Who is responsible for the creation of human beings? For a long period in human history that was a relatively easy question to answer, but with the advent of so-called ART (assisted reproductive technology) that is no longer the case. On the one hand, the biological linkage of motherhood splits between the genetic and gestational ties; on the other hand, in many legal systems sperm donors are discharged from the conventional duties attached to parenthood when procreation follows the “natural path”. The possibility of using mitochondrial replacement therapy for the avoidance of certain genetic diseases has added even more complexity to this scenario.
“Responsibility”, moreover, is an ambiguous term. As the legal philosopher Herbert Hart famously pointed out, we might refer to someone as being “responsible” as the person who “caused” something to happen; or an individual who acts in a certain role, or with a distinctive capacity or liability. As a political and legal philosopher working at the intersection of Law and Bioethics, I am interested in knowing whether, contrary to widespread beliefs, creating people itself might be considered as a harmful activity for which procreators could be liable. There is a large literature dealing with the “externalities” caused by bringing people to exist, but occasionally judges have faced the difficult challenge of deciding whether existing constitutes per se a harm for the individual who was created. You may be familiar with those “wrongful life” cases – instances of harsh genetic diseases that may only be prevented by abortion- and also with those deliberate decisions to give birth to children with certain impairments such as deafness that may not be deemed so severe as to make life something absolutely regrettable, although some philosophers such as David Benatar have claimed that all human creation is actually a case of wrongful life because the tragedies of life – including our unavoidable death- outweighs its many joys. All those cases meet with the philosophical problem of “non-identity” raised by the late Derek Parfit.
We also face cases in which some people are brought into existence in order to save existing siblings. In these “savior-sibling” cases, a prenatal genetic diagnosis along with HLA-typing is performed in order to select the “healthy and useful” embryo and give birth to an individual who might subsequently act as a donor in a stem-cells’ transfusion to the ill brother or sister. Are those savior-siblings being treated instrumentally? Is procreation itself being corrupted? These are legitimate concerns that merit careful consideration but on my view, given certain conditions, those objections may be surmounted.
However, my main focus is and has been on the liability/role aspects of responsibility when procreating, namely, who should bear the parental duties and rights, what is the scope of those obligations and whether the use of ART makes any difference. Drawing on work by Elizabeth Brake among others, I am critical of our current legal framework and the gender asymmetries it creates by attributing parental responsibilities to men merely in virtue of their “inseminating” role. In my view, such a framework lacks coherence when (1) on the one hand, it makes it possible for single women to access artificial insemination (AI); (2) it grants women access to abortion but (3) still assigns parenthood to every men as a result of the mere fact of being the natural inseminator, irrespective of the way in which such insemination took place.
I have argued on grounds of fairness in favour of the permissibility of what we could call “financial abortion” by men who act with care in order to avoid insemination and who are not willing to be fathers; I have also developed arguments defending private arrangements between men and women (be they single women or lesbian couples) for insemination beyond the clinical setting of artificial reproduction.
Pablo de Lora is Professor in Philosophy of Law ay Universidad Autonoma de Madrid