BS: No 'right to choose' this...

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 08 Oct 03 - 03:16 PM

OK, it's finally clear now, a new law should give the mother more rights than the father according to McGrath.

First, I don't see any reason why this law should be held up at the European Court of Human Rights. This Court is known to pass sentences for equal treatment whenever possible. The reasons given for unequal treatment here are extremely thin.

Second, the comparison to sperm bank danors opens a can of worms. They have been difficult to trace (in the old times) for some agencies even mixed the sperms to make tracing difficult but whenever a donor has been traced the question of paternal rights (a problem discussed among lesbian couples), payment and inheritance comes up. These rights cannot be waived by the mother or the state for nobody can waive the rights of a third party who has not (yet) been asked. At latest when the child gets 18 years old, she can sue whatever the mother has said or written before that age. The European Court would rightly not allow that some people (these children) have less rights than others.

Wolfgang

Subject: RE: BS: No 'right to choose' this...
From: Grab
Date: 08 Oct 03 - 01:34 PM

McGrath, my issue with this is that to a large extent this *was* considered by the original committee. That's the very reason why the permission of both parties is required - both are considered equal "owners" of the zygotes, so neither can take any action without the other's approval. The only thing that wasn't considered was the question of what if the couple separate and one of the parties can no longer reproduce.

As far as your suggestion of a solution, that's no solution at all. Under that system, the man has no rights, ever. Even if the man didn't want the child, the woman can go ahead through fertility treatments and have one (and let's face it, a quantity of sperm would not be too difficult to obtain from your husband). The man is then forced to support a child he doesn't want and played no part in producing.

Or to come up with an example for the men, suppose a couple separated and the man entered a stable gay relationship. If he and his partner wish to have children, surrogacy is their only option, and his only option for a child then is to make use of the stored zygotes. Or another similar example would be if one of the women remarried and her new husband is sterile. So examples across both sexes are possible. Why then should it be the woman who automatically gets the "privilege" of overriding the man's wishes over what happens to his reproduction?

Regarding sperm bank donors, some children of donors have tracked down their genetic fathers, sometimes with the assistance of the sperm banks who said at the time that they would keep the information secret. I don't think that's much of an example.

If you think there's something "overridingly important" about women's rights to reproduction, and how her self-esteem suffers without it, by all means say so. I'll then remind you of how "overridingly important" it is to a man that he has a job, and how his self-esteem suffers without it. Either we have equal rights, or we have discrimination. Choose one.

Graham.

Subject: RE: BS: No 'right to choose' this...
From: NicoleC
Date: 08 Oct 03 - 10:27 AM

In a nutshell Kevin, do you think:

a) the right TO have a child should always supersede the right NOT to have a child

or

b) a woman's rights regarding children always supersede a man's rights?

This about that carefully. Neither is supported by current law in the UK or US. Both could have drastic consequences. As for your example where her right take precedent, that would proclude a man having ANY rights to the zygotes -- because if her rights take precedence she could demand the child back *even after implantation.*

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 08 Oct 03 - 09:23 AM

I don't feel the law is unfair because I feel angry. That is what is implied in "letting emotions cloud your judgement".

I feel angry because I feel the law is unfair, and is causing something to happen which was never envisaged by those who put it together. That applies both to the Fertility Act and to the Child Support Agency regulations.

As for the three horned dilemma Wolfgang offers I think there would be no difficulty an equitable solution, under which the right to have a fertilised embryo or zygote implanted in the womb of the woman whose egg was involved would always comes first, up to the point at which she relinquished that right.

So far as the monetary side of it is concerned, it seems inequitable that an obligation to reimburse the Child Support Agency for money paid to the mother should fall on a father in these circumstances, and it would be perfectly easy to provide an exemption in such a case.

As for inheritance I would have thought that the right way to treat this would be to extend whatever rules apply in the case of sperm bank donors.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 08 Oct 03 - 05:20 AM

Ms. Murray is to be commended for stating very cleary 'the judge in this case...was correct in his strict legal interpretation of the...Act' in her article. But she is much less clear in the remainder of her article. On the one hand, the subtitle 'the law is an ass' gives the impression she is blaming the law and wants it to be changed. On the other hand, nearly all of the article is restricted to a tear-jerker description of the two men's heartlessness and how the women feel.

We all know how it goes: When people split up there are very hurt feelings and each party tells her or his closest friend what an asshole the former partner is. If you talk to the one who is left you always hear his or her you picked a fine time to leave me, Lucille. Let me cite McGrath here approvingly: There is very seldom only black and white. I don't know any of the people involved, so I could even imagine I would agree that the two men involved have no heart if I knew them. But my impression is that Ms. Murray knows no more than I do.

