Right to a child versus rights of a child

By Legal Eagle

Over at Saint’s place, Saint and I have become involved in a discussion about legally sanctioned relationships and children. A commenter at Saint’s site, Paul, raised the recent example of a US case where a couple wanted to use their dead son’s sperm to get a grandchild:

The New York state appeals panel issued a unanimous and unprecedented ruling in the case of Mark Speranza, 23, who left semen samples at the Repro Lab Inc in July 1997 and signed a form directing that they be destroyed if he died.

He wanted to be able to father a child if he survived his battle with cancer.

Following their son’s death in January 1998, Mary and Antonio Speranza of Edison, New Jersey, told Repro’s operator that they wanted a grandchild and wanted to save the sperm so a surrogate mother could be artificially inseminated.

As I have been saying to Saint, such questions are very difficult. I can understand why the parents want grandchildren, particularly if the dead man was their only son. On the other hand, is it fair to bring up a child in circumstances where it is obvious from the very beginning that the child can never know his or her father?

Saint and I have agreed that in these cases, there’s a conflict between the “right to a child” and the “rights of a child”. (NB: We both have doubts about rights discourse, but this is the easiest way to encapsulate the conflict.)

Similar issues were raised by the case of Nadya Suleman (aka “Octomom”). Suleman recently gave birth to octuplets by IVF, when she already had six other children (also produced by IVF). Reaction to the birth of the octuplets was largely negative when it transpired that Suleman was a single mother on state benefits.  Part of the reaction against Suleman is that her actions seem so very selfish. She seems to be thinking purely of her own “right” to have as many children as possible, and not of whether she can support her children adequately, or of the consequences of her actions for those children.

Saint and I have also been talking of the importance of the filial bond. For a child to grow up feeling secure, it is obviously preferable that the child have an opportunity to know and frequently interact with both his or her genetic parents. However, even excepting modern technology such as IVF, donated sperm or ova, surrogacy or the like, sometimes this will be impossible. The child’s parents may be deceased. The mother may not know the identity of the child’s father. The child may be adopted and have difficulty in finding the identity of his or her genetic parents. The parents may be divorced and the non-custodial parent may live overseas.

And then you get the problem of parents who are deemed unsuitable or incapable of looking after their children. The state intervenes to remove custody of the child from his or her filial parents. In that case, the safety and wellbeing of the child is deemed to be more important than the filial bond. Nonetheless, intervening in this way can be problematic, as the contested history of the Stolen Generation shows. On the one hand, some argue that it was necessary for the well-being of the children concerned, but on the other hand, others argue that it was based on racist assumptions and policies and that it broke important filial bonds.

The most important thing from my point of view is that a child grow up secure in the knowledge that he or she is loved and wanted. Obviously, it is preferable that a child have access to his or her genetic parents, and in terms of assisted reproductive techniques this should be a consideration. I consider my own children to be a blessing. I have had friends who have had difficulty having children, and I know how hard and heartbreaking it has been for them.

I’m not sure what the correct answer is to difficult cases like the bereaved grandparents above. I’m just throwing around ideas for discussion.


I’m increasingly seeing the “right to a child” question as really a question about what laws and controls we put on technology and procedures which affect women’s capacity to reproduce.

This puts me in mind of two posts I wrote previously about a same sex couple who sued a fertility doctor because he mistakenly implanted the birth mother with two foetuses (as per her initial instructions). The birth mother told the obstetrician of her desire to be implanted with only one embryo shortly before she was anaethesetised. The doctor presumed that she had also told the fertility centre of this decision according to the ordinary procedure. He also presumed when the embyrologist inserted the embryos that there was only one. It was only after insertion that he became aware that two embryos had been inserted.

At first instance, the trial judge decided that the obstetrician had not been negligent. This has just been overturned by the ACT Court of Appeal. As I said in my earlier post on the issue:

[T]here is a tension between the modern day view that parenthood is a choice, and the older view that a child is a blessing. In the past, women could not control their fertility easily. There was little choice as to whether to have children or not. Having children was seen to be a woman’s only role in life. Now we can control our fertility, and intervene in ways previously thought unimaginable to determine whether a foetus is disabled or to determine what gender it is. This gives us more choice and flexibility. It is undeniable that part of the social revolution whereby women can enter the workforce has arisen because women can now control their fertility. I am profoundly glad that I can study and work, and control when I have my next child. I’m not just tied to the kitchen sink, barefoot and pregnant. On the down side, some women have found that they have left it too late to have children, or have experienced severe difficulties as a result. There’s pros and cons to everything.

