitudes and actions that are consistent with the divine origins of the gift of life. Every new life is to be rejoiced over and celebrated. As the Scriptures note, we will ultimately be known by the fruits of our actions (Mt 7:16) rather than the purity of our teaching. On that score, I suggest, we still have a way to go.

John Kleinsman is director of The Nathaniel Centre

“You know baby, if it wasn’t for these women you wouldn’t be here”

 Cynthia Piper

In 2011, 15,863 abortions were performed in New Zealand, of which 97.6% were authorised on the grounds of a “danger to the mental health” of the woman.¹There is no doubt that for many women an unintended pregnancy is a crisis situation causing severe anguish. The woman’s over-riding wish is for life to return to normal; a wish to be ‘unpregnant’. How a woman, her partner or spouse, family members, friends, employer, and school react to the news can influence the decision whether or not to continue with the pregnancy. Despite rhetoric that it is a woman’s choice, the people she turns to for help or advice may leave her feeling that she has no choice but to abort.

A woman in a crisis pregnancy experiences a conflicting mass of emotions; she is hormonal and very vulnerable. In this fragile state of mind she has to make what is likely to be one of the most important decisions of her life; one that will have life-long consequences. Rather than making a quick decision a woman needs time to consider all her options. She needs to be provided with balanced, full and factual information so she can make an authentic informed choice free from coercion, based on her individual circumstances and according to her conscience. All her options, keeping baby, adoption or abortion have long term consequences – there is no easy choice.

Lena (aged 18), reported that when she discovered she was pregnant she was so upset she even considered suicide. Her older sister had a baby outside of marriage at 18, and two years later her parents still had not met their grandchild. Fearing her parent’s reaction – ‘Dad will kill me, I’m his princess’ – recalling the experience of her older sister, losing her job, and believing she had sinned against God, Lena felt an abortion was the answer because then ‘no one will know.’²An abortion, it seemed, would solve all her problems. Fortunately, Lena contacted a lay counselling agency whose counsellors recognised that there were a number of issues that Lena needed to work through if she was going to make an informed decision free from coercion.

As with many pregnant women in this situation, Lena was surrounded by what Carolina Gnad calls a ‘web of influence’ that can drive a woman towards believing an abortion is her only choice.³In Lena’s case, that web included her cultural and religious background, a lack of support from her boyfriend, the potentially negative reaction of her parents, a belief that she had shamed her family (they were respected elders in their church community), the loss of her dreams and plans for the future and limited knowledge about abortion and the available support. These factors were compounded by attitudes towards abortion gained from the media, work colleagues, and friends. Knowing that an abortion can be lawfully obtained, and that therefore it must be ‘okay’, can over-ride a woman’s sense or belief that abortion is morally wrong.

Sometimes it is pride and/or sense of shame that encourages a mum or dad to suggest their daughter terminate a pregnancy, even when this runs counter to their own or their daughter’s beliefs. Comments such as ‘My mum said she was too young to be a grandmother’; ‘don’t expect us to look after your baby’; ‘you’ll never get a decent job now’; ‘look what you have done to your life’, are some of the parental reactions counsellors hear. It takes great courage to continue with a pregnancy in opposition to parental wishes and criticism. As parents, we need to learn to put our own pride and dreams or plans for our daughters on hold and take a lesson from the courage and resilience of our children. Conversely, there are a great many parents who are supportive of their children and welcome the new grandchild into the family. Sarah was initially very embarrassed and believed that she had lost face within her church community when her 16 year old daughter became pregnant. A simple ‘congratulations grandma’ from a colleague was all it took to restore her confidence. Parents and partners who accompany single, pregnant women also need support and encouragement.

When counsellors met with Lena it soon became evident that, despite what she said, abortion was not really an option as it went against her beliefs and values. It is widely known that “[w]omen are more likely to suffer emotional problems after an abortion” if they have gone against their own moral and religious values or maternal instincts, were pressured by others, had little support from their families or partners, or felt unsure about having an abortion.⁴Yet, in the state of mind she presented with, had Lena sought counselling at an abortion clinic, she would have been assessed as being eligible for an abortion and the outcome would, in all likelihood, have been very different. What prevented that from happening was the awareness she gained from those who accompanied her on her journey that there were many external, personal, religious, social and economic influences that were pushing her towards abortion and preventing her from making a fully informed choice.

