ACART Proposed Donation Guidelines: Submission
The Nathaniel Centre welcomes the opportunity to comment on the proposed changes to Donation Guidelines and Surrogacy
A Catholic approach to the transmission of human life is characterised by two key beliefs: the inviolable dignity of the human person and, flowing from that and connected to it, a belief that the context in which humans are conceived and the means that are used to conceive can positively or negatively impact on this dignity. Among other things, this means that children must be conceived in a way which shows that they are respected and recognised as equal in personal dignity to those who give them life. This rules out all actions which in any way instrumentalise or treat the child as an object (commodity), whether intentionally or otherwise.
At the emotional, psychological and spiritual levels there is a need that all of us have to experience ourselves from our very origins as 'contingent beings'; that is to say, as beings who came about in a 'fortuitous' way – conceived in a way that is free from the manipulation of others, conceived for no other reason than love and out of love. Morally speaking, we would describe such a love as having a 'disinterested' and 'selfless' quality and as focussed overwhelmingly on the needs and well-being of the child to be born. A disinterested and selfless love calls for parents to accept children as 'gifts' without introducing a 'conditional' element into their acceptance into a family. Technological interventions that allow parents to exercise ever greater control and dominance over the sorts of children that are born potentially create a very different context for human procreation.
Philosopher Jurgen Habermas expresses this idea succinctly in a commentary on genetic manipulation of the human genome when he writes that:
To impose your preferences upon a potential person is to treat that person as an object, a thing made, rather than to treat as a subject, an autonomous individual. To impose upon another a decision about his genetic composition according to your own preferences is to treat a person as a creature of your preferences, and to constrain that person's ability to self-actualize. It is to adopt an attitude of domination, of instrumentalizing.1
Similarly, for the person "programmed" by the other, Habermas argues that there will be "an effect upon the subjective self-perception, and the mode of existence, of the person programmed. There will be an impact on the resulting eventual person of having been tailored toward someone else's expectations."2
The Significance of Biological Ties
We have chosen to focus our feedback primarily on one key issue – the significance of a biological connection between parents and the children they raise. We are greatly concerned about the proposed move to rescind the biological link policy, a move which, because it radically redefines the traditional understanding and structure of the human family, has broader societal consequences that generate important questions not raised in the Consultation Document.
Our strongly held view is that the current requirement for a gestational or genetic link between intending parents and a resulting child must be retained as part of the guidelines governing the use of assisted reproductive technologies in New Zealand.
Our commitment to the importance of retaining these biological links (genetic and gestational) is not, however, simply the expression of a religious commitment to the 'traditional' family. It is more than that. Rather, the recommendation that all biological links be rescinded is premised, we argue, on an unacceptable lack of regard for the personal/emotional, cultural, societal and spiritual significance of being raised by those to whom we are biologically connected/related and, in our mind, constitutes a lack of respect for the dignity of the child to be born.
To so minimise the significance of biological connection for an individual's overall well-being and identity in order to sublimate it to the needs and desires of adults for whom donated gametes/eggs represents the "best or only" opportunity to have a child, effectively categorises it as some sort of 'optional extra' and creates what one author has referred to as "existential challenges of novel dimensions."
While we note that the Consultation Document emphasises the importance of children being informed about their biological (and gestational) origins – whakapapa – we would argue this knowledge needs to be a 'lived knowledge'. In other words, our firmly held position is that children have a fundamental right to grow up within the family networks that are generated by their genetic and gestational ties. Putting aside situations of abuse or neglect, arrangements that intentionally exclude children from growing up within the families of their biological ties are less than optimal even when or if they are 'informed' of their biological origins. This stance provides the strongest possible rationale for allowing only those ART's which hold together the genetic, gestational and social dimensions of procreation and for rejecting those procedures which fracture these three dimensions.
While current ACART guidelines go beyond a Catholic understanding of what is morally acceptable given that they allow varying degrees of separation of the biological, gestational and social dimensions, we note that the proposed changes would allow a complete fracturing of the three dimensions in certain circumstances.
In support of our stance, we note the ongoing and critical importance that is given to promoting and/or maintaining the relationship between children and their biological families of origin in critical areas of social and public policy and practice in New Zealand. The change suggested, removing the biological connection, would represent a significant adjustment to the principles that guide New Zealand policies and practices concerning children and whanau/ families.
One recent example of this is the Ministry of Social Development Expert Panel Final Report, Investing in New Zealand's Children and their Families (December 2015)3, which emphasises throughout (i) the importance of supporting birth families to care for their children and (ii) only putting alternative care arrangements in place in those situations where birth parents are unable, for whatever reason, to care for their children. This policy reflects the hard lessons from the past that, in the 1980's, led New Zealand to adopt what was then a revolutionary approach to the care of children by giving priority to children being placed within their own wider whanau rather than placing them with families to whom there was no biological or even cultural connection.
