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Beyond the harm threshold

26 August 2014
By Dr Anna Smajdor
Lecturer in ethics, University of East Anglia
Appeared in BioNews 768

Some people believe that the only acceptable grounds for preventing access to new reproductive technologies is the risk that children would be harmed.

Accordingly, controversies surrounding reproductive technologies often revolve around the question of potential for harm. For example: do preimplantation screening techniques prevent harm to children? Are offspring conceived with donated sperm harmed by the absence of the genetic father? Is it harmful to create a child with three people's DNA?

Underlying all this is an assumption that there is a 'harm threshold' (1) a point at which a child would suffer so much that it would have been harmed by coming into existence. If we could establish where this threshold lies, it would be easy to ascertain whether a particular technique is morally acceptable, and whether it should be illegal – in theory, at least. For those who believe that harm avoidance is the only justifiable basis for the law, these questions are extremely important.

In the UK, many of our legal and regulatory frameworks rely implicitly on this concept of a harm threshold: abortion is permitted up to term if the fetus has a serious abnormality (and assuming other conditions are met), preimplantation genetic diagnosis can be used to prevent the birth of children with diseases regarded as sufficiently serious, and clinicians offering fertility treatment must determine whether the child to be created may suffer harm.

Seemingly, as long as we keep on the right side of the threshold, we are morally and legally OK. If we transgress this boundary, however, we may bring into being children who have been harmed by the very fact of their existence.

Although the concept of the harm threshold has an intuitive appeal, the questions it raises are very difficult to answer. How much harm is too much? Ainsley Newson has pointed out (2) that in the explosion of media outrage in the recent baby Gammy surrogacy case, the commissioning parents were criticised for apparently rejecting Gammy on the grounds of his disability.

Yet, as Newson notes, aborting him on exactly the same grounds would have raised far fewer questions and would be perfectly legal – right up to term – in the UK. For babies like Gammy the issue is whether it is better to exist with Down's syndrome, than not exist at all. Do we really believe that to end a life like Gammy's before birth is a means of preventing harm to him? Perhaps we should admit that in these cases, we do not apply the harm threshold very consistently.

But there may still be cases where it is more obviously harmful to be brought into existence. The use of reproductive cloning, perhaps, or artificial gametes might be so risky and experimental as to create offspring who would have been harmed by existing. But even in this context, it makes no sense to think the resulting child might actually have been better off if conceived naturally: the child would not exist if another method had been used. It is this that makes questions of harm so perplexing in the context of reproductive technology. The idea that it is possible to harm – or even benefit – a person simply by bringing them into existence is deeply problematic.

These questions are so deeply entwined with our modern technological achievements that it may be surprising to discover that they feed into a centuries-old philosophical debate. The 11th century theologian St Anselm sought to prove that God exists, using what is known as the 'ontological' argument (3), Anselm invites us to imagine a being 'than which none greater exists'.

Once we have pictured this in our imagination, he points out a problem: we can imagine a being greater than the one we just thought of – if we think of it existing in reality rather than just in our imagination. Through this, Anselm believed that he had succeeded in showing that this being (God) must exist, since we cannot logically conceive of him without presupposing his existence.

The problem with Anselm's argument was neatly pinpointed by the German philosopher Immanuel Kant, over 500 years later (4). Something that exists is not greater than its imaginary counterpart. Either it exists or it doesn't. Likewise, if we bring something into existence, that doesn't confer additional properties on it. Bringing a disabled child into existence is not the same as disabling a child, any more than bringing a blind child into being is the same as blinding it.

Viewed in this way, however severe a child's suffering may be, it can never be true to say that one has harmed it solely by bringing it into existence. Harming, disabling or blinding is something we can only do to people who already exist. It can't be conflated with the process of creation itself.

This does not necessarily mean that there is no further scope for discussion about the ethics of new reproductive technologies. I have argued that bringing a disabled child into existence is not the same as disabling a child. However, many people believe nevertheless that to do so is unethical. The challenge for those who do believe this is to establish whether there are grounds for this conviction other than that the child has been harmed. The temptation to boil down all ethical concerns into questions of harm is so strong that it can be tempting to assume that any moral wrongdoing must be explicable in this way.