The result is that we now see parenthood as a choice rather than something that inevitably occurs. And we may feel angry if we can’t control our choice to become a parent in the way that the medical profession told us that we could.

I wonder what the mothers would have felt if the obstetrician in the ACT case had implanted one embryo, and it had split naturally into identical twins? Who would the mothers have blamed then?

Somehow I feel uneasy about this case. I can’t help thinking that the women are treating children as a commodity, delivered to order, when really to have two children is a blessing.

[Mind you, as I type this, my three year old screams in the background, “Mu-u-u-u-ummy, I don’t want to go to sle-e-e-e-e-e-p!” Children aren’t always an unalloyed blessing… Oh thank goodness, she’s stopped and silence reigns again…]


  1. conrad
    Posted March 9, 2009 at 1:27 pm | Permalink

    “Why am I obligated to pay tens of thousands of dollars so that one couple might have a very small chance (less than 20%, used to be only about 2%) of conceiving?”
    Caz, I’m completely with you on this one — I don’t see why it should be free at all. My point is that
    (1) _if_ the government gives it away for free; then
    (2) it should be available to everyone that wants it (single’s over the age of 18, lesbian couples, etc., are all fine by me).
    I could also add:
    (3) even if the individual pays the total cost themselves, it should still be available to anyone willing to pay the cost, if it is to be available at all.

  2. conrad
    Posted March 9, 2009 at 1:31 pm | Permalink

    “As often happens (the slippery slope), the boundaries of access have been expanded over time”
    This might be a half-full or half-empty argument, but I don’t see it as a slippery slope at all — my opinion is that we started at a state that had many essentially arbitrary restrictions, and now we’re simply moving back into a more inclusive position.

  3. Caz
    Posted March 9, 2009 at 2:10 pm | Permalink

    Conrad – NO medical treatment is available to everyone. All medicine is rationed. Period. This will always be the case.

    Unlimited demand, limited supply.

    Can’t agree that the restrictions were arbitrary.

    Initial criteria were around, for example:

    – medically established infertility

    – traditional couples, a man and women (arguably this took into account the rights of the potential child to be part of a traditional family)

    – age and health of the mother (thus maximizing the potential success of a highly unsuccessful procedure).


    Nothing arbitrary about it.

    Now reproductive assistance is available to the fertile.

  4. Posey
    Posted March 9, 2009 at 3:35 pm | Permalink

    There does seem to be something pathological today in some people’s desire to reproduce regardless of the costs and general species-based biological imperative, no denying that, but in an age where we definitely do have a choice, why should the preference to reproduce for some be such an overwhelming, out-of-proportion, almost irrational obsession?

    Until the relatively recent past women had little control over their fertility so it’s unknown to what extent they in particular wanted to reproduce as opposed to having pregnancy thrust on them regardless of their wishes.

    Today, there is a tick-box element for some, I reckon, which flows from the times, as well as a desperate grasping for the intimate and familial in the context of a society that’s increasingly fragmented, disengaged and disconnected and where in many ways the individual is lonelier than ever despite all the ostensible means for overcoming that and within a society that is youth obsessed and death phobic.

  5. Posey
    Posted March 9, 2009 at 3:38 pm | Permalink

    sorry, should read “costs and complications. There is a general….”

  6. conrad
    Posted March 9, 2009 at 4:40 pm | Permalink

    At least the first two of those points (and especially the second), I just see as weird conservative delusions, and hence basically arbitrary (actually, not arbitrary — they are designed to stop certain groups using the program). You could just as well have a Lebensborn set of criteria as far as I’m concerned. It’s just another set of rules that stops certain people from using the program because other people don’t happen to like them for one reason or another.

  7. Caz
    Posted March 9, 2009 at 6:45 pm | Permalink

    “they are designed to stop certain groups using the program”

    Err, yes, exactly.

