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Artificial methods of procreation
Introduction
Since 1987, when the first child conceived by the technique of in vitro fertilization was born in the United Kingdom, the hopes and fears caused by modern reproductive techniques have been the subject of increased medical, ethical, political, and legal debates.47 In the past, couples who were unable to have children had to accept their childless state or adopt a child. Since adoption did not always satisfy the desire of parents to have their own child, medical science for centuries has aimed at identifying the causes of infertility and at providing remedies. Already in the late eighteenth century the first recorded artificial insemination using semen from the husband took place, and from the nineteenth century we have been told about cases of artificial insemination with semen from donors.48 Other forms of artificial procreation such as in vitro fertilization, egg donation, embryo donation, and surrogacy are, however, truly modern reproductive techniques and create a wide range of legal and ethical problems.
Artificial insemination (AI) is a solution where the reason for the childlessness is the man's infertility or his inability to deposit semen into the vagina. The latter problem can be solved by assisted fertilization using the semen from the husband or the male partner of a cohabiting couple (AIH). Since no extraneous element is introduced into the couple's relationship, this technique does not raise serious ethical or legal problems. It is only if the semen is frozen and inseminated after the husband's death that the status of the child (legitimate or illegitimate) may give rise to problems.49
Similar problems arise if Al uses semen from a donor (AID) because of the husband's or male partner's infertility. In the absence of specific laws the child would be illegitimate and AID would have to be considered (at least if it was carried out without the husband's/partner's consent) as adultery with all legal consequences (if still existing), such as, for example, criminal sanctions and a ground for divorce.50 The legal regulations generally seem to be inappropriate to deal with the situation of a single woman or a lesbian couple applying for AID. Although in many Western European countries, thanks to AID, single women and lesbian couples have succeeded in giving birth to a child and raising it, the parenthood rules seem to be very diverse, if existing at all. Further problems related to AID arise in case of anonymous semen banks.
Egg donation is a solution in a case where the woman is unable to ovulate or would be advised on medical grounds not to have a child. Although it is the counterpart of AID it raises more serious legal problems. The old Roman law principle mater semper certa est cannot any longer be applied because the child has both a genetic (biological) and a carrying/nurturing (natural) mother. In order to solve this problem the Australian state of Victoria, for example, introduced a presumption that the woman who actually gives birth to the child is the mother of the child and that the egg donor is not the mother.51
In vitro fertilization (IVF) is a technique by which an egg is fertilized under laboratory conditions.52 After the resulting embryo has developed for a short while it is then placed into the uterus of the woman who produced the egg. If it is implanted into another woman, we speak of embryo donation or embryo transfer. Before fertilization can take place an egg has to be removed from the ovary. In order to increase the chances of a pregnancy, in practice a number of eggs (normally three) are produced with the help of drugs and removed, fertilized, and reimplanted at the same time. This technique, however, creates the possibility of more embryos being produced than are needed for reimplantation. These "surplus embryos" may be frozen and stored and/or used for research purposes including genetic engineering. The problems arising in this context are dealt with in the next section of this paper. It has to be noted that even if all embryos are reimplanted a number of difficult ethical and legal problems concerning the status and protection of the embryo, etc., remain.
Surrogacy is an arrangement whereby one woman carries a child for another woman with the intention that it should be handed over after birth.53 Surrogacy is used more and more by gay couples and single men who cannot otherwise have their own offspring. Surrogacy agreements may involve different methods of procreation such as natural or artificial insemination, egg or embryo donation. Usually it is a married couple that enters into the arrangement with a surrogate mother who will be either artificially inseminated with the husband's semen or who will receive the embryo after IVF. In most cases the surrogate mother agrees to do this only for a fee but there are also agreements without financial implications. Surrogacy agreements intend that the genetic mother (who produced the egg) will also be the nurturing mother after the child's birth, and that the surrogate mother will only function as carrying mother and surrender the child immediately after birth to the nurturing mother. In practice, however, the genetic mother or parents might change their minds during pregnancy, the surrogate mother might wish to keep the child after birth, or both mothers might wish to abandon the child and the nurturing mother would then be a third woman. Consequently, the ethical and legal problems arising from surrogacy agreements are extremely complicated and have become aggravated by the increasing involvement of commercial agencies.