If Ms. Murray wants to discuss the law she does not need to emotionalise the issue for most of the article. If she wants to discuss male heartlessness she does not need to blame the law. I can't help thinking that she does not consider her argument a strong one otherwise she would have stopped at outlining the case without the additional emotionalisation. She uses the emotions to cover her weak points:

At no point she clearly says what she thinks about the problem who will has to pay for the child. Does she want the biological father to pay for a child which has been 'embryoed' long after the relationship to the mother has ended? Could a woman use 'her' 'embryo' even if she could get a child another way (scenario: embryo on ice, relationship too, years later she has a new relationship but both decide to use the old embryo for the old partner now has a lot of money)? If a new law states the biological father has not to pay for what comes from using his embryo, does that not violate basic human rights of the later child for there would be a subset of children without any rights in relation to their biological fathers (once stated to be illegal by the European Court by the way in a case of inheritance)? Could the woman give 'her' embryo to another woman to carry it for her? And so on. Any change of the law has to be considered very carefully. I think in the end of deliberation the present law may turn out to be the best solution. In single cases, there will always be situations in which our hearts go out to someone who quite correctly will not win a court case. Not all possible unfairness can be prevented by laws. Life sometimes is unfair.

What bothers me most in the article is the possessive 'theirs' in the subtitle (the author may not be responsible for the subtitle) and in the article. Imagine a subtitle: 'The law is an ass for stopping two women from using their former partners' embryos'. Why it is so clear that the embryos belong to the women eludes me here. The 'their' in the subtitle very cleverly slants the discussion in one direction.

The one clear question is who can decide what happens with the zygote. And all that talk about 'human beings are never property' is completely irrelevant for if someone can decide what happens with the zygote and this decision can even be the destruction then we talk about property and nothing else (if you don't want that you must preclude the possibility of destruction with crazy consequences, if you think it through).

(1) Is it both like now then we must live with emotional anger in single cases.
(2) Is it the woman alone then we must accept that she even could allow another mother to carry out her embryo (there could be medical reasons for that) with all the consequences and we must then answer the question about who pays and what are the human rights of the later child.
(3) Is it whoever comes first without consent of the other (except for destruction). In this case any clever man fearing monetary consequences will quickly destroy the zygotes after a separation by having them implanted into another woman, but, alas, at the wrong time and so there'll be no fetus.

Once you start thinking about it without letting emotions cloud your judgement I think you'll find that the present law is still a very good compromise.

Wolfgang

Subject: RE: BS: No 'right to choose' this...
From: Nigel Parsons
Date: 08 Oct 03 - 03:24 AM

Kevin:
"Laws may not be made for single cases (though they can be), but single cases very often show when it is necessary for a law to be changed. And once again I agree with what Mary Warnock wrote: "If the law says the man has the right to prevent even the attempt at having a baby, it's a bad law and should be changed."
As i pointed out before, ova can be frozen unfertilised. The law does not prevent the attempt at having a baby, it prevents the forced participation of a second party! Mary Warnock's comment is a one sided view of the issue. (no pun on 'issue' intended)

Nigel

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Nerd
Date: 08 Oct 03 - 01:08 AM

Well, ONE OF the people who drafted it. It's quite possible that Lady Warnock is not in the majority among the drafters of the law.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 07 Oct 03 - 06:52 PM

Wolfgang criticises my use of the term "grotesque judgement". True enough, I telescoped two issues when I called it that.   

The first was that, if the law is as the judge ruled it is, then in Mary Warnock's words "It's a bad law", and does not reflect the intentions of the people who drafted it.

And the other was that I find myself in agreement with what Jenni Murray wrote, in that article I linked to earlier concerning the views expressed by the judge in court: "He was wrong to say any criticism of the men's motives in wanting the embryos to be destroyed was unfair. I doubt the putative 'fathers' have a heart between them".

The law may have been explicit, but that is never the end of the story, since all laws have to be looked at in the light of the European Convention on Human Rights. I was surprised that, when viewed in this light, it wasn't decided that the explicit words of the law need some modification, and I still hope it may turn out that, if it goes to a higher court, that will determine this to be the case.

As for the business of the Child Support Agency, I would assume that any set of administrative guidelines drawn up for this agency will explicitly or implicitly have provision for exempting people from being required to make payments in a case where it would clearly be inequitable to pursue them for payment.

Laws may not be made for single cases (though they can be), but single cases very often show when it is necessary for a law to be changed. And once again I agree with what Mary Warnock wrote: "If the law says the man has the right to prevent even the attempt at having a baby, it's a bad law and should be changed."

And I think there speaks someone who would not allow emotion to prevent her from "thinking about the consequences". The change Baroness Warnock calls for would have the object of amending the law so that it was consistent with the aims of the people who drafted it, who thought about it for very long time.

Subject: RE: BS: No 'right to choose' this...
From: Grab
Date: 07 Oct 03 - 11:23 AM

Kat, it's relatively easy for a woman to do that in the UK. But it's damn near impossible for a man to get rights to see his kids if his ex decides to keep him away (especially if he doesn't want to expose his kids to a fight in court); or for a man to enforce any earlier agreement he may have made with the woman that he takes no part in raising a child and therefore provides no financial support either; or for a man to object to paying to support his ex-wife when she's got a new boyfriend moved in already; or for a man to get custody rights when his wife is demonstrably unable to care for the children; or even for a man to object to the level of financial support he has to provide without losing the right to see his kids.

