The relationship between law and human reproduction is a complex and a fascinating one. When human beings could do little to control their fertility or infertility, law was of comparatively little importance. As the reproductive process has been opened up to more intensive scrutiny, and as the opportunities for its external manipulation multiply, law has assumed an ever greater significance. In addition to some important statutes and developments in the common law, there is also now an expanding body of diverse regulatory practices that are directed towards the government of human procreation. 
M. Blyth | Ultrasound scan at 21 weeks. Reproduction is one of the most personal aspects of our lives, yet reproductive processes have been opened up to intense legal scrutiny as the opportunities for external manipulation have multiplied. Owing to the speed of technological advancement in the field of reproduction, the law becomes outdated very quickly. One thing that endures is controversy over the moral status of the fetus. |
Innovative technologies and advances in human genetics are forcing us to constantly rethink the boundaries of what might be humanly possible. Creating a regulatory framework capable of accommodating all of the ethical dilemmas thrown up by this rapidly shifting terrain undoubtedly represents one of the most important and difficult tasks for law in the twenty-first century. In addition to the speed with which law may inevitably become obsolete, the regulation of reproduction is further complicated by the existence of profound disagreement about the moral propriety of human intervention in the reproductive process. There will, for example, never be consensus about the moral status of a fetus. This seminar will offer a critical and legal analysis of the regulation of human reproduction. The overarching theme will be the argument that regulation should be concerned to promote autonomous reproductive decision-making. So, for example, I argue that women should have the right to terminate their unwanted pregnancies. And I would be in favour of broadening access to reproductive technologies. Whose decision? Autonomy in making reproductive decisions
Before we examine its role in the regulation of reproductive decision-making, it is worth noting that the concept of autonomy is not without its critics. At its most basic, giving priority to autonomy means that, provided others are not harmed, each individual should be entitled to follow their own life plan in the light of their beliefs and priorities. Some feminists have argued that this liberal emphasis on the importance of individual autonomy and self-determination ignores the importance of connections with others. A certain strand of feminism, typified by the arguments of Virginia Held and Carol Gilligan, has accused this liberal commitment to self-determination of excessive individualism and a lack of attentiveness to the importance of connections with others. Autonomy, it is argued, is principally a masculine trait, which imagines the individual to be unencumbered and emotionally detached. Women, in contrast, are not isolated and primarily self-interested citizens, rather they are intimately connected to others through their experiences of pregnancy, childbirth and breastfeeding. But of course not all women do experience pregnancy. For women who are infertile, or who have infertile partners, the capacity for pregnancy may be irrevocably absent. By conflating being female with motherhood, this critique of autonomy (and the arguments that stem from it) is grounded in an account of women's lives that is only partially true. Furthermore, acknowledging the unparalleled intimacy of pregnancy does not necessarily render the concept of autonomy redundant or meaningless. On the contrary, I suggest that the uniqueness of the bond that exists between a pregnant woman and her fetus should alert us to her intrinsic interest in defining for herself the scope of her relationship with the fetus that is living inside her body. Thus, rather than ascribing some essential and separate moral status to the fetus, I argue that its interests can only be determined in conjunction with a consideration of the interests of the pregnant woman within whom it exists. I argue that the pregnant woman should be entitled to control the course of her pregnancy. In my view, the law's failure to endow her with ultimate decision-making authority during pregnancy is only not perceived to be an egregious violation of her right to make important decisions about her body and her life as a result of a network of dominant cultural assumptions about the instinctiveness of maternal self-abnegation. onomy is grounded in the communitarian insight that an individual's identity and desires are largely determined by their membership of various social groups or communities. It is undoubtedly true that individuals cannot exist in a social and cultural vacuum, with needs and interests that emerge and can be satisfied without reference to the needs and interests of others. Reproductive decisions, in particular, will obviously be informed by the rich network of relationships and cultural expectations within which each individual is situated. But my argument will be that acknowledging the significance of our social, economic and emotional context should not lead us to jettison the whole concept of autonomy. Rather we should perhaps think about how we might reconfigure autonomy in a way that is not predicated upon the isolation of the self-directed and self-sufficient subject. Possessing freedom of choice does not guarantee that an individual's life will be enriched by choosing between the options that are available to them. Even if we do have a degree of control over our reproductive lives, it is clear that we will sometimes have few realistic alternatives. In fact, the right to make procreative choices can coexist with the substantive incapacity to exercise any real control over one's reproductive life. The space within which autonomy may be exercised will always perhaps be comparatively small, but I would argue that possessing some control over the direction of one's life is a necessary constituent part of a 'good' or agreeable existence. A commitment to autonomy may therefore emerge precisely from the recognition that many people's capacity to lead a self-authored life is profoundly limited. In order to treat individuals with dignity and respect, we should therefore give them both the freedom to exercise reproductive choice, and a set of realistic and valuable reproductive opportunities. Thus, my point is not to argue that reproductive choices exist and can be satisfied in a social vacuum, instead I suggest that a community should be concerned to foster an environment in which the exercise of reproductive choice is both possible and valuable. Our preoccupation should not be with the essentially uncontentious insight that we are not self-sufficient, atomistic individuals relentlessly pursuing our own purely self-interested ends, but rather we should be thinking about what sort of laws, institutions and services might allow us to maximise our capacity to exercise control over reproduction given the network of social constraints that will always tend to limit our options.  | |
| Thinking Point | | | Do you think laws and institutions should create a climate that encourages individual reproductive autonomy? | | |
A crucial initial step might be the recognition that reproductive autonomy is not something that an individual either has or does not have. It is not a static or innate quality, rather a person's capacity to make meaningful choices about their reproductive capacity may fluctuate according to a complex matrix of social, economic and psychological factors. Our reproductive choices are, of course, shaped by multiple external influences, but they are the only choices we have, and they are therefore of critical importance to our sense of self. The decision to have an abortion, for example, is made because, for a variety of reasons, this particular woman does not want to carry her pregnancy to term. That she is not in control of all of those reasons should not lead us to ignore her deeply felt preference. Even if we recognise that social and religious forces may shape and constrain our choices, our sense of being the author of our own actions, especially when they pertain to something as personal as reproduction, is profoundly valuable to us. We cannot believe that all of our preferences are irredeemably 'not ours' without our sense of self effectively collapsing. When we disregard an individual's reproductive preferences, we undermine their ability to control one of the most intimate spheres of their life. Our reproductive capacity or incapacity indubitably has a profound impact upon the course of our lives, and decisions about whether or not to reproduce are among the most momentous choices that we will ever make.
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