The recently formed Oranga Tamariki continues the practice of prioritising biological connection in the placement of children as evidenced by the following narrative excerpt taken from the News page of their website:
The three tamariki had spent most of their lives with non-kin caregivers. In the middle of last year the manager of the South Auckland Homai site, got in touch with Ngāpuhi Iwi Social Services about contracting their worker to provide whakapapa research to help make connections to their whānau and whakapapa from the Far North. Respect for a child or young person's mana, as well as the whanaungatanga responsibilities of whānau, hāpu and iwi are fundamental to achieving high expectations for Māori children and young people. These principles are a big part of the new Ministry's focus.4
Oranga Tamariki's emphasis on the importance of biological connectedness is further evidenced by their commitment to the Mokopuna Ora Initiative. This "partnership between Waikato-Tainui and Oranga Tamariki that keeps tamariki connected with their whānau, hapū and iwi" is described by Oranga Tamariki Chief Executive, Gráinne Moss, as "important ... because it signals that we're on this journey towards well-being".5 That children's well-being is specifically linked to being with family who are kin is noted by Oranga Tamariki as being supported by international literature and as positively reinforcing children's sense of identity and self-esteem.
Similarly, many of those who presented submissions to the Parliamentary Select Committee shared "grave concerns" about the proposed Children, Young Persons, and Their Families Legislation Bill because of their fears that the changes being proposed would sever tamariki Māori from their whakapapa rather than helping them to maintain connections with their whakapapa. In the words of one submitter:
We have these processes because in our own whanau, matua whangai is a traditional practice that doesn't remove the babies from us altogether, it places them with those best able to provide the cares that are needed and keeps the babies connected to their people, culture and strengthens them as they mature, knowing they were wanted by their own. I know, because I was a whangai and I never felt like I missed anything, I knew why I was not with my parents, and I was happy within the bosom of my wider whanau, which actually IS my immediate whanau.6
The same commitment to biological connectedness is further reflected in contemporary policies and practices which relate to the adoption of overseas children by New Zealand resident families. Thus, Oranga Tamariki, while noting that intercountry adoption is an option for children when a placement within their country of origin cannot be found, emphasises that "they have the right to be raised within their family wherever possible". Where this cannot happen, the agency then argues that:
• family solutions (return to the birth family, foster care, guardianship, adoption) should generally be preferred to institutional placement
• permanent solutions (return to the birth family, guardianship, adoption) should be preferred to provisional ones (institutional placement, foster care)
• national solutions (return to the birth family, guardianship, adoption) should be preferred to international ones (inter-country adoption) (UNICEF, 1998).7
It is clear that while part of the argument for this adoption policy relates to the risks to well-being of cultural displacement on children, it is also strongly driven by a recognition of the fact that intercountry adoption deprives children of the possibility of any meaningful relationship with parents, other siblings and wider family.
As we have previously stated, it is one thing to accept that there are situations in which a birth parent or parents cannot care for their biological child and doing the (next) best thing that promotes the best interests of that child, as occurs with adoptions, but it is quite something else to intentionally set out to deprive children of the right to grow up in their biological families.
Moreover, we believe it can be argued that rescinding the biological link as a matter of policy is out of step with UNCRC Article 8 which reads: "States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference."8
Consequently, we maintain that the recommendation to remove the requirement that there be a gestational or genetic link between intending parents and a resulting child is inconsistent and out of step with (i) current national and international public policy and practice relating to the care of children and (ii) cultural practices of Maori.
For these reasons we maintain that the arguments offered in the Consultation Document fail to give proper consideration to, and show adequate respect for, Principles f) and g) of the HART Act: adequate respect for the needs, values and beliefs of Māori, as well as the different ethical, spiritual and cultural perspectives. This, in addition to our belief that the proposed changes fail to adequately take into account the health and wellbeing of children born as a result – principle a).
We readily acknowledge that a consequence of maintaining the biological link policy is that it rules 'in' only certain means of conceiving children. However, in response to the Consultation Document which suggests that the current requirement for a biological or gestational link is "a source of potential discrimination" (n. 49), we would argue that our commitment to the status quo is more accurately described as 'a positive commitment to showing proper respect for the health and wellbeing of children' born as a result of such practices. From this it follows that the rejection of certain means and situations for conceiving human life, as we are arguing, is most correctly viewed as the logical and ethical consequence of a positive and intentional commitment to the optimal flourishing of children. We therefore reject those who would describe our stance as an attempt to discriminate against certain categories of intending parents (single men or single women) or certain types of couple relationships which we note include both heterosexual and same sex couples.