Human Rights Aspects
Much has been written about the shortcomings of traditional civil and criminal law vis-à-vis these modern techniques of human reproduction. Frequently governments are requested to enact criminal legislation in order to prohibit methods such as genetic engineering or commercial surrogacy agreements In our opinion there is, however, more demand for amendments in the area of family law, contract law, and other fields of civil law. Courts are no longer in a position to provide justice on the basis of existing principles such as mater semper certa est. Many of the issues involved are so controversial and so highly emotional that even ethical commissions find it very difficult to arrive at proper solutions. In the absence of any generally accepted moral or religious standards, human rights have been frequently referred to as the major contemporary guidelines for legislators, courts, ethical commissions, and other competent authorities.
At the first European Ministerial Conference on Human Rights organized by the Council of Europe in Vienna from 19 to 20 March 1985, the French delegation submitted a report on "The Challenge to Human Rights Posed by the Development of Science and Technology," which dealt primarily with the protection of human beings in the context of the progress being made in the fields of biology, medicine, and biochemistry.54 The discussion of this and subsequent attempts to deduce from the European Convention for the Protection of Human Rights and Fundamental freedoms, (ECHR), and from other international treaties such as the CCPR, clearly defined standards for the solution of the manifold problems arising from artificial procreation turned out, however, to be less conclusive than one might hope. There are a number of human rights at stake which have to be balanced, but a definite prohibition of certain techniques or a definite obligation of states to permit certain practices may only in extreme cases be derived from existing human rights law.55
In principle, all methods of artificial procreation developed by modern science aim at creating life and founding a family. Articles 12 ECHR and 23(2) CCPR guarantee the right of men and women of marriageable age to marry and to found a family. Having children is the major means of founding a family. If a couple is prevented from having children by natural procreation, artificial techniques of human reproduction provide an alternative which is protected by the human right to found a family. Similarly, the right of respect for one's privacy and family life (Articles 8 ECHR and 17 CCPR) prevent arbitrary and unlawful interferences with private family planning. In addition, Article 23(1) CCPR, Article 10 of the UN Covenant on Economic, Social, and Cultural Rights and Article 16 of the European Social Charter afford explicit protection by society and the state to the family, which is conceived as the "natural and fundamental group unit of society." Furthermore, freedom of science and research which evolved in the context of freedom of expression56 and which is enshrined in a number of domestic bills of rights57 provides some protection against undue state interference with the further development of research in the fields of biology, medicine, biochemistry, etc.
It should be noted here that the traditional Western European concept of a nuclear family, that is to say husband, wife, and their possible offspring, has become a major point of discussion during the last decade. There is increasing opposition to reserving a number of privileges, such as access to artificial methods of procreation, only to married couples. Although family law as such is rather rigid, in many Western European countries the legislator has to some extent changed over to recognizing unmarried couples as families, including in some countries couples of the same sex,58 thereby conferring the same rights and duties upon them.59
None of these human rights is, however, absolute. Scientists must surrender some freedom of research to society in the public interest,60 the privacy of parents may be restricted for the protection of health or morals, and the desire to have a child cannot justify the exploitation of surrogate mothers or any form of inhuman treatment of children or human foetuses. In other words, all human rights cited above have to be balanced against legitimate public interests, as enumerated, for example, in Article 8(2) ECHR, and against other human rights of the child and other persons involved.
