Download Report on Human Reproductive Technologies and the Law

Who’s the daddy? Genetics
and parental identity
HI269
Week 4
Who’s the daddy? Family identities
in perspective
I. Defining the family: shaping the history of
‘kinship’
A. In law
B. In culture
C. In ‘nature’?
II. ‘Family’ and technology in the genetic age
A. ‘pater semper certas est’?
B. DNA is thicker than water?
C. Old kinship for new ‘families’?
Defining Family
In Law
In Culture
(Social) Paternity is basis for
inheritance;
Traditionally, paternity determined by
marriage;
Traditionally, maternity determined by
gestation/birth;
Legal code privileges culturally-rooted
norms of family (‘normative family’
and ‘in the interests of the child’)
(Social) Paternity basis for many forms
of social status;
‘Blood is thicker than water’
Structural and cultural preference for
specific family structures: eg, in
West, a blood-based kinship,
nuclear, heterosexual, with at least
one breadwinner
Changes post genetics/NRTs
Changes post genetics/NRTs
Increasing focus on biological paternity
and ‘rights’ to be associated with it
Inconsistencies in law which privilege
social over biological fathers (eg their
rights in cases of AID) being
removed
‘fact of birth’ now must be reassessed
Use of genetic testing to confirm/affirm
parentage -> diminished focus on
social parenting?
Availability of biological kinship to
populations previously excluded
from this privileged social form?
Family in ‘nature’?
“There is of course the distinction dictated by
nature between a bastard and his mother and a
bastard and his father; and this distinction has
both an evidential and a familial aspect. Nature
permits that a man may produce more bastards
more secretly. Facts dictate that it must be far
more difficult to establish the paternity of a
bastard than his maternity; blood tests can
sometimes deny an alleged paternity but at
present cannot to any significant extent establish
it; the facts of birth normally establish maternity.”
Report of the Committee on the Law of Succession
in Relation to Illegitimate Persons (Russell
Report), 1966.
Status of the human embryo in
‘nature’? Law?
“A human embryo cannot be thought of as a
person, or even a potential person. It is simply a
collection of cells which, unless it implants in a
human uterine environment, has no potential for
development.”
OR
“the embryo of the human species [must] be
afforded some protection in law”
Warnock Report, 1985
NRTs and the Law: UK timeline
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1930s AID comes into common (but unpublicised) use in US/UK
1943-5 publication on frequency of AID cases in BMJ produces popular AND
medical outrage, calls for bans in Parliament, Church
1958 Divorce case alleged use of AID w/o husband’s permission as grounds for
divorce on basis of adultery;
1959 Feversham Committee established to determine bastardy of AID children
1966 Report of the Committee on the Law of Succession in Relation to Illegitimate
Persons (Russell Report)
1975 Adopted children gain right to see original birth cert at age 18.
1982 Warnock Committee formed to debate ethnics of ‘assisted reproduction’ and
rights of genetic parents over children produced by them (for other non-biological
families)
1985 Warnock Report published recommending strict regulation
1990 Human Fertilisation and Embryology Act: established HFEA; limited time
limits in Abortion Act to 24 weeks; Established that Surrogacy arrangements not
legally enforceable. Only regulates donated gametes, so DOES NOT regulate GIFT
or IUI from partner’s gametes.
2001 Human Reproductive Cloning Act Prohibition of human cloning
2004 Amendment of the HFEA Act to remove the right of new donors to be
anonymous once the child has become 18. Donors are still protected from legal
claims for economic support/parental responsibility.
2006 European Tissue Directive comes into effect as UK law, regulating gametes
as well as other tissues
April 2007 UK bans sale/provision of fresh (therefore previously unregulated)
sperm over the internet
Pater semper certas est?
‘Thomas
Beatie, a
married man
who used to
be a woman,
is pregnant
with a baby
girl’
TimesOnline
March 26,
2008
Junior, Universal Pictures, 1994
‘male pregnancy’: a case study
• "I have a very stable male gender identity. I see
pregnancy as a process, and it doesn't define who I am.
It's not a male or female desire to want to have a
child…it's a human desire … I'm a person, and I have the
right to have my own biological child."
• "We've had a really hard time finding doctors to treat us
and to help us get pregnant … We got rejected by our
first doctor because he said that his staff felt
uncomfortable working with someone like me."
• "Unfortunately, they don't make man-ternity clothes, so
I'm kind of stuck. I have no idea what I'm going to wear in
the future when I get bigger."
Thomas Beatie, Oprah Winfrey Show, 04/03/2008
The ‘icky’ factor?
• “the pregnant man would become a father. Or rather, a mother. And
here's the thing. We find this unpalatable, but not because of the
dangers involved, the strange technology, the cutting-edge
operations. It's because it changes something fundamental about
the way we see the world. Or rather, about the way we feel. Thinking
about a pregnant man is difficult on an emotional level, because our
emotions are formed, according to evolutionary biologists, by one
crucial factor. And that's whether we have the brain chemistry of, on
the one hand, a sperm shooter, or, on the other, an egg protector.
These are the two halves of our emotional world. Even if you're gay,
say the evolutionary biologists, you're either a sperm-shooter or an
egg-protector at heart.”
William Leith ‘Pregnant Men’ Seven Magazine, Sunday Telegraph,
10/04/2008
But will it sell? Commercialising the
‘fatherhood experience’ or selling
celibacy?
The ‘Empathy Belly’
So: is DNA is thicker than water?
Advantages and disadvantages of
forms of sperm donation
Regulated gamete
donation
ManNotIncluded
and sim.
Known donor
insemination
Sex with a
stranger
Fresh sperm
No
Yes
Yes
Yes
Anonymity
convenience
No
No
Yes
Yes
No
Yes
Yes
Yes
Safety
Legal protection
Yes
Yes
Uncertain
No
Yes
No
No
No
cost
No
No
Yes
Yes
Legal protection
for donor
Yes
No
No
No
Science and Technology Parliamentary Subcommittee Report on Human
Reproductive Technologies and the Law, 2004
Old kinship for new ‘families’?
Or old ‘families’ for new genetic kin?
OR: does egg
donor + sperm
from dad A +
sperm from dad
B + plus test tube
+ gestational =
mother +
adoption and
immigration
lawyers …
The new ideal nuclear family?
New options for non-traditional
families?
• Do the NRTs allow
people to form
families more
flexibly, or in novel
formats?
• Or do they simply
allow new groups
to reproduce the
culturally preferred
nuclear family
norm?