Infertility treatment should be free to all who request it regardless of age, marital status, number of other children, socio-economic status etc…
Introduction
The availability of infertility treatment is currently a hotly contested issue not only in medical circles but also across the media and in Parliament. As Edmonds and Warburton state:
Roughly one in seven couples in Britain has trouble conceiving a child. There are others who may want children but can’t have them in the normal way – say, because they’re male homosexuals, or completely infertile. IVF – In-Vitro Fertilization treatment – remains expensive and success is far from guaranteed, but it’s helped millions of people. It’s also opened up a pandora’s box of moral dilemmas. (Edmonds and Warburton 2005: 1)
It is this ‘pandora’s box’ of moral dilemmas that has caused such controversy over IVF, and also made it an interesting topic for discussions of applied ethics. There have been cases for example of post menopausal women having children using IVF, single women or lesbians who choose to be impregnated with donor sperm, or women who are impregnated with embryos to which they have no biological link. Such issues raise questions such as does everybody have the right to child? And should the state pay for this? I will address these questions in this essay with a consideration of medical ethics and its underlying principles, alongside examples taken from the IVF debate.
Medical Ethics
The debate raises important issues for medical ethics. The underlying principles of medical ethics include autonomy, beneficence / non-maleficence, justice and moral justification. Firstly, respect for autonomy recognizes the right of the individual to self-determination, “the capacity to think, decide and act on the basis of such thought and decision, freely and independently” (Hope 2004: 65) This assumes that individuals can make informed choices about personal matters. An increasing focus on autonomy can be seen as a reaction to more ‘paternalistic’ traditions of healthcare, where the individual is told what is best for them, rather than being able to decide. It suggests a focus on outcomes that are more important to patients than to medical professionals.
Respect for autonomy could be a basis for an argument for IVF treatment for all who want it. According to this principle, the state or healthcare professionals would have no right to decide who should or should not receive IVF as it would be down to the decision of each individual. This may come into conflict however with the principle of benefience, which is that of the medical professional doing what is good for humanity in general, or in specific cases, taking actions which will benefit the patient, “following this principle would entail doing what was best for the patient” (65). The difference here is that according to this principle, the responsibility of decision is shifted onto someone else rather than the patient. It raises the question of course of who should be the one making the decision of what is best. In relation to IVF, medical professionals could withhold treatment from individuals if they believed that their treatment would not be good for humanity in general, or not good for them. According to the principle of non-maleficence, doctors are obliged not to prescribe medications they know to be harmful, “it is generally thought that we have a prima-facie duty not to harm anyone” (65) This principle has been used for example to oppose attempts to legalise euthanasia. Non-maleficence is a legally definable concept and violation of non-maleficence is the subject of medical malpractice litigation.
Comparing these principles sees an opposition at the heart of the debate – that between individual rights and the greater good of society – which has been fundamental in ethics. Jeremy Bentham’s theory of ‘act-utilitarianism’ for example, sets out to provide a normative moral philosophy by stating that each act should provide the greatest possible happiness to the greatest number of people (Fieser 2006: 8). The medical principle of beneficence is based on a similar assumption – that the benefit to the majority of society is what makes an act morally right. However, according to this simple version of utilitarianism, it would for example, be not only acceptable but morally ‘right’ for a mob to burn someone they suspected to be a witch. Here the happiness experienced by the mob in ridding their society of evil would outweigh the small displeasure of a single person being killed. There are also difficulties such as how does one measure ‘happiness’. However, this course of action doesn’t seem intuitively morally right, illustrating some of the limitations of working purely on a particular universal normative moral code.
On the other hand, justifying actions as right according to the principle of autonomy would also be difficult. Firstly, how is it account for competing rights? If I think I have the right to hit someone and they think they have the right to not be hit for example. Following a rights-based principle such as ‘respect for autonomy’ completely also leads to moral confusion. Mary Warnock makes a case against thinking of IVF in terms of rights, “I don’t think there can be any question of rights in this area. Because you can’t have a right to something which it’s impossible that you can get. And for some people it’s never going to be possible to have their own biological baby” (Edmunds and Warburton 2005: 6) This is an important problem for basing decisions on the principle of autonomy in this context. For many couples it is not a question of autonomy at all. On the other hand, Warnock fails to account for the fact that at a more general level, the debate comes down to an opposition between the individual’s desire to have a baby, and the state’s decision that this is morally wrong. Dari Taylor, MP for Stockton South has pointed out the conflict between infertility as disease (so, according to the principle of beneficence, medicine provides a cure), and the view that having children is just a ‘lifestyle choice’, which needs no state support, “Infertility is a disease and it should be diagnosed and treated as such. But she said primary care trusts saw it as a low priority and as a ‘lifestyle choice’ “(Mcveigh 2007: 4). I will return to these oppositions later.
