 Mae'r ddweud yn ymddiadau a'r gweld i'n gwaith. Mae'n ddodd Dr Cathy Liddell, ac rwy'n ymddiadau o'r Llyfrgellfa Llyfrgellol Llyfrgellol, Llyfrgellol Llyfrgellol i'r meddwl a Llyfrgellol. Yn ymddiadol i'r Llyfrgellol, y Llyfrgellol i'r Llyfrgellol a Llyfrgellol, rwy'n ymddiadau i'n gweithio i'w gweithio i'r 2018 Llyfrgell Dylanzi. Rwy'n gallu i'w, oherwydd, yn ymddir i'w rhaid i ddweud i'r dŵr, ydw i'n rhaid i ddim yn ymweld i'u argyrchu yn unrhyw yng Nghymru o'r Llyfrgellol, yn unrhyw o'r unrhyw o'r ddweud i'w ddweud i'w ddweud i'r Llyfrgellol, a'r ddweud i'r ddweud i'u ddweud i'u ddweud i'u ddweud i'u ddweud, Mae'r ffordd yn ystod o'r ffordd yn ymddiolio'r ffordd. Mae'n ffordd yn ystod o'r ffordd. Mae'n hynny'n gweithio, ac yn fawr, y ffordd y Llyfrgellol Llyfrgell yn ddiwyddiadol o'r Ffyrddol Llyfrgell i ddwylliannol a'u ffordd yn ysgrifennu i'r ddwylliant a'u ddwylliant i'r llaw oeddiadol a'r ddwylliant. Mae'n ddwylliant yn ysgrifennu bydd yn ysgrifennu oeddiw'r llwyth i 1970, o'r cefnodi am Barun Verhaeden, Delansey. Tadw o'r parwydiau sy'n mynd i'ch ddechrau i gyflaenio mae'r ddiweddol yn ystod o'r newid o'r newid, dr Charlotte Ritter i'r dr Baz van Ulverkack. Ond oedd y ddau sy'n ffaith ffasdr i gyflaenio, sy'n mynd i'n gwybod i gyflaenio i'r ffasdr yn Yurell, ond byddai'n gwybod i'n gydig yn gwybod. Yn gweithio i'r gweithio hynny yn dyn nhw, ac mae'n gael i gael i gael i'r gweithio'r gweithiau, neu'r ddau. Dr Ritter yn ysgolio'r gweithio'r baron, mae'r gwirio'r gwirio'r gwirio'r gweithio, ac mae'n rhaid i'r bwysig o ddau'r baron i gael i'r bwysig i'r bwysig i'r bwysig. Mae'n amser o'r gweithio'r gweithio'r gweithio'r gweithio'r ddau'r bwysig, ychydig i'w cyfnodd, ymddangos, y llyfr yma, y cyfnodd gyhoedd y lawr hwnnw, a'r cefnodd arfer. Felly, ar hyn o'r cyfrifysio'r cyfrifysio cyfrifysio gyda'r cyfrifysio. Byddwyd e'n gyfrifysio ar gyfer y llyfr, ac byddwyd e'n gweithio'r cyfrifysio clywydol o'r cyfrifysio cyfrifysio. Daeth hefyd yn ychydig iddo, a'r llawd yn gweithio'r cyfrifysio, ac mae'n ddau'n ei ddweithio'r cyfrifysio. As we are a relatively new centre, this is the second year that we have had the opportunity to organise the Barron's lecture. But the series has had a long history of distinguished speakers. I won't give you the full list, but just by way of example, the first Barron-Delance lecture that I attended was given by Dame Elizabeth Butler Sloss, who was then the President of the Family Division of the Court of Appeal. She talked about recent cases on life and death in the courts. In 2011, from the sciences, we had Professor Sir Peter Luckman, who talked about the effect of tort law and regulation on pharmaceutical supply. In particular, the chilling effect he thought that the law had on the supply of new innovative medicines. In 2016, the first year that LML organised the Barron-Delance lecture, our invitation was accepted by Mr James Badenock QC, who spoke about the case he litigated before the UK Supreme Court, which changed the judicial requirements of informed consent in clinical negligence. Tonight, our subject is the future of reproductive technology. We are delighted that our friend and distinguished speaker, Professor Glenn Cohen, has agreed to give the lecture. Glenn is a professor of law at the other great Cambridge faculty of law, namely Harvard Law School. He is also the director of the Petrie-Flong Centre for Health Law Policy, Biotechnology and Bioethics. His work covers a vast area from the failures to protect the health of NFL players, to the ethics of a system for purchasing kidneys, and the legal issues of health tourism. Pretty much everything in between. Such bread is rarely paralleled, but what I always find most remarkable is Glenn's razor sharp ability to reorganise each and every field of thinking. He tackles. And no doubt that is what we will also witness tonight. Glenn, thank you and the floor is yours. I should always ask ahead of time how I advance the slides. Hopefully there's a button. Let's see if it's going to be intuitive. Oh, that's pretty intuitive. I can handle that. Well, thank you very much for having me. I have nothing to disclose. Good news. You know, I give a lot of talks in a year, and I'll tell you the truth, I enjoy every single one of them, but rarely have I felt so honoured as I do tonight. A huge thank you to my friends at LML, to the Delancey Foundation for putting this together and sponsoring this. I'm the child of two people who are dropouts from high school. Neither of my parents finished high school. So, when I told them today that I was addressing the faculty of law at Cambridge University, they were pretty impressed, and I'm pretty impressed to be here too in front of you all. Okay, now down to business, and I'll try to keep it a little fun. Many of you in the audience are undoubtedly parents. Many of you in the, all of you in the audience are certainly children, right? So you've gone through that experience. We have that in common. When a child asks a parent, where do babies come from? At one point in history, the answer was pretty straightforward and easy. You'd say, when a daddy loves a mommy, and then, you know, maybe you give more or less details depending on how you handle it. Then it got a little more complicated. Sometimes it was a mommy doesn't have a daddy, and she, okay, so that was a little bit more complicated. But it's never been quite so complicated as it is today, potentially. You might utter sentences like, well, when two daddies love each other very much, and then they found another mommy from a catalogue who would donate an egg. And then daddy's first cousin agreed to be the surrogate, right? It's quite complicated, and I'm going to tell you it's about to get more complicated. So I want to start in Act 1 by talking about the progression at a technological level, and we're going to call that the technological imperative. We're then in Act 2 going to talk about legal and political theory and whether it can help us to struggle with these dilemmas. And finally, we're going to talk about the state and justification for restricting regulatory, restricting reproductive freedoms. Okay, so let's start with Act 1, the imperative. So once upon a time, coital sex was the main way to produce children. But infertility of the male or female kind has been around just as long as for a very long time in our evolutionary history. One of the most poignant depictions is actually in the Old Testament where Sarah is unable to conceive and first attempts a kind of surrogacy, slash adoption, slash extramarital approach with Abraham, inseminating her maid Hagar and producing Ishmael. And then she's the first woman to pursue a miracle cure, many would try to find that miracle cure