What is a right? This is one of many questions that are especially relevant, given a reproductive landscape that is undergoing contemporary upheaval, with previously accepted norms under critical scrutiny and, at times, attack.
The concept of a right being an essentially legal one was underlined when the Supreme Court in the US reversed the landmark Roe v Wade judgement of 1973. This removed a constitutional right that supported a pregnant woman's choice to have an abortion without excessive government restriction. Where do moral rights fit in? In the context of assisted conception, Warnock (2002) argues that although one cannot claim a legal right to such assistance, compassion demands that the infertile should be treated if they wished to conceive.
Advances in reproductive technology have also stimulated discussion around transgender individuals wishing to become pregnant. In 1999, Germaine Greer (1999) made the observation that ‘no so-called sex-change has ever begged for a uterus- and-ovaries transplant; if uterus-and-ovaries transplants were made mandatory for wannabe women they would disappear overnight’. But Greer's prediction has not necessarily been borne out. In 2020, the surgeon Mr Christopher Inglefield of the London Transgender Clinic (2022) called for trans women to be allowed womb transplants. Similarly, Obedin-Maliver and Makadon (2016) reported that they ‘provide guidance to clinicians caring for transgender men or other gender nonconforming people who are contemplating, carrying, or have completed a pregnancy’ and Jones et al (2019) asserted that ‘there is no overwhelming clinical argument against performing uterus transplantation as part of gender reassignment surgery.’
But while there may be ‘no overwhelming clinical argument’ against such a procedure, can one then assume that a legal right to the procedure should be conferred? In an address to the Royal College of Physicians of Edinburgh, Warnock (1996) detected an ambiguity in speaking of rights, distinguishing between how a legal right might be infringed in a definable way, and asserting a moral right where someone ‘may well just be expressing strong indignation against the way they have been treated…giving the claim to a right a spurious and borrowed certainty or legitimacy.’
The ongoing debates on abortion and transgender reproductive issues raise myriad ethical challenges for society and the medical and midwifery professions, and further topics are waiting in the wings. Romanis (2022) highlights conceptual differences between technologies that assist conception and those assisting gestation. She points out that ethico-legal questions about conception often relate to matters of who should/can come into existence. Is there a moral duty to have certain types of children, and who can become a genetic parent? Whereas assisted gestative technologies like ectogestation in artificial wombs (Winter, 2017), surrogacy and uterus transplantation are concerned with how an embryo is sustained and supported between conception and birth.
One aspect that Romanis (2022) considers is the competition for assisted gestative technology resources in a publicly funded health system, which might only be available to people able to aff ord them. This raises the issue of equality, with Romanis (2022) suggesting that ‘[i]f ectogestation is only available to wealthier people, this could increase disparities that already exist in pregnancy outcomes.’ The same argument can be applied to the assisted gestative technology of uterus transplantation.
It is almost axiomatic that the technological feasibility of an innovative reproductive procedure will lead ineluctably to its adoption and clinical application, with subsequent ethical concerns consigned to the background for later consideration. However, such is the rapid accumulation of human reproductive options available that previously unthought-of questions are now being aired. For example, the possibility of ectogestation raises questions around the implications of a woman ending her pregnancy without necessarily ending the life of her fetus.
With such a plethora of ethical questions and conundrums arising from a seemingly ever-changing reproductive landscape, to what extent are health professionals equipped to temper their technical expertise with moral insight? Malloy et al (2009) considered the degree to which physicians were aware of various ethical guidelines in six countries—Canada, India, Ireland, Japan, Korea and Thailand—and whether these guidelines were influential in physicians' decision-making behaviour. They concluded that ‘[d]espite the cross-cultural nature of the focus groups, there was an overall sense that they were ineffective…a disconcerting finding for professional associations and the authors of their guidelines whose message seems to have fallen on deaf ears’ (Malloy et al, 2009). That was a study from more than a decade ago, but can today's health professionals assert that their ethical sophistication is such that they can advise and guide patients with confidence and competence?