Not good, really. That's why it's so suprising to see this judgement - whilst it will disappoint the women involved, it supports the men's rights to not be parents against their will, and it upholds the law as it currently stands.

Graham.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 07 Oct 03 - 11:06 AM

McGrath,

rereading this thread I still fail to see what you're dricing at except that you would have liked the judge to disregard the law in this particular case. From your first link and from other material I have now read about this case it seems to be extremely clear that the judge despite a lot of sympathy for the women had to follow the law. The law here needed no interpretation for it had been made after long deliberation to cover, among others, this case.

You have started by calling the judgement grotesque, whereas the judgement follows closely the very explicit law. Now you seem to blame the government for not interfering with the law (ace up the sleeve argument). In other situations, you'd be the first to blame the government for doing exactly that. Do I understand you correctly that you'd wish for the law to be broken when you agree with the result? I can't believe that for I'd rather believe you would wish for a correct judgement even in cases in which you'd wish for a different result.

The correct action, as you know, would be to change the law. And my impression is that your emotion in this case has prevented you from thinking about the consequences. Laws are not made for single cases and each change could have consequences soemwhere else.

I can understand your emotion in this particular case, but your argumentation rather reminds me of the Italian self ironic saying:
Piove....governo ladro (freely: it's raining....fucking government)

Wolfgang

Subject: RE: BS: No 'right to choose' this...
From: katlaughing
Date: 07 Oct 03 - 10:07 AM

I don't know if a person can still do this in any of the states over here, but when my ex didn't pay child support for over one year, I was able to go to court and have his rights revoked, at which point my Rog was able to legally adopt my children.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 07 Oct 03 - 07:10 AM

"McGrath, the UK is not a totalitarian state! All states are totalitarian states when it comes down to the wire. There's always an ace up their sleeves they can produce to provide an exemption from any law.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,john of elsie`s band
Date: 07 Oct 03 - 06:10 AM

Read the article in "The Daily Telegraph" (6-10-03). It gives a reasonable appreciation of the recent decision.

Subject: RE: BS: No 'right to choose' this...
From: Nerd
Date: 07 Oct 03 - 12:20 AM

McGrath, the UK is not a totalitarian state! If the law currently stands that a man's obligations as a father cannot be waived, the government (whatever organ of government you mean) presumably can't suddenly change that. There are, I think, two routes for change: parliamentary legislation (which would be complex and not guaranteed of success) and action in the courts (same thing). Until this happens, why should the men risk being forced into fatherhood?

I also feel that, by the same analogy, if denying the woman access to these zygotes is tantamount to forced abortion, then giving her access against the man's will is tantamount to her raping him. In both cases, luckily, the TRUE unpleasantness of abortion and rape is avoided.

Subject: RE: BS: No 'right to choose' this...
From: Rt Revd Sir jOhn from Hull
Date: 06 Oct 03 - 10:03 PM

The documentary about this case is been shown on UK TV Channel 4 now.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 06 Oct 03 - 11:20 AM

Biology does mean that mathematical equality is not always applicable (McGrath)

Essentially what is happening here is equivalent to a situation where a woman was forced to have an abortion because the father of the child had second thoughts (McGrath)

Exactly because I agree with the essence (not the wording) of the first sentence I disagree with the second.

Wolfgang

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 06 Oct 03 - 10:29 AM

It might not be possible "for a mother to permanently waive all child support obligations that the father might have" - the point is the obligation is not to the mother, but to the Child Support Agency.

However I'd be astonished if the British Government doesn't have the right to do that in exceptional circumstances such as this. And they are exceptional circumstances, as Mary Warnock's comments I quoted indicate.

Subject: RE: BS: No 'right to choose' this...
From: Dave Bryant
Date: 06 Oct 03 - 10:03 AM

While I feel very sorry for these women, I suppose that I have to try and put myself into the position of the men who are refusing consent.

Artbrooks asks "Is it legal, and enforcable, under UK law for a mother to permanently waive all child support obligations that the father might have?" I don't believe it is. This might have something to do with reasons for the men's refusal to allow the embryos to be implanted.

I have definitely heard of a case where a woman deliberately impregnated herself with sperm out of a used condom without her partner's knowledge or consent. When she was later forced to live on state benefit, the baby's father was still required to pay maintenance for the child, even though he had not had any contact with her since the event and the woman made no secret of the circumstances of her insemmination. I have also heard of similiar cases where lesbian women have received sperm from male friends who were later required to maintain the child.

If the men were now living with new partners, the possibility of having to support a baby born to the previous partner could be a deterrent and many women would feel very distressed that another woman was currently having a child by their current partner.

