What Is In The Best Interests of An As Yet Unconceived Child And How Do We Know?

In the course of the discussion in the comments on an earlier post, a question came up that does arise here from time to time.   I’ve decided I should take the time to address the question head on and in a post all of it’s own.   You do not need to read through all the comments there to go on with this post.  I will do my best to set it all up here and I’m sure others will chime in to provide further context.

So from time to time in ART someone asks “Is it in the best interests of the child to (fill in the blank).”   On this blog, the blank has something to do with the use of ART.  So for example, it might be “Is it in the best interests of the child to use gametes from a third-party who will not play a role in the child’s life?

Now the best interests of the child test (which I’m going to abbreviate as “BIC”) is an important one in family law and it is quite alluring as a rhetorical device, I think.  But I also think it is completely out of place and really quite incomprehensible in this context.   Let me explain:

BIC is the test used to determine residence and decision-making for a child after the parents separate.   A court makes an individualized determination, looking at the child before it and the options presented by the competing parents.   The judge asks herself or himself “what is best for this child?”

Now the test is subject to really extensive criticism and analysis.   If you think about it, “what is best?” is a pretty fuzzy question.   There are widely varying ideas about what is good, nevermind best, for children.   It seems pretty clear that in close cases different judges will make different choices and so the outcome in a close case might depend on who’s sitting at the front of the room.    This, however, is beyond the scope of my blog so I won’t go further down that road here.   For my purposes here the key things to realize are the BIC requires that a court to 1)focus on the particular child, 2) compare alternatives (the possible custody arrangements) and 3) choose the best one.

With that in mind, let’s think about whether this test can inform our discussion of the use of third-party gametes.    Let’s suppose you have a single woman who is planning to have a child using sperm from man who will not be involved in raising the child.   (I would like to set aside the question of anonymity for the moment, if I may.   Remember I’m just using this question to examine use of the BIC in the context of ART.)   Can we ask “Is it in the BIC to let this single woman use the sperm?”

I see two interlocking problems with this question.   First, note that step one above requires that the court focus on the child.  This isn’t incidental.  It is a critical strength of the BIC.  It is child-centered.   But how do you think about a child that doesn’t exist yet?   Remember that the idea of the BIC is that it is tailored to the specific child–we do not ask “what is best for children generally?”   If you ask the question at the point where the child is at best an idea, I don’t know how you are supposed to individualize the inquiry.

Even if I can get myself past this hurdle, I run into 2 and 3, above.    This is where the court compares the alternatives.   Now in conventional custody cases, there are multiple alternative–different divisions of time and decision-making authority.   What would it look like here?   One alternative is that the child isn’t brought into existence.   The other is that it is.   So I think this means I’m supposed to ask “Is it best for this child to be brought into existence or not?”

Here’s where I get all metaphysical:  Can it possibly be better for the specific child to never exist at all?   This is an impossible question–impossible because it requires you to assume a child first, which requires you to bring the child into existence which means it is too late to ask about not bringing the  child into existence.   Or something like that.   Whatever it is that is going on here, it doesn’t seem to me to be in the least useful in considering the use of ART here.

Let me close by observing that you can certainly ask whether the ART practice at issue here is a good idea.   You can ask that “Is this a good idea” question on either of two levels.  You can do the general  (“Should single women (generally) be allowed to use third-party sperm?”) or you can do the specific (“Should this single woman be allowed to use third-party sperm?).   Both of these are legitimate and important questions that I’m happy to discuss here (though perhaps not in this post as I’d like to keep this one focused on BIC.  In fact, I think that both of these questions have been discussed here.)   But I think the “Is ART in the best interest of the child” approach is nothing more than a confusing bit of rhetoric.




39 responses to “What Is In The Best Interests of An As Yet Unconceived Child And How Do We Know?

  1. Interesting topic! Too bad I can’t re-write my Family Formation paper else I might have switched gears. I like your formulation of the BIC standard, and I agree it can’t apply to children who don’t exist yet. But some forms of ART involve fertilized eggs, correct? So what about those folks who believe that life begins at conception? Does that change the conversation at all? I think it probably just moves it to a more metaphysical plane.