afterwards, here with a very good doctor called Hashem, right God, who cures her infertility and she produces her own son Isaac. This is Matias Storm's 1638 depiction of those very events. The classic story really captures quite a lot the pain and sadness of infertility in a world where genetic reproduction is the norm. The strong social preference for genetic reproduction over adoption. The way in which these technologies will bend the family form, but ultimately society will try to assimilate them into a form of nuclear family. Medical rather than religious attempts to cure infertility begin very early in recorded history, at least as far back as Hippocrates' use of Egyptian inspired recipes containing rednider, cumin, resin and honey to try to open up the cervix of infertile women. So I want to start by talking about modern assisted reproductive technologies, but I'm going to call them old school, new school reproductions. We'll see there's an even newer school reproductive technologies around the corner. So you know this began really with the invention of the microscope in the 1600s, which allowed the visualization of sperm and therefore an understanding of its role in fertilization. This development led to the first artificial insemination of dogs in 1780 in Italy by the priest Lazaro Spalanzani and then in humans in 1785 by the Scottish surgeon John Hunter. Artificial insemination using donor sperm first occurred in 1884 by the doctor William Pankos in Philadelphia. Modern medicine has added a number of methods of treating infertility. For our purposes though, one of the most important methods is in vitro fertilization, IVF, which was first successfully used here in England in 1978 to produce Louise Brown. IVF proceeds in several stages. First, the woman will provide eggs as administered ovulation stimulating hormones, which cause multiple egg containing follicles to be cured so that she can deliver up to several dozen eggs that can be harvested in a single treatment cycle. Then just prior to ovulation, the eggs are removed by a minor surgical procedure. Third, sperm is introduced into the individual culture dishes, each of which contains a culture medium and one egg and monitored to determine if fertilization occurs. Finally, if it's successful, the early embryo, sometimes called the pre-embryo, is allowed to mature in the medium where in summer all of them will be transferred into women's uterus to try implantation. Sometimes this is combined with pre-implantation genetic diagnosis, PGD, where we biopsy a cell from the early embryo to assist in determining whether it's the best embryo to implant. IVF is very expensive. It's quite painful and quite annoying for women. It also carries some health risks, a low risk, but a risk of ovarian hypostimulation syndrome. It may not be the same woman whose eggs are harvested who will ultimately carry the baby, and in surrogacy we actually have two individuals involved. In the case of traditional surrogacy, which is hardly practiced these days at all, a man artificially inseminates a woman such that she serves both as the gestational and the genetic mother of the child. In gestational surrogacy, by contrast, gestational surrogacy carrying the child is combined with IVF, such that the egg may come from the woman who intends to rear the child. Either the rearing mother is, or there's another woman who serves as an egg donor, or another man who serves as a sperm donor, or as in a very complicated case from California called Moschetta, all of the above. There can be a sperm donor, an egg donor, a commissioning and would-be rearing mother, a rearing father, and a gestational surrogate for a grand total of five separate people involved in that reproduction. Imagine answering, where did I come from to that child? All of this while quite amazing in the longer scope of human history is today old hat to us. We're very familiar with these technologies. But I'm going to take you to the now and near future to talk about what is cutting edge and the dilemmas you may not have encountered in a family law class or a medical law class. First one, uterine transplants. The birth of a child after a uterus transplant from a living donor occurred for the first time in Sweden in October 2013. And it's for reproductive and transplant physicians in Europe and North America to investigate whether uterus transplants, either from living or catedveric donors, yes, that's right, from a deceased donor to take the uterus and bring life from it, might become a more common occurrence. We've got trials going on in Boston and Cleveland Clinic right now. And the first birth occurred several months ago at Baylor University in Texas in the United States, the first U.S. birth. The main clinical indication is uterine factor infertility, women who were born without a uterus lost their uterus or their uterus no longer functions. The intended mother's eggs will be removed and fertilized through IVF, then they'll look for a uterus donor. Most of the protocols in the U.S. are for catedveric donor, but it could also be a living donor and that's what occurred at Baylor. Once a donor is found, the recipient goes on immunosuppressive drugs and a uterus is transplanted onto her pelvis. After a few months, she'll start having her period and within 12 months of transplant of the uterus will hopefully be healed enough that she can take the embryos for implantation. She'll undergo pregnancy with a C-section delivery and then undergo a hysterectomy after one to two child births to remove the donor uterus. Once it's removed, she can go off the immunosuppressive drugs, which is good for her overall health. In the Baylor case, the donor was a woman named Sylar, a registered nurse mid-30s. She had two boys aged six and four already, and she just read in the newspaper of the hospital about this transplant program. She says, quote, I have family members who struggle to have babies and it's not fair. I just think that if we can give more people that option, that's an awesome thing, unquote. She went through an extensive screening about her physical and mental health before getting approval for the trial. Her surgery in about 12 weeks of recovery, the surgery is about five hours for the living donor and another equivalent amount of time for the recipient. There's a number of very interesting legal and ethical issues that I want to have you think about and we'll talk more about during the Q&A. Is this really an option we should be supporting? I mean, it's amazing that science can do this, but is this really something we should be pursuing? How important is pregnancy as opposed to genetic motherhood through surrogacy? Should we be willing to allow women to take the risks of transplants