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The woman who wants to carry her dead daughter's child sets in relief our confusion about rights and needs
Along with thousands of babies, one of the undoubted benefits of assisted reproductive technology, or ART, has been the acknowledgement of procreative rights, along with their long overdue extension to families not conforming to the standard Ladybird-book model. While this is progress for, say, single women, and gay couples needing surrogates - both of whom would once have been denied parenthood via IVF treatment, it also, obviously, represents overwhelming baby joy for the global ART industry.
What one country, or clinic, will not provide - donor eggs for a broody sixtysomething mother of grown-up children, say, or a paid (practically nothing) bunk in a surrogate - someone, somewhere, is happy to sell. For once, big business finds itself on the same side as high-minded scholarship, in fact working with it, and with would-be parents invariably described as "desperate", to defy religious moralists and to mute secular anxieties about the rights or wellbeing of the resulting children.
For how can the nonentity that is an unborn child have rights? And once the babies arrive, to the loving - if occasionally ancient - parents who wanted them so dearly, who would wish them unborn? Look, if you will, at some of the people who have babies unhindered. In the face of procreational liberty and an ever-willing industry, opposition to ARTs, in almost any circumstances, has come to look - when it is not practically and ethically futile - churlish, possibly bigoted.
For example, why shouldn't a Mr Arshid Hussain, the multiple rapist and leader of the Rotherham sex-grooming gang, have been granted his reported wish - according to the Times, to which we owe his exposure - to undergo IVF? With a rumored 18 or so children already, and his history of sex abuse, Hussain might not be the ideal dad, but consider his procreational rights. Had it not been for an unfortunate wound in the abdomen (something of an occupational hazard in the gun-dealing world), nothing could have stopped Mr and Mrs Hussain from conceiving prior to his imprisonment, at home.
Perhaps the 19th little Hussain would be very happy with its gift of life. And since we can't measure desperation, we can't be sure the rapist and his unfortunate wife are not, in their way, fully as desperate as required to argue their rights under European Convention on Human Rights Article 8, respect for private and family life.
The Hussains, if they persist, could benefit from a 2007 precedent, in which a fellow prisoner, Kirk DIckson (who had been convicted of kicking a man to death) was at first refused IVF with his partner, then wife, Lorraine ( a convicted fraudster and mother of three). The British court's objections related to, among other things, the "moral and material welfare of the future child" with its absent father and parents whose epistolary relationship - they met as prison penpals and then married - had never been tested outside prison. The European Court of Human Rights awarded 18,000 pounds compensation to the Dicksons, for this breach of their human rights.
So never say never. A current case suggests huge judicial respect for extraordinary parental determination, to the point of outweighing multiple concerns including consent, advanced parental age, and an untraceable donor parent. The court of appeal has just ruled that the parents of a single woman who died, aged 28, of cancer, should be allowed to continue to fight for permission to take three frozen eggs to the US (treatment having been denied here), to have them, for 60,000 pounds, fertilized and implanted in the putative grandmother - something of a global first. A judge says the parents have "an arguable case with a real prospect of success".
Last year, Mr Justuce Ouseley denied the couple their application for a judicial review of the Human Fertilization and Embrylogy Authority's refusal of permission. The regulatory body's argument, in this desperately sad case, was that the dead woman had not left informed consent for the current plan, despite the many months in which she could have done so. The HFEA did not object on the basis of the welfare of any future child, created to fulfill to a dying wish, though it might surely have done so, recalling anxieties about instrumentalization that accompanied the decision, in 2006, to allow "savior siblings" created for a life-saving purpose. It remains unclear, in the current case, whether the parents want a baby to meet their own needs, or to honor their only child's reported desire for motherhood, although since she will never experience it, they surely amount to the much same thing.
The eggs were frozen in the hope that the daughter could, when recovered, use them herself: nothing more than a hope, she must have known, given the miserable birth rates from frozen eggs. Lord Winston has repeatedly advised caution to the women now bombarded with cynical exhortations to shell out 5,000 pounds before it's too late on grueling egg-harvesting (plus annual freezing payments) for a distant, around 2% chance of a baby.
In this case, the young woman referred to her "ice babies". This extrapolation, from frozen DNA to living beings, was not, however reflected in her formal consents, nor in any arrangements made with her parents. The identifying of a father, for instance, never arose. The HFEA, and Ouseley, were not merely correct, you might think, to insist upon such evidence of consent, but wise in asking the bereft parents to abandon their mission, with its dismal outlook, and their misapprehension - even if it comforted their daughter - that eggs have independent agency. The woman in the case is said, by her mother, to have considered her eggs "living entities in limbo waiting to be born". In nature, they are lost in millions, by age 30.
If, in this case, the court of appeal has favored emotional over regulatory argument, it only conforms to the tradition, in complex ART decisions, to give enormous weight to avowals of parenting desperation, and thereby, to advertise fertility as central to a satisfying life. Parental desperation, in the past, has been the go-to justification for the ART industry in the face of anything damaging - from rock-bottom success rates to risky multiple births, the impregnation of pensioners, ovarian hyperstimulation syndrome, the encouragement of clearly obsessed/hopeless patients, the exploitation of surrogates, concealment of donor identities and, today, freezing of probably doomed eggs. To be fair, it helped balance overemphasis on a child's best interests, as pictured by traditionalists.
In this case, the daughter is said to have been "desperate" to pass on her DNA, so much so that his desperation, inherited by her parents, requires suspension of informed consent. It might be distressing for the judges to point out that a woman is more than, as advanced here, some sort of portal through which the unborn process into being. But if this permission is granted, it implies the opposite. Indeed, you would never know, to read of the anguish over these three contested eggs, that one on five women now flourishes without children, not always by choice. Should they, too, be considered candidates for posthumous, donor-assisted childbearing? Somewhere, some enterprising ART clinic is probably working on that.