    On the other hand, we do use the BIC standard for plenty of children who can’t speak for themselves. At an infant or pre-toddler stage, it is pretty hard to individualize the BIC test. So in those cases isn’t the BIC standard a compilation of social attitudes and “soft” science anyway?

    • It’s true that we use BIC even for very young infants. At least then you can say something about the child–does it have special needs, say? And at least the second/third stages of the analysis (what are the alterentatives and which is best) can be done. But you are right that at this point it might be pretty generalized.

      If you think life begins at conception then I do think you have to back up your analysis. I’m not sure how this would then actually work. But if you had that perspective, you’d never say it was better for the child not to be born, would you? And at least you have (in your own world view) a child to think about.

      Here no one thinks there is a child yet–it’s just the idea of a child.

  2. if you had seen what tears are shed, you would see why ART needs careful thought

  3. Julie said: “Can it possibly be better for the specific child to never exist at all? This is an impossible question–impossible because it requires you to assume a child first, which requires you to bring the child into existence which means it is too late to ask about not bringing the child into existence.”

    I just had to laugh at this question as it is a question thrown out at adopted individuals who dare to utter anything negative or missing in the adoption scenario, but it is put in the rhetorical question of would you rather be aborted – which is meant to dismiss any statement made that isn’t positive and to shut up and be happy you are alive type of manner.

    Anyway back to BIC in your case. Do I think fathers are necessary component in child rearing – no – but I do think they add a lot of benefit to the wholeness of the child – yes. Knowing up front the father would be removed completely and forever from the child’s life and this was planned I cannot say in good conscience I would be for it. As you took anonymous off the table if the child could choose to meet/get to know – that may change my view because then the father is still there even if not in the picture providing the father role. Hopefully that made sense.

    • The question you recount from the adoption context is equally nonsensical. It’s not the right question at all, which is rather the point I wanted to make here. The right questions are the ones about whether one practice or another (say open adoption or anonymous sperm donation or whatever the topic is) is a good idea–whether it is generally beneficial, whether we can make it better than it is.

      I didn’t really want to go into the particular merits of the whole single mother discussion just right here in these comments–I’m afraid I’ll bury the point of the post and the discussion. I just meant to use the single mother question as an example of the context in which you can see how the BIC question does and does not work. I promise I’ll come back to the actual discussion of single motherhood really soon in a post all its own. And I’ll try to remember to come back and pick up on the second point you make then. I hope that is okay.

  4. I know which False Dilemma your using for this debate experiment – its False dilemma / False Choice (Hobson’s Choice) . The fallacy of the excluded middle, false dichotomy, false correlative, “either/or” fallacy and bifurcation involving a situation in which two alternative points of view are held to be the only options, when in reality there exist one or more other options which have not been considered. Hobson’s choice is “take it or leave it” take what is offered or get nothing.

    So the Hobson’s choice you offer here is that abandonment by their biological father’s is essential to their existence. Had their biological fathers been required to support them the way people are made to support their children, those men never would have agreed to reproduce with our subject’s mothers and causing them never to be born lament their plight of genetic bewilderment. The false dilemma is that it seems we must allow some people to abandon their young in secret or millions of people will never have the chance to exist. Their fate rests on our shoulders unless we don’t think those people deserve to exist. Oh its so tricky!

    The excluded middle of this false choice would be to focus our laws on how we treat individuals that are actually born. When those individuals are newly born someone has to be responsible for taking care of them or they’ll die. If a newborn is found in an alley starved and dead from exposure we would treat that neglect as a crime against the deceased infant. Who should the law hold accountable for that death? Who owed it to that child to try to keep him or her alive? Is the government the automatic parent of every person born who then picks and chooses parents based on the child’s best interests? That’s a pretty big burden for our government to take on. There would be an uproar if the government just randomly assigned people to care for infants they had nothing to do with creating. And while there are plenty of people who want to raise children they did not themselves create, there is not enough of them to handle the load if every newborn were unwanted. What would we do about the unwanted ones? Who should take care of them? What do they deserve? Who owes them the duty of providing physical and financial support if not the people who reproduced to create them then who? Another question is if people who have that responsibility should be able to sell their way out off the record before anyone knows its them that created the child.
    The alternative to underwriting the abandonment of millions of future people would be to offer them the dignity of equal treatment upon their arrival. We could, treat all human beings as people who,, as minor offspring,, are entitled to the financial and physical support of the people who reproduced to create them, who,in turn will be responsible for the physical and financial support of their own minor offspring. We could as an alternative to off the record promises to abandon require on the record consent to relinquish just like people do when they give up children for adoption. That solution would not stop people from generously donating their offspring to people who want to raise them, they just could not do it all yellow bellied and cowardly like.

