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Appendix E Ethical considerations of the new reproductive technologies
Appendix E Ethical considerations of the new reproductive technologies
These guidelines represent the deliberations of the Ethics Committee (198687) of The American Fertility Society in light of the Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation, issued by the Congregation for the Doctrine of the Faith.
1108
Supplement I
Fertility and Sterility
Foreword In September 1986, The American Fertility Society issued a report, Ethical Considerations of the New Reproductive Technologies (Fertil Steril 46:[Suppl 1], 1986), setting forth the then-held ethical position of the Society on the various new reproductive technologies. In 1987, the Congregation for the Doctrine of the Faith issued the Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation. Because of the conflicting conclusions of the two documents, the present Ethics Committee (1986-87) of The American Fertility Society was convened and considered the Fertility Society guidelines in the light of the Instruction. The succeeding document represents the deliberations of the 1986-87 Ethics Committee. These deliberations were approved by the Board of Directors of The American Fertility Society at its meeting in September 1987.
Vol. 62, No.5, November 1994
Supplement 1
1118
Introduction The Vatican's Instruction on Respect for Human Life is a further addition to the international discussion of the new reproductive technologies. This discussion began in the early 1970s. It has led in the 1980s to a profusion of views, articles, and committee statements on the value dimensions of medically assisted reproduction and research involving early human pre-embryos. Professional societies, governmental committees, and religious bodies have been participants in the ongoing international study and debate. The Vatican Instruction is, without doubt, a significant contribution to the discussion. In its conclusion, the Instruction clearly anticipates that its readers will be stimulated to re-evaluate their own moral assessment of the new reproductive technologies. "The precise indications which are offered in the present Instruction . . . are not meant to halt the effort of reflection, but rather to give it a renewed impulse . . . . " This brief document by the Ethics Committee (1986-87) of The American Fertility Society is part of that "effort of reflection" and is put forward to further additional exploration. There is much in the Instruction with which people of good will, whether they are adherents of religious bodies or not, can identify. For example, the Instruction places safeguarding "the values and rights of the human person" at the center of its concern. In fact, the good of the human person, considered as an integral unity of body and mind, becomes the fundamental ethical criterion for judging all acts, policies, and technologies. The Ethics Committee (1985-86) of The American Fertility Society adopted a similar view in its September 1986 report when it asserted, "There is a more general ethical criterion which these appeals illuminate and to which they point. That criterion is the human person integrally and adequately considered. Integrally and adequately refers to the sum of dimensions of the person that constitute human well being: bodily health; intellectual and spiritual well being, which includes the freedom to form one's own convictions on important moral and religious questions; and social well being in all its forms: familial, economic, political, international, and religious." The Instruction also acknowledges the potentially constructive role that science and medicine can play in helping to achieve the good of human beings. "Applied biology and medicine work together for the integral good of human life when they come to the aid of a person stricken by illness and infirmity and when they respect his or her dignity as a creature of God." However, the Instruction notes that some applications of technology can be demeaning to human beings. It therefore asserts that "what is technically possible is not, for that very reason, morally admissible." On two other other important points, the Instruction delineates a carefully nuanced approach. First, the document cautions against a blanket rejection of newer technical possibilities simply on the grounds of their artificiality: "Artificial interventions in procreation and the origin of human life . . . are not to be rejected on the grounds that they are artificial." Second, the Instruction clearly expresses sympathy for the suffering experienced by "spouses who cannot have children or who are afraid of bringing a handicapped child into the world." It encourages researchers to continue their effort to discover and overcome the causes of infertility. The Instruction also recognizes the value of the religious community's sympathetic support for the involuntarily infertile.
1128
Supplement 1
Fertility and Sterility
While acknowledging the value of such positive contributions of the Instruction, the Committee finds areas about which it has questions or disagreements with the document. The following discussion, which focuses on major issues, is divided into five sections: I. Homologous Artificial Insemination and In Vitro Fertilization II. The Use of Heterologous Gametes III. Biomedical Research and Respect for the Pre-Embryo IV. The Role of Law in Regulating Reproductive Technologies V. Summary and Conclusions.