    The whole of society works on the basis of inclusion and exclusion, not just the practice of medicine.

    If you were dying of cancer you would be ranked and rated as to your suitability for access to potentially life prolonging medical interventions, all of them extremely expensive, and all of them at the cost of someone else having them. Distribution of medicine has and always will work exactly like this, why should reproductive medicine be practiced any differently, with no responsibility or accountability?

  8. Caz
    Posted March 9, 2009 at 6:47 pm | Permalink

    BTW – traditional couples wasn’t an “argument”, I was providing factual information, not stating an opinion. That criteria no longer exists.

  9. conrad
    Posted March 9, 2009 at 6:48 pm | Permalink

    “The medically established infertility criterion seems sensible to me”
    Try thinking about this a bit more — Consider a male-female couple where the _male_ is infertile (this is easy to determine in many instances). Couple gets IVF. Now consider a female-female couple. Couple doesn’t get IVF. What’s the difference between how the female can get pregnant? Should we only give IVF to the male-female couple if the female is infertile? This rule blatantly discriminates against lesbians couples.
    Another thing worthwhile thinking about is whether having no medical problems is a reason for denying private surgery. Plastic surgery is an obvious case where this does not happen — If I’m not ugly, but want a nose like Brad Pitt or a new double chin, should I be stopped? No one would even dream of that. Thus having no medical problems is not a reason to deny someone from a having a medical procedure.

  10. conrad
    Posted March 9, 2009 at 6:55 pm | Permalink

    “why should reproductive medicine be practiced any differently, with no responsibility or accountability?”
    I think it should be practiced with these. Alternatively, I don’t think it should be discriminatory, which is what older laws like “only male-female married couples” and “no single mothers” etc. were. In addition, if people pay for their own treatment, I don’t see why the cost arguments are relevant.

  11. Caz
    Posted March 9, 2009 at 7:28 pm | Permalink

    L.E – by “fertile” couples, which I’ve mentioned numerous times, I meant lesbians, or even a gay couple (if surrogacy was on the menu in Oz, for example).

    Conrad – they’re not paying for it themselves, nor can they, unless they head to America.

    Most medically necessary procedures can be paid for entirely by the individual who has no private health insurance if they can come up with the cash. Eg, if I needed heart surgery and didn’t want to wait, but had no insurance, I could pay the entire cost and I’d be in surgery next week.

    On the other hand, other medical interventions are more highly regulated, for reasons of risk, cost and ethics.

    There is such thing as social mores.

    Take another example entirely: stem cell research. Hell, we haven’t even got past the “research” stage, any application is possibly decades away, if ever. Yet look at the hysterics.

  12. Posted March 9, 2009 at 9:01 pm | Permalink

    One of my concerns with the use of various procedures such as IVF is that the increasing data pointing to harmful effects on the conceptus by the procedures, and even the age of the parents (risk of schizophrenia, etc).

    At the same time, if things like IVF are used to make up for sperm quality problems that could be considered to have a genetic component, there is the risk that these genes will increase in incidence, leading to a drop in the ability of the species as a whole to reproduce without intensive medical intervention, and this intervention will be causing harm to the conceptus.

    My gut feel is that questions about the rights of the child will move away from whether a particular family model is reasonable, and more to the risks of the processes used.

    So, lesbians in a reasonably stable relationship using non-high-tech methods to get pregnant, using high-quality semen (from male friends who are not over 35 when risks of e.g. schizophrenia in the child start rising dramatically) will be regarded as much better for the child than use of high-tech techniques by heterosexual couples.

    What for example would be the view today on the use of IVF for a woman who had positive drug tests for illegal drugs known to be teratogenic? What about use of IVF for a woman who was a heavy smoker and alcoholic (both of which aren’t illegal drugs)? Would a child with low birth weight and with a least some indications of foetal alcohol syndrome be able to sue the parents and the clinic carrying out those procedures at some stage? I strongly suspect that sooner or later, children will sue because of the effects of high-tech procedures as those effects become more and more understood.

    I’d also note that theists wanting assisted reproductive (whatever the reason) should simply be told “Deus vult… go away you hypocrite!”