What does this mean for harm-based legislation, and the harm threshold? We need to reconsider the role of harm in our ethical and legal approach to reproductive technology: it will not give us the answers we are looking for. There is no harm threshold.

1) Smajdor A. How useful is the concept of the 'harm threshold' in reproductive ethics and law?
Theoretical Medicine and Bioethics |  9 August 2014
2) Newson A. Why should we offer screening for Down syndrome anyway?
The Conversation |  11 August 2014
3) Charlesworth MJ (ed.) St. Anselm's Proslogion
Oxford University Press |  1965
4) Kant I. Critique of pure reason (Translation N. Kemp Smith)
Macmillan |  1929
18 August 2014 - by Professor Eric Blyth 
The Baby Gammy case has sparked worldwide interest and comment. The case highlights troubling issues that have been exercising the minds of some of us for some time...
11 August 2014 - by Sascha Callaghan and Ainsley Newson 
The story of the baby with Down's syndrome 'abandoned' in Thailand, which has dominated the news, illustrates how the international surrogacy industry has been booming...
24 March 2014 - by Professor Janna Thompson 
MP Jacob Rees-Mogg recently implied that mitochondrial transfer is akin to eugenics, but it is a way of combating debilitating ailments rather than producing 'perfect' human beings...
2 December 2013 - by Dr John Appleby, Professor Rosamund Scott and Professor Stephen Wilkinson 
A group of European parliamentarians from the Council of Europe recently issued a declaration objecting to the HFEA's policy advice on experimental mitochondrial replacement therapy claiming that MRT is eugenic and inconsistent with human dignity. These are substantial moral claims, ones that deserve closer scrutiny, and it is an interesting and important exercise to consider how successful such arguments are...
You are arguing your point from an excluded middle ( - 21/01/2015)
Oh stop already.  The harm these people suffer is not caused by their existence it's caused by their abandonment and subsequent black market adoption.  Non existence is not the alternative here. The solution is existing and having the law hold their biological parents to the same standard of care as it does all other people with offspring.  How about not exempting gamete donors from parental responsibility?  That would resolve all the harm done to these people and you all could still help people in their quest to become parents; you just would not be allowed to help biological parents abandon their kids nor would you be able to help anyone take home another person's offspring without going to court and adopting them like everyone else has to if they want to raise another person's kid.

Quit using the Trojan horse wombs of baby mules to smuggle other people's kids under the radar and off the record to high paying clients who want it to look like they had their own children through the miracle of modern reproductive technology.  Medical treatment is not what is getting single and infertile people custody of other people's kids without having to adopt them.  Brokering black market adoptions and calling it reproductive technology is just so incredibly full of shit.  Helping people have their own babies may involve medical treatment but helping them have or get other people's babies off the record and out of court is smuggling and trafficking. It is not the practice of medicine and doctors should be prohibited from offering these types of arrangements to people or from knowingly being party to such arrangements.

All the forms and consents that doctors have their patients sign should require the patients sworn statement they accept full parental responsibility and obligations for any offspring born of whatever medical treatment they are having.  It's the only way the doctor can treat patients ethically and avoid causing harm to any offspring born.  It's a real simple solution to avoid causing harm just get out of the business of brokering black market adoptions.  Simple but not nearly as profitable.

How will all the single and infertile people get babies to raise?  Its not a problem for a doctor to solve.   It's outside the realm of the practice of medicine.
Harms to a Donor's Offspring ( - 21/01/2015)
All LEGAL disadvantages when compared to the broader population.
Parents abandon their offspring under all sorts of conditions but only gamete donors are officially exempt from accountability as parents and from criminal charges of abandonment for not taking responsibility for their own offspring when born.

People make arrangements with biological parents in advance so that adoptive parents can be named on birth certificates all the time but its against the law all over the world except that the offspring of donors have no legal recourse and are officially denied the due process of court approval prior to allowing anyone other than a biological parent to have custody and control over them.

Medically worthless birth certificates that prevent their biologcal family from knowing they exist or being able to access their vital records and they also cannot access their relatives vital records because their biological parents are not named on their birth records to connect them and give the rights to information about their entire family.

Lack of legal kinship within their biological family even when reunited.

There are so many more harms and legal disadvantages from not being able to claim a sibling as a relative dependent on their tax returns to not having a legal right to time off work to care for a sick relative or attend a relatives funeral.
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