    If being held responsible for the results of their reproductive behavior will make some people choose not to reproduce and give up their offspring, then so be it. There are millions of reasons why a person may decide not to reproduce at any given moment and we certainly don’t morn the non-death of all the individuals that never existed because of it.
    We cannot be so foolish as to believe that expecting individuals to behave responsibly toward their offspring will cost billions of people their lives because it will prevent them from ever being conceived. I’m sorry its just the biggest load of hooey anyone ever heard. Everything would be just dandy if all men were held to the same standard of care with regard to the support of their young.

    Single women giving birth to half spring really illustrate where it is that donor offspring have fewer rights because there is nobody fronting and making it look like they’ve lost nothing. Half spring are entitled to the support of their mother who qualifies as a person so she owes the kid her support. But donor offspring don’t have the same rights as full blooded people, remember they are half donor half person. Donors don’t owe their offspring anything – so it really shows what’s lost when single women do it. These rights are still lost when the woman is not single, it just seems like not such a big deal because they get supported by someone else so its almost the same. Of course its not because it means the person has to assume the false identity of being that person’s child.
    No its not in the best interest of any person to be treated as less than human and less deserving of rights afforded to all other people. Its horribly distasteful to suggest their lives are dependent upon having been abandoned by one of the people that created them. Of course that’s not true and what an awful thing to imply. If I could personally go and pluck those words out of the air before they reached the ears of every person that’s ever been humiliated by being told that I would in a heartbeat.

    • I see what you mean generally (I think) about the excluded middle, but I think you’ve missed the point of this particular post.

      As I understand it, you want to suggest that there is a better way to organize societal treatment of ART and the recognition of people who provide gametes. That’s certainly an important perspective and one that needs to be taken into account when we consider formulating social policy via legislation or court action or whatever. It’s also what we’ve talked about many times in many posts.

      The point of this particular post was not to raise again the discussion of those broad issues. (I’m sure I’ll do that again, soon.) All I wanted to say here was that this one particular approach/question (which does come up in the context of the broader discussion from time to time) doesn’t seem to me to make any sense. Asking “Is this in the best interests of the particular (as yet unborn and unconceived) child” doesn’t seem useful to me.

      I think you have responded here to a different and very important question that is useful–indeed critical to ask. That question is “what is best for children generally.” The arguments you present here are exactly about that.

      I thought that including a concrete example (the single mother problem) in the post would make it more comprehensible, but perhaps I have made myself trouble. I don’t actually want to talk about the single mother problem at this moment–I want to focus on that question–the “is it in the best interests of the particular child” question.

      I promise there will be many more opportunities to talk about the merits of the questions–which is what I think you address–in the future.

  5. From Alana’s recent post about would she rather not exist

    “I was someone who constantly had to be lied to and about.”


    • The post you’ve linked to seems quite on point. The question “would you rather not exist?” seems to me to be in the same category as “what is in the best interests of this as yet non-existent child?” Neither is helpful.

      I think it is quite possible to agree that these questions aren’t the right way to tee up discussion and still disagree about what the substance of the matter. I’m not sure whether this is where you and I are, though. Surely we disagree about the substance, but do we agree that the framing questions (either or both of them) are unhelpful?

      By the way, Alana’s actually posted someone else’s post, so the sentiments expressed are those of Pronoia Agape.