Vol. 62, No.5, November 1994
Supplement 1
113S
SECTION ONE Homologous Artificial Insemination and In Vitro Fertilization The Instruction rejects homologous artificial insemination and in vitro fertilization on grounds that they involve a separation between "the goods and meanings of marriage," that is, the unitive and the procreative. The separation of these two dimensions means that procreation thus achieved is "deprived of its proper perfection" and is therefore "not in conformity with the dignity of the person." The child must be conceived through an act of love and, indeed, of sexual intercourse. It is this conclusion of the Instruction that the Committee finds problematic. In its own statement, the Committee had unanimously found that artificial insemination by the husband and in vitro fertilization are "ethically acceptable" in principle. The Committee therefore offers the following reflection on the analysis and conclusion of the Instruction. First, the Committee agrees with the Instruction that "the one conceived must be the fruit of his parents' love," but it cannot understand how the conclusion is drawn that this love must, in all circumstances, mean sexual intercourse. Second, the Committee wonders how separating the unitive and procreative in an individual act, "whether to prevent or achieve pregnancy," involves separation of the goods of marriage. What happens to the goods and meaning of marriage would seem to involve the relationship, not necessarily the individual act. Further, the Committee finds no radical separation of the unitive and procreative
1148
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in these procedures, because it sees such interventions not as a replacement of sexual intimacy, but as its logical and technical extension-a view strongly supported by those who have experienced such interventions. Third, the Committee would question whether an action "deprived of its proper perfection" is necessarily morally wrong. Many human actions, occurring as they do amid situations of deprivation, imperfection, and conflict, are not ideal and in that sense are "deprived of their proper perfection." Such actions, however, are not always morally wrong. The Committee believes that the Instruction, in its laudable effort to avoid mechanizing marriage and procreation, has too easily accepted natural procedures as morally normative. Finally, the Committee notes the very broad ecumenical and scientific consensus with regard to assisted reproduction in the so-called "simple case" (between husband and wife). No major national committee or other religious body has rejected such intervention, given appropriate conditions of safety and respect for the pre-embryo. The Committee believes that such consensus reflects basic known human experience and intuition about the morally appropriate and inappropriate. The Instruction seems to take no account of this consensus, but to rely exclusively on previous ecclesiastical pronouncements.
Fertility and Sterility
SECTION TWO The Use of Heterologous Gametes Although the introduction of a third party with the use of heterologous gametes may pose a problem for some, it is undeniable that it can provide a child to the infertile couple under certain circumstances. In specific instances, the use of heterologous gametes may protect the offspring, for example, when a serious genetic disease would be conveyed by the gametes of one of the parents. For these reasons, in their September 1986 statement, a majority of the Committee found the use of heterologous gametes to be ethically acceptable when medically indicated. Donation customarily is viewed as a charitable act, as in the giving of a gift, giving of love, donation of an organ, or giving of life. As the Instruction indicates, "In reality the origin of a human person is the result of an act of giving." The donation of a gamete to an infertile couple can, in the Committee's view, also be an act of generosity. As an alternative to childbearing with conjugal gametes, in the view of a significant number of people, the principle of using heterologous gametes presents a justifiable relaxation of unity between the genetic
Vol. 62, No.5, November 1994
and gestational components of procreation and therefore does not constitute a violation of the unity of marriage. Since medical practice is directed toward the relief of suffering and illness, physicians do not discriminate between the suffering and illness associated with infertility and that attendant upon any other disease process. With regard to the use of heterologous gametes, the physician assists the couple without dominating the process. While the Instruction suggests damage by heterologous artificial insemination to personal family relations, as well as to the offspring and its repercussion on civil society, the lengthy experience with heterologous insemination challenges this conclusion. Considerable supportive consensus reflects this concept, and there are no data to support the assertion of any deleterious effects, on the family or society, associated with the use of heterologous gametes. It seems likely that continuing improvement in knowledge and practices associated with the use of donated eggs and sperm will serve to strengthen the safety of and moral support for procedures involving heterologous gametes.
