Being Fruitful and Multiplying: Legal, Philosophical, Religious, and Medical Perspectives on Assisted Reproductive Technologies in Israel and Internationally

By Rosenblum, Irit | Suffolk Transnational Law Review, Fall 2013 | Go to article overview

Being Fruitful and Multiplying: Legal, Philosophical, Religious, and Medical Perspectives on Assisted Reproductive Technologies in Israel and Internationally


Rosenblum, Irit, Suffolk Transnational Law Review


I. INTRODUCTION

Reproduction in the twenty-first century is a perpetually evolving phenomena in which fertility, declining due to parents' age, health, and environment, meets the changing structure, needs, and desires of the modern family, and creates a complex global web of conception and birth which is more deliberate and varied than ever before in human history. Assisted reproductive technologies (ART) are advancing at an unprecedented rate, opening up infinite reproductive possibilities and biological and social parenting constellations. As ART becomes more sophisticated and the global family evolves, ART will continue to present new possibilities that were previously inconceivable and legally impossible. (1)

In this context, freedom and rights for the family have dissipated to new spaces for which legal and constitutional infrastructure have not yet been created. This article will explore the notable connections and gaps in the legal and constitutional infrastructure of family rights, and their significance in the legal, philosophical, religious, and medical practice of ART.

II. THE PHILOSOPHICAL JUSTIFICATION FOR FAMILY HUMAN RIGHTS

The right to family through couple hood or parenthood belongs in the category of human rights. Human rights are defined as the rights every individual are entitled to as human beings. Family rights belong to the world of natural rights. Natural rights are those rights that ensure freedom of the individual, and protect individuals from government tyranny. I argue that the individual's right to form a family is inalienable.

The human right to family is the essence and existential expression of an individual's desire for survival and continuity. Hence, the right to form a family is more than just a right; it is a liberty. A liberty, as distinct from a right, is the absolute freedom an individual should be able to exercise unhindered, without obtaining approval from an external authority. The distinction between "liberty," which is the expression of absolute freedom, and a "right," which is a human invention, has great legal, moral, and ethical implications for family rights.

A. The Right to Procreate

The right to procreate, which any person should have, is the right to bring children into the world regardless of their medical or social ability to conceive, carry a pregnancy, or deliver a baby. Procreation is a fundamental human right determined, among others, by a United States court in Skinner v. Oklahoma. (2)

Before the advent of advanced ART, gender and biology were absolute determinants and the distinction between men and women was clear and unequivocal. In the past, when fertilization occurred within a woman's body and the pregnancy was carried by a woman, in her own uterus, who was both the genetic and legal mother, the differences between men and women, and the role each had in conception, were apparent and obvious. Today, with the proliferation of in vitro fertilization (IVF) and surrogacy, there is no longer a guarantee that childbirth will necessarily take place in the womb of the biological mother. Thus, the legislator needs to redefine the right to procreate and better delineate the reproductive rights that stem from it.

One of the most fascinating phenomena in the field of reproductive technologies, and a true sign of our times, is the emergence of different categories of infertility. This article will distinguish between medical infertility (primarily in heterosexual couples), social infertility (primarily in single men and women and same-sex couples), and "elective" or "lifestyle" infertility (primarily referring to women's control over childbearing).

The de facto expansion of the circle of parenting is a reality. Childbearing is no longer dependent on sexual intercourse between a male and female, the couple relationship, or, as discussed later in this article, the existence of life itself. …

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