Good and Bad News for Advocates of Reproductive Justice

Peter Dunne

As has been well noted over the past week, the defeat of Mississippi’s ‘Personhood Amendment’ was due less to a fear that its passage would define life as beginning at fertilization, and more to the suggestion that the proposed change might criminalize numerous non-abortion related services.

For advocates of Family Planning, the campaign to oppose Amendment 26 was a time of great worry. However, they can at least take some comfort in the fact that contraception and In Vitro Fertilization (IVF) have now achieved such a level of acceptance in America that, even in the conservative South, a plan for their prohibition elicited intense public disapproval.

It is against this background in the United States that the European Court of Human Rights recently delivered its opinion in SH and Others v Austria, a decision which is strange not only for its consequences but also for some of the arguments entertained by the Court.

Under Austrian law, it is not possible to donate sperm or ova for IVF treatments. Donating female eggs is under all circumstances prohibited, while donating sperm is only permitted where the sperm is placed directly into the womb of a woman.

Among its arguments for maintaining the ban, the Austrian government posited, and indeed the European Court seems to implicitly accept, that there may be significant harm done to the fabric of society where mothers give birth to children with whom they have no genetic connection

Over the past twenty-four months, there has been considerable discussion in the United States about the ethics of donating eggs for profit. While many American States (and the majority of European nations) allow this practice, there are considerations, such as the exploitation and commodification of women, which should give us real cause for concern.

But the fear that children will not be raised by their genetic parents surely should not, in the 21st century, be considered a valid argument against certain IVF treatments. Leaving aside the fact that this reasoning would also question the ethics of adoption, it promotes an extremely narrow and traditionalist view of the family and what constitutes appropriate reproductive activity. Since the 1970s, we have achieved a great deal in terms of both the science surrounding and the way we understand people’s reproductive choices. It was exactly these advances that the people of Mississippi voted to protect last week, rejecting archaic and outdated notions about family planning.  If more than 55% of voters in that state get it, why did the supposedly progressive justices of Europe’s leading human rights court not get that their conception of family planning was outdated?

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