After a week of counselling, Lena came up with a solution; maybe she could find somewhere to stay until she had the courage to tell her parents about the pregnancy. Such places are few in New Zealand, but at that time there was an opening at Bethany House. For Lena, that allowed her to tell her parents about the pregnancy from the ‘safety’ of distance. Within three months Lena had told her dad about the pregnancy and moved back home before giving birth. She was surprised to discover that her parents did not reject her, and they were surprised at the way their ‘little princess’ had managed on her own.

What was important in Lena’s situation was that at no time was she hurried into making one of the most important decisions in her life. Psychologist, J. William Worden has identified that “most women seeking abortions tend to do so in haste and, because of the stigma and shame associated with abortion, they may make the decision without the emotional support of family and friends.”⁵In New Zealand, the speed with which women are expected to come to a free, rational decision creates added pressure. At a 2008 workshop for staff at a Family Planning Clinic, medical professionals expressed concern and frustration at the time it took some women to make up their minds. They argued that the earlier a woman can come to a decision, the better.⁶This mindset places added pressure on a woman and may undermine her freedom. It should also be remembered that when a crisis involves moral, ethical, religious challenges, people tend to be less trusting of their own opinions and ability to make the right decision. They can become more reliant on the opinions of others, especially those closest to them, those in authority or those with specialist knowledge. The decision to abort is never independent of the woman’s circumstances and the influence of the people around her, especially her partner.⁷

Fear of relationship failure is one of the powerful drivers towards an abortion. The partner who says, ‘it’s your choice’, but then adds, ‘if you don’t get rid of it I’m off’, is not giving the woman a choice at all. Sadly, this scenario is all too common among those seeking pre or post-abortion counselling. Those working in pre and post-abortion counselling identify that partner relationship is the most common reason for women undergoing termination. In a Swedish study, women stated that their decision might have been different had they had support from their partner.⁸Australian research from 1995 showed that relationship problems contributed towards 45% of decisions regarding abortion.⁹

Some of the most vulnerable young women in a crisis pregnancy situation are those still at school. When there is no, or limited, support from parents, these young people need the help and support from school counsellors, teachers, or mentors whom they trust. The situation is not helped when teachers (including those at Catholic schools) tell students that they agree with abortion. Ruth (aged 15) had an abortion after her teacher told her “all the stink things about having a baby.”¹⁰Similarly, the comment made to a colleague that having a pregnant girl at a Catholic school is ‘not a good look’ demonstrates a lack of understanding of the concepts of compassion and the principles of Catholic Social Teaching. Young pregnant women must be allowed to continue their education in order to provide the best outcome for themselves and their children.

Both the pro-choice and pro-life lobbies use woman-centered strategies to influence the outcome of unintended pregnancies. When they are involved in the counselling processes there is a danger that their agenda ‘to the cause’ becomes most important rather than the best interests of the client. A pro-life woman-centred strategy focusses on an understanding that “women neither want nor benefit from abortion; that most women do not really ‘choose’ abortion but are pressured into it by others.”¹¹While this may be true, those working with women considering an abortion need to stay focused on thoroughly exploring her legitimate needs as defined by her real-life context.

The process of promoting free and informed consent should minimise coercion and increase awareness of the physical and psychological risks associated with abortion. The consequences of continuing with the pregnancy, adoption and abortion also need to be discussed. Promoting and providing practical assistance to pregnant women helps ensure that women such as Lena are provided with real alternatives to abortion. Women need someone to help them sort through the myriad complex issues they face. If, in the end, a woman decides to have an abortion, compassion and an avenue for healing and support are vitally important.

In 1994, Pope John Paul II wrote: “It is precisely the woman, in fact, who pays the highest price, not only for her motherhood, but even more for its destruction, for the suppression of the life of the child who has been conceived. The only honest stance… is that of radical solidarity with the woman.”¹²

When Lena’s baby was three months old one of the counsellors visited her to see if there was anything she needed and to find out how she was coping. Lena’s words to her baby summed it up: “You know baby, if it wasn’t for these women you wouldn’t be here.”

Cynthia Piper has worked as a volunteer for over twelve years with pregnant teens and with Project Rachel, the Catholic Church’s after-abortion healing and support service. She is a lecturer with The Catholic Institute.

