Kennedy Institute of Ethics Journal

introduction

The advent of novel assisted reproductive technologies (ARTs) has considerably expanded our sphere of control over our reproduction, and consequently, the scope of ethical debate surrounding reproductive choice. The widespread availability of genetic selection, in particular, raises questions regarding what reproductive choice does and should entail. Preimplantation genetic diagnosis (PGD) for genetic selection builds on in vitro fertilization (IVF). It forces us to confront questions of whether a moral right to reproductive choice extends not only to the decisions whether to have children and how many to have, but also what type of children to have. Traditionally, reproductive choice has been grounded in negative liberty, entitling right-bearers simply the right to non-interference in one’s reproductive decision-making by third parties. A basis of positive liberty, however, goes further: it demands that third parties facilitate individuals’ exercising the freedom to choose. This facilitation requirement underpins the provision of (early) abortion in 71% of high-income countries (World Population Policies 2013). However, when it comes to accessing ARTs such as PGD, the negative right conception continues to dominate, and has led to a widening gap between those who can exercise their right to make reproductive choices, and those who are unable to exercise the right. For example, they may be unable to exercise the right due to structural economic and social disadvantage that prevents them from being independently able to access or pay for these technologies. If reproductive choice (including access to ARTs) should be extended to all individuals, then the negative conception is inadequate.

The sufficiency of a negative right to reproductive choice (concerning ARTs) has been challenged before, yet feasible conceptions of an alternative, positive right have received far less attention. Here, I present a novel argument for the positive moral right to reproductive choice, entailing [End Page 303] the provision of accessible reproductive technologies by governments for those who cannot access or use them without additional support. Applying the capabilities approach in this area, I take the position that the positive moral right to reproductive liberty (PMRRL) is justified by the centrality of reproductive choice to human flourishing and self-determination. This has implications both for reproductive choices to have a child, and for reproductive choices concerning what type of child to have.

To introduce the argument, I use John Robertson’s Children of Choice (1994)—advocating a negative right to reproductive choice—as a springboard to critique some key aspects of a negative moral right, in the first section. This insufficiency of the negative right is elaborated upon more generally in the second section, where I also explore how a positive moral right avoids these objections. I propose PMRRL based on a capabilities approach in the third section, and address possible objections. Finally, in the fourth section, PMRRL is applied to the question of access to ARTs, firstly regarding the choice to have a child (using IVF for fertility reasons), and secondly regarding the choice of which child to have (using PGD for genetic selection).

1. robertson’s conception of procreative liberty

Reproductive choice has been conceptualized in various ways in the literature. Different conceptions afford individuals more or less access to reproductive services, and consequently confer more or less responsibility on governments to promote and protect citizens’ reproductive decision-making. One influential conception has been suggested by John Robertson. I outline Robertson’s conception here, and then argue against Robertson for a positive, exercisable right to reproductive choice for vulnerable groups via the provision of ARTs.