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Autonomy and Family — in context of reproductive technology. Lee, Chung Hsi Chung Yuan Christian University, College of Law. Reproductive Technology and Law.
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Autonomy and Family—in context of reproductive technology Lee, Chung HsiChung Yuan Christian University, College of Law
Reproductive Technology and Law • In a broad sense, artificial reproductive technology may include four categories, i.e. birth-control technology, delivery technology, prenatal examination technology, and assisted pregnancy technology; in which, with the exception of delivery technology that may not trigger ethical controversy, the other three are all involved in the conflict of values. • The Artificial Reproduction Act of Taiwan is mainly focused on assisted pregnancy technology.
The first test-tube baby in Taiwan was born in 1985. From the following year, the government started to formulate relevant administrative regulations in succession. • As a result of the lack of social consensus, Artificial Reproduction Act was finally promulgated formally as late as March 2007. In this context, the law was formulated almost in the most conservative manner, response to the development of reproductive technology with the most conservative ideology: family values.
Family Values in ARA • The regulatory concept of Artificial Reproduction Act is centered at family values and only allows the couples under legal marriage to apply artificial reproductive technology, with the main regulatory object of the technical operation in application of the sperms or eggs donated by others to meet the reproductive need of the couples. • With respect to the non-marital cohabiters, or single men or women without a fixed sexual partner, or even the homosexuals with a fixed sexual partner, all shall not be included in the applicable scope of this Act and shall be punished for breaching of law if they apply artificial reproductive technology.
When the meaning of reproductive autonomy was changed from “the freedom not to reproduce” into “the freedom to want to reproduce” and “the freedom to reproduce in a chosen way”, the deeply rooted family ethical values in the society of Taiwan play a role again and then call for legislation to restrict such freedom. After all, abortion will simply produce a small impact on family values, because the family without a child is till a family. But some people without a family also decide to give birth to a baby, which brings a serious blow to the family values.
A number of commentators rejecting the application of artificial reproductive technology by those not in a marital relationship have pointed out that this will make a child born in an incomplete family, without father or mother, which can not create a good environment for the growth of the child and thus is a unfair decision to the child. • Such dissertations obviously treat family values as the necessary experience in social life and define the so-called family as a home with both father and mother, especially biological father and biological mother.
In this article, the author will quote two recent cases to illustrate that such a legal regulation focused on family values will likely result in excessive restrictions on other values in practice and needs to be reviewed.
Post-Mortem Sperm Retrieval • In September 2005, a lieutenant Mr. Sun was run over by a chariot and died, and his fiancée Ms. Li requested retrieval of his sperms and wanted to become pregnant and give birth to a child for him. Under substantial reports by media, the government decided from the corpse first of all to avoid loss of chance, but later, owing to the objection by the families of the deceased and no relevant legal regulation to be followed, the government authority refused to provide the sperms to Ms. Li for pregnancy.
Ethical Issues in Three Levels • First, at the personal level, according to the body autonomy of the lieutenant Mr. Sun, whether would he agree to sperm retrieval and use for reproduction? Second, at the family level, whether could the families of the lieutenant Mr. Sun have the right to dispose of his corpse and the sperms separated from the corpse? Third, at the social level, since Ms. Li had not married lieutenant Sun, whether should she be allowed to conceive through artificial insemination and give birth to a descendant “belonging to two persons”? In this case, the results after considerations of the three levels were all unfavorable to Ms. Li, so eventually the government authority rejected the use of the sperms by Ms. Li for pregnancy.
Rescue Baby • In January 2008, National Taiwan University Hospital announced that it had completed the first case in Asia in which the hospital applied pre-implantation genetic diagnosis (PGD) technology and delivered a baby, and then used her umbilical cord blood for treatment of her elder brother suffering from thalassemia, in order to protect his elder brother from the destiny of lifelong blood transfusion, which thus be called as customized rescue baby technology. On the one hand, this case is promoted by National Taiwan University Hospital as the evidence to prove that its medical technology has surpassed its peers, but on the other hand, the social discussions triggered by this case are focused on the changing applications of such reproduction technology in the absence of relevant legal regulations, which will result in a lack of an ethical bottom line for the application of this technology.