Endnotes

1 97.6% = 15,478. Abortion Supervisory Committee, Report of the Abortion Supervisory Committee, Wellington: Ministry of Justice, 2102.

2 Case notes. Names have been changed to protect the identity of the informant.

3 C. Gnad, Broadening Perspectives Around Termination of Pregnancy, Christchurch: P.A.T.H.S. 2012.

4 Ministry of Health, Considering an Abortion? What are Your Options?, Ministry of Health, Wellington: 1998, p.12

5 J. William Worden, Grief Counselling and Grief Therapy: A Handbook for the Mental Health Practitioner, Third edition, New York: Routledge, 2003, p.136.

6 Much of this emphasis on speed is because in New Zealand a pregnancy under 12 weeks can take place in a licensed clinic, whereas those over 12 weeks are performed by a specialist operating in a licensed hospital. http://www.abortion.gen.nz/legal/index.html. Accessed 6 November 2013.7 Selena Ewing, “An evidence base for counselling, social policy and alternatives to abortion”, Common Ground: Seeking an Australian Consensus on Abortion and Sex Education, John Fleming and Nicholas Tonti-Filippini, eds., Strathfield: St Pauls, 2007, p. 223.

8 Ewing, 2007, p. 218.

9 Ewing, 2007, p. 225.

10 Case notes, September, 2010

11 Brigid McKenna, “Reframing the anti-abortion message: pro-life and/ or pro-woman?”, Common Ground: Seeking an Australian Consensus on Abortion and Sex Education, John Fleming & Nicholas Tonti-Filippini, eds., Strathfield: St Pauls, 2007, pp.182-83.

12 John Paul II, Crossing the Threshold of Hope, London:Jonathan Cape, p.207.

Maintaining a principled ethical approach in the face of a global fertility market

 A submission to the Advisory Committee on Assisted Reproductive Technology

Earlier this year the Advisory Committee on Assisted Reproductive Technology (ACART) released a discussion paper on the “Import and Export of Gametes and Embryos” in response to more New Zealanders looking overseas for fertility treatment. New Zealand requirements are often different from, and in many cases more ‘restrictive’ than, other countries. In the face of differing standards, there is increasing pressure from some to loosen New Zealand restrictions. 

Introduction

Robust ethical review requires critiquing the underlying and often unexamined assumptions and convictions that shape individual and societal thinking about a particular issue. We are particularly concerned that in a society such as ours, questions relating to the common good are too easily subsumed by a distorted focus on individual autonomy. When this occurs, we can too easily fail to take full account of the fact that medical technologies, such as human assisted reproductive technologies “create their own culture of practices, institutions and discourses, and these become a powerful force that inscribes individual bodies to its own specifications.”[1]

While we have commented on this issue on a previous occasion, it strikes us that the realities of the global fertility market have introduced a new dynamic into the debate.

A shift in ethical frameworks
A particular feature of contemporary ethical discussions on the use of assisted human reproductive technologies is the way in which the language and thinking of ‘supply and demand’ (the market) is increasingly coming to the fore. This language indicates a shift, in at least some quarters, towards viewing the creation of human life more and more as part of a framework of thinking that is typically characteristic of economic transactions. At the same time the use of such language confirms and further perpetuates such a shift in other people’s minds.  

We accept that, to some degree, the use of ‘market’ language is understandable (and even unavoidable) in the context of exploring genuine questions relating to the regulation of reproductive technologies in a commercial environment. Nevertheless, we find the uncritical use of such language of great concern. Importantly, it betrays a tendency to think more and more about new human life as a ‘commodity’ that is subject above all to the desires, demands and expectations of those paying for the service – the consumers, prospective parents.

This has considerable implications for ethical reflection because the frameworks of thinking we adopt shape the way we look at and think about an issue. In particular, the influence of a market-based paradigm reinforces a particular and impoverished understanding of human freedom. In the words of the philosopher Michael Sandel, human freedom is reduced to mean “the freedom of the consumer.”[2] Consequently, parenting is at risk of becoming reduced to little more than another extension of the consumer mentality that permeates our society.