Supplement 1
115S
SECTION THREE Biomedical Research and Respect for the Pre-embryo Centuries of international debate on when a human life begins persist even to the present and are at the root of pluralism of the fundamental precepts affecting learned opinions about the relative value of human pre-embryos versus extant persons. It may be worthy of reiteration that the Committee finds real and significant moral values in the human pre-embryo from the time of fertilization onward in development, but the degree and nature of respect and moral value accorded to the human pre-embryo or fetus rises continuously until birth. Thus, proximity to birth is a principal factor in apportioning greater moral value upon developing human life. The Instruction sets forth, without providing a rational basis, that "from the first moment of its existence until birth . . . no moral distinction is considered between zygotes, pre-embryos, embryos or fetuses." Although our knowledge of biologic processes that accompany human fertilization and subsequent embryonic development remains limited, it is growing. Certain scientific inferences on early human differentiation and development are warranted alongside viewpoints derived from substantive theological grounds. For example: (1) technically, because fertilization is a process, not an event, and the genome of the new generation is not segregated and surrounded by a nuclear envelope until the 2-cell stage, the early human zygote (before the 2-cell stage) would elude prohibitions aimed at postfertilization stages of development, such as those named in the Instruction, and (2) it remains fundamentally inconsistent to assign the status of human individual to the human zygote or early pre-embryo when compelling biologic evidence demonstrates that individuation, even in a primitive biologic sense, is not yet established. Thus, homologous (identical) twins may result from spontaneous cleavage of the pre-embryo at some point after fertilization but prior to the completion of implantation. Furthermore, during very early development, an embryo is not clearly established and awaits the differentiation between the trophoblast and the embryoblast. The Committee notes that although the Instruction preliminarily addresses biologic evidence on early human develop-
1168
Supplement 1
ment, these data ultimately are put aside in favor of a predetermined position (revelation) that is not persuasive. At numerous points in the Instruction, a strong bias against technology is evident, despite an initial claim that biomedical science is acceptable and consistent with appropriate moral behavior. The Instruction indirectly suggests that the motives of physicians, scientists, and others responding to the suffering of infertile couples and their wish to establish families are of questionable moral derivation. A case in point in the statement that "no biologist or doctor can reasonably claim by virtue of a scientific competence to be able to decide on people's origin and destiny." Indeed, no group has a special competence to decide these matters. Accordingly, physicians and scientists have sought a wider spectrum of opinion for ethical guidance. This is achieved broadly by the 1985-86 Committee's previously reported Ethical Considerations, and more narrowly by recommendations that human pre-embryo experimentations not be undertaken until properly constituted Institutional Review Boards have approved or rejected the proposed study. Even with approval, strict limitations have been specified. The present Committee finds it unfortunate that the Instruction colors the good intention ofbiomedical research by choosing words and expressions that attach moral irresponsibility to persons and institutions seeking to provide new medical services to infertile couples, despite the statement that human service is an obligatory moral behavior. Moreover, certain statements are offered to indicate that human pre-embryos are wantonly destroyed with some frequency, either on frivolous or casual grounds. In addition, the Instruction states: "Cryopreservation constitutes an offense against the respect for human beings by exposing them to great risks of death or horror . . . . " Nowhere is there mention of the fact that cryopreservation preserves life and avoids, in many instances, the hazards to mother and offspring of multiple pregnancy. The Committee regrets this remarkable and one-sided characterization, especially when such
Fertility and Sterility
extensive efforts have been undertaken by physicians and scientists, in connection with theologians, ethicists, and lawyers, to define appropriate positions on the new reproductive technologies. Finally, to associate the issues pertinent to infer-
Vol. 62, No.5, November 1994
tility treatment by new reproductive technologies with the extant divisiveness of abortion and contraception seems unreasonable to the Committee. Instead, the single issue here is the attainment of a wanted pregnancy.
Supplement 1
1178
SECTION FOUR The Role of Law in Regulating Reproductive Technologies The Instruction applies past papal teaching to the issue of medically assigned reproduction and concludes that noncoital reproductive technologies are morally illicit. In this respect, the document may be persuasive to adherents of the Catholic faith in their own personal decisions about whether to participate in medically assisted reproduction as patient, health care provider, donor, or surrogate. However, the Instruction does not stop at an attempt to provide a religious framework for decisions about reproductive technologies. The Instruction urges lawmakers to codify, in a set of laws, the conclusions of this religious framework. In doing so, the Instruction overlooks the difficulties involved in formulating public policies on private familial matters, like reproduction, and disputed ethical questions, like the moral status of early human embryos, especially in democratic, pluralistic societies. Although reproductive technologies provide technical means to facilitate procreation without coitus, there is dispute about the nature of the risks that these technologies pose for individuals, families, and society, and about whether a prohibitory law, rather than, for example, moral suasion, is the most appropriate means to deal with each risk. The Instruction calls for the "reform of morally unacceptable civil laws for the correction of illicit practices" regarding reproductive technologies. The Instruction also advocates making it a crime to engage in (1) artificial insemination with one's husband's sperm, (2) in vitro fertilization, (3) research on the conceptus (except that which is therapeutic to the potential child and not disproportionately risky), and (4) donor or surrogate aid in reproduction. Under this approach, a couple and a doctor could be prosecuted if they attempted to overcome the husband's infertility by inseminating the wife with his sperm or by using in vitro fertilization. To many people in the United States, even those with serious moral reservations about reproductive technologies, the idea of subjecting a couple to prosecution for trying to become parents in this fashion would be unacceptable. Moreover, such an approach would likely conflict with the protection of the United States Constitution. The Instruction justifies its legislative recommendations on the grounds that they further funda-