that is not strictly speaking medically necessary? Should the state pay for it? Would you have the NHS pay for this as it would a kidney transplant? Doesn't matter whether surrogacy is a legal and available alternative, given this involves more risk to the woman who receives the transplant than surrogacy would. By contrast, if surrogacy is available, or if this is available, would it be unethical to use a surrogance since you are then potentially placing another woman at risk rather than carrying the child to yourself? Should we consider living rather than cadaveric donors? Is it a positive thing if, as in some of the cases in Sweden, mothers donate their uteruses to their daughters with uterine factor infertility? In such a case, a uterus donated by a woman to her daughter to produce a child, do we consider the uterus donor just the grandmother? Is she the grandmother slash uterine mother? Something else? What if any legal status should attach to the grandmother in this case? Should she have the rights of a surrogate, for example, to change her mind, to withdraw the transplant? What happens if there's parenting disputes? Going further into the future, this technology might allow transgender people with male sex assigned at birth or even regular men to bear children. That is, we might be able to graft a uterus on a male pelvis or some other part of the body. I know the men in the room are getting a little bit nervous when I'm saying this because they've watched pregnancy on TV at least in their own lives. Would that be a wonderful thing? Think about a quality of the sexes if we could do that. Or is that a terrible idea? To the state pay for that if, as a man, you say I've seen this beautiful mystery of pregnancy and birth and I've seen all of this and I want to experience it myself. Is that a rights claim you have against the state? Second technology, mitochondrial replacement therapy, MRT. Mutant mitochondrial DNA gives rise to a broad range of heritable clinical syndroms. Some dispute in literature about how prevalent it is. The UK's Human Fertilisation and Embryology Authority, the HFEA, claims that it's about 1 in 200 children who's born each year. Others think it's more like 1 in 5,000. The disease of the mitochondria appear to cause the most damage to cells, a brain, a heart, liver, skeletal muscles, kidney, endocrine and respiratory systems. Truly terrible for the children who are born with these diseases. There's no cure. But we've recently developed a technology pioneered here in Newcastle in the UK that's raised the prospect of disease free progeny for women carriers. Mideocondrial replacement therapies constitute a family of technologies that seek to prevent the transmission of the mutant mitochondrial DNA from carrier mother to the child. The embryos so created comprise nuclear DNA from the intended mother and non-pathogenic MT DNA from another woman whom we call the mitochondrial donor. As such, MRTs allow a woman at risk to be the genetic mother of the resulting child, at least in terms of the vast majority of that child's DNA. The two forums, maternal spindle transfer, pronuclear transfer, I'm not going to go into the details here. In the UK, legislation enabling the performance and clinical application MRT was ten years in the making and approved by the House of Commons and the House of Lords in 2015. The HFEA is now empowered to provide clinical licenses to allow the use of these technologies. In the US where I come from, the story is quite different. We were in the midst of a review by the Institute of Medicine, National Academies of Medicine, requested by our FDA, our drug authority. When Congress acted to preemptively block this technology. And here's where I'll pander a little bit to my crowd here in the UK and say how much I admire the HFEA Parliament and your public consultation and the Nofield Council on these topics. But don't get too comfortable. Towards the end of the talk I will blast the UK and your approach on child welfare. So it's coming. Don't worry that I'm not playing the crowd warming you up a little bit only for the acts to fall in the end. So our National Academies would have liked to see an approach like the UK, maybe a little bit more restrictive. They said that they were okay with MRT going forward subject to several conditions including establishing initial safety, minimizing risk, establishing efficacy through in vitro, animal and other testing. Limiting clinical investigation to cases where women would transmit serious mitochondrial DNA disease. And interestingly, limiting gestation to male only embryos and the reason was to prevent any germline transmission. They also wanted to use non viable embryos to develop the science when possible and use only the smallest and least developed viable human embryos when it's not. As well as doing long term follow up studies on the psychological and physical health of children born through MRT. One of the realities of the US prohibition is that we've now engendered a huge amount of medical travel and medical tourism. A topic I wrote a book about in 2015. Because of the lack available in the United States we've had people doctors from the US go to Mexico to perform the technology for a Jordanian family actually. And if there's more MRT and children in question will allow likelihood of living in the United States and thereby potentially bring it to pass that which is feared, which again is this transmission of mutant mitochondrial DNA. The transmission I should say of the corrected DNA. So in terms of the legal and ethical issues, one is just safety. How do you ever know when a technology like this is ready for prime time? If you go back to 1978 to IVF, how do we really know that IVF was ready to produce children? There's always going to be this moment of a leap to first in humans. There's this question about crossing the germline redline, the idea that germline modification of the human genome is something we must never do. Among the most vocal opponents on this score was Marcy Darnowsky, who in nature wrote that she was putting a high-tech eugenic social dynamic into play. Lots of thoughts on this, we can talk a little bit about it later today. But my own sense is that I'm not terribly upset by the idea that this is eugenics, where I'm query what that means. I'm not particularly bothered by this form of eugenics if what it means is that children are born healthy rather than with mitochondrial disorders. There's a question about anonymity and parentage. So in the US we don't have a requirement as you do in this country that sperm donors and egg donors put their names in a registry available to children aged 18. In this country you do, but interestingly Parliament exempted the