The first right which is usually relied upon as argument against the dangers involved in modern reproductive techniques is the inviolability of human dignity. Article 1 of the German Basic Law of 1949 is, for example, regularly invoked by German courts, lawyers, and scholars in this respect.61 Although respect for human dignity seems to be the foundation of human rights in general, international law does not provide an explicit right to the inviolability of human dignity. In the context of the protection of mental and physical integrity (e.g. Article 3 ECHR, Article 7 CCPR, UN Convention against Torture), not only torture, but also other cruel, inhuman or degrading treatment is prohibited by international law under any circumstances. Furthermore, Article 10 CCPR guarantees to all persons deprived of their liberty an explicit right to be "treated with humanity and with respect for the inherent dignity of the human person." Although it would go too far to understand human embryos as "persons deprived of their liberty, " this provision shows that, according to the drafters of the UN Covenants, human beings have an inherent dignity. To the extent that modern techniques of human reproduction or genetic engineering. amount to inhuman treatment of any person involved, states seem to be under an obligation to protect this inherent dignity. The same applies if these techniques would endanger the right to life (Articles 2 ECHR and 6 CCPR) or would amount, as possibly in the case of exploitative surrogacy arrangements,62 to a slavery-like practice as prohibited in Articles 4(1) ECHR and 8(1) CCPR.
How Far May States Restrict Reproductive Techniques?
The right to found a family is independent of the right to marry and includes the right of married or unmarried couples as well as single persons to have children by procreation or adoption.63 The scientific progress achieved in this field undoubtedly demands a dynamic interpretation which includes not only natural, but artificial procreation as well.64 The right to found a family is, however, guaranteed in Article 12 ECHR only "according to the national laws governing the exercise of this right." Since this provision does not speak of restrictions and taking into account that Article 23(2) CCPR does not contain any limitation clause, only certain generally accepted impediments to or requirements for marriage, adoption, and procreation will be admissible. With respect to modern reproductive techniques, legal restrictions on commercial surrogacy arrangements, on experiments with human embryos in vitro and in utero, and on all forms of genetic manipulations might be compatible with the right to found a family. General probibitions of artificial insemination, egg donation, or IVF would, however, violate the right to human reproduction as much as governmental measures of compulsory sterilization, compulsory abortion, or the prohibition on having more than one child.
The protection of privacy and family life includes the rights to individual autonomy, communication (in particular in the emotional sphere), intimacy, and sexuality.65 One may assume, therefore, that artificial means of procreation fall under the scope of privacy. Not every interference with one's privacy is, however, prohibited under international law. Article 17 CCPR only prohibits arbitrary or unlawful interferences, and Article 8(2) ECHR permits any interference which is in accordance with domestic law and "is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." It follows from this broad limitation clause that restrictions of the rights to privacy may go further than regulations governing the exercise of the right to found a family. With respect to modern reproductive techniques, the protection of health or morals, the prevention of crime, or the protection of rights and freedoms of others (in particular the child) might be legitimate objectives for states to restrict the right to privacy. Those restrictions must, however, be provided for by law and be necessary in a democratic society, i.e. proportional to the objective aimed at and acceptable in an open, free, tolerant, and pluralistic society. Although the right to privacy seems to afford less protection than the right to found a family, broad restrictions of artificial insemination and IVF could probably not be justified on the grounds of protecting morals or the rights of others.66 From present practice it is obvious that there is an urgent need to define under which circumstances access to a form of artificial procreation can justifiably be refused, or when the woman/couple is entitled to such treatment.
Article 14 ECHR and Articles 2, 3, and 26 CCPR contain anti-discrimination clauses which have to be taken into account by gavernments in their efforts to regulate artificial procreation. In particular, distinctions on the basis of sex would only be admissible if they are beyond doubt "reasonable and objective." 67 In addition, new distinctions between legitimate an d illegitimate children arising from AID, egg donation, IVF, etc., might constitute discrimination on the grounds of birth.68
Do States Have an Obligation to Restrict Reproductive Techniques?