Legal Regulation • With respect to the time when this case occurred, Artificial Reproduction Act had been legislated and adopted, so the basic operation principle for artificial was not totally free of regulation. In this case, the parents of the baby had a conjugal relationship and both the sperm and egg were provided by this couple, so their artificial reproductive surgery should be permitted by the Artificial Reproduction Act. • But precisely because the inference process of this legitimacy conclusion is too simple, it further highlights the failure of Artificial Reproduction Act in taking into account the potential ethical issues from PGD technology, so that medical institutions may widely use PGD technology legitimately by operating the definition of genetic diseases.
Autonomy v.s. Family Values • In theory, the Artificial Reproduction Act respects the will of sperm or egg donators, but such a respect for personal will also be restricted by family values under some circumstances, resulting in unreasonable phenomena. Taking the most obvious provision as an example, according to the provision in Article 21 of this Act, even though the sperm and egg are provided by the couple themselves, in case that any of the provider died after retrieval of his/her sperm/egg, the medical institution must ruin his/her sperm/egg. This provision is very strange. Now that the provider is willing to provide and has provided, why must his/her sperm/egg be ruined after his/her death, completely denying of respect for his/her will? To understand the spirit of this provision, maintenance of family values may be the only interpretation.
Family Values as the Bottom Line • Whether should reproduction of a rescue baby be a conduct permitted in policy? If it should be conditionally permitted, what are the policy considerations? The reason why the rescue baby technology should be conditionally permitted is that it is a feasible way to treat a baby suffering from a genetic disease, and in any ethical consideration, treatment of patients shall have the most important value consideration. However, to give birth to a rescue baby, it is bound to apply the pre-implantation genetic diagnosis technology, that is to say, artificial reproductive technology have to be used. • Nowadays, Artificial Reproduction Act only allows the couple with a marital relationship to use this technology, so, if the first baby suffering from a genetic disease was not born in a marital relationship and the parents can not establish a conjugal relationship, artificial reproductive technology can not be applied legitimately to achieve the purpose of giving birth to a rescue baby. But does the significance of maintenance of family values indeed surpass the importance of treatment of a major disease?
The development of artificial reproductive technology can inherently be used for the fulfillment of human reproductive autonomy, which will not only provide a help to the couples with fertility problems but also assist those who neither in a traditional marital relationship nor want to give birth to a child with a particular object to achieve reproduction through this technology, but such a practice will raise a challenge to the core of family values.
Are single-parent families unable to realize their family values? This is the most basic doubt. Why can not homosexuals form a family by means of reproduction of a child even though they are still not allowed to get married? This a more fundamental doubt about family concept. As it is pointed out in this article, the Artificial Reproduction Act of Taiwan in essence aims to maintain the most traditional family values but negates any possibility of a new family concept.
Law and Technology • Although technology raises challenges to legal value or order, yet a law is formulated by people after all and the legislators can redefine the social significance of this new technology through legal regulations. • the interference of law contrarily make reproductive technology no longer mean the provision of freedom and autonomy but mean correction of social conducts. That is to say, if a person wants to have his/her own child legitimately, he/she has to enter a traditional marital relationship to change his/her social interpersonal relationship and become a role of husband or wife, which is a kind of social correction deliberately carried out by the legislators.
Furthermore, if a couple in a marital relationship are faced with fertility problems, then modern technology can provide assistance and the couple will hardly refuse the application of this technology under the moral pressure of continuing the family line, or else, people may consider that they have not exhausted all possible means to meet the reproductive duty, and thus the couple's freedom of non-reproduction will also be essentially restricted by the society and technology. • In general, under the operation of Artificial Reproduction Act, the development of artificial reproductive technology has become the best tool to strengthen family values.