mitochondrial donor from this requirement. So you as a donor conceived child cannot go ahead and find out who your mitochondrial donor was. Even though technically speaking we call this three parent IVF and the mitochondrial donor is giving a very small percentage of the DNA to the child. Nonetheless you might say without that donor I would not come into existence. I want to know the story of where I came from. This person is an essential part of that drama and to push your buttons a little bit. If this country believes so much in the right to know your genetic heritage, the right to know your genetic parents, why don't we allow them to know their identity of the mitochondrial donor? Maybe it should be a percentage, maybe you could get like a percentage of the mitochondrial DNA, the same percentage of information about that person. I imagine like from Solomon Rushdie's, Midnight's Children, moving the veil and seeing just a tiny little bit of the person each time you diagnose them. So maybe just the eye colors or maybe just this much. In any event we haven't gone there in this country. I think most interesting is the question of mandatory sex selection. Essentially the FDA recommended or the IOM I should say recommended that we have mandatory sex selection. Only male embryos because the male embryos will not carry forward the alteration done to the mitochondria in order to make devoid the disease. So that's a very interesting question. Could or should the state be allowed to mandate sex selection in a particular case? The other instance is mostly with sex link disorders where they do recommend and do permit sex selection. But that's to protect the child themselves. So the child does not develop syndrome or a disorder. Here you're not doing it for the sake of the child but some high abstract concept of the gene pool and concern about the propagation of a particular genetic change. Should we find that I have a whorrent to mandate sex selection, would it be against the law? One more technology. That is in vitro gamata genesis. It's the generation of eggs and sperm from pluripotent stem cells in a culture dish. And I'm particularly worried about talking about this one because we have one of the Nobel Prize winners who's work is essential for this later technology in the room with us today. So I'm going to tread lightly and not talk too much about the science here. But I'm showing you Hikabe's nature's paper in mice and the potential future successes in human beings is a possibility. So to simplify the science a lot, a lot, a lot. You can take adult cells like human skin cells. You can induce them towards pluripotency. And from that you can create sperm or egg for reproduction. Translate to the non-scientists. I could take the water that I leave on this cup after drinking this water, which I will between now and the next slide. I could take the saliva or part of my body or skin cell I leave on this cup. See how I worked that in. And then I needed a bit of water, it was a good time. And then what I can do is I can take that cell and I can induce it to become sperm or egg. And then you can produce a baby from this. And if I just happen to leave this year, it's possible you could produce my genetic child from this. Kind of blows your mind a little bit, doesn't it? So IVG may enable prevention of mitochondrial diseases. Indeed, patient-specific IPSC-derived oocyte selected for their low burden of mutant MTDNA could yield disease-free progeny. The availability of fully functional gametes of IPSC origin may transform the current IVF paradigm by eliminating the need for stimulating the ovaries and retrieving eggs. In so doing, IVG may also phase out the occasional morbidity and mortality women suffer from ovarian hypostimulation. Similarly, we may not need donor eggs anymore. Wouldn't that be wonderful? No need for egg donors. Much would depend on whether IVG could ever become affordable enough to be used as a current technology and thus enhanced access to advanced infertility therapy. Given the high price of IVF, that may be unlikely. Some in the bioethics legal and public press have speculated further. The scientists tend not to like the speculation, but I'll share it, that IVG may one day permit same-sex partners who seek to have a child who shares both parents' genetic heritage. With one producing the sperm and one producing the egg, even though they are of the same sex. Or possibly enable single women to conceive offspring of a single parentage based on their own. Lots of legal and ethical issues. This is my friend Hank Realy's excellent book, The End of Sex, on aversion of this topic. Any clinical use of IVG raises several regulatory and ethical questions. First, refining the science to a point where it's usable will mean the generation and likely destruction of huge numbers of embryos. From stem cell derived gametes. IVG might also increase our chances of commodification of the human body. Giving the up possibility of creating mass numbers of embryos, biop seeing all of them a thousand and choosing the best one. Imagine if you had an unlimited ability to produce eggs and sperm for a child. Would you not be tempted to use that towards enhancement? Especially if that production is combined with gene editing CRISPR-Cas9. But we really can potentially in the future, and I think it's far in the future, but potentially in the future, move to a situation where enhancement becomes rapid. Fourth, IVG increases the risk of unauthorized use of biometrics. Absent, explicit consent. In the most extreme case, imagine an individual using someone else's loft skin cells to derive gametes for reproductive purposes. Should the law criminalize that action? If it takes place, should the law consider the source of the skin cells, me on this cup? The father, a legal parent who has child support obligations or has a right to make family decisions? So far, courts have had very little experience with non-consensual parenthood, but the cases they have had involving intoxication where consent was inappropriate, involving statutory rape of young boys, actually. There are cases like this that produce child. In all of those cases, they essentially hold, at least in the States, that the boy is the father of the child and has legal obligations. Should we follow that pattern in thinking about this truly non-consensual form of parenthood? Finally, IVG's most disruptive impact may be on our very conception of parentage. Artificial insemination, IVF surrogacy, they've all allowed us to unbundle genetic gestational legal parenthood to some extent. But here we're talking about a much more radical unbundling. Again, scientific literature has not yet proven feasibility, but there's this possibility