Both principles then suffer from being moral universals, assumed to apply to all people at all times, and unable to account for individual cases. The principles of medical ethics are ‘normative’ meaning that they provide one criteria of good or right conduct, which can then be taken and applied to all cases. Problems arise when there is conflict between them. To return to the IVF example, according to a utilitarian theory, laws should be introduced which allow people to have children only when this will do good for society. However, this may violate individual human rights, and leads to a problem of who defines this ‘good’. Someone with religious views for example may not think it is ‘right’ for homosexual couples to have children, while others would disagree. According to a rights-based theory, if people want children, they should have them. This however runs into practical problems, and violates other moral codes of our society, such as a tendency to equate the ‘natural’ with goodness.
In theory, resolving particular applied ethical issues should be easy. With the issue of abortion, for example, we would simply determine its morality by consulting our normative principle of choice, such as act-utilitarianism. Unfortunately, there are perhaps hundreds of rival normative principles from which to choose, many of which yield opposite conclusions….The usual solution today to this stalemate is to consult several representative normative principles on a given issue and see where the weight of the evidence lies. (Fieser 2006: 7)
And this is case with IVF. It is a case of considering the conflicts and contradictions between various principles of medical ethics, and reaching a conclusion. Also relevant in this context is another principle – that of justice. Justice “concerns the distribution of scarce health resources, and the decision of who gets what treatment (fairness and equality)” (wikipedia, 2008). While a patient may want or believe they have a right to IVF and be entitled to it according to the principle of autonomy, this comes into conflict with the principle of justice, where the medical professions or the state must decide which groups are most entitled to treatment. On one hand there is the danger of a universal rule that doesn’t work, and on the other of complete relativity, where each individual case is different. It seems that the law then, to make practical and applicable sense, must be able to balance these principles of autonomy and justice, while also avoiding maleficence. This raises several further issues including who has the right to make these decisions, which groups are most entitled to treatment and why.
Who has power to decide?
The first question to address then, is who should have the power to decide whether or not IVF treatment should be available, and to whom. The 1990 Human Fertilisation and Embryology Act is currently in the process of being reviewed. The bill, which covered the research and clinical practice of IVF, was widely opposed at the time but survived. Today, much opposition remains. One proposed amendment is to set up a national human bioethics commission – a statuary commission to examine developments in the science alongside its ethical implications. Mary Warnock has spoken out against this proposal:
Do we need such a commission? We do not. The structures are already in place. We have the Human Fertilisation and Embryology Authority, set up under the 1990 act, whose task is to issue licences for research in the field of embryology. Its decisions are determined by moral considerations. (Warnock 2008: 1)
She suggests that there will be support for the amendment, as people believe concerns of morality and religion are lacking from the original act. Others oppose the way that the technology has been used not specifically for infertility – in cloning Dolly the sheep for example. She opposes it however, as she believes that it will lead to more restrictive legislation, and also as the responsibility of changing the law must rest with Parliament:
No national human ethics commission, however carefully chosen its membership, could exercise moral authority over Parliament or compel members to change their ethical beliefs. For the law governing research (and clinical practice) is derived from our moral considerations. (3)
Warnock’s argument is that the law is derived from ethical considerations, and exists to prevent women being exploited and society being outraged, “but what is exploitation or what justifies outrage is something for Parliament to determine” (4). The creation of an external body to settle moral disputes would be in direct conflict with this position. We must all be subject to the ruling of the law, or the law becomes meaningless.
People always want to create another body that will be able to settle their disputes…[However] I believe that setting up a new style of committee independent of Parliament would seem to make the role of Parliament less central, its responsibility and its authority less great. That would, in my view, be an actual weakening of the rule of law. (4)
Nigel Warburton raises the question of whether there is a place for the moral philosopher in making such decisions, or at least having an advisory role. He argues that the distance of the philosopher may be a way to avoid what he calls the ‘Yuk factor’ – the natural repugnance people feel to anything artificial related to childbirth. Warnock is also suspicious of this idea, “I don’t know that philosophers are much better than anybody else in making judgements about particular situations that are presented to them here and now” (Edmonds and Warburton 2005: 4).
I believe that philosophy does have a role in such decisions, and while it may not be in such a simple advisory role, I agree with Warnock when she suggests that philosophers can play some role in the debate, even if not a practical one, “I think there is a great role for philosophy in a general educational way of making people less liable to rely on the ‘Yuk factor’ and really think about what they’re saying” (5). The ‘Yuk factor’ is not to be dismissed. As an emotional reaction to something which seems morally repugnant, it is an important and completely valid reaction. However it is also one which is learnt and culturally specific, and perhaps it could be considered in more detail where this reaction comes from and how it is used rather than assuming it is a ‘natural’ and universal reaction.