At the same time, as human procreation becomes increasingly subject to commodification, there arises an increased sense of ‘entitlement’ to a child. From this flows a lower tolerance for regulatory interference of any kind, especially from the State. Thus, when the question of access to assisted human reproductive technologies arises there are many who ask: “What possible business is it of any ethics committee? Why should they have to apply to a bunch of interfering medicos for permission?”[3]

The increased sense of entitlement is typically verbalised as a ‘right’ to access whatever ‘means’ are available for bringing about a child. In addition, and perhaps more worryingly, it is also increasingly framed as the right to exert a kind of consumer freedom over our children. What we mean by this is that the so-called right to a child leads people to believe they have a right to a certain type of child and therefore the right to exert ever greater degrees of control over the ‘products’ of conception.

There exists an urgent need to draw on other frameworks in order to challenge the shift in ethical discourse that is happening in our society. At the same time we need to remain clear about, and committed to, the principles that have given shape to the current New Zealand regulatory framework governing the use of assisted human reproductive technologies. To the extent that we allow a market mentality to shape our thinking it is to be expected that the principles underpinning the HART Act will start to make less sense to some people.  

The threats to a principled approach to decision making
In the wake of an increased sense of entitlement, the need to protect the very narrow meaning of ‘consumer freedom’ that Sandel (and others) speak of emerges for many as the primary ethical issue. This shift in ethical focus has been further exacerbated, we believe, by the increased opportunities that now exist for prospective parents to access assisted human reproductive technologies overseas. Compared with other jurisdictions which lack the robustness of New Zealand’s regulatory system, many people are judging the HART regulatory framework to be unnecessarily and unfairly restrictive. At the same time, others who might be less inclined to see it as ‘restrictive’ are perhaps increasingly inclined to see it as espousing a once workable, but now unworkable, ideal.

Therefore, even while many of the ethical dilemmas surrounding the import and export of embryos and gametes remain largely the same as in the past, it is our view that the realities of the global fertility market pose a new and heightened challenge to responsible human procreation. Indeed, we would go so far as to suggest that what is at stake in the present debate about greater (overseas) access to human assisted reproductive technologies is ultimately nothing less than the continued viability of the current principled approach to decision making that defines the HART Act.

We understand that, already, increased numbers of New Zealanders want to travel overseas to source eggs and embryos, a situation exacerbated by the shortage of donated eggs in New Zealand. While the motivation for this may well be largely pragmatic, rather than because of a desire to circumvent the law in New Zealand, the reality is that the eggs or embryos will be, in many if not most cases, commercially sourced. Because this is in breach of what is allowed in New Zealand, we anticipate this will eventually result in increased pressure to allow commercially sourced gametes and embryos to be directly sourced from within our own country.

We have, in the past, indicated that we are sympathetic to the idea of allowing couples who have previously conceived embryos overseas to bring them into the country for the purposes of having another child that is genetically related. While our position on this remains the same, we recognise that this also has the potential to lead to increased pressure to loosen the restrictions on what is allowable in New Zealand, particularly if some of the imported embryos have been created under standards and principles that fall short of our own.

Furthermore, while there are no legal barriers to couples travelling to countries that allow for embryos to be created in ways that, for good reason, are unacceptable in New Zealand, those without the financial resources will have a case that the ethical standards in New Zealand exist only for those who lack the resources to go overseas.

On all these counts an argument can be made that the status quo, even if unwittingly, fosters a significant degree of ethical inconsistency and unfairness. Why, it will be asked, should other couples not be allowed to have the children they want when precedents exist and all that is required is a simple law change? There is, in other words, a certain inexorable logic that points towards the further liberalisation of HART law in New Zealand, including the current constraints on using imported material that does not meet current New Zealand standards.

This is why we believe that more and more people will, in the future, come to question the viability of the current New Zealand framework including the principles that underpin it.

Managing ethical inconsistency and unfairness
Those, like us, who are hesitant about further ‘opening up the market’ for embryos and gametes because of their commitment to the ethical principles upon which the current New Zealand laws are based, find themselves needing to justify a regulatory approach which allows for ever increasing degrees of ‘inconsistency’ and ‘unfairness’. We readily admit that maintenance of the status quo will involve living with a degree of ‘inconsistency’ and ‘unfairness’ for individuals/couples. How might this be justified?

