Turn the music down!
There was some discussion yesterday about whether support for the right to abortion entails having to support a right to fertility treatment. In particular the question was ‘[if you] see abortion as a woman’s right to control the reproductive functions of her own body’ then how is fertility treatment different?
My answer is that I don’t see abortion that way, not exactly. A right to abortion clearly can be described that way, but it doesn’t follow that therefore if one supports a right to abortion one also has to support a right to anything and everything else that can be described that way, and that’s why I don’t exactly see abortion that way. I don’t generally talk about a woman’s right to control the reproductive functions of her own body, and I think the reason I don’t is because I’m generally wary of talking about things in such broad terms, precisely because I’m not sure I do want to commit to supporting all the possible examples such broad terms could throw up. I do think women should have a right to abortion, and one reason I think that is that pregnancy takes place inside one woman’s body and that means abortion is much more her business than it is anyone else’s. But that doesn’t necessarily mean that I think everything that takes place inside one woman’s body is more her business than it is anyone else’s. I don’t think that about intentional (aimed at the usual outcome) pregnancy, for instance. Deciding to have a baby does in fact mean one has to, or ought to, cede some rights to the future baby. (That, incidentally, is one reason the right to abortion is important. If one isn’t prepared to cede some rights to the future baby, it’s probably better to stop the pregnancy than it is to go ahead with it.) I’ve never really agreed with the view that telling or urging pregnant women not (say) to do drugs is a violation of their rights, because I’ve always seen those rights as in tension with the rights of the future baby.
That’s certainly not to say that I think the future baby’s rights trump all of the mother’s rights – but I think it probably trumps (should trump) some. A future baby has a much bigger interest in not being addicted to cocaine in utero than its mother has in continuing to use cocaine. So…in short, it’s not just a matter of absolute rights. It’s more complicated than that.
I think (though I’m not sure) one reason fertility specialists don’t treat people who already have children is because the treatment is so labor-intensive and expensive; I think that rule (if it is a rule) is a form of triage. That seems reasonable to me, in a world of limited resources. People who have children don’t really need fertility treatment so, other things being equal, they should go to the back of the line.
I think the problem here is that the term “right” is supposed to cover both liberty-rights and claim-rights. I think of abortion primarily as a liberty-right (a right to non-interference), while a right to fertility treatment presupposes a correlative duty which can only be performed by a fertility doctor. When you say that a woman has a right to fertility treatment, you’re also saying that someone else has a duty to perform it, so this can’t merely be a question of the woman having a right to control the reproductive functions of her body.
OK, so *now* I went back and read the comments this post is referring to, and now I’ve realized my answer was irrelevant for the most part. Oh well… time to go to bed ;)
No, it’s not irrelevant – I’m considering the question broadly, at least that’s my intention.
I thought of the correlative duty aspect, but then that applies to abortion too. Somebody gotta do it (except for the pill version).
The only quibble I would have is discussing the rights of the “future babies” as you do here plays directly into the hands of the prolifers. If we cannot addict “them” to cocaine, can we “murder” “them”? Or, am I misreading you badly?
I know, I’m aware of the risk – but future babies are ones that are (as far as intention goes) going to be born; the decision has already been made. I think if a woman does decide that then she does have a responsibility to the future baby, because she has decided it will become a baby and be born and have a future, which could be compromised by (say) drugs.
The language does sound right-to-lifey though, I realize that. But that’s not what I mean.
I’d agree she has the duty to think of the future baby and society should encourage her to do so, but I also think state interference there is extremely problematic both morally and practically and therefore I oppose it.
Hey, cool! Something I brought up got OB and co. thinking. And writing.
I love the way OB lays out her arguments.
As for my own position on the equivalence/nonequivalence of abortion rights vs. fertility treatment rights, I’m still thinking…
-CM
Thanks for the probing questions, CM!
Jenavir, yeh, I think state intervention is extremely problematic…but I can also think of alternatives that are at least equally problematic. I’ve never known how to think about this; it frets me something fierce.
