States have no right to stop anyone wanting to access IVF

There’s no moral difference between people who have children “naturally” and those who need medical help, so imposing conditions on the latter without good moral reasons is just plain discriminatory. But that has’t stop some governments from not allowing access to reproductive assistance equally.

Read the argument for state intervention in assisted reproduction.

In the Australian state of Victoria, for instance, assisted reproduction clinics impose non-medical conditions on access to treatment (following the state’s Assisted Reproduction Treatment Act 2008). These conditions include undergoing mandatory criminal background and child protection order checks prior to being eligible for treatment. The restrictions make Victoria the only jurisdiction in the world that puts such moral demands on prospective patients.

The motivation behind these barriers to access is ostensibly a good one: to protect the well-being of future children. And it’s laudable that the state has this aim. But, promoting it in this way is unjust: it’s unduly discriminatory against all people who need help building their family. Indeed, it’s unjustified treatment of different kinds of family builders, based on false assumptions about the connection between fertility status and parenting ability.

Assisted reproduction is subsidised in Victoria, as applicants can receive Medicare reimbursement for some of their expenses. If the reason why non-medical conditions are being put on infertile couples is that the public bears the cost, then couples should have the option of paying for the treatment themselves and buying themselves out of the checks.

Not a level field

Consider the recent case of a woman known as TRV who was denied IVF treatment because of previous child protection orders against her.

The only reason people who seek reproductive assistance in Victoria are being asked to undergo checks is because they need this help. Otherwise, they would be able to exercise their reproductive liberty without being subject to state interventions, regardless of parenting skills or criminal histories.

And the only reason the clinic knows that TRV is a “bad parent” is because of her fertility status. Indeed, if she lived elsewhere in Australia (or the world, for that matter), she would not have been denied treatment for these reasons.

The Victorian law isn’t discriminatory against bad parents, or convicted criminals, it’s discriminatory against infertile people. There’s nothing about being infertile by itself that says anything about whether someone is likely to be a bad parent to their future child. And since fertility isn’t linked to one’s calibre as a parent, the state can only be justified in placing conditions on all prospective parents, regardless of fertility status.

There’s no moral difference between people who have children ‘naturally’ and those who need medical help.RebeccaVC1/Flickr, CC BY-ND

A common response to this argument is that the state cannot practically regulate “natural” procreation. If that is indeed true, it’s only true to an extent. While the state may not be able to intervene in the conception process, it could require mandatory parenting classes for all family builders, for instance. Whether this sort of involvement would be morally justified is an open question, but it would lessen the systematic discrimination currently being practiced in Victoria.

Mandatory registration of one’s intent to procreate with a state agency would be another way to bring the treatment of fertile couples in line with current treatment of infertile people in Victoria. Failure to register could carry penalties; in order to be consistent, there would also need to be a way to prevent such people from pursuing their family building goals altogether, if necessary.

Despite these legitimate possibilities for state intervention into everyone’s reproductive choices, the state only intervenes ahead of time when people require help.

A think wedge

We should be wary of these sorts of state interventions into the autonomous decisions of citizens, especially if we take procreative liberty seriously.

In “natural” procreation, there’s a presumption that the prospective parent is best placed to, and capable of, gauging and promoting the best interests of his or her future child. But this presumption is denied to people who are infertile – or homosexual, or have undergone a preventative hysterectomy.

It’s helpful to consider how much wider this door could be opened by the state, since it already has its foot inside. It could decide people within or below a certain income bracket are likely to be less-than-adequate parents, and so levy minimum income conditions on access to assisted reproduction in order to protect the unborn.

Or, we could come to see a future where all assisted reproduction patients are required to provide genetic information prior to being eligible for treatment, so predispositions believed by the state to be inimical to adequate parenting are weeded out.

Removing the state’s current presumptions against treatment would mean a small number of people who would otherwise have previously been disqualified will receive fertility treatment in Victoria. Some of them may turn out to be lousy parents, and some children may be harmed. This is a regrettable outcome, and it’s understandable why the state wishes to prevent such harm. But this is par for the course of “natural” reproduction.

Because the state is not the parent, and because these non-medical conditions are being imposed in a manner that’s discriminatory, they are morally unjustified. What the state is justified in doing is promoting responsible reproduction in all kinds of family builders, through widespread and sustained education programs, family planning services, and other kinds of support. All with the goal of creating better parents, rather than preventing some people from becoming parents for morally irrelevant and discriminatory reasons.

Read the opposite perspective on the right of states to intervene in reproductive choices here.

Ryan Tonkens does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.