Georgina Hall

An accepted argument in reproductive rights literature holds that the welfare of future children is irrelevant in the provision of assisted reproductive technology (ART). A foundational philosophical concept underpinning such dismissal appeals to the “non-identity” problem. This argument holds that a future ART child’s overriding interest lies in being born. I challenge this argument, suggesting it is a shallow and selective interpretation of the concept that narrowly applies the “person-affecting” harm principle to future ART children. I suggest a more extensive reading of the “non-identity” problem defends the opposite argument—that dismissing child welfare concerns in ART provision is wrong. In line with the work of one of the key architects of the “non-identity” problem, I formulate four Parfit-style arguments that justify clinician refusal of treatment. The key substantive claim of this paper is that delay or denial of ART is morally defensible within the “non-identity” problem paradigm in some instances.

An accepted argument in reproductive rights literature holds that the welfare of future children is irrelevant in the provision of assisted reproductive technology (ART). A foundational philosophical concept underpinning such dismissal appeals to the “non-identity” problem. This argument holds that a future ART child’s overriding interest lies in being born. I challenge this argument, suggesting it is a shallow and selective interpretation of the concept that narrowly applies the “person-affecting” harm principle to future ART children. I suggest a more extensive reading of the “non-identity” problem defends the opposite argument—that dismissing child welfare concerns in ART provision is wrong. In line with the work of one of the key architects of the “non-identity” problem, I formulate four Parfit-style arguments that justify clinician refusal of treatment. The key substantive claim of this paper is that delay or denial of ART is morally defensible within the “non-identity” problem paradigm in some instances.

The predominant position in the reproductive rights literature argues that access to assisted reproductive technologies (ART) forms part of an individual’s right to reproduce. On this reasoning, refusal of treatment by clinicians (via provision) violates a hopeful parent’s reproductive right and discriminates against the infertile. I reject these views and suggest they wrongly contort what reproductive freedom entitles individuals to do and demand of others. I suggest these views find their origin, at least in part, in the way we define “reproduction” itself. This paper critically analyses two widely accepted definitions of human reproduction and demonstrates that both are fundamentally flawed. While the process of reproduction includes the biological acts of begetting and bearing a child, I argue that it does not extend to include rearing. This reworked definition has little impact in the realm of sexual reproduction. However, it has significant ethical implications for the formulation and assignment of reproductive rights and responsibilities in the non-sexual realm in two important ways. First, a claim to access ART where one has an intention to rear a child (but does not beget or bear) cannot be grounded in reproductive rights. Second, lacking an intention to rear does not extinguish the reproductive rights and responsibilities for those who collaborate in the process. I conclude that clinicians collaborate in non-sexual reproduction at the point of triggering conception (begetting) and therefore have the right to refuse to be involved in non-sexual reproduction, in some instances, as do all reproductive collaborators.

Developmentally, adolescence sits in transition between childhood and adulthood. Involving adolescents in their medical decision-making prompts important and complex ethical questions. Originating in the UK, the concept of Gillick competence is a dominant framework for navigating adolescent medical decision-making from legal, ethical and clinical perspectives and is commonly treated as comprehensive. In this paper, we argue that its utility is far more limited, and hence over-reliance on Gillick risks undermining rather than promoting ethically appropriate adolescent involvement. We demonstrate that Gillick only provides guidance in the limited range of cases where legal decisional authority needs to be clarified. The range of cases where use of Gillick actually promotes adolescent involvement is narrower still, because several features must be present for Gillick to be enacted. Each of these features can, and do, act as barriers to adolescent involvement. Within these limited situations, we argue that Gillick is not specific or strong enough and is reliant on ethically contestable principles. Moreover, in most situations in adolescent healthcare, Gillick is silent on the ethical questions around involving adolescents. This is because it focuses on decisional authority—having the final say in decision-making—which is one small subset of the many ways adolescents could be involved in decision-making. The implication of our analysis is that use of Gillick competence tends to limit or undermine adolescent involvement opportunities. We propose that those working with adolescents should be judicious in seeking Gillick’s guidance, instead drawing on and developing alternative frameworks that provide a comprehensive model for adolescent involvement.