that's so-called multiplex parenting, where one gamion is derived from two individuals or three individuals or five individuals. So imagine five genetic parents, apart from rearing parents, apart from surrogates and the like. Would we view each of those as an equal parent, or would we want to apportion parentage rights, maybe days of custody, based on the percentage of genetic material they contribute? What happens when you're trying to decide what university to send the child to? Do you have to do them all in the room and is there a consensus rule, or is it just the loudest shout or the person who's going to pay for it? Is that how you decide? Should what extension of the law respect a contractual agreement between these people to allocate parental rights and parental responsibilities? The situation becomes so more complex if we mix together this technology with surrogacy or with adoption and the like. So thus ends Act 1, some combination of wonder, disgust, and confusion. That's at least what I'm going for. Now we're ready for Act 2. Can political theory or legal theory help us, some framing attempts? In terms of disruption, we broadly think of the preceding cases as presenting two kinds of disruption. One is actually disruption of the outcome in terms of family form. The other is the disruption of method in terms of the way in which it comes about. One focuses us on the family that results and that family could have resulted through non-reproductive technologies, single parenthood, same-sex parenthood. That can happen without reproductive technologies through divorce and remarriage in single parenthood. The other focuses more on the ills of the technology themselves. The question about whether it promotes something like an incorrect attitude towards parenthood, whether it is promoting embryo destruction, et cetera, et cetera. So here's a set of distinctions that I think might be particularly helpful when thinking about selective funding and more positive rights to healthcare in this space. The question of what should the state fund? That is the distinction on the one hand between mimics and extenders and on the other hand between the infertile and the disfertile. So let me say a little bit more about those distinctions. Mimics seek to use reproductive technology to achieve that which others are able to achieve through coital forms of reproduction. When infertile women use IVF and infertile men use AID to achieve what their fertile brothers and sisters can achieve coital. By contrast extenders use reproductive technologies to achieve that which is not attainable by anyone without the use of these technologies. Gene editing to have children with longer lives. IVG to have children with five or six parents. That's what I mean when I think about extension. And this is kind of a cousin, if you will, to the treatment enhancement distinction. Mimics seek treatment, extenders seek enhancement. Now none of these distinctions are perfect sorters, so take MRT for example. Is that a case of mimicry? A woman who wants to have a genetically related child just like other women? Or is it a case of extension involving a third party, a third genetic parent in reproduction? Which line matters which are intending to do with the consequence of the genetic line, the biological line or what the family formation looks like? But while not perfect these distinctions can on the left be helpful in thinking about the state's positive obligations to provide assistance. And let me talk about the second distinction which is infertile versus disfertile. Infertility is a medical condition, right? It is a medical diagnosis which prevents you from being able to reproduce. Disfertile individuals suffer from a form of social infertility. Their biology works fine but they suffer from no disease but their biology is such that their current social arrangement does not permit reproduction. They are a single individual. They are a same-sex couple for example. So one way of putting this question is in which of these boxes, if this is a two by two, which of these boxes are the ones the state ought to pay for? So it depends a lot on your theory of health, what the right to health extends to. So on a purely consequentialist theory health isn't important, indeed one of the most important things that promote our welfare, but there's nothing in particular special, there's no special importance to health as a moral matter. It's just merely one contributor to welfare. And for that these distinctions don't seem to matter too much. What really matters is how much welfare would we get for how much cost. So the economist for example might do a quality adjusted life here per dollar analysis and support the technologies that have the highest value, avoid the ones that have the lowest. Other theories though attach a special importance to health. They then have to wrestle whether the question of what kinds of reproductive assistance are health assistance as opposed to other kinds of benefits. So Martha Nussbaum writing from an Aristotelian perspective talks about the idea that we have capabilities. The state has an obligation to further our capabilities and enable human flourishing. She describes one of these capabilities, bodily health, as being able to achieve a good health including reproductive health to be adequately nourished to have adequate shelter. And another bodily integrity as having choice in matters of reproduction. Norman Daniels, my now retired colleague, has a much more role in view of the matter. That's a liberal tradition focused on promoting liberty and distributive justice through priority of the worst off. He would say the state's role, the state's obligation is to give you access to the quote, normal opportunity range, unquote. That is to enable you to pursue an array of life plans reasonable persons are likely to develop from themselves. And from this he says reasonable people, a normal life plan includes reproduction. Therefore the state has an obligation to pay for infertility just as it would for a kidney disease, Ebola or whatever have you. Both these views but in particular the Daniels view have something useful to say about these categories. The concept of a normal opportunity range by definition seems to count in support for mimics but not extenders. Extenders want something more than that which is part of the normal opportunity range, the species typical function. They want to be atypical of the species. They want more than what the species can do. Perhaps more controversially, I think suggesting drawing a line between the infertile and the disfertile on this view. Only the infertile are making claims for the state to respond them to species typical normal functioning. The disfertile