I do wish people would go and read Judith Jarvis Thomson’s “A Defence of Abortion”. It clears up so much muddy thinking on the issue: http://spot.colorado.edu/~heathwoo/Phil160,Fall02/thomson.htm
I have! (That’s the kidney thought experiment, right?)
Doesn’t mean I shouldn’t read it again though.
Good and thoughtful post, OB. Thanks.
I think you referred us to the kidney one before too?
As for ‘playing into the hands of pro-lifers’, I think that a political position should not require one to abstain from thinking a position out carefully. Its a separate question if action should be taken to protect the development of a child that is to be born, and whether that action should be ‘imposed’ on a mother.
As to whether people who have children don’t really NEED fertility treatment, I think there are messier problems there. Firstly, fertility treatment is not only a limited resource rationed on ethical grounds, it is an economic service available to people willing to pay the cost. If the family are capable of carrying their own economic burdens, whether the rest of us think they ‘need’ it is not very important to the actors even if we feel it is bloody stupid (just as an example of one possible opinion)!
OB — Do I understand correctly that you see a difference between “intentional (aimed at the usual outcome) pregnancy” and “unintentional (voluntarily doing the things a foreseeable result of which is pregnancy but without wanting to get pregnant) pregnancy”? And that one difference that matters is that the “future baby” has more “rights” in the former case than the latter?
I stand corrected.
Jeff,
That looks like an idiot trap, not a question. There is no difference in ‘rights’ of the fetus/unborn child in the cases. The cases only exist to differentiate the two issues. There is conflict over issue 1, when or if its OK to terminate a pregnancy, but not over issue 2, the proposition that wilful harm to the development of the unborn is a wrong.
I don’t think talking about the rights of the future baby plays into the hands of the anti-abortion lobby. In the case of abortion there is no future baby.
I am glad to discover that I’m not the only person who thinks we should afford rights to future babies. I would go as far as to say that it should be illegal for pregnant women to smoke or drink alcohol.
A lot of people will probably recoil at that suggestion just as they do when I say that people with children shouldn’t be allowed to smoke at home. I think we need to stop acting as if children are the property of their parents.
Nice one, Jakob, a classic “there oughta be a law against it” argument. What would you do to women caught drinking-while-pregnant? Lock them up so they can have their babies in prison? Suppose they didn’t know they were pregnant? Is that a valid defence? And what counts as drinking-while-pregnant? A small half-glass of wine on a Friday night, or six cans of strong lager? And how would you know they are drinking-while-pregnant? Fit them all with ankle-bracelets that monitor their blood-alcohol? Force them to attend clinics for regular breath-testing?
There is no point having unenforceable criminal laws – it brings the entire concept of a criminal law into disrepute. If what you mean is “women should be discouraged in the strongest possible terms from drinking alcohol while pregnant”, then on the basis that informed medical opinion would agree, so do I. But saying “there oughta be a law against it” is just, well, silly, I’m afraid.
I don’t mean just “discouraged.” I mean it should be illegal.
The fact that a law is difficult to enforce isn’t an argument against it. The fact that murder is illegal doesn’t stop people committing murder, but that is hardly a reason to legalise it.
Considering the well known effects of alcohol on a foetus, how is drinking while pregnant really any different from child abuse?
“‘[if you] see abortion as a woman’s right to control the reproductive functions of her own body’ then how is fertility treatment different?”
One way of differentiating them is to regard them as examples of Negative vs. positive freedom. This isn’t a sufficient differentiation, but it may help people determined to see them as exactly the same kind of thing to understand that there is a possibility that they might not be.
One can abort without the support of the medical profession and costly medical technology. It takes the state to prevent abortion. Abortion is a negative freedom.
One cannot receive embryo implants without them. It takes the state (or the market) to provide fertility treatment. Fertility treatment is a positive freedom.
Dear Jakob. There are many, many things I would make illegal if I thought making them illegal would do any good [and if I ruled the world…]. One of the great problems of modern government is the belief that making things illegal is by itself a solution to a social problem. This is not the case. [And it is also an unpleasantly kneejerk authoritarian response.]