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mental values: the recognition of the conceptus as a human being from the moment of fertilization and the limitation of childbearing to a conjugal act within marriage. However, the constitutional legal framework in the United States highlights a different set of fundamental values. For the Vatican statement to be an adequate basis for statutory enactment, it must frame its arguments according to the generally accepted view of what is fundamental. Even though it is possible that some states might ban reproductive technologies based on the Vatican Instruction, such laws most likely would not be upheld as constitutional based on the reasoning of the Instruction alone. There is a well-defined legal test that legislation must meet, if it interferes with an individual's or couple's right to privacy, a right that encompasses the seeking of medical aid in achieving or preventing procreation. There must be a compelling need for such a law, and a law must meet that need in the least restrictive manner possible. At the heart of the conflict between the Vatican's approach to public policy and the constitutional approach is the difference in what is considered to be of fundamental value. The Constitution protects the right to privacy as fundamental. This right encompasses a right to autonomy in procreative decisions. Because of the importance of the biologic and social experiences that bearing and rearing a child entails, reproductive technologies potentially provide the only means by which one or both of the potential rearing parents would be able to create his or her genetic or gestational child. Consequently, decisions to use these technologies are likely to be protected by the constitutional right to privacy. As a result, particular reproductive technologies can be banned only if they present compelling risks that can only be satisfactorily met by outright prohibition. These risks must be imminent and subs tantial. They might be risks to the adult participant in a given reproductive technology or to the prospective child or to society. The Vatican Instructionalludes to certain risks but does not support them sufficiently to meet the constitutional test. For example, it states that heterologous artificial insemination by "threatening the unity and stability of the family is a source of dissension, disorder, and
Fertility and Sterility
injustice in the whole social life." Without citing specific evidence for such assertions, the Instruction does not provide the grounds for legally upholding the legislative position that it advocates in the context of the United States. Moreover, the Instruction lacks adequate discussion of the role that law should play in the enforcement of moral values. It overlooks the fact that there is not a consensus in the wider society about
Vol. 62, No. 5, November 1994
many of the issues under scrutiny. For example, there are divergent views on what moral and legal protection ought to be accorded to a pre-embryo or whether heterologous artificial reproduction threatens the institution of the family. In addition, the Instruction truncates the poss~bility for full social discussion or attempts to achieve a consensus around these issues by calling immediately for a legal ban on the new reproductive technologies.
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SECTION FIVE Summary and Conclusions In September 1986, The American Fertility Society issued a report, Ethical Considerations of the New Reproductive Technologies, setting forth the then-held ethical position of the Society on the various new reproductive technologies. In 1987, the Congregation for the Doctrine of the Faith issued the Instruction on Respect for Human Life and Its Origin and on the Dignity of Procreation. While both documents state that very similar moral criteria were used to derive ethical positions with respect to various reproductive procedures, the conclusions as to the ethical acceptability of the various procedures differ sharply in the two documents. The question can be raised about the procedure used by the Congregation of the Faith to derive its conclusions from the stated premises. Thus, while stating that "the individual integrally and adequately considered" is to be the basis of the moral judgment, the fact is that most conclusions are based on and referenced to past Catholic statements. While the difference in conclusion from similar premises may be troubling to society, it can be especially paralyzing to four groups: (1) those who face problems that might be solved by one or another of the new reproductive technologies; (2) those who are involved in applying them; (3) those who are responsible for institutional policies where such techniques may be applied; and (4) those who are in a position to influence public policy in a legislative or regulatory way. Because of the conflicting conclusions of the two documents, the present Ethics Committee (198687) of The American Fertility Society was con-
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Supplement 1
vened and considered these guidelines in the light of the Instruction. For reasons set forth previously, the Committee reaffirmed the finding of the 1985-86 Committee that basic in vitro fertilization with homologous gametes is ethically acceptable. The Committee reaffirmed the finding that the use of heterologous gametes is also ethically acceptable, provided that various precautions and guidelines are observed, as outlined in its previous report. The Committee recognized and re-evaluated the long-debated and very complex issue of the moral status of the gamete, zygote, pre-embryo, embryo, and fetus. The reasons for believing that progressive degrees of respect are due with progressive development were set forth here and in the previous document. The Committee reaffirmed the position that experimentation on the pre-embryo in conformity with the policies and guidelines, as previously expressed, can be ethically justifiable and, indeed, necessary, if the human condition is to be improved. The Committee was especially concerned lest the pluralistic nature of society be overlooked. It recognized that societal judgments about the reproductive technologies have changed and continue to change, necessitating a continuing dialogue to assure that these changes are reflected in current and future practices. For this reason, the Committee views with alarm the call for legislation based on doctrines not adequately supported by human experience or scientific data. The Committee welcomes and encourages continued re-evaluation of the changing societal and moral issues and views involved in the ever-evolving new reproductive technologies.
