Regulatory Responses to the Gendering of Transgenerational Harm

ABSTRACT

Laws and regulatory guidelines dealing with assisted reproductive technology in Australia and elsewhere typically operate on the principle that the physical and psychological well-being of the person who might be created using the technology must be an active consideration. An ethical/legal problem arises when future persons are protected at the expense of existing persons. This occurs when women, who create and gestate these future persons, are socially, legally and medically positioned as transgenerational vectors of harm, and are subject to pressure to act for the benefit of people who do not yet and may never come to exist. This paper explores the way women are understood, in science and law, as subject to situational and environmental harms as well as constituting a (prenatal) environment for the perpetuation of those harms. Finally, recognising that harm is itself actively gendered, this paper also explores how gendered assumptions are smuggled into legal explanations of disease and its causes and how this might impact regulatory responses.

Acknowledgements

I would like to thank Valerie Gutenev Hale for her invaluable research assistance and Dr Karen O’Connell and Dr David Ellison for their helpful comments on a draft of this paper.

Disclosure statement

No potential conflict of interest was reported by author.

Notes on contributor

Isabel Karpin is a Professor in the Faculty of Law at the University of Technology Sydney.

ORCiD

Isabel Karpin http://orcid.org/0000-0001-9326-3421

Notes

1. It should be noted that the NHMRC guidelines are currently under review. The draft revisions suggest that the language of this provision may be tempered slightly with a new article 3.2 demanding that consideration be given to the potential harm to both the people undertaking the ART and the persons who would be born from the process. See http://consultations.nhmrc.gov.au/files/consultations/drafts/artdraftethicalguidelines150722.pdf at page 14.

2. Assisted Reproductive Technology Act 2007 (NSW) s 3(b)(1); Assisted Reproductive Treatment Act 2008 (VIC) s 5(a) states ‘the welfare and interests of the person born or to be born as a result of treatment procedures are paramount’; Human Reproductive Technology Act 1991 (WA) s 4(d)(iv) states ‘ensure that the prospective welfare of any child to be born consequent on a procedure to which this Act relates is properly taken into consideration’; Assisted Reproductive Treatment Act 1988 (SA) s 4A states ‘the welfare of any child to be born as a consequence of the provision of assisted reproductive treatment … must be treated as being of paramount importance’; UK Human Fertilisation and Embryology Act 2008 (c 22) s 13(5) precludes treatment ‘unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for supportive parenting)’.

3. On a rather humorous note, Keane points out that based on Australian Institute of Health and Welfare statistics ‘the only people who drink more now than 15 years ago are middle-aged people – of the kind who make up the RACP’s board’.

4. IVF provider websites usually advise that the donors of gametes will have undergone testing for diseases and genetic conditions. See, for example, the video on IVF Australia at http://www.ivf.com.au/fertility-treatment/donor-program/require-a-sperm-donor. See also Roxanne Mykitiuk and Isabel Karpin (forthcoming).

5. Examples include the early eugenics movement in the US advocating for selective human breeding (Black 2003); the 1927 US Supreme Court decision in Buck v Bell endorsing negative eugenics by finding lawful a statute permitting compulsory sterilisation of the unfit and Justice Holmes’ statement therein that ‘three generations of imbeciles is enough’; the early human genome project which began in the early 1990s, and of course Nazism.

Additional information

Funding

This work was supported by an Australian Research Council grant [DP150102935] on Regulating Behaviour as a Disability.