Perhaps if there was some provision in law for an automatic adoption in such cases - more along the lines of the rules for doner insemmination, at least one of the hurdles could be removed.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 06 Oct 03 - 07:22 AM

"I'm also sorry you feel that men should not have equal rights because mothers undergo more suffering." Did I say that? Greater suffering might imply a greater measure of sympathy for a woman than for a man in these circumstances, but that's not the same thing at all.

Biology does mean that mathematical equality is not always applicable. I do not think that there are many people who would think that "equality" together with "a right to choose" should ever mean that a man should have the right to insist that a woman pregnant by him should have an abortion.

However so far as I can see there is very little moral difference between that and the consequences of this legal decsiison - a view which appears to be shared by the leading architect of the legislation involved, the Fertility Act, Mary Warnock, when she said in reference to this case: "It's terribly, terribly unsatisfactory, because we didn't envisage the case where the partners would not agree and the woman would desperately want the baby. I think we were at fault there. If the law says the man has the right to prevent even the attempt at having a baby, it's a bad law and should be changed."

Subject: RE: BS: No 'right to choose' this...
From: John MacKenzie
Date: 06 Oct 03 - 06:30 AM

If your DNA is unique surely the answer is to patent it. Then you can legally charge for the use of it.
Giok

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 06 Oct 03 - 04:44 AM

Property rights are the only sound solution however hideous it may seem at the first glance.

It may not have happened yet but it will: A woman runs away after an intercourse with a rich man, collects the spermy, partitions it into small bits and deep freezes it for future use. You may read then in EBay: Bill Gates's sperms (100% DNA identification guaranteed) for highest bid. Minimum bid: Twice the annual fee that will be awarded in a paternity claim. Monica could have made much more out of her mouthful of presidential DNA. In future, you will burn your used condoms just to be safe.

Eventually it will even be possible to manufacture your lookalike without any access to your sperms.

The sensible solution will be that you will have the property rights to your own DNA even if it has already been combined with another DNA. There will be only two exceptions: (1) An already born child (2) if you are a man you will not have full rights over a fetus growing in a woman (that is, legally enforced abortion by man's will only will not be possible.

Wolfgang

Subject: RE: BS: No 'right to choose' this...
From: GUEST,grab
Date: 06 Oct 03 - 04:19 AM

Nigel, the Diane Blood case a few years back invoked a similar kind of thing. However in this case husband and wife were trying for a child, and they were going to do IVF stuff, but he died (car accident?) The accident basically wiped out his brain but his body was still left (in a permanent coma) on life support. The problem then was that Mrs Blood still wanted a child, but her husband wasn't able to give consent for IVF. The reason the courts decided in favour back then was based on the husband's clearly-stated wish before he died to go through with IVF.

The difference here is that the couples have been through IVF a long time ago, and the men now don't want to go through with it for whatever reason.

McGrath:

"Personhood" is a term that has not been defined in law so far as I am aware. After all, is a new born baby born prematurely more of a person than a fetus in the late stages of pregnancy who may in fact be more fully developed? The significant factor in legal terms, in this country anyway, appears to be viability, the ability to survive outside the womb.

You'll find from the laws on abortion that this is *very* well-defined in law, with a cut-off on the 24th week of pregnancy. The significant factor is not viability but whether the cluster of cells in a woman's womb is able to respond to anything, or whether it's just that, a cluster of cells with potential. A 24th-week embryo can clearly not survive on its own! After that point, all foetuses have the same rights. You may disagree morally with this if you believe "personhood" begins at the moment of fertilisation or at the moment of implantation, but you can't disagree with it legally.

Graham.

Subject: RE: BS: No 'right to choose' this...
From: Nerd
Date: 05 Oct 03 - 11:45 PM

Yes, I meant person, not "member of the human species." But as you can see, this is splitting hairs very fine. That's why this is a complicated case, not a simple one.

Sorry you feel that having a zygote be "property" is so hideous. It might be the only thing that prevents mega-corporations from claiming and experimenting on them, however. I'm also sorry you feel that men should not have equal rights because mothers undergo more suffering. This is a biological situation over which no one has control.

Subject: RE: BS: No 'right to choose' this...
From: John MacKenzie
Date: 05 Oct 03 - 03:06 PM

Every acorn has the potential to become an oak tree. Thank God it doesn't happen.
Giok

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 05 Oct 03 - 01:23 PM

I didn't at any stage say "human person", I intentionally used the term "human being". And I think that the suggestion that any kind of human being, at any stage of their development or subsequent life, should ever be regarded as "property" is a hideous notion.

"Personhood" is a term that has not been defined in law so far as I am aware. After all, is a new born baby born prematurely more of a person than a fetus in the late stages of pregnancy who may in fact be more fully developed? The significant factor in legal terms, in this country anyway, appears to be viability, the ability to survive outside the womb.