Fertility and Sterility
These guidelines represent the deliberations of the Ethics Committee (198687) of The American Fertility Society in light of the Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation, issued by the Congregation for the Doctrine of the Faith.
1108
Supplement I
Fertility and Sterility
Foreword In September 1986, The American Fertility Society issued a report, Ethical Considerations of the New Reproductive Technologies (Fertil Steril 46:[Suppl 1], 1986), setting forth the then-held ethical position of the Society on the various new reproductive technologies. In 1987, the Congregation for the Doctrine of the Faith issued the Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation. Because of the conflicting conclusions of the two documents, the present Ethics Committee (1986-87) of The American Fertility Society was convened and considered the Fertility Society guidelines in the light of the Instruction. The succeeding document represents the deliberations of the 1986-87 Ethics Committee. These deliberations were approved by the Board of Directors of The American Fertility Society at its meeting in September 1987.
Vol. 62, No.5, November 1994
Supplement 1
1118
Introduction The Vatican's Instruction on Respect for Human Life is a further addition to the international discussion of the new reproductive technologies. This discussion began in the early 1970s. It has led in the 1980s to a profusion of views, articles, and committee statements on the value dimensions of medically assisted reproduction and research involving early human pre-embryos. Professional societies, governmental committees, and religious bodies have been participants in the ongoing international study and debate. The Vatican Instruction is, without doubt, a significant contribution to the discussion. In its conclusion, the Instruction clearly anticipates that its readers will be stimulated to re-evaluate their own moral assessment of the new reproductive technologies. "The precise indications which are offered in the present Instruction . . . are not meant to halt the effort of reflection, but rather to give it a renewed impulse . . . . " This brief document by the Ethics Committee (1986-87) of The American Fertility Society is part of that "effort of reflection" and is put forward to further additional exploration. There is much in the Instruction with which people of good will, whether they are adherents of religious bodies or not, can identify. For example, the Instruction places safeguarding "the values and rights of the human person" at the center of its concern. In fact, the good of the human person, considered as an integral unity of body and mind, becomes the fundamental ethical criterion for judging all acts, policies, and technologies. The Ethics Committee (1985-86) of The American Fertility Society adopted a similar view in its September 1986 report when it asserted, "There is a more general ethical criterion which these appeals illuminate and to which they point. That criterion is the human person integrally and adequately considered. Integrally and adequately refers to the sum of dimensions of the person that constitute human well being: bodily health; intellectual and spiritual well being, which includes the freedom to form one's own convictions on important moral and religious questions; and social well being in all its forms: familial, economic, political, international, and religious." The Instruction also acknowledges the potentially constructive role that science and medicine can play in helping to achieve the good of human beings. "Applied biology and medicine work together for the integral good of human life when they come to the aid of a person stricken by illness and infirmity and when they respect his or her dignity as a creature of God." However, the Instruction notes that some applications of technology can be demeaning to human beings. It therefore asserts that "what is technically possible is not, for that very reason, morally admissible." On two other other important points, the Instruction delineates a carefully nuanced approach. First, the document cautions against a blanket rejection of newer technical possibilities simply on the grounds of their artificiality: "Artificial interventions in procreation and the origin of human life . . . are not to be rejected on the grounds that they are artificial." Second, the Instruction clearly expresses sympathy for the suffering experienced by "spouses who cannot have children or who are afraid of bringing a handicapped child into the world." It encourages researchers to continue their effort to discover and overcome the causes of infertility. The Instruction also recognizes the value of the religious community's sympathetic support for the involuntarily infertile.
1128
Supplement 1
Fertility and Sterility
While acknowledging the value of such positive contributions of the Instruction, the Committee finds areas about which it has questions or disagreements with the document. The following discussion, which focuses on major issues, is divided into five sections: I. Homologous Artificial Insemination and In Vitro Fertilization II. The Use of Heterologous Gametes III. Biomedical Research and Respect for the Pre-Embryo IV. The Role of Law in Regulating Reproductive Technologies V. Summary and Conclusions.