To take up your example, making physical abuse of children illegal has not stopped it, indeed it has probably not even reduced it, in the UK. And that’s *with* armies of overworked social workers scouring the estates for the next about-to-be-murdered infant. It is quite *right* for it to be illegal, but it being illegal doesn’t seem to be doing any *good* – and if the law can’t stop people battering their own kids, how can it stop someone 12 weeks pregnant downing a few shandies?
You can’t cry “make it illegal” unless you have a meaningful plan for enforcement, with regard to available resources, the scale of the “offending” under consideration, proportionate punishments, rehabilitation facilities, etc etc etc. Otherwise it’s just posturing.
You could do other things – you *could* make it illegal to serve alcohol in public to a woman who is, or appears to be, pregnant – but can you imagine the awkward exchanges that would follow?? Not to mention that in the critical early weeks of pregnancy there is often no appearance to go on… [And sometimes the woman herself doesn’t know, as I mentioned above.]
But of course, as the government so often says, you’d be sending a message. Try Western Union, I believe is the approved response.
Dave,
As I said previously, the fact that a law is difficult to enforce doesn’t mean it shouldn’t exist.
I don’t think banning pregnant women from drinking would magically stop it from happening, or even that it would make a particularly big difference.
As you say, it’s right that physical abuse of children should be illegal regardless of what effect that has. I would say the same is true in this case as well.
I don’t know about “sending a message,” but the law as it stands certainly does send a message: that parents have the “right” to harm their children.
I’m sure you can imagine the furious response if any government actually took up my proposal. People would be outraged that the state was telling them what to do with their children – they would insist that they have the right to give their future baby massive health problems if they feel like going binge drinking.
That attitude is a consequence of a legal system that gives parents excessive rights at the expense of their children. It’s like how parents in rural Afghanistan insist that the state shouldn’t interfere when they decide to marry their daughters off to settle a debt.
Like I said. Western Union.
That’s a clever rhetorical move. It gives the impression that your inability to produce a logical argument is actually proof of your superiority.
There are arguments though for why it’s not a great idea to pass unenforceable laws. I believe one is that it brings the law as such (The Law, that is) into contempt. The more merely notional or message-sending laws there are, the less people respect The Law.
Another of course is just the obvious point that law is at the far end of the spectrum of coerciveness and therefore should be used as sparingly as possible in order to avoid…you know, a nightmare of universal coercion. Taliban world, in short.
Since you were just repeating your message-sending desires, I considered them to have been dealt with in my previous intervention. I see no point in having to rephrase the same argument three times just because someone else does. Not everything we deplore can be stopped. Most people whose politics have developed beyond adolescence come to appreciate that. They, we, may regret it; it may not stop us declaring our deploration to all who will listen, but we will at least not be tempted to impose ‘solutions’ that sound very good on the back of an envelope, but really ought to stay there.
Jeff,
Sure, I do see a difference between intentional and unintentional pregnancy (doesn’t everyone? I mean, there’s a difference by definition, so naturally I see a difference) but that isn’t the difference I was talking about.
OB — Thanks. I guess then I’m missing the point of the post.
Dave I think Jakobs law would work as well as the war on drugs works?
Dave,
First you accuse me of only wanting to send a message, and then you accuse me of thinking that everything we deplore can be stopped. Which is it?
The reason I repeated myself was because you failed to address my argument. We have both agree that physical child abuse should be illegal regardless of whether that stops people physically abusing their children or not. My claim is that this case falls into the same category. Not for the purpose of “sending a message” but simply because it is not something the law should tolerate.
Let’s suppose that a pregnant women who knows she’s pregnant is about to go binge drinking, and the state is in a position to stop her. Under what principle does she have the right to binge drink free from government interference?
If we use your criteria for legislating, physical child abuse should be legal because a ban is unenforceable. So why is it that you think physical child abuse should be illegal, and why does this not also apply to drinking during pregnancy?