The arguments in favour of greater liberalisation, as described above, ignore a vital tension. We would describe the source of this tension as originating in the ethical space that exists between the desires and rights of individuals and the welfare or ‘common good’ of the society in which we live. As noted above, one of the (often unnoticed) fundamental issues at stake is the robustness of the (economic) paradigm that is increasingly being used by many to make sense of the world in which we live. More specifically we would argue that the language and thinking associated with ‘transactions’ and ‘entitlement’ is at odds with, and has the potential to undermine, the traditional way in which peoples across many cultures and ages have thought of new human life – what we, as well as many secular philosophers and anthropologists, would describe as an approach centred on ‘gift’ and ‘givenness’.[4] Of great concern for us is the fact that the shift to view human procreation more and more in terms of the market represents a significant departure from the way in which society has long thought about parenting and the role of children.

The very fact that granting individuals increasingly unfettered reproductive freedom will impact on societal understandings surely demands that any changes to the current regulatory system be subject to a ‘societal impact risk assessment’. This is what we find lacking in many of the arguments being put forward in favour of leaving assisted reproductive choices more and more in the hands of individuals or couples. Not unsurprisingly, the shift to consider questions about the transmission of human life within a more ‘market-based’ paradigm makes ethical questions about the societal impact (or common good) seem more and more irrelevant.

Concluding comments
For us, the key ethical issue is not about protecting an increasingly impoverished notion of freedom centred on choice. It is more about protecting a notion of human flourishing that takes into account the effects of the accumulation of individual choices on the society in which we live, including the likely impact on the welfare of the children who are conceived and the institution of parenting. We must be wary of making changes to the current regulatory framework that are premised largely on the value and importance of individual choice. This is especially important when it can be established that such changes are being influenced by the incremental progression of a market-based paradigm into the domain of parenting and families.

We should, of course, limit individual choice only for good reason. One of the challenges we face as a society is that these reasons do not always come to the fore in contemporary debates, not because they are not important but because the particular framework we employ renders them invisible. Such reasons become apparent when we recognise the inadequacy of giving exaggerated emphasis to individual choice and embrace other frameworks of thinking.

Our position is well described by Michael Sandel when he notes:

When science moves faster than moral understanding as it does today, men and women struggle to articulate their unease. In liberal societies, they reach first for the language of autonomy, fairness, and individual rights. But this part of our moral vocabulary does not equip us to address the hardest questions posed by cloning, designer children, and genetic engineering. That is why the genomic revolution has induced a kind of moral vertigo.[5]

And as the New Zealand Bishops have previously stated in an early Submission on the HART Act:

An over emphasis on the sufficiency of individual informed consent, as has been exemplified by a number of commentators with respect to recent debates in the bioethical area, reflects a failure to acknowledge the wider impact of technological interventions.

Finally, we appeal to ACART, in its reflections on this issue, to continue to take full account of the fact that the questions raised by human assisted reproduction are complex and have the potential for transforming the most basic of human relationships. The context which has given rise to the current debate places in jeopardy key principles at the heart of the HART Act. In particular we see that two principles are at risk; (i) the rights of children who are born to access knowledge of their origins and have a relationship with gamete donors, and (ii) a longstanding commitment to the principle that transactions involving body parts not be commercialised.

The current debate calls for a strong stand in favour of upholding the principles that underpin the HART Act. These principles have been debated at length and represent long-held cultural, social, ethical and religious values that promote human flourishing. They are also consistent with general public policy in New Zealand.

This will, in turn, mean saying ‘no’ to certain demands being made by couples or individuals, demands that may well increase as New Zealanders take advantage of the opportunities for having children, not always ethical by our standards, that exist overseas. However, we argue that the current principled approach, along with its growing perception of inconsistencies, can be seen as justified by an ongoing commitment to the common good and, above all, to the dignity and well-being of children. In which case, we will need to accept that it will become increasingly difficult to align New Zealand ethical standards with those of other countries.

In the face of globally varying ethical standards and competing principles, we would argue that the cause of ethical consistency and the well-being of children, parents and society, is best served by New Zealand working with other countries to uphold and promote the key principles that define our current regulatory framework around the use of reproductive technologies. To quote from the Consultation document: “New Zealand should not support or be seen to support, policies and practices in other countries that would be regarded as unethical in this country.”

Staff of The Nathaniel Centre