Vol. 62, No.5, November 1994
Supplement 1
113S
SECTION ONE Homologous Artificial Insemination and In Vitro Fertilization The Instruction rejects homologous artificial insemination and in vitro fertilization on grounds that they involve a separation between "the goods and meanings of marriage," that is, the unitive and the procreative. The separation of these two dimensions means that procreation thus achieved is "deprived of its proper perfection" and is therefore "not in conformity with the dignity of the person." The child must be conceived through an act of love and, indeed, of sexual intercourse. It is this conclusion of the Instruction that the Committee finds problematic. In its own statement, the Committee had unanimously found that artificial insemination by the husband and in vitro fertilization are "ethically acceptable" in principle. The Committee therefore offers the following reflection on the analysis and conclusion of the Instruction. First, the Committee agrees with the Instruction that "the one conceived must be the fruit of his parents' love," but it cannot understand how the conclusion is drawn that this love must, in all circumstances, mean sexual intercourse. Second, the Committee wonders how separating the unitive and procreative in an individual act, "whether to prevent or achieve pregnancy," involves separation of the goods of marriage. What happens to the goods and meaning of marriage would seem to involve the relationship, not necessarily the individual act. Further, the Committee finds no radical separation of the unitive and procreative
1148
Supplement 1
in these procedures, because it sees such interventions not as a replacement of sexual intimacy, but as its logical and technical extension-a view strongly supported by those who have experienced such interventions. Third, the Committee would question whether an action "deprived of its proper perfection" is necessarily morally wrong. Many human actions, occurring as they do amid situations of deprivation, imperfection, and conflict, are not ideal and in that sense are "deprived of their proper perfection." Such actions, however, are not always morally wrong. The Committee believes that the Instruction, in its laudable effort to avoid mechanizing marriage and procreation, has too easily accepted natural procedures as morally normative. Finally, the Committee notes the very broad ecumenical and scientific consensus with regard to assisted reproduction in the so-called "simple case" (between husband and wife). No major national committee or other religious body has rejected such intervention, given appropriate conditions of safety and respect for the pre-embryo. The Committee believes that such consensus reflects basic known human experience and intuition about the morally appropriate and inappropriate. The Instruction seems to take no account of this consensus, but to rely exclusively on previous ecclesiastical pronouncements.
Fertility and Sterility
SECTION TWO The Use of Heterologous Gametes Although the introduction of a third party with the use of heterologous gametes may pose a problem for some, it is undeniable that it can provide a child to the infertile couple under certain circumstances. In specific instances, the use of heterologous gametes may protect the offspring, for example, when a serious genetic disease would be conveyed by the gametes of one of the parents. For these reasons, in their September 1986 statement, a majority of the Committee found the use of heterologous gametes to be ethically acceptable when medically indicated. Donation customarily is viewed as a charitable act, as in the giving of a gift, giving of love, donation of an organ, or giving of life. As the Instruction indicates, "In reality the origin of a human person is the result of an act of giving." The donation of a gamete to an infertile couple can, in the Committee's view, also be an act of generosity. As an alternative to childbearing with conjugal gametes, in the view of a significant number of people, the principle of using heterologous gametes presents a justifiable relaxation of unity between the genetic
Vol. 62, No.5, November 1994
and gestational components of procreation and therefore does not constitute a violation of the unity of marriage. Since medical practice is directed toward the relief of suffering and illness, physicians do not discriminate between the suffering and illness associated with infertility and that attendant upon any other disease process. With regard to the use of heterologous gametes, the physician assists the couple without dominating the process. While the Instruction suggests damage by heterologous artificial insemination to personal family relations, as well as to the offspring and its repercussion on civil society, the lengthy experience with heterologous insemination challenges this conclusion. Considerable supportive consensus reflects this concept, and there are no data to support the assertion of any deleterious effects, on the family or society, associated with the use of heterologous gametes. It seems likely that continuing improvement in knowledge and practices associated with the use of donated eggs and sperm will serve to strengthen the safety of and moral support for procedures involving heterologous gametes.