  13. Caz
    Posted March 9, 2009 at 9:37 pm | Permalink

    Dave – you mention and allude to age-related matters, whereas it’s well known in the “reproductive industry” that there are risks in the end-to-end process.

    At the ‘start’ – multiple births, premature births, lower birth weights, life-long illness and disabilities stemming from any or all of these.

    Less publicized, and increasingly disturbing for doctors working in this area, are the outcomes – it would seem that IVF babies have increased risk (significant increase) for a wide range of life long ailments. No one knows why. The doctors know it’s true, but no studies have been undertaken to establish what is happening or when it happens. The gut instinct suggests that there is something about the process itself that engenders less than perfect babies in a much higher proportion than would occur naturally.

    It’s thought that the ‘soup’ in which the embryo is created is ‘doing something’ less than ideal.

    Playing ‘god’ is not nearly as simple or clever as some would like to believe. This isn’t an ethical issue, it’s a question of the quality of the output.

  14. Posted March 10, 2009 at 2:44 pm | Permalink

    [email protected]
    Yep. Your “end-to-end” and “outcomes” phrasing is good. I suppose I should have been more clear: harm to the gametes conceptus causes harm down the track.

    I used paternal age because that is one type of epigenetic change where the data is good enough for long term assessment, and it is becoming possible to talk about epigenetic factors as teratogenic.

    Same for the analogies with smoking – it’s tricky to pitch things right for a lay audience and hint at possible legal actions in a short comment.

    Also, I like your use of the “reproductive industry” phrase, which I’d consider has some similarities to the “cosmetic surgery industry”… but that’s another huge discussion.

  15. conrad
    Posted March 11, 2009 at 5:06 am | Permalink

    Dave & Caz,

    Even if there is a slightly higher rate of problems with IVF, I don’t see why that should preclude it’s use. To me what needs to be shown is that the risk is higher than what we consider acceptable in many groups. For example, no-one stops older people having kids via natural conception, but they have a higher risk. The same is true of smokers, drinkers, people that overweight etc. . Why preclude one group and not another if both have similar risk?

  16. Caz
    Posted March 11, 2009 at 9:07 am | Permalink

    And governments across the world spend hundreds of millions of dollars each years trying to convince their citizens to give up smoking, to drink in moderation (if at all), and to lose weight.

    One hundred percent of older women who become pregnant naturally (and yes, it does happen!) would be offered extensive tests, while not all would accept the tests, of those that do, many would terminate the pregnancy.

    Indeed, did you know that down’s syndrome is increasing and is now exceptionally common for babies born to women UNDER the age of 35? Younger women decline to have testing (which is offered to all women). Older women have the tests, and, therefore, terminations, if that is their choice – hence, they’re not the ones giving birth to babies with life long health problems.

    It’s not all as linear as you’re making it out to be.

    Besides, don’t the public get all huffy about the expense to taxpayers of smokers, drinkers, the obese? How many more categories of burden do we want to knowingly encourage and carry?

  17. conrad
    Posted March 11, 2009 at 12:42 pm | Permalink

    “How many more categories of burden do we want to knowingly encourage and carry?”
    I’m not saying we should be encouraging IVF. I’m just saying it doesn’t make sense to restrict it in one group when it is evidently fine in another group that has the same risk profile, especially when the additional risk is relatively small.
    “Indeed, did you know that down’s syndrome is increasing and is now exceptionally common”
    It’s not exceptionally common in any group that commonly has children (i.e, < 40) — it’s just that the risk increases with age.

  18. Caz
    Posted March 11, 2009 at 1:45 pm | Permalink

    No, down’s syndrome is now MOST common in women under the age of 35, period. No testing, no terminations. Older women take the risks more seriously, get tested and have terminations.

    Your last point makes no sense at all. It would hardly be a common outcome of men birthing, would it?

    Reproductive technologies are NOT restricted to one group! The boundaries have already been removed.

  19. conrad
    Posted March 11, 2009 at 5:17 pm | Permalink


    I got my figures from the wiki page, which doesn’t agree with your suggestion (although I assume it differs in different countries):


    My last sentence was supposed to mean that it isn’t very common amongst any groups (you can see the probability from the graph), excluding a few exceptions (e.g., 44 year old women).