Subject: RE: BS: No 'right to choose' this...
From: Nigel Parsons
Date: 05 Oct 03 - 12:26 PM

In simplistic terms, with the old fashioned (and more enjoyable) method of procreation, the man could withdraw at any time up until the implantation of his seed in the woman.
Surely this is what these two men have insisted on doing, although modern scence has allowed fertilization to preceed implantation in these cases.
Maybe sperm and ova should be seperately frozen, and combined immediately before implantation if (and only if) both parties still wish to continue.
However, I seem to remember another case in the last couple of years where the widow of a British serviceman was allowed to use his frozen sperm for conception. (presumably he left her everything in his will?)

Nigel

Subject: RE: BS: No 'right to choose' this...
From: NicoleC
Date: 05 Oct 03 - 12:01 PM

Let's clarify: In the US, a zygote, embryo or fetus is not considered a legal PERSON. No one is arguing that they are not of the same species, but the reality is that they are not granted personhood and the rights that go with that under the law. It the same in the UK.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 05 Oct 03 - 07:11 AM

The parallel situation would be if the man married a new woman, they couldn't get children and the man wanted 'his' 'old' zygotes to be born (couple of months later) by his new wife."?

There is a difference in that the involvement and suffering undergone by the genetic mother in any IVF procedure is of course very considerably more than the father, and it could be argued that this would mean that there could reasonably be some sympathy for her in this situation. (I cannot conceive how anyone can have much "sympathy" for the men involved in this case.) However, aside from that it would be a parallel situation. But why should it be seen as wrong for a man in this hypothetical case to want this?

"In the US, the fetus is not considered a human being." Well, that is interesting, but it does not stop it being the case that a human fetus is a human being, at an early stage of development, just as the fetus of a cat is a cat, at an early stage of development. The question as to whether killing a human fetus is murder is a separate question from whether he or she is human.

I am still puzzled at the notion that defending the "right to choose" on the part of women in general should be seen as justifying the fact that in this situation the right of two women to choose is to be denied.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 05 Oct 03 - 07:08 AM

"The parallel situation would be if the man married a new woman, they couldn't get children and the man wanted 'his' 'old' zygotes to be born (couple of months later) by his new wife."?

There is a difference in that the involvement and suffering undergone by the genetic mother in any IVF procedure is of course very considerably more than the father, and it could be argued that this would mean that there could reasonably be some sympathy for her in this situation. (I cannot conceive how anyone can have much "sympathy" for the men involved in this case.) However, aside from that it would be a parallel situation. But why should it be seen as wrong for a man in this hypothetical case to want this?

"In the US, the fetus is not considered a human being." Well, that is interesting, but it does stop it being the case that a human fetus is a human being, at an early stage of development, just as the fetus of a cat is a cat, at an early stage of development. The question as to whether killing a human fetus is murder is a separate question from whether he or she is human.

I am still puzzled at the notion that defending the "right to choose" on the part of women in general should be seen as justifying the fact that in this situation the right of two women to choose is to be denied.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 05 Oct 03 - 05:15 AM

Nerd has said it very clearly:
The parallel situation would be if the man married a new woman, they couldn't get children and the man wanted 'his' 'old' zygotes to be born (couple of months later) by his new wife. He was pleading that this was his last chance for an own and so on, his old wife (the genetical mother) would say no and a judge declining the wish to implant the zygotes would say the genetical mother's motives should not be criticised and she too deserves sympathy. Good judge I'd say, well done. Like I say here.

Wolfgang

Subject: RE: BS: No 'right to choose' this...
From: Nerd
Date: 05 Oct 03 - 02:19 AM

McGrath,

Two things come to mind first of all. First, when you say that "deciding an issue purely in terms of what is the right thing for the people involved is the most equitable way to proceed," you seem to think that the father is not one of the people involved. Why is it more equitable for her to get her way, than for him to get his way? Personally, I think that the most equitable solution for the people involved (including the theoretical child) is that there be no pregnancy, given that one partner is unwilling to be a parent.

Second, in legal matters you simply cannot proceed as you suggest, discounting any wider issues. Every legal decision, particularly in a new area, sets a precedent that may have wider ramifications. It is not simply that by claiming the zygote has human rights you suggest that abortion is murder; it is that by granting the zygote human rights in a court of law you can actually MAKE abortion legally murder, if another lawyer in another court finds a judge willing to use your precedent.   

Furthermore, you're engaging in sophistry when you say that "Because she wants to" and "up to a stage in development" are the "certain circumstances" which currently apply in the USA. So abortion on a woman who did not consent, or where the "certain stage" has been reached would be illegal. I was arguing that abortion is not limited to certain circumstances as a consequence of the fetus being considered a human being in an early stage of development, which was what you claimed on 03 Oct 03 - 05:45 PM. In the US, the fetus is not considered a human being. "After a certain stage" merely kicks in because at that time it is considered a human being and therefore the procedure ceases to be an abortion at all.

In the US, at least, the fight on abortion rights is very much tied into religious belief and the question of when a human acquires a soul. This is made tricky by our "separation of church and state," which theoretically makes it illegal for the government to make any judgment on the very issue that many people see as crucial to the question! As this church-state separation is eroded by the right wing Christian zealots in power now, there is a real danger that abortion will one day be outlawed again. The same issue could easily underlie this case of frozen zygotes.