Problems of Implementation
All of this confusion over the ethics of IVF has led to much practical difficulty in legal implementation. Currently, according to Karen Mcveigh, “more than half of England’s health authorities fail to provide the most basic treatment of a full IVF cycle, including freezing and replacement of embryos not transferred in the initial cycle” (McVeigh 2007: 1). A recent report found that the NHS regarded treatment of infertile couples as “a low priority, with trusts ‘reluctantly funding the barest minimum’ of treatment, if at all (3). Those refused treatment include smokers, those too fat or thin.
It seems here that local health centres have been exercising decisions based on the principle of beneficence. This has led to difficulties as, while posing as a universal law, it is of course subject to being interpreted differently by different councils, and with no overall law, people are being treated differently in different areas, leading to the so-called ‘postcode lottery’ for treatment.
Couples seeking fertility treatment face huge disparities in how long they have to wait for care. The most comprehensive guide yet reveals a “postcode lottery” of services, ranging from average waits of a fortnight for NHS patients wanting IVF in some areas to 156 weeks in others. (Lister 2005: 1)
Guidelines exist – issued by NICE in 2004 that couples should be offered up to three cycles of IVF if the woman is aged between 23 and 39 – but are subject to “enormous variation (McVeigh 2007: 3). A 36 year old woman was rejected in Wiltshire for example, while a 28 year old was in Thames Valley (4). EAGISS in Scotland has a different set of guidelines from those in England, based on a series of eligibility criteria. However, according to recent reports there is still inequality of access to treatment in Scotland and “there is also considerable disparity in waiting times for infertility treatment, with some couples waiting less than six months and others waiting over 4 years” (www.infertilitynetworkuk.com)
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Conclusion: Do some have more rights than others?
It seems that a lot of the problems expressed in the media are the seemingly arbitrary nature of the way the treatment is distributed. Fixed national guidelines could help with this, but there has been debate over who should decide this. Practically, it would be difficult to offer expensive IVF treatment to all so difficult moral decisions should be made over which groups should be treated ‘more equally’ than others.
It could be argued that the desire to have children is a culturally relative one. Warnock herself admits that is based on her own religious upbringing, “[the desire] comes right down from the Jewish tradition into the Christian tradition, and I think it’s very strong feeling.” (Edmonds and Warburton 2005: 8). Warnock’s argument is that as the desire is so strong, assistance should be given to all, “because, after all being infertile is a malfunction, and the medical profession is there to remedy malfunctions in so far as it can.” (9). There are many inconsistencies in her argument however. Religion has been used in arguments generally against IVF rather than for. In response to the 1990 bill for example, there was much religious opposition based on the sanctity of life starting from conception. If the desire for children is so strong then why should be treat some differently to others, as Warnock suggests,
I can quite see that the National Health Service, for instance, might want to very reasonably decide to limit treatment to heterosexual couples. I can understand that. I don’t think that homosexual couples or single people should be debarred legally from using these techniques but they probably would have to pay for it. (9)
I find it hard to see how limiting treatment to homosexual couples can be seen as a ‘rational’ choice. If treatment should be available to all then there can be no exceptions. However as resources are scarce, arguments must be made. People may argue that the domestic unit of male-female and children is better, according to the principle of beneficence, to promote ‘family values’. This is of course a completely culturally relative view, based on a conservative ideology. What the argument does play to more powerfully is the ‘Yuk factor’ I have discussed – that people intuitively feel that science shouldn’t interfere with what is seen as ‘natural’, whether because of unexplained intuition, religious, homophobic, age-ist, or politically conservative views. Economics is used to justify these ideological decisions. Warnock’s argument that heterosexual couples are “the most obvious beneficiaries” and “deserve” free treatment, and that “there should be an age limit” (9-10) becomes increasingly more difficult to justify in any other way than a personal opinion, based on a personal set of beliefs. As Warburton points out, while it seems intuitive to limit IVF to the most ‘natural’ cases – hetereosexual women of child-bearing age, this leads to practices of discrimination, “it’s discriminating against particular groups who are already discriminated against in other ways. It just compounds the discrimination” (12).
Recent debates show however that this inherent opposition to scientific intervention is shifting. The commons has just backed a law to allow ‘saviour siblings’ (creating a genetically matched embryo as a tissue donor for a debilitated sibling) helped by a late plea by Gordon Brown for the human fertilization and embryology bill as “an inherently moral endeavour” (Watt 2008: 4). It seems that as traditional beliefs and views on what is ‘natural’ are shifting, society is changing, and science is developing, then so the law must shift and adapt, providing new interpretations of clashes of principles of beneficence and autonomy; rational arguments and moral intuition. This leads to a difficult and uncertain situation for the doctor, as Warnock realizes, “it does put clinicians into impossible positions if they have to make moral judgements about their patients. This really oughtn’t to be required of them, I think” (Edmunds and Warburton 2005: 12). It also however illustrates the importance of philosophy at the heart of medical policy. Continually redefining foundations of medical ethics, and providing a more rational way of examining and debating the sometimes kneejerk reactions to science and medicine promoted in the media and popular belief.
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