Fertility clinicians participate in non-sexual reproductive projects by providing assisted reproductive technology (ART) to those hoping to reproduce, in support of their reproductive goals. In most countries where ART is available, the state regulates ART as a form of medical treatment. The predominant position in the reproductive rights literature frames the clinician’s role as medical technician, and the state as a third party with limited rights to interfere. These roles broadly align with established functions of clinician and state in Western liberal democracies, where doctors have duties to provide safe, beneficial and legal healthcare to all who seek it. Recognised state responsibilities include safeguarding equitable access to medical services and protecting and promoting reproductive liberty. I argue against this normative moral framing of clinician and state involvement in non-sexual reproduction, suggesting that clinician and state join the non-sexual reproductive project at the point of triggering conception. Begetting a child is more than just the provision and regulation of healthcare; it generates rights and confers responsibilities on all who join this morally significant project. All who collaborate have the right to join or refuse to join the project. I suggest this is intuitively understood in the sexual realm, but not in the non-sexual realm. My key substantive claim is that non-sexual reproduction is a pluralist pursuit that morally implicates more than the genetic and gestational contributors. I find that while the moral basis of a clinician or the state’s right to refuse to join the ART project is the same as for those providing gestational or genetic input, the reasons that morally underpin their refusal differs.

Reproduction is broadly recognised as fundamental to human flourishing. The presumptive priority of reproductive freedom forms the predominant position in the literature, translating in the non-sexual reproductive realm as an almost inviolable right to access assisted reproductive technology (ART). This position largely condemns refusal or restriction of ART by clinicians or the state as discriminatory. In this paper, I critically analyse the moral rights individuals assert in reproductive pursuit to explore whether reproductive rights entitle hopeful parents to ART. I demonstrate that none of the protected actions performed, or entitlements generated are sui generis ‘reproductive’ rights, leading to the claim that there is no such thing as a right to reproduce. Under scrutiny, the reproductive right is a far narrower and weaker rights assertion than is recognised in the literature. I argue that the predominant position is grounded in a fundamental misunderstanding of the scope and strength of reproductive claims.I also highlight a significant conceptual inconsistency in the literature. On one hand, there is broad consensus that reproductive rights are predominantly negative, yet access to fertility treatment is framed as a component of the right. This wrongly contorts the negative nature of reproductive rights into a positive claim-right to ART. I conclude that this mistakenly frames ART access as sitting within the scope of reproductive freedom. I offer a revised conceptual paradigm of reproductive rights that has important clinical and policy implications for the provision and regulation of ART.

After twelve years as the inaugural Director of the Caroline Chisholm Centre for Health Ethics, leading Melbourne bioethicist Dr Norman M Ford has resigned his position. Instead of contemplating retirement however, the tireless septuagenarian, who is also a philosopher, author, Honorary Research Fellow in the School of Philosophy and Bioethics at Monash University and Catholic Salesiah priest, has his sights set on tackling even more controversial biomedical issues as an independent research scholar and author. Georgina Hall gets an insight into his life’s work.

Clinical ethics committees aim to resolve conflict, facilitate communication and ease moral distress in health care. Dialogue in committee discussions is complex and involves a balance between implicitly and explicitly expressed values of patients, families and professionals. Evaluating effectiveness and concrete outcomes is challenging and most studies focus on broad benefits such as quality of care and reduction of unnecessary or unwanted treatments. In this paper we propose ‘physician satisfaction’ as a valuable outcome. We refer to the clinical ethics approach followed at one large paediatric hospital in Australia, propose reasons for the often-expressed feeling of satisfaction and discuss why this feeling matters. We conclude that physician satisfaction is a valid measure of an effective ethics consultation because it implies the person has been listened to and respected by others, and has perhaps developed greater understanding of and insights into their own work and values, and those of others.