As NicoleC points out, the mothering arrangement I was speaking of above is not a science-fiction situation. Women can be surrogate mothers to children not biologically theirs, by having already-fertilized zygotes placed in their wombs. In fact, the arrangement you suggested, with an incubator, is science fiction; currently, babies can only gestate in a woman's womb (but give the doctors time!) It would be stretching to say that surrogate motherhood "happens all the time," but it is increasingly common. (In the USA many laypeople are familiar with this procedure through the popular TV show "Friends," in which the character Phoebe carried and gave birth to her brother and sister-in-law's babies some years back.)

This makes my question above valid, not ridiculous as McGrath would have it: if the zygote is able to survive in other women's wombs, and the zygote is not physically connected to the mother, and the zygote has no rights of its own such as the right to be with one's parents, and the zygote is not anyone's property, then what is the parents' legal claim to it? It must be legally "theirs" in some sense, or, having no rights of its own, it could be claimed by anyone, or what is worse, a corporation or government. I therefore (still) agree with NicoleC that this is essentially a property issue, because these are not human beings but a certain kind of human tissue which happens to belong to two different people. I see no reason why a zygote cannot be the joint property of the parents. I think nothing should be done with it without the consent of both parents, including moving it to the mother's womb.

Subject: RE: BS: No 'right to choose' this...
From: NicoleC
Date: 05 Oct 03 - 01:10 AM

A couple of things to keep in mind. These are not embryos, they are zygotes; the product of an artificial fertilization outside the womb by (we hope) the genetic material of the father and mother. The docs only make sure the fertiliation took, then the zygotes get frozen. MANY (about half) of these frozen zygotes won't survive the freezing process anyway, which is why they do as many of them as possible and implant multiple zygotes into the woman each try. Many tries don't take. It's not sci-fi; these zygotes can (and often are) implanted into other women's wombs who are not genetically related.

I guess I don't understand why this is being regarded as a "legal nightmare." The men decided they didn't want to father a child with these woman anymore. Should they be forced to be fathers against their will? I'll all for women choosing or not choosing to have children, but neither to I think men should be denied the right to not have children either, particularly those who are behaving responsibly and trying to make good choices.

We are not talking about children, we are talking about hypothetical children. I don't know how many frozen kids there are, but if there aren't quite a few the women's chances are not very good anyway.

In reality, this might all just be the fertility equivalent of a divorcee's fight over the car or the house or the stereo. Maybe the men don't really care what happens to their sperm and maybe the women's don't really want to have the kids, they just want to win custody of the freezer section.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 04 Oct 03 - 11:11 AM

A desire to be logical in a quasi-mathematical way in these matters can lead to the most remarkable results. "If we accept A that means that we must accept B - and since we cannot accept B, that means we must not allow A, even if this produces real and avoidable harm and suffering."

So you get people who seem to see defending a legal nightmare as being supportive of "a woman's right to choose" in a situation where what is involved is in fact a direct denial of the right of the women involved to choose.

There are times when deciding an issue purely in terms of what is the right thing for the people involved is the most equitable way to proceed, rather than tying it into abstract arguments about wider issues. I think this is such a case.

Subject: RE: BS: No 'right to choose' this...
From: smallpiper
Date: 04 Oct 03 - 06:58 AM

It seems to me that this case could possibly open a huge can of worms - I personally think that the guys are idiots but at the same time understand their decisions (which have, I believe, come about as a result of the imovable CSA). I have sympathy for the women, but its tough. The can of worms? What happens when a woman decides to abort a fetus without the fathers consent then? Surely if a woman needs the mans consent to have a fetus implanted then if the law is equitable the man must be consulted if she wishes to abort. Just a thought.

Subject: RE: BS: No 'right to choose' this...
From: harvey andrews
Date: 04 Oct 03 - 06:09 AM

I think all the above only show what a right can of worms this situation is.

Subject: RE: BS: No 'right to choose' this...
From: Forum Lurker
Date: 03 Oct 03 - 10:11 PM

I think that if it were legally acceptable for one parent to waive the other's obligations, then the situation would be much clearer. I find it unlikely that a father's wish not to pass on his genetic material, absent all other factors, would be given much importance. Ergo, the logical thing to do is modify the law so that one parent may choose to waive the obligations of the other in such cases as this.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 03 Oct 03 - 09:19 PM

"Because she wants to" and "up to a stage in development" are the "certain circumstances" which currently apply in the USA. So abortion on a woman who did not consent, or where the "certain stage" has been reached would be illegal.

And in other countries different "certain circumstances" apply. For example in China the consent of the mother can be dispensed with, I understand.

Nerd's science-fiction situation in which it would be possible for an aborted embryo or fetus to survive by being placed in the womb of another women who wished this to happen, rather than in an incubator or whatever is interesting, but not at present practical.

