26 August 2014
ByAppeared in BioNews 768
Law, Policy and Reproductive Autonomy
Published by Hart Publishing
ISBN-10: 1841138673, ISBN-13: 978-1841138671
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The legal framework for the regulation and provision of assisted reproductive technologies (ART) is situated within enormous social change, not least in the construction of the family, personal health management and expectations around access to emerging medical technologies.
Such challenges make the requirement for maintaining an appropriate ethical framework through which legal norms can operate consistently all the more important. The idea of reproductive autonomy – the freedom of (and respect for) reproductive decision making - as a governing principle in law and bioethics, however, has come under sustained pressure from various quarters for being unrealistically individualistic and ignoring the complex relational setting and social or political processes that inform reproductive decision-making.
This has manifest implications in law and policy where a retreat from liberalism has put at risk fundamental freedom. For example, there has been subtle, barely perceptible shift towards the reinterpretation of private interests through a public policy that is ostensibly concerned with public health, social norms and other modes of behaviour. The result is that as private life is publicised, individual freedoms are sometimes deprioritised; leaving the state and governance to take an increasingly active, albeit mostly indirect, role in the regulation of the life of its citizens.
It is against this background that Erin Nelson makes a significant contribution to legal and bioethical debate. Nelson's task is to develop a more 'concretely theorised' idea of reproductive autonomy that can shape law and policy. She argues that autonomy should form the focal point of regulating assisted conception, given the impact reproductive decisions have on one's life.
Nelson's account of autonomy in the first part of the book reveals the complexity and contested boundaries of the principle. Other than it being overly concerned with procedural justice, Nelson is able to maintain a version of autonomy that responds to, and incorporates, the feminist and relational critiques. Such critiques broadly maintain that an atomistic or individualist conception of autonomy ignores the social nature of 'pervasive pronatalist social pressures', and that a focus on autonomy draws attention from other important values that can prove harmful to already marginalised groups.
However, while the social and political constructivist critiques challenge an unfettered adoption of autonomy and give cause to be careful about the way in which autonomy is upheld, attributing private decisions to social or historical processes can be said, in my view at least, to devalue the meanings held by that individual. The critique puts at risk our ability to safeguard private life and personal liberty in the face of overreaching commercial and state institutions. From a feminist perspective, it also seems counter-intuitive. As Nelson states, 'there is a risk that the intuitions of feminist and relational theorists will be prioritised over the needs of individual women'. It has the potential to rule out some reproductive choices because they do not fit with feminist intuitions about what autonomous women can legitimately choose.
Attempts have then arisen to revive autonomy with a relational version that recognises people are socially embedded. Nelson ultimately rejects the 'relational autonomy' label (but not the premise that autonomy is relational) saying that there is a risk that to consider autonomy as residing in relationships, not persons, gives an impression of the right kind of relationship that engenders autonomous behaviour, or could lead to paternalistic ideas about what is autonomous. Nelson's concerns about 'oppressive socialisation' have strong resonance in contemporary policy debates around the removal of donor anonymity, perhaps.
Instead, Nelson produces a version of autonomy in the reproductive context that builds on the liberal conceptions in such a way to capture to contextual backdrop to autonomous decision making; while not purely residing in the social, people make decisions in a social (and political) context.
Nelson says a richer understanding of reproductive autonomy emphasises the context within which reproductive decision-making takes place. She builds on writers who argue that capacity for autonomy develops in the social context, saying that being free to act on our preferences, even socially constructed, is crucial to our sense of self. This attempt to draw out 'deeper' meanings of autonomy allows for the preservation of the core feature of autonomy - as being about individuals - while also acknowledging it as a social construction. This is an important adjustment to revitalise a crucial bioethical framework that breathes new life into discussions of reproductive liberty.
Moving to a legal framework, Nelson 'envisages a comprehensive policy framework aimed at creating the conditions in which reproductive choice can be exercised meaningfully'. As applied to wrongful conception and wrongful birth claims in tort, Nelson argues that an appropriate respect for reproductive autonomy requires the courts to tackle the complexity of the principle in such cases rather than refusing liability on the purported grounds of legal policy in being unable to quantify damages and adopting the view that being born always outweighs any associated loss. For Nelson, in not telling women of genetic risks to their fetus, or information on sperm counts post-vasectomy, for example, doctors fail to ensure adequate informed consent and should be treated the same as such negligence claims.
Responding to claims that to hold otherwise would be to perpetuate social ill-perceived attitudes towards disability, or views of prenatal testing or selective abortions, Nelson states that she is not prepared to agree that social justice demands that such claims be recognised and argues that women's choices should be evaluated on the basis of their own views. Notwithstanding policy implications of liability, a shift in focus in the courts to a claims in negligence as infringing reproductive autonomy could represent a more 'creative approach' to wrongful birth and wrongful conception claims (although Nelson does not appear to fully develop what such an infringement should be characterised as in law).
As applied to the regulation of ART, which she considers to be necessary, Nelson advocates a framework that ensures appropriate respect for reproductive autonomy through a more contextualised account of reproductive autonomy. She suggests that the UK could include a larger role for the professions. As reproductive services cannot be accessed without professional assistance this places the medical profession in the role of gatekeeper and favours recasting decisions as ones that invoke a concern for reproductive autonomy.
Nelson's premise of an infringement of autonomy providing the normative basis for the recoverability of damages invites further conceptual and legal development in specific national jurisprudential traditions, as well as the doctrinal and theoretical constitution of law. The text provides a robust defence of autonomy. By offering a close evaluation of the context of decision making, the text develops a bioethical framework and modified language of autonomy that may be more easily transcribed into legal discourse and propels the debate into a more constructive domain.
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