are already usually there. Though query how to treat the claim of a lesbian who also happens to suffer from female factor infertility. Would we say she is infertile, disfertile or both? Now this result is not inevitable. We could reinterpret the normal opportunity range which is meant to enable us to pursue life plans reasonable persons are likely to develop in a non-biological sense. In that way we would say what is sought as parenthood not biological functioning. But doing so raises another interesting tension is the goal of the state and the goal of the healthcare system parenthood, simplicity or genetic parenthood. That is suppose the state were to say I have satisfied my obligation to you by giving you a wide range of support and availability of adoption options. Would we say that that is a healthcare obligation being satisfied or must the state go further? And to take it a little bit further think about my uterine transplant case. Imagine a woman has another woman willing to serve as the surrogate. We can pay for her IVF and we do. So she will be the genetic mother of the child. She will be the legal mother of the child. But she says I want to experience pregnancy. I want to experience gestational motherhood. Do we think her right to health extends to that case to the experience of pregnancy? Is that the kind of thing she ought to be able to make a claim on the NHS for? And of course taking it to the reductio in this would be to say imagine there's a woman who just wants to experience the pregnancy. She has no interest in rearing the child. She has no interest in genetic parenthood. But she is the sister of someone who has uterine infertility and says oh I have uterine infertility too but you don't all carry that child for me. NHS you give me that uterus transplant not so I could have my own child that is one that I will rear but to be a surrogate for someone else. That is the reproductive desire I have. Is that the kind of thing that a right to health care extends? Is that species typical functioning? Most people don't want to experience pregnancy. I mean I don't understand most people but parts of pregnancy having spent a number of months with pregnant women I can tell you there are elements having experienced with myself yeah waiting for that pelvic transplant but I can tell you having experienced and spent a lot of time with pregnant women there are many things that are beautiful and wonderful with pregnancy. Lots of days it just suck though by the way right but imagine someone says I would really like to experience this right? Is that a reproductive aim or reproductive goal that they ought to be able to satisfy? Thinking a little bit more now about the negative side here negative liberty side that is your right against state interference here's a set of distinctions I found useful in earlier work I've done about a decade ago now and that is to say natural reproduction bundles gestational genetic and legal parentage but it need not be so. We could in fact unbundle it and reproductive technologies let us see that in fact there are actually six rights involved in most decisions about say an abortion that is a right to be a gestational parent to be a genetic parent to be a legal parent that is a right to continue pregnancy on the other hand a right not to be a gestational parent a genetic parent and a legal parent that is a right by somebody who seeks to have an abortion now it's interesting about reproductive technologies is that while these are all together right we parcel them together in the case of natural reproduction they can actually be assigned to different people in the case of reproductive technologies such as we can have conflicts between them so imagine that a husband and wife undergo and reach a fertilization they cry or preserve pre embryos imagine that they have an agreement saying that in the event of divorce the wife would be able to implant the pre embryos the couple divorces and the wife wants to use the pre embryos but the husband opposes that imagine further for the purpose of this hypothetical that under these circumstances the jurisdiction says if the wife implants the pre embryos the husband will not be made the legal parent of the child unless he consents and in case you think this is far fetched this is the exact law and legal question for the Colorado Supreme Court right now as argued about a month ago or two months ago the husband in such a case is saying I have a right not to be a genetic parent I'm not going to be a gestational parent he doesn't have to carry the child I'm also by dint of the law to be a legal parent all I'm going to be is a genetic parent but I have a right not to be that genetic parent on the flip side the woman would like to assert her right to be a gestational parent a genetic parent and a legal parent by using the embryos right this unbundling of the rights helps us see what's at stake many other examples I could give you where this is useful but I want to suggest to you is it suggests that the task of the state and the task of the political theorist the legal theorist is to answer two questions first at least two which of these rights actually exist as a doctrinal matter as a normative matter in terms of what ought to exist and second if more than one of these rights exist what is the system of lexical priority that I will apply in determining when they come into conflict or is it at the level of principle lexical priority of rights or is it much more particularized do I think for example as in the Evans case that a case where a woman has no further options reproductively because of a variant answer for example is that different from a case where a woman could use her own eggs to reproduce in another occasion so I think this is a helpful recipe in thinking about the negative liberty just as I think the prior slide is a helpful recipe in thinking about the positive liberty so in this act we see that while these cases are challenging that I presented to you legal and political theory can at least help us somewhat to frame and narrow the disputes now we are ready for the last act of a verification in the state so in the ordinary course of things the technological imperative results in an existence of a market in reproductive technologies reproductive desires meet technological progress and entrepreneurial opportunity to always push the boundaries but of course the state has a role in setting limits how a wengent state should do so is the question for this act and I don't mean to prejudge the idea that the state is sinister by showing this gentleman over here if there happens to be some subliminal point I mean I don't know it's okay that that happened so let's talk about the role of the state here okay