Quite what would be the accepted ethics in such a situation is as yet totally unclear. I would think that a very good case could be made for saying that the developing human being involved would have a right to be enabled to continue his or her development, if that option was available.

Once again, to suggest that at any stage one human being is the property of another human being is not acceptable.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 03 Oct 03 - 09:00 PM

"Because she wants to" and "up to a stage in development" are the "certain circumstances" which currently apply in the USA. So abortion on a woman who did not consent, or where the "certain stage" has been reached would be illegal.

And in other countries different "certain circumstances" apply. For example in China the consent of the mother can be dispensed with, I understand.

Nerd's science-fiction situation in which it would be possible for an aborted emryo or fetus to survive by being placed inthe womb of another women who wished this to happen, rather than in an incubator or whatever is interesting, but not at present practical.

Quite what would be the accepted etics in such a situation is as yet titally unclear. I would think that a very good case could be made for saying that the developing human being involved would have a right to be enabled to continue his or her development, if that option was available.

Once again, to suggest that at any stage one human being is the properety of another human being is not acceptable.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Nerd
Date: 03 Oct 03 - 08:26 PM

Maybe you're right in Britain, but in the US there are no "certain circumstances" that make an abortion legally justifiable. Up to a certain stage of development, a mother can have an abortion just because she wants to. This suggests that the fetus has no rights whatsoever and is human tissue belonging to the mother, not a human being with limited rights.

Once the embryo is removed from the mother, though, this obviously changes. Now it is just as much part of the father as of the mother. So if the embryo does not have rights of its own, and it is not physically joined to the mother or the father so that their rights can extend to it, then whose rights does it have? It can actually survive just as well in someone else's womb, so your explanation of "can't survive without the mother" doesn't fit this case. So if it's not the parents' property then why can't another compatible woman walk in and claim it? I think the analogy of property rights is the best one we have. And whether it is property or not, why don't both parents have equal say about what happens to it?

What pdc said early on is right on target: nobody predicted this becoming an issue, so it is genuinely complex on all sides. It touches on medical rights, abortion rights, and, if you're correct, anti-slavery laws. To suggest that any outcome other than the mother having her way is barbaric, eg. "equivalent to a situation where a women was forced to have an abortion," is both simplistic and pointless. It's not equivalent to that, among other reasons because the mother will not be subject to a surgical procedure against her will. It is more equivalent, in my opinion, to a woman asking her boyfriend to impregnate her, him saying "okay," and then changing his mind later. It's good that he changed his mind BEFORE she was pregnant, I think. And if that was her last chance to have a child, she'll have to live without that experience; plenty of other women have had to because this kind of fertilisation was not possible until recently.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 03 Oct 03 - 05:45 PM

As I understand it the whole basis of abortion rights is that embryos while being human beings at an early stage of their development do not have rights seperate from that of their mother, because they are incapable of surviving on their own, and that therefore killing them is not to be classed as murder, and can be justified under certain circumstances.

But to suggest that a human embryo is not human is scientific nonsense.

And to suggest that any human at any stage of their development can be classed as "property" is not something which can ever be accepted.

Subject: RE: BS: No 'right to choose' this...
From: Nerd
Date: 03 Oct 03 - 04:30 PM

McGrath,

The whole basis of abortion rights is that embryos are not yet human beings and therefore have no rights separate from their parents' rights. If you argue that embryos are human beings, you argue that abortion is murder. This may be your position; I don't know, and of course that would be a whole different discussion. But in any case, such a decision would be a major shift in the law and therefore one that the courts would be very reluctant to undertake in either country; here it would undoubtedly lead to an attempt to overturn Roe V. Wade at the level of the Supreme Court.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 03 Oct 03 - 03:50 PM

Human beings are never "property". In America you had a war to settle that.

Subject: RE: BS: No 'right to choose' this...
From: Nerd
Date: 03 Oct 03 - 03:25 PM

McGrath, you did not say that it was technically abortion, but you DID say that it was "equivalent to a situation where a women [sic]was forced to have an abortion." It is NOT equivalent to that. The whole backbone of what is euphemistically called "a woman's right to choose" (which I support politically, by the way) is that she is choosing what to do with her body, and the fetus is in her body. These embryos are not in her body, and as such it requires a totally different argument to the abortion argument. (BTW, this is an American perspective. I actually do not know British law on how legal abortion is justified, but I suspect it is the same)

What the embryos are, it seems to me, is jointly-held property. If the man does not wish to relinquish his rights to it, why should the law force him to?

Another analogy might be this: suppose the man wanted to have a surrogate mother bear a child from one of these embryos, then force the biological mother to pay half of the child's upkeep for the rest of her life? Should he be allowed to do that? If not, then the biological mother should not be allowed to bear one of these children either, because the law already stipulates that if she does the biological father will have to pay for it for the rest of HIS life.

The fact that one of the women can no longer produce embryos is neither here nor there. It's sad, of course, and I sympathize, but legally the man should not be denied rights and left with a lifetime of child support because of the woman's biological misfortune.