  20. Posted March 11, 2009 at 5:55 pm | Permalink

    I’m giggling with the parallel discussion about stereotyping in another post and this thread getting into “Down’s Syndrome”… The politically correct (and biologically accurate) term is “Trisomy 21” (Three copies of somatic chromosome 21). The older term “Mongolism” was introduced by Downs who was stereotyping (badly) that the facies which had some similarities to another ethnic group were also associated with the lower intelligence of the other ethnic group.

    And lets up the ante… given the tightening association with early (especially during pregnancy) exposure to cats and later schizophrenia risk, perhaps there should be no government funding for IVF candidates who own or plan to own a cat. (pick one of the US government publications)

  21. Posey
    Posted March 11, 2009 at 6:08 pm | Permalink

    Christ you do talk some rubbish, Dave Bath : “given the tightening association with early (especially during pregnancy) exposure to cats and later schizophrenia risk…”LOL.

    And as for your populist, roll-off-the-tongue taxonomic alternative naming of Down’s Syndrome, exactly what is the point of such constant hair splitting condescension? No point, I would suggest.

  22. Posted March 11, 2009 at 6:20 pm | Permalink

    Tone it down, please Posey. Dave’s a doctor and very valuable on this blog for that reason. Now I’m not the kind of person who’ll bow down when a pride of doctors ambles by, but I’ll certainly take expertise where I can find it.

  23. Posey
    Posted March 11, 2009 at 6:38 pm | Permalink

    Well, I am a professional pricker of inflated balloons, SL. If that is bad, ban me now and save as both a lot of trouble.

    I worked in public health for eight years. Doctors can and do look after themselves very well indeed, and usually have an overly inflated sense of their specialist “knowledge vis a vis just about everybody else. There is a lot of medical research and hypotheses misleadingly presented as causal facts and the profligate use of needless jargon to intimidate the majority is deliberately anti-democratic and elitist in many contexts in which it is used.

    Did you know that many doctors are still spitting chips that people come into their offices informed and with questions about their condition on the basis of what they have gleaned from searching the vast library which is the internet?

    Quelle horreur.

  24. Caz
    Posted March 11, 2009 at 7:17 pm | Permalink

    Conrad – yes, the graph shows age / conception – which takes no account of terminations, and therefore, the age of mothers who are giving birth to Down’s babies because they erroneously believed that it couldn’t happen to them.

    Also erroneous is your “it isn’t very common among any group” – try telling that to the thousands of parents in Oz each year who have a Down’s baby.

    It’s not very common to get pancreatic cancer either, doesn’t make it feel any better for the nearly couple of thousand people that die from it each year in Oz.

    Anyway, you’ve missed the point entirely, and this is now way off topic.

    Sorry Dave but that new PC term hasn’t made it to the peons yet, indeed, all recent articles that I’ve read in the MSM have failed entirely to use your medical terms. Which has nothing whatsoever to do with stereotyping, since it was merely used as an example, so your amusement is misplaced. Would an example of cleft palate struck you as stereotyping as well?

    The latest is that old dads and their old sperm might contribute to later schizophrenia risk.

  25. Caz
    Posted March 11, 2009 at 7:30 pm | Permalink

    80% of Down’s babies are born to women under the age of 35.

    1 in 800 babies is born with Down’s Syndrome.

    Having just scouted articles printed in the MSM during the current year – 2009 – so far the only term I have seen used is Down’s Syndrome.

    Until a PC term reaches the lowest of the low (journalists) then it’s not part of the everyday lexicon.

  26. Caz
    Posted March 11, 2009 at 7:33 pm | Permalink

    80% of Down’s babies are born to women under the age of 35.

    1 in 800 babies is born with Down’ Syndrome.

    Having just scouted articles printed in the MSM during the current year – 2009 – so far the only term I have seen used is Down Syndrome.

    Until a PC term reaches the lowest of the low (journalists) then it’s not part of the everyday lexicon, PC or otherwise.

  27. Caz
    Posted March 11, 2009 at 7:34 pm | Permalink

    Sorry for stutter – don’t know why that happened.


  28. Posted March 11, 2009 at 7:55 pm | Permalink

    I am /not/ a doctor… neither a medico, nor a real doctor (holder of a doctorate). I /did/ blitz pathology, toxicology and similar subjects and wrote software to manage health-related risks (including radiation protection) and assist clinical psychiatric assessment.