so first it's important to understand the state has several means to influence our reproductive activities and here I've listed them from the most intrusive to the least intrusive physical alteration according to theory requires sterilization as we do by order for some parts of the population criminal prohibition we prohibit brother sister incest by law we prohibit gamete sale in some places we also prohibit sperm donor anonymity immutable or default status determination so rules for example about when a known sperm donor will not be held to be a father the unenforceability of contracts we can make a contract for a particular reproductive arrangement like surrogacy enforceable or not selective funding we can choose to fund IVF only for married people but not single people only for heterosexuals but not gay people and finally information provision we can just try to the gentlest nudge try to convince people to do things different and my favorite example here is actually abstinence education very popular in some parts of the United States we try to control when people reproduce by having curricula that tell them they should wait till marriage okay there's a series of justifications that goes up so the demandingness of the reason we might need to justify it will go up as well so here are some basic categories in law and in philosophy the first is the harm principle the act of reproduction is to be regulated for harm it will do to third parties either harm to the child that I'll call best interests of the resulting child BIRC or harm to other third parties that I'll call reproductive externalities paternalism the act of reproduction is to be regulated because it goes against the true deep interest of the reproduces or participants so for example the surrogate or the egg dog we want to protect them legal moralism or virtue ethics two separate but related ideas the first is what Joel Feinberg called legal moralism in the narrow sense the use of criminal law to deter acts which neither harm nor offend but undermine public morality we have a conception a traditionalist conception what the family should look like this undermines it therefore that's a reason to prohibit it relatedly virtue ethics conceptions which considers what will happen to the character of the moral agent so Michael Sandel my colleague at Harvard for example is opposed to enhancement because he thinks it encourages an attitude towards our children that is bad, treats them as manufacture and also evinces an attitude that is forbidden which he thinks is un-virtuous for a flourishing person and finally wronging while overall benefiting an act could be wrong and should be regulated because it wrongs a child even though it does not harm them or if you prefer an act wrongs someone even though overall it benefits them that's John Schifrin's formulation while not completely exhaustive this covers most of the waterfront almost all discourse about regulating reproduction happens along this discourse and just to show you that I'm not making this up here's you, here's the UK so this is from the HFEA Act of 1990 a woman shall not be provided with treatment services unless the count has been taken of the welfare of the child who may be born as a result of the treatment including the need of that child for a father much more PC got rid of this bother stuff but kept out, you know that's kind of, you know, I don't know I'll leave you to our own devices what you think about that but kept this idea of child welfare at the center and of course it's so intuitive how lovely you love children you care about children and their welfare it seems so intuitive but the problem is this form of justification is a lie empty lie I told you that there would be a part where I would bite the hand that feeds me right hopefully they won't cancel the dinner after this it's a hollow empty lie right that in fact can't bear the weight you're putting on it BIRC reasoning best interest for the resulting child reasoning is a non-starter for any attempt by the state to influence when, whether or with whom we reproduce and its error is to transpose an idea that makes perfectly sense with existing children and transpose that very sensible idea the idea of children who have not yet come into existence why is that a problem the problem is easiest to see in a case involving restrictions on whether individuals reproduce so say there's a 60 year old woman who wants to use reproductive technologies the state says we're not going to allow that to occur because we're concerned about the child that will result many European states have exactly this law can we say that this noble statue protects that child serves that child's interest no it protects that child out of existence so long as that child would have a life worth living it can't be said that if the active reproduction gone forward the child had been harmed and just to illustrate this these are two possible worlds in this world 60 plus is permitted we have this child over here in this one it's restricted no child comes into existence so the claim people are making when they employ child welfare is to say this child is so much better off than nobody came into existence that seems like a logical problem and indeed it is but the logic extends further to more cases and here this is from the late great British philosopher Derek Parford who developed this idea of the non-identity problem in 1984 he offered the following hypothetical take a 14 year old girl who were trying to convince to wait to get pregnant both for her sake that's paternalism but also for the sake of the child that's BIRC as he writes as long as her child does not have a life not worth living we can't claim that the girl's decision was worse for her child why? because had she listened to us and waited a different child would have come into existence not this child it cannot be worse for this child to come into existence even with a bad start in life if the only alternative was not existing at all and instead being replaced by another point another child this point generalizes to at least any case where the policy enacted by the state has at its anticipated effect altering the sperm and egg combination that is any state attempt to alter when, whether or with whom individuals reproduce cannot be justified on the basis of child welfare reasoning here I illustrate with a different UK policy that's the prohibition of an open market in sperm or eggs so there may be many good reasons to prohibit the market of sperm and eggs but child welfare isn't one of them because when gamete oh it should be sale sake apparently I'm thinking you head to the wine at dinner gamete sale permitted if gamete sales permitted this child and hopefully those sort