Subject: RE: BS: No 'right to choose' this...
From: John MacKenzie
Date: 03 Oct 03 - 12:54 PM

I think his full name may be Martin Gibson Eko
Giok

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 03 Oct 03 - 12:08 PM

The "agreement" involved here isn't an individual agreement, it's a set of rules laid down as law a few years ago in the Fertility Act, on the advice of a committee of "experts". And it's interesting to note that the leading light in that committee, Lady Warnock, has now said in the context of this case, that she thinks they got the recommendation and the law badly wrong:

"It's terribly, terribly unsatisfactory because we didn't envisage the case where the partners would not agree and the woman would desperately want the baby. I think we were at fault there. If the law says the man has the right to prevent even the attempt at having a baby, it's a bad law and should be changed."

That comes from a TV programme about it last night - here is a link to a good review (by Nancy Banks-Smith, who is the only TV reviewer I know where you can enjoy the reviews even if you missed the programme) - The parent trap

Harvey wrote: "My point is that the same rights must apply to the father, and the woman must agree to carry the child if she leaves the relationship and the man wants his baby born ". But why should it mean that at all? The embryo could in principle be born without the genetic mother having any further part to play, if that is what she chooses in this situation.

I think the whole argument about "equality" here is a bit misplaced. Men and women are in a different situation - men don't get pregnant, sperm donation is a lot less complicated than egg donation. What is involved is not so much "equality" as "equivalence".

(Incidentally, I'm a bit puzzled why Martin is chipping in here. If he doesn't like BS threads why does he feel he wants to open them up? Perhaps he might like to start up a separate BS thread saying he doesn't think BS threads belong here - including that onepresumably... And that honestly is not intended in a hostile way, I'm just a bit puzzled.)

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Martin Gibson
Date: 03 Oct 03 - 11:26 AM

Yep it says BS.

Subject: RE: BS: No 'right to choose' this...
From: NicoleC
Date: 03 Oct 03 - 11:19 AM

I can speak for specific actions by the CSA, but why the outrage over it's existence?

Wait -- a man who creates a child is held legally responsible for that child. What a travesty! Men are being held just as responsible as the women are? Clearly, that's totally unfair. Men should be able to spray their sperm wherever they desire with no repercussions -- they just have to say they won't even bother to see the child.

Forced into bearing a future child and having previously donated sperm to fertilize an embryo are totally different scenarios.

The legal decision was just. I'm not even particularly sorry for the women, as they have other less selfish options if they really want to be mothers. FWIW, in the US the courts have also upheld that the right NOT to have a child is stronger than the right TO have a child in similar situations.

Subject: RE: BS: No 'right to choose' this...
From: GUEST
Date: 03 Oct 03 - 10:43 AM

Imagine the case was the other way round and the men had become infertile while the women were not. Many of the arguments above suggest the men should have the right to insist the embryo was implanted "because that was the agreement". That is clearly nonsense.

Subject: RE: BS: No 'right to choose' this...
From: John MacKenzie
Date: 03 Oct 03 - 10:02 AM

I've tried to stay out of this, mainly because I don't understand the need to have children that drives infertile people to distraction. There are so many children in the world needing parents, and so many would-be-parents, I just wish they could be brought together somehow.
These fertile embryos were created in an artificial environment using the genetic materials of two people who agreed to the process. One of the rules of this "in vitro" game is that the two contributors agree to every step before it is taken.
Only one of the two women is unable to produce a further embryo, so the problem is worse for her.
The CSA is a large unfeeling and inflexible government agency, and is compelled to compel the father of a child to be financially responsible for a child they have fathered, without exception.
Sperm is donated totally anonymously, and therefore the father of the child cannot be identified. I believe that there is a mechanism to prevent the children of sperm donors marrying close relatives, but don't know how it works.
I guess what I'm saying is that I agree with the legal decision, it is in the best interests of the majority of the participants.
Giok

Subject: RE: BS: No 'right to choose' this...
From: jacqui.c
Date: 03 Oct 03 - 08:44 AM

There is a difference between the male and female position here. For the male to allow these embryos to be used does not involve any physical demand on them. For a woman to have to use the embryo because the man wants her to involves nine months carrying the baby, with the attendent problems that can arise and then having to go through delivery, again, still not in this day and age a totally risk free process. Maybe the law should say that the woman should consent to the embryos being implanted in the womb of a surrogate, if the father so wished and could arrange. That would surely be a more equitable solution to the problem.

Grab - I am aware of the problems for some fathers here but there are abandoned mothers who never see a penny form their exes. It goes both ways. There are also men and women who choose to raise their children without expecting support from the absent partner. Who's to say that these two women don't have new partners who would be willing to accept the child as their own, leaving the biological father out of the picture - is this what possibly worries the sperm donors? And come to that - what about sperm donation - where would the CSA go with that one, if an unsupported mother was on state benefite (which is when a lot of these cases kick in) following AI from a sperm donor?