The impact of the child welfare principle on access to assisted reproductive technology

K Law (General);KD England and Wales;KDC Scotland

Gibson, Andrew Robert ; McLean, Sheila

University:University of Glasgow

Department:School of Law

关键词: Assisted Reproductive Technology Child Welfare PrincipleSection 13(5) of the Human Fertilisation and Embryology Act 1990Non-Identity problem;   

Others  :  http://theses.gla.ac.uk/6716/1/2015GibsonPhd.pdf

来源: University of Glasgow

【 摘 要 】

Assisted Reproductive Technology has, in the last 40 years, raised numerous ethical questions.One of these ethical questions has been whether or not children born as a result of Assisted Reproductive Technology treatments may be harmed as a consequence of being brought into existence in this way.Harm caused to children is quite rightly a serious concern for society and society expects the State to intervene to protect children from parents who pose a significant risk to their children.Towards this end section 13(5) of the Human Fertilisation and Embryology Act 1990 requires licensed infertility treatment clinics to ‘take into account the welfare of the child who may be born as a result of treatment’ when considering whether or not to provide a woman with treatment services.This thesis will argue that section 13(5) of the Human Fertilisation and Embryology Act 1990 should be amended as it is acts as nothing more than an arbitrary and unjustified infringement on an individual’s right to reproductive liberty; is an ineffectual means of promoting the welfare of the child who may be born as a result of treatment; is philosophically incoherent; and is inconsistent with the law as applied in so-called ‘wrongful life’ cases.The argument that section 13(5) of the Human Fertilisation and Embryology Act 1990 should be amended will be grounded upon the contention that an individual’s right to reproductive liberty should be accorded particular respect.This thesis will argue for a right to reproductive liberty which encompasses a negative right of the individual to be free from unjustified interference by the State when making reproductive choices. The pervasive influence of the child welfare principle as applied in the context of decisions directly impacting upon them has, it will be argued, played a significant part in the inclusion and retention of section 13(5) within the Human Fertilisation and Embryology Act 1990.This thesis will examine the way in which the child welfare principle as applied to children has grown in influence and how an unquestioning adherence to this worthy principle has led to an incongruous version of it being applied at the pre-conception stage.While the State have a solid mandate to protect the welfare of children this thesis will argue that that mandate cannot realistically be extended to apply to future children, when to refuse an individual access to Assisted Reproductive Technology has the effect of preventing the child whose welfare is to be taken into account from being brought into existence in the first place.