In response to those who emphasise the importance of choice and who see the current guidelines as an unjustified limitation on their choice, our stance might also be described as articulating the well accepted and critically important idea that there are limits to autonomy. As Atkin and Reid noted in 1994: "... individual rights can be limited when the aim is to protect important social interests ... that different people's rights overlap, that rights are subject to various limitations."9 And again: "Members of many cultures, including Māori, have collective values which may intercept the limits of autonomy and these new limits of autonomy must be negotiated."10
For the various reasons outlined above, we argue in the strongest possible terms for retention of the biological link which, by insisting that at least one of the intending parents must have a gestational or genetic link, holds together at least two of the three inter-related components of conceiving and rearing children – either social and gestational or social and genetic.
Conclusion: We acknowledge that there is an inherent tension in the use of ART's – a tension which results from holding the welfare and well-being of such children in a creative balance with respect for the rights and choices of intending parents who seek to use reproductive technology to overcome infertility.
We would argue that, by and large, the regulations governing the use of ART's in New Zealand since the ACART Act was passed in 2004 have, to date, managed to successfully maintain that creative balance between the two (at times competing) realities. It is our view, however, that the recommendation to rescind the biological link policy represents a significant shift in that balance away from the rights and well-being of the child.
It is our view that no-one has an absolute 'right' to have a child. To the extent that there is a right to have a child we would argue that it exists as a 'negative right' rather than a 'positive right'. The 1994 Report on Assisted Human Reproduction concurs, noting, in addition, that "Any right to found a family must not be seen in proprietary terms. It is not a right to have or own a child, whom many see as a gift."11 From this it follows that regulatory approval to use certain means to conceive must ultimately always be subjugated to the optimal well-being and flourishing of the child that will be conceived, even if they represent the only means for a person or couple to have a child.
We oppose in the strongest possible terms the recommended changes to the current biological link policy. When considering the eligibility criteria for intending parents who wish to enter a surrogacy arrangement and/or use donated gametes or donated embryos, our considered position is that an ethical commitment to the optimal well-being and flourishing of the child means giving over-riding priority in all cases to the maintenance of a genetic or gestational connection between them and any child conceived.
On this basis, we can only conclude that the recommendation to rescind the biological link between intending parents and their children makes the well-being of children secondary to the needs and desires of adults.
Allowing parents to conceive children with whom there is no biological or gestational link would be a significant and concerning step along a path that redefines parenthood as a social construct rather than a biological phenomenon. This would represent a significant ethical and social change for the whole of society, one that, because of its broader consequences, should not be implemented without much wider public discussion and consensus.
We disagree with the argument that our position rests on the perpetuation of unjustified discrimination against single intending parents, same-sex parents or parents for whom donation of gametes or an embryo in conjunction with surrogacy is the "only" means by which they may be able to have a child.
There may well be those who argue that the use of reproductive technology in the absence of a gestational or genetic link parallels what has traditionally happened with the adoption of children by families who are not kin. As noted above, it is one thing to accept there are situations where children are unable to grow up with their biological family but quite another to intentionally create such scenarios. For this reason, we regard the donation and adoption of so-called 'spare' embryos by intending parents who are not biologically connected as ethically and morally distinct from the deliberate creation of such embryos.
Finally, we believe that guidelines associated with embryo creation and surrogacy should stem from an ethical framework rather than simply respond to the next stage in the development and availability of assisted reproductive technologies. To this end we recommend the 'ethic of care' that is articulated by Atkin and Reid in their 1994 Report:
... an ethic of care holds, broadly speaking, that moral reasoning is not solely, or even primarily, a matter of finding rules to arbitrate between conflicting interests ... the priority ... is on helping human relationships to flourish by seeking to foster the dignity of the individual and the welfare of the community.12
1 See Rorty, M (2003) in her review of Habermas, Jurgen, The Future of Human Nature.
3 See https://www.msd.govt.nz/documents/about-msd-and-our-work/work-programmes/investing-in-children/investing-in-children-report.pdf, accessed 5 November 2017.
4 See https://mvcot.govt.nz/news/tamariki-where-they-belong/, accessed 5 November 2017.
5 See https://mvcot.govt.nz/news/mokopuna-ora-initiative-expanded/, accessed 5 November 2017.
6 See https://www.parliament.nz/resource/en-NZ/51SCSS_EVI_00DBHOH_BILL72055_1_A551167/0b74e762e0cfd8795b6406ff321460fb4652437b , accessed 9 November 2017.
7 See https://practice.mvcot.govt.nz/policy/creating-families-through-adoption/resources/intercountry-adoption-in-new-zealand.html, accessed 5 November 2017.
8 See http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
9 See Atkin, W. R., & Reid, P. (1994). Assisted human reproduction: Navigating our future. Report of the Ministerial Committee on Assisted Reproductive Technologies. Department of Justice. New Zealand. P. 30).
10 Ibid., p. 30.
11 See (Atkin, W. R., & Reid, P. (1994). Assisted human reproduction: Navigating our future. Report of the Ministerial Committee on Assisted Reproductive Technologies. Department of Justice. New Zealand. P.31.
12 Ibid., p. 28.