      • I pay attention to how you think and I enjoy watching you. Its to me a bit like watching a chess game because most of the time I think I catch on to where your going with an idea before you point blank say it. So when someone says what is in the best interest of someone who is not yet here its not very helpful any more than it is to ask a person if they’d prefer to never have existed than to say endure a particular job. But I have a hunch where you want to take this. Its lucky for me that I enjoy clever thinking like sport because I can appreciate it.

        So I think your right that if you play it this way you could end up convincing the right people who make and break laws to deal with the living breathing woman rather than the oh so illusive specter of a someday maybe child. I mean your right that a person who does not exist has no rights to worry about protecting. I think that’s fine because I only want to deal with the legal obligations and rights of people that are actually born as well. How a person comes into possession of someone else’s offspring matters Julie. People that want to go about that process ethically won’t have any problem having the process documented in a court of law like a normal adoption. I understand that there are risks associated with that and that its less of a sure thing but there are some very good reasons why the law is not suppose to enforce contracts to where parents signed away their children prior to those children actually existing and I think its worthwhile to have all people play by the same rules while they are here and have the same rights upon their arrival. Don’t you?

        • I suppose it is not a surprise that I both agree and disagree. I agree that there are good reasons why we do not buy and sell children. And I agree that selling parental rights amounts to the same thing as selling a child. Where we part company is about whether selling sperm is the same as selling parental rights. I don’t think it is. I don’t think providing the sperm gives you parental rights in the first place and so I don’t think taking money for the sperm is taking money for parental rights. To put it slightly differently, in my view the sperm donor has no parental rights and so has nothing like that to sell. I don’t think a person who uses third-party sperm and gives birth to a child has come into possession of someone else’s child.

          Of course, that last is exactly where you and I regularly disagree. It does seem to me that IF you think that the sperm donor is a father because he is the sperm donor than paying him for his sperm is paying him for his parental rights and so you have all sorts of troubles.

          • Your descendant will not exist unless you reproduce.
            If you choose to reproduce it means you choose to create a years.
            Even if you don’t refer to that person as a parent they have created a person and they can either choose to raise that person themselves or they can choose to have someone do it for them as in adoption or they can walk away blindly not caring if anyone takes care of the person they created.

            Forget being a parent Julie most people would give more care and consideration to choosing a day care for their next door neighbor’s cousin.

            If you were told to find someone to raise a foundling and you could not keep the child yourself. Would you be willing to hand that child to whomever paid the filing fee or would you want to know something about them? Would you want to follow up? Would you feel badly if they abused the child – if you had not made a careful choice of it? You don’t have to have the roll of parent to be in a position of responsibility over what happens to someone or something. If the child exists because of you and to top it off you created that child deliberately and to top it off you never had any intention of raising that child yourself. Don’t you think its a wee bit reckless not to at least shop around for people you think will do a good job? Is paying a fee the best judge of who should raise that kid?

            I never said genetic parents are the best for the job of raising their kids, They just have to fail at it in order for anyone else to have a crack at it. So its good to remember that someone has to fail to be a parent to their own offspring in order for social parents to become parents. How is that good?

            • I take it your suggestion here is that there be screening for those using ART as there is screening for those adopting? But I wonder if people embarking on ART were screened as adoptive parents are screened whether you would then agree to ART functioning as it does? I mean if the pool of ART users were pre-cleared, as it were, could they then go off and shop for gametes, services, etc. and we’d know that the resulting children would have fit parents?

              I’m fairly confident that this wouldn’t satisfy you, and I do not mean to propose it right here. I wonder if screening isn’t a bit of a red herring–I mean, there’s no screening at all for those who use intercourse to get pregnant. I think there’s some discussion of screening (who gets screened, I mean) elsewhere on the blog.

              Still–I suppose I wouldn’t just hand a foundling to whoever knocked on my door first. And that’s an interesting thing to think about. One thing strikes me–I think there’s quite a bit of difference between a gamete and a child. In general I don’t treat gametes with the same respect that I treat children. It’s true, though, that giving a person gametes may well enable them to end up with a child–that’s generally the goal. So I think it is fair for you to ask why that is different and I’ll need to think about that. I think it probably has to lead back to the screening discussion, but I’m not sure.