Supplement 1
115S
SECTION THREE Biomedical Research and Respect for the Pre-embryo Centuries of international debate on when a human life begins persist even to the present and are at the root of pluralism of the fundamental precepts affecting learned opinions about the relative value of human pre-embryos versus extant persons. It may be worthy of reiteration that the Committee finds real and significant moral values in the human pre-embryo from the time of fertilization onward in development, but the degree and nature of respect and moral value accorded to the human pre-embryo or fetus rises continuously until birth. Thus, proximity to birth is a principal factor in apportioning greater moral value upon developing human life. The Instruction sets forth, without providing a rational basis, that "from the first moment of its existence until birth . . . no moral distinction is considered between zygotes, pre-embryos, embryos or fetuses." Although our knowledge of biologic processes that accompany human fertilization and subsequent embryonic development remains limited, it is growing. Certain scientific inferences on early human differentiation and development are warranted alongside viewpoints derived from substantive theological grounds. For example: (1) technically, because fertilization is a process, not an event, and the genome of the new generation is not segregated and surrounded by a nuclear envelope until the 2-cell stage, the early human zygote (before the 2-cell stage) would elude prohibitions aimed at postfertilization stages of development, such as those named in the Instruction, and (2) it remains fundamentally inconsistent to assign the status of human individual to the human zygote or early pre-embryo when compelling biologic evidence demonstrates that individuation, even in a primitive biologic sense, is not yet established. Thus, homologous (identical) twins may result from spontaneous cleavage of the pre-embryo at some point after fertilization but prior to the completion of implantation. Furthermore, during very early development, an embryo is not clearly established and awaits the differentiation between the trophoblast and the embryoblast. The Committee notes that although the Instruction preliminarily addresses biologic evidence on early human develop-
1168
Supplement 1
ment, these data ultimately are put aside in favor of a predetermined position (revelation) that is not persuasive. At numerous points in the Instruction, a strong bias against technology is evident, despite an initial claim that biomedical science is acceptable and consistent with appropriate moral behavior. The Instruction indirectly suggests that the motives of physicians, scientists, and others responding to the suffering of infertile couples and their wish to establish families are of questionable moral derivation. A case in point in the statement that "no biologist or doctor can reasonably claim by virtue of a scientific competence to be able to decide on people's origin and destiny." Indeed, no group has a special competence to decide these matters. Accordingly, physicians and scientists have sought a wider spectrum of opinion for ethical guidance. This is achieved broadly by the 1985-86 Committee's previously reported Ethical Considerations, and more narrowly by recommendations that human pre-embryo experimentations not be undertaken until properly constituted Institutional Review Boards have approved or rejected the proposed study. Even with approval, strict limitations have been specified. The present Committee finds it unfortunate that the Instruction colors the good intention ofbiomedical research by choosing words and expressions that attach moral irresponsibility to persons and institutions seeking to provide new medical services to infertile couples, despite the statement that human service is an obligatory moral behavior. Moreover, certain statements are offered to indicate that human pre-embryos are wantonly destroyed with some frequency, either on frivolous or casual grounds. In addition, the Instruction states: "Cryopreservation constitutes an offense against the respect for human beings by exposing them to great risks of death or horror . . . . " Nowhere is there mention of the fact that cryopreservation preserves life and avoids, in many instances, the hazards to mother and offspring of multiple pregnancy. The Committee regrets this remarkable and one-sided characterization, especially when such
Fertility and Sterility
extensive efforts have been undertaken by physicians and scientists, in connection with theologians, ethicists, and lawyers, to define appropriate positions on the new reproductive technologies. Finally, to associate the issues pertinent to infer-
Vol. 62, No.5, November 1994
tility treatment by new reproductive technologies with the extant divisiveness of abortion and contraception seems unreasonable to the Committee. Instead, the single issue here is the attainment of a wanted pregnancy.
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SECTION FOUR The Role of Law in Regulating Reproductive Technologies The Instruction applies past papal teaching to the issue of medically assigned reproduction and concludes that noncoital reproductive technologies are morally illicit. In this respect, the document may be persuasive to adherents of the Catholic faith in their own personal decisions about whether to participate in medically assisted reproduction as patient, health care provider, donor, or surrogate. However, the Instruction does not stop at an attempt to provide a religious framework for decisions about reproductive technologies. The Instruction urges lawmakers to codify, in a set of laws, the conclusions of this religious framework. In doing so, the Instruction overlooks the difficulties involved in formulating public policies on private familial matters, like reproduction, and disputed ethical questions, like the moral status of early human embryos, especially in democratic, pluralistic societies. Although reproductive technologies provide technical means to facilitate procreation without coitus, there is dispute about the nature of the risks that these technologies pose for individuals, families, and society, and about whether a prohibitory law, rather than, for example, moral suasion, is the most appropriate means to deal with each risk. The Instruction calls for the "reform of morally unacceptable civil laws for the correction of illicit practices" regarding reproductive technologies. The Instruction also advocates making it a crime to engage in (1) artificial insemination with one's husband's sperm, (2) in vitro fertilization, (3) research on the conceptus (except that which is therapeutic to the potential child and not disproportionately risky), and (4) donor or surrogate aid in reproduction. Under this approach, a couple and a doctor could be prosecuted if they attempted to overcome the husband's infertility by inseminating the wife with his sperm or by using in vitro fertilization. To many people in the United States, even those with serious moral reservations about reproductive technologies, the idea of subjecting a couple to prosecution for trying to become parents in this fashion would be unacceptable. Moreover, such an approach would likely conflict with the protection of the United States Constitution. The Instruction justifies its legislative recommendations on the grounds that they further funda-