Richard,
I think drugs should be legal, but not because the law is difficult to enforce. I don’t find that argument very convincing. It’s just as difficult to enforce laws against people-trafficking, but that is no reason to stop trying.
Unenforceability is just not the the debate-ending argument so many people seem to think it is. Laws against rape are notoriously difficult to enforce, but no reasonable person would take that as a good argument for the legalisation of rape.
I am not suggesting we should outlaw everything we disapprove of (as Dave seems to have caricatured me), but the main criteria for banning something should revolve around considerations of personal liberty not enforceability.
OK, Jakob, how about pregnant women who are planning to have an abortion? Do they get to drink?
Only once they’ve had the abortion.
Jakob you seem to be mixing apples and oranges,I and I think Dave are speaking about behaviour modification laws which never work. You are comparing that to rape or people traficking laws that are only difficult to enforce, rape is not a behaviour it is a crime?
Richard what do you mean you and Dave?! Jakob and Dave have been discussing this and you jumped in once at the very end – you don’t get to try to take possession of the discussion and talk to Jakob as if he’s an interloper. I was going to delete your irrelevant comment but Jakob was generous enough to answer you, so I left it – and now here you are appointing yourself the cop of the discussion. How rude can you get.
I don’t mind Richard jumping in, but I’m not sure if I understand his argument.
Saying that “rape is not a behaviour it is a crime” seems like blatant question begging to me. The reason rape is a crime is because there is a law against it, and the reason there is a law against it is because legislators didn’t think enforceability was a necessary condition for law-making.
That is really the claim I was trying to refute with my counter-example: the notion that enforceability is a necessary condition for law-making. Since it’s not a necessary condition, “ooh, but that’s unenforceable!” is just not a good objection to a proposed law. At least not on it’s own.
You seem to be suggesting there are two categories of laws: behaviour modification laws, and other laws. So maybe your claim is that enforceability is a necessary condition for passing a behaviour modification law. It’s hard to evaluate that claim without any criteria for sorting laws into one category or the other. I would guess that you consider anti-drugs laws as the archetypal behaviour modification laws, and anti-rape laws to be an example of the other sort. I have two objections to this line of argument. Firstly, I would contend that a law against drinking during pregnancy is closer to a law against rape than it is to a law against taking drugs. The first two are intended to protect the welfare of an individual other than the perpetrator, whereas the latter is supposed for the good of the drug-takers themselves. Secondly, I don’t think enforceability is a necessary conditions even for these behaviour modification laws. Banning drugs is wrong because it infringes on personal liberty, but enforceability is neither here nor there.
Jakob I do see a difference because with rape there is a victim that suffers harm, the same cant be said for drug laws or other laws that seek to modify behaviour. I would agree that it is a bit less clear with your proposed law because a fetus could be described as a victim. Although how could this be enforced you would have to show the woman in question knew she was pregnant plus at what point would the fetus be considered developed enough to be described as a victim?
I didnt intend to try and take over the discusion O.B I had been following the conversation with intrest and just wanted to endorse the position Dave had already stated.
That’s my point. The future baby is the victim in the case of drinking during pregnancy so it is not like laws against taking drugs (and even if it was, enforceability wouldn’t be the issue).
I don’t think it’s a matter of how developed the foetus is because it’s not the foetus which is the victim, but the baby it will probably become. That’s why a foetus isn’t a victim of murder in cases of abortion – it won’t become a baby.
Obviously, the woman would have to actually know she was pregnant, or at least suspect it.
If parents leave their children alone with open bottles of vodka and then return to find the bottles empty and their children suffering alcohol poisoning, we don’t hesitate to say they should be prosecuted for neglect. If a woman who is aware that she’s pregnant but engages in irresponsible behaviour that causes permanent harm to her future baby, we should draw the same conclusion.
The American Society for Reproductive Medicine (ASRM) issued “Guidelines on Number of Embryos Transferred.”
“Women under age 35 should attempt to transfer no more than two, and preferably only one, fertilised embryo at a time. Women over age 40 should attempt no more than five.”