  6. no one has rights before they are born.
    On the other hand, people who are already existent have a right to reproduce with anyone they please.
    So one can not stop a woman from reproducing with anyone’s sperm.
    However if the person can be identified he can not be excluded from the definition of father- but only once the kid is born.

    • I take it these are statements of your beliefs about how things should be. I say that only to be clear that they are not accurate statements of law. As the law currently stands, in many places a man who provides sperm for the insemination of a woman not his wife is indeed excluded from the definition of legal father.

      Of course, one of the main functions of this blog is to promote discussion of whether this is a good thing and I hardly mean to terminate that.

      • “Legal father” is a mixed concept, what about children with two female parents? There are legal parents, and there are fathers and mothers, and you shouldn’t confuse the two. Usually they are the same people, but not always.

        • I don’t think legal father is a particularly mixed concept, but I guess I am not sure what you mean by “mixed concept.” A legal father is a legal parent who happens to be male. A legal mother is a legal parent who is female. Some children have a legal mother and a legal father and a total of two legal parents. Some children have two legal mothers and no legal father. Still two legal parents. Some children have but one legal parent–could be legal mother or legal father.

          I think the words “father” and “mother” standing without modifiers invite confusion (particularly in light of the discussions here). For some people they automatically mean “genetic father” or “genetic mother.” But that’s not the way everyone uses them. Some people mean “social mother” and “social father” for instance. (And I bet you could find that I’m not consistent.)

          I’m happier with the modifiers in place because I think it minimizes the chance of misunderstanding. And I think “legal parent” is pretty clear–it is the person who holds legal parental rights.

          • Sometimes legal parents are a grandfather or grandmother, because the child’s father and mother died in a car accident or something and aren’t the legal parents anymore. The grandparents don’t become the “legal father” and “legal mother,” they become legal parents. It shouldn’t be hard to use “father” and “mother” properly, and use “parent” and “legal parent” for your purposes. I know sometimes people call their adoptive and step parents “father” and “mother” but that’s just a convenience to avoid having to explain to other people and to increase family unity.

            • Maybe this is just semantics, but if the grandparents become the legal parents then I do think the grandfather becomes the legal father and the grandmother becomes the legal mother, at least to the extent those gendered terms are used in state law.

              I don’t know what it would mean to say that I am a legal parent but I am neither the legal mother nor the legal father of a child. It seems to me that you are ascribing some meaning to legal father that is different from ” a male legal parent.” What is a legal father, then, if not a male legal parent?

              I think I disagree with your last point. Many adoptive children call their parents “mother” and “father” because those are the social roles the people occupy and that’s how many people use “mother” and “father”–to designate social roles. (Those same people may use terms like “birth mother” or “biological father” to designate the people they are genetically related to.) Thus, I wouldn’t say it is “a convenience” to call the adoptive parents “parents” or “mother” or “father.” It’s a communication that tells the listener who that person is.

              • I think when “father” and “mother” are used in state law, they refer to the biological progenitors, for example in incest and marriage laws that prohibit marrying your father, it doesn’t matter if he is not your legal parent at the time. I think when they want to refer to the legal parents, they say something more like “parent or guardian” and not “mother” and “father.”

                I dont think you can legally become a mother or father, it is just a convenience, so that people don’t have to explain the details of how this person is not the biological father but only the social role and fcan have a more normal life. Yes, I know that states falsify birth certificates to hide the mother and father and declare someone else to be the mother and father, but that is just a legal falsification, and will soon be a relic of the past.

                • I just realized that you’ve raised a pretty complicated point and the answer probably varies a lot state to state. So for example, in WA state, incest does not use the term father or mother. http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.64.020 (You might notice, too, that it includes adopted descendants.) Family law stuff has been largely rewritten to be gender neutral so that as you suggest, it tends to say “parent.” http://apps.leg.wa.gov/RCW/default.aspx?cite=26.26.101

                  I need to think more about this and maybe even do a little more poking around. I must run now. More later.

                  • I’ve still got things to do before a Passover Seder tonight, but I did have time to find this: The original Uniform Parentage Act (1973) has this language:

                    “As used in this Act, “parent and child relationship” means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.”

                    I don’t have time to copy this right now but