    My original point was that the risks spoken of in this thread were sociological, whereas the risks to the child from the technologies used were probably more significant, and less open to amelioration.

    Any debates about production of children will be emotive, and even if evidence and reason are given greater weight, the debates will still be difficult and full of grey areas, and only slightly simpler if we limit the discussion to whether something should receive funding from governments.

    That’s why I raised concrete issues like whether government funds should be used to fund IVF for women who smoke. The issue with cats (I specifically used a search of US gov sites rather than link to a single paper so that the range of papers would be balanced) is not insignificant, and not that much different to the risks of smoking during pregnancy (increased risk of schizophrenia between 50 and 75 per cent depending on the studies).

    I’ll now ask questions of the legal types here:
    * Has a child ever sued a parent because they smoked during pregnancy or smoked heavily in the house that a child was in?
    * Is it possible that a sufferer of schizophrenia/bipolar/depression might sue a parent that had cats and did not follow the advice to the public from the CDC.gov to the letter about how to mitigate the risk from T.gondii?
    * Is it possible that a child might sue not for the results of obstetric procedures at the end of the pregnancy, but for the results of the technology used to start the pregnancy?

  29. Posted March 11, 2009 at 8:25 pm | Permalink

    [email protected] said “The latest is that old dads and their old sperm might contribute to later schizophrenia risk.”
    Yep to old dads, no to “old” sperm… although the stem cells that produce the spermatozoa are old. Not just schizophrenia but a number of other cognitive problems. I wrote on this some time back Older parents, epigenomics and psychiatric illness (2008-11-11)

    I won’t have that problem… haven’t hit 50 yet, so my grandson (here if you are on facebook) can’t blame me for that reason, although he can blame me if he is colorblind (50% chance).

  30. Caz
    Posted March 12, 2009 at 8:51 am | Permalink

    Dave – I was being pejorative in using the expression “old sperm”, perhaps I should have said “old guy sperm”.

    In addition, I was only picking up on the one example raised, specifically the exposure to cats theme, plus the emphasis in the MSM was on the potential schizophrenia link.

    Did I really need to be exhaustive and mutually exclusive in a comment on a blog?

  31. John Greenfield
    Posted March 13, 2009 at 8:29 am | Permalink


    In the circumstances you outline above, I am perfectly OK with “discriminating against lesbian couples”. Your position is a classic example of what we are discussing; the reification of “discrimination” as an evil greater than all others. What bollocks.

  32. conrad
    Posted March 13, 2009 at 11:05 am | Permalink


    what evil is more associated with lesbian couples than heterosexual ones (apart from evil based on religious grounds)? I might note here too that in terms of families, most children with lesbian parents (or indeed gay male parents) got their the natural way, not via IVF (i.e., the female became a lesbian later in life).

  33. John Greenfield
    Posted March 13, 2009 at 11:11 am | Permalink


    In which case, those lezzies are irrelevant to this discussion.

  34. Posted March 15, 2009 at 8:59 pm | Permalink

    Well Conrad, you might just want to catch up with the 21st century.

  35. Caz
    Posted March 17, 2009 at 5:02 pm | Permalink

    L.E – aarrgghhhh!

    I guess the gushing new Mum isn’t aware that nearly 50% of Indian children are so malnourished that they’ll never grow properly. But, heck, India has a booming economy, great education and oooh, aaahh, they talk English too!!


    Talk about your ignorant closeted privileged white folk.

    No wonder they’re happy, $10K for a baby boy, heck, cheap as chips. (Which explains why Australian jobs continue to be off-shored to India folks!)

    iDNA testing had to be done in Australia and the bureaucracy was just incredible.

    Australia does not make this easy,” says Rachel, as she cradles her sweet, sleeping son.

    Well, howdy doo, how damned annoying and inconvenient. If you can rent the womb of a poor woman for next to nix, how dare the Australian gov’t get all sniffy about the details?

    In my opinion, words like exploitation don’t seem to apply. Who lost out here? It’s not as if we’re talking about designer clothes and handloomed rugs.

    No, were not. That’s the point.

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