Read them their rights

The (somewhat) ethically interesting topic of in vitro fertilization is being discussed publicly a lot in Poland lately, due to the fact that the Parliament is about to vote on laws regulating the procedure (the status quo is that in vitro is legal and completely unregulated). The topic is interesting because, for some reason, it is ripe with bizarre ethical arguments (some of which I've blogged about before). Here's another one, again very common in Catholic ethics: in vitro fertilization is ethically wrong because it violates the right to be conceived through sexual intercourse, without any artificial enhancement. Why is this argument bizarre? Some (such as the legal scholar Wojciech Sadurski) criticize it on the grounds that it's incoherent to talk about rights of potential human beings, that is human beings who have not yet been conceived. I disagree with that critique; I think that, inasmuch as it's possible to talk about rights at all, it's possible to meaningfully talk about rights of potential human beings. But, I still think that the "right to be conceived naturally" argument is confused and completely wrong, for reasons I'll explain below.

First of all, talking about rights is difficult in any context because it's not clear to me what "rights" are. It's not that I think the concept is incoherent so much as it's simply redundant. What I understand about rights can be reduced to a much simpler and more fundamental concept of utility. In that view, rights are simply rules of conduct with respect to what individuals are entitled to that society has agreed to adhere by and enforce punishments for breaking. What the rules are supposed to do is delimit a certain standard of "minimum individual (expected) quality of life" that society agrees to never decrease in order to trade off against other values (such as social welfare or whatever).

Now contrary to what Sadurski claims, it's possible to meaningfully talk about the expected utility of someone who hasn't been born yet; in fact, people do it all the time. Consider, for example, a couple deciding whether to have children now or a few years later. Both partners are young and well-educated, but at this time they're quite poor. They have low-paying jobs and haven't worked for long so they don't have anything in terms of assets; moreover, they live in a neighborhood where it's not really good for kids to grow up, and are not able to move out of it at the moment. So, they decide to wait before having children for a time in their future when they're more affluent (which they expect will happen because they both have a lot of human capital, just not a lot of experience). This is a clear example of how expected utility of someone who does not yet exist (in this case, the couple's future children) can (and should) affect present choices of people who definitely do exist.

So what's wrong with the argument that in vitro violates a human right to be conceived naturally?

Well, first of all: who says there is such a right, and why should there be one? Rights are there to protect a modicum quality of individual life from being traded off against other things. For example, we protect individuals' right to life because we recognize that the quality of life in a society where people are allowed to kill others on a whim is extremely low, perhaps to the point of not being worth living. Therefore, in order to argue for protecting the right to being conceived naturally, we would have to have evidence of the fact that people who have been born through in vitro fertilization suffer because of this fact so much that they would rather not have been born at all. (Note that simply showing that knowledge that they've been conceived "unnaturally" causes some mental suffering is not enough. The burden of proof is showing mental anguish great enough to make a person want to kill themselves, because if it weren't for in vitro fertilization, those people would not have been born at all.) I think that if you surveyed all those who were born due to this method asking them if they would prefer to have had their right to be conceived through unaided sexual intercourse protected, you'd discover that enforcing this "right" would actually hurt people rather than help them.

Second, assume for the sake of the argument that potential human beings do indeed have a right to be conceived naturally. Why, then, are we talking as if that were the only right they have? If potential humans have this particular right, they must have other rights, too. What about their right to life, for example? Banning in vitro protects potential humans' right to natural conception, but it denies them a right to life. If you are a Catholic ethicist, then, you only have two logical choices. 1) You believe that potential human beings have a right to be conceived naturally but do not have a right to life. If this is the case, then your definition of a "right" seems to me to be completely arbitrary, and serving more as a rationalization of imposing your ethical preferences on those who disagree with you rather than as a way of minimizing human suffering. 2) You believe that potential human beings have both the right to life and the right to be conceived naturally but that it's more important for society to protect the latter rather than the former. If this is the case, then you're contradicting yourself because Catholic ethics claims elsewhere that the right to life is the most fundamental human right and that protecting it should always supersede all other concerns.