According to the traditional Western concept of human rights, it is the primary function of civil and political rights to protect the individual against undue state interference. Only in exceptional circumstances do these rights oblige states to protect individuals by positive legislative or other action against interferences by private individuals or entities. Since modern reproductive techniques are normally not carried out by public authorities (apart from doctors or researchers employed in state clinics), human rights provide guidelines for legislative measures rather than strict obligations under international law. This is, however, a very controversial issue among international lawyers. In general, the Strasbourg organs (the European Commission and Court of Human Rights) are more re luctant than, for example, the Human Rights Committee of the United Nations to recognize binding legal obligations to positive state action. Furthermore, such obligations also depend on the rights concerned. If provisions stipulate that a given right "shall be protected by law" - as, for example, in the case of the right to life, Articles 2(1) ECHR and 6(1) CCPR, as well as the protection of privacy, the family, and children under Articles 17(2), 23(1), and 24(1) CCPR - this is an indication of a duty of positive state action on the horizontal level.69
Since artificial methods of procreation in principle aim at creating life it would be difficult to deduce prohibitive state measures from the obligation to protect the right to life. Such measures would only be required if certain reproductive techniques constituted an imminent danger to the life of the woman concerned. Under present medical conditions this is, however, not the case.
Similarly, since artificial procreating contributes to the founding of families, no prohibitive state action can be derived from the duty to protect the family under Article 23(1) CCPR. According to Article 24(1) CCPR, every child shall have the right to such measures of protection "as are required by his status as a minor." This formulation, the context of the provision, and the travaux préparatoires lead to the conclusion that the unborn child is not protected.70 Only if certain reproductive techniques would have proven harmful effects on the mental or physical well-being of children after birth would the question of a positive state duty arise. The fact that the drafters of the Convention on the Rights of the Child adopted by the United Nations General Assembly on 20 November 1989 did not include any specific provision on artificial procreation shows that such negative effects have not been suspected.
With respect to the state obligation under Article 17(2) CCPR to protect individuals by law against arbitrary interferences with their privacy, problems could arise from the anonymity of donors of semen, eggs, or embryos. The right to privacy includes the right to communicate with other human beings and to develop emotional relations such as those between a pregnant woman and her unborn child.71 One might conclude, therefore, that the right of children to obtain knowledge of their genetic parents is also protected by the right to privacy.72 Consequently, anonymous semen or egg banks would violate the child's right to privacy and would also render respect for the prohibition of incest under civil and criminal law impossible, particularly from the second generation onwards.73 If one agrees with this interpretation, states would not only be prevented from legally guaranteeing the anonymity of semen, egg, or embryo donors, but would also have a positive obligation to prohibit such anonymity by law. This has been achieved, as for example in para. 4 of the Swedish law on artificial insemination of 1984.74 In Germany, the Constitutional Court in 1989 deduced the constitutional right of children to obtain knowledge of their parents from the protection of human dignity and the right freely to develop one's personality in Articles 1(1) and 2(1) of the German Basic Law of 1949.75
Most controversial is the question of whether the prohibition of inhuman and degrading treatment in Article 3 ECHR and Article 7 CCPR contains any obligation of state parties to enact laws restricting modern reproductive techniques.76 Even if one assumes that the unborn child is in principle protected by these provisions, the question of when such protection starts is extremely difficult to answer. Is a human embryo already protected as from the day of conception (thus also in case of IVF?),77 or only after day 14 as suggested in the "Warnock Report," or after day 17, the point at which early neural development beings, or after day 30 when the brain begins to develop, or only after the first trimester of pregnancy, as in the case of several abortion laws?78 Some persons would argue that any method of Al or IVF as such constitutes inhuman treatment; others would only consider the commercial exploitation of human embryos or surrogate mothers as degrading, while yet others do not even regard methods of genetic therapy for aesthetic reasons as infringements of human dignity. Furthermore, even supposing there was a consensus on certain measures as inhuman, the question would remain as to whether states were under an obligation in international law to prohibit them.
We, therefore, arrive at the conclusion that civil and political rights enshrined in present international law oblige states only under extreme circumstances to adopt legislative or other positive measures in order to restrict certain reproductive techniques. This, however, does not take away the responsibility of democratically elected parliaments and governments to enact laws for the regulation of these techniques. The balancing of different human rights will, of course, provide valuable guidance for the objectives of such laws. One matter which is directly related to IVF and embryo donation and which involves far-reaching consequences for the human rights of future generations, the question of medical genetics, will be dealt with in the following section.