Also, European countries, like France and Germany, have legal limits – 2-3 embryos per implantation period depending on age.
It’s perfectly possible she had no more than two transferred, and the rest of the conceptions were accidents due to hyperstimulation of her ovaries with fertility drugs, which is part of many types of assisted reproduction. It’s also possible she didn’t have IVF at all, but just hyperstimulation. There are lots of options at fertility clinics. Clearly she did not opt to reduce the 8 to fewer, which would have been an option offered to her. So nobody stopped the 8 from being born, but it’s not necessarily true anyone was aiming for 8 or even did anything with a significant risk of leading to 8.
Hmm. But if it’s perfectly possible that hyperstimulation of her ovaries caused the conception of 8 embryos, then surely it is necessarily true that someone did something with a significant risk of leading to 8. ‘Perfectly possible’ seems to imply ‘not a bit unlikely or surprising’ – which surely does amount to a significant risk. It can’t very well be perfectly possible at one end and no significant risk at the other. That looks like dismissal at beginning and end but dismissal of two directly opposed explanations.
According to Nadya Suleyman it was IVF; she says she conceived all of her children by IVF.
Its perfectly possible, also, that Suleman went to the same clinic who dealt with her first time around. As she (allegedly) would have come under its remit because there are several groups to whom IVF treatment may be advised and that includes: Women with blocked, damaged Fallopian tubes or inoperable tubes or whose tubes have been removed after ectopic pregnancies.
As, The Huffington Post, on the 31st January 2009 stated that “Angela Suleman said her daughter always had trouble conceiving and underwent in vitro fertilization treatments because her fallopian tubes are “plugged up.” There were frozen embryos left over after her previous pregnancies and her daughter didn’t want them destroyed, so she decided to have more children.”
Was she, I wonder, implanted with the left-over frozen embryos?
Meanwhile, Arthur Wisot, a fertility doctor in Los Angeles, raised a further prospect. “I cannot imagine that any of the mainstream practices in the Los Angeles area were involved in this. I would guess… she either went out of the country or went to a practice that flies below the radar,” he told a TV reporter.
Was the original clinic that she went to, one that flies below the radar?
I read that people from America go by the score to Mexico to have IVF Treatment, as it is so cheap in that country.
Treating single women is allowed in some countries but not in others, such as Sweden and Denmark. Even in Australia, as a whole, some states, only, will allow single women to be treated, while others will not at all.
Some countries have neither legislation nor guidelines such as Greece and Canada.
OK, I was just speculating…now I’ve read an interview with her and she did in fact have 6 embryos transferred by IVF, and then two wound up as twins. Sheesh. Pretty stupid clinic.
Theoretically it would be possible to wind up with octuplets even if you had followed standard guidelines and done nothing with more than a tiny chance of leading to octuplets. With hyperstimulation, you’re definitely taking a chance on twins or triplets, but more than that is only a very remote possibility.
Anyhow. Turns out that’s not relevant to this case. The interview I read makes the woman seem not to be firing from all cylinders, as they say.
Yeah. I saw some extracts from the interview in a BBC piece. Sheesh indeed.
A friend tells me that fertility drugs are sold OTC in Mexico.
Jakob, rape is a perfectly enforceable crime. It is often under-enforced, but that isn’t because of anything inherent to the crime. That is because of misogyny, which cannot be combated by decriminalizing rape. The anthropologist Peggy Reaves Sanday has some very interesting studies on how anti-rape laws can be and have been enforced, if anyone is interested.
Firstly, I would contend that a law against drinking during pregnancy is closer to a law against rape than it is to a law against taking drugs.
No, it’s not. Drinking during pregnancy only affects the pregnant woman’s body. It also affects the fetus, yes, but the fetus is not yet a separate entity. It is part of the woman’s body. It is a future person. Rape violates a being who is presently a person. Banning people from making choices that will affect their future children is ridiculous. If you can ban a woman who is carrying a fetus from drinking because the fetus may become a separate person, why not ban all fertile women from doing drugs because that can affect children that may be born in the future in horrible ways?