of purposes made her to girl gets bored if it's prohibited well maybe you have to wait longer for a gamete if not indefinitely even if a child comes into existence it's a different sperm donor who will provide the sperm at a different time therefore a different child will come into existence therefore did the prohibition on gamete sale help this child it's nonsensical to say how we determine that is look to see whether this child is better off you're replacing people it's not the same person in both counterfactuals that is a problem for any child welfare analysis so if I'm right that means the major way in which most states including this country justify the regulation of reproduction is nonsensical is logically fallacious if you disagree it just doesn't make sense does that mean you can't regulate reproduction no but it means things are much more complicated and the easy sunny nice we love children bumper sticker won't work instead you have to go deeper down into political theoretical disagreements and try to resolve them I told you about some of these possibilities paternalism, legal moralism, wronging well overall benefiting I'm now just going to spend a moment on these other ones that I've added now to the picture so the non-identity problem is only a problem for cases involving lives that are worth living if you're going to produce a child that has a life not worth living you can say that child is worse off coming into existence than otherwise by the way this is very logic that I'm talking about the non-identity problem fascinatingly the courts have understood this the rejection of wrongful life liability including in this country since 1982 stands this idea and yet the regulatory system does not which is kind of interesting but if you have a life that's not worth living that's okay you can prevent that life and you're doing good but the category of lives not worth living I want to suggest to you is going to be very very small how small will depend a little bit on how you think bad a particular life a particular disability might be but it's certainly not going to encompass cases of older mothers of people who are the product of a commodified market of many of the things in which the regulators want to reach a different view is called non-person affecting principle approaches a mouthful essentially our typical conception of harm and benefit those are person affecting the same person is made better or worse you are harmed or you are benefited by a regulation in non-person affecting approaches we say the world is not better because any person is made better rather the world is better or worse that is although the person born with the condition in question would not have been harmed by birth the world is better off if that person without that harm has been substituted in the place so this is the claim that we're not making you better or worse by regulating we're instead doing good by replacing you with somebody better that is essentially what this claim is it sounds nasty when you put it that way but that's essentially what the idea is in other work I suggest a lot of reasons why this may not be the most attractive approach to regulating reproduction it carries with it some eugenic overtones it might suggest the state could equally well be justified in mandating human enhancement because that also replaces us with better people it's under inclusive there are many acts of sexual coital reproduction that end up bringing into existence people who are less good and the people we could have brought into existence we would never dream of starting to regulate those yet we feel like it's okay to pick on reproductive technology access and there's many other problems probably the most prominent one is the problem of population ethics that this whole theory is only going to be good in cases where the same number of people come into existence either way where it's one to one swaps because otherwise we will end up in a series of population ethics paradoxes that Parford calls the repugnant conclusion and the mere addition paradox that we can talk about during Q&A if people are interested well what does that leave us we could think about reproductive externalities it's a little strange when you decide how loud you can play your stereo when you decide whether you can have a wild animal that runs across your neighbors lawn when you blow black smoke from one property to the other we often especially in law and economics think about these as externalities a behavior of yours that causes costs for others it's a little strange that we never talk about reproduction in terms of externalities but you could think the right way to think about externalities is what's wrong about an act of reproduction is the cost it imposes on other people in a community and the more socialized your community is in terms of health care and the like the more justified that would be so that is a possible way of talking and thinking about these disputes but again it's one that very quickly takes us into very disturbing territory many of which parallels the problems with the non-person affecting principal approach so I've often said that when I die on my tombstone it will say we find a hard problem he could not make harder but that is my goal for tonight is to show you that the easy answer given by the UK and many industrialized countries are in good company to how we think about regulating reproduction and when the state can act is bogus so just to sum up what have I tried to show you tonight one we have not reached firm agreement on the old school new reproductive technologies and now we have coming down the pipeline even more head scratching and amazing ones these are great news for people and in fact for the progress of science and good news for law professors and ethicists like me because it keeps us in business but maybe bad news for those of you who thought when you left Cambridge you would understand what the right answer would be because new technologies keep coming second though we've equipped you through legal and political theory to actually think about this on the positive liberty side theory about the right to health might matter on the negative liberty side some conception of unbundling might help but don't pat yourself on the back too much because probably the way most people have reasoned about these cases and most governments have reasoned about these cases the idea of best interest of the resulting child is a non-starter and when we attempt to go deeper and find ideas that actually work you'll see that both the philosophy and the political level of agreement over them dwindles so there's a lot of hard work ahead of us thank you very much and I look forward to your questions applause