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mental values: the recognition of the conceptus as a human being from the moment of fertilization and the limitation of childbearing to a conjugal act within marriage. However, the constitutional legal framework in the United States highlights a different set of fundamental values. For the Vatican statement to be an adequate basis for statutory enactment, it must frame its arguments according to the generally accepted view of what is fundamental. Even though it is possible that some states might ban reproductive technologies based on the Vatican Instruction, such laws most likely would not be upheld as constitutional based on the reasoning of the Instruction alone. There is a well-defined legal test that legislation must meet, if it interferes with an individual's or couple's right to privacy, a right that encompasses the seeking of medical aid in achieving or preventing procreation. There must be a compelling need for such a law, and a law must meet that need in the least restrictive manner possible. At the heart of the conflict between the Vatican's approach to public policy and the constitutional approach is the difference in what is considered to be of fundamental value. The Constitution protects the right to privacy as fundamental. This right encompasses a right to autonomy in procreative decisions. Because of the importance of the biologic and social experiences that bearing and rearing a child entails, reproductive technologies potentially provide the only means by which one or both of the potential rearing parents would be able to create his or her genetic or gestational child. Consequently, decisions to use these technologies are likely to be protected by the constitutional right to privacy. As a result, particular reproductive technologies can be banned only if they present compelling risks that can only be satisfactorily met by outright prohibition. These risks must be imminent and subs tantial. They might be risks to the adult participant in a given reproductive technology or to the prospective child or to society. The Vatican Instructionalludes to certain risks but does not support them sufficiently to meet the constitutional test. For example, it states that heterologous artificial insemination by "threatening the unity and stability of the family is a source of dissension, disorder, and
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injustice in the whole social life." Without citing specific evidence for such assertions, the Instruction does not provide the grounds for legally upholding the legislative position that it advocates in the context of the United States. Moreover, the Instruction lacks adequate discussion of the role that law should play in the enforcement of moral values. It overlooks the fact that there is not a consensus in the wider society about
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many of the issues under scrutiny. For example, there are divergent views on what moral and legal protection ought to be accorded to a pre-embryo or whether heterologous artificial reproduction threatens the institution of the family. In addition, the Instruction truncates the poss~bility for full social discussion or attempts to achieve a consensus around these issues by calling immediately for a legal ban on the new reproductive technologies.
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SECTION FIVE Summary and Conclusions In September 1986, The American Fertility Society issued a report, Ethical Considerations of the New Reproductive Technologies, setting forth the then-held ethical position of the Society on the various new reproductive technologies. In 1987, the Congregation for the Doctrine of the Faith issued the Instruction on Respect for Human Life and Its Origin and on the Dignity of Procreation. While both documents state that very similar moral criteria were used to derive ethical positions with respect to various reproductive procedures, the conclusions as to the ethical acceptability of the various procedures differ sharply in the two documents. The question can be raised about the procedure used by the Congregation of the Faith to derive its conclusions from the stated premises. Thus, while stating that "the individual integrally and adequately considered" is to be the basis of the moral judgment, the fact is that most conclusions are based on and referenced to past Catholic statements. While the difference in conclusion from similar premises may be troubling to society, it can be especially paralyzing to four groups: (1) those who face problems that might be solved by one or another of the new reproductive technologies; (2) those who are involved in applying them; (3) those who are responsible for institutional policies where such techniques may be applied; and (4) those who are in a position to influence public policy in a legislative or regulatory way. Because of the conflicting conclusions of the two documents, the present Ethics Committee (198687) of The American Fertility Society was con-
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vened and considered these guidelines in the light of the Instruction. For reasons set forth previously, the Committee reaffirmed the finding of the 1985-86 Committee that basic in vitro fertilization with homologous gametes is ethically acceptable. The Committee reaffirmed the finding that the use of heterologous gametes is also ethically acceptable, provided that various precautions and guidelines are observed, as outlined in its previous report. The Committee recognized and re-evaluated the long-debated and very complex issue of the moral status of the gamete, zygote, pre-embryo, embryo, and fetus. The reasons for believing that progressive degrees of respect are due with progressive development were set forth here and in the previous document. The Committee reaffirmed the position that experimentation on the pre-embryo in conformity with the policies and guidelines, as previously expressed, can be ethically justifiable and, indeed, necessary, if the human condition is to be improved. The Committee was especially concerned lest the pluralistic nature of society be overlooked. It recognized that societal judgments about the reproductive technologies have changed and continue to change, necessitating a continuing dialogue to assure that these changes are reflected in current and future practices. For this reason, the Committee views with alarm the call for legislation based on doctrines not adequately supported by human experience or scientific data. The Committee welcomes and encourages continued re-evaluation of the changing societal and moral issues and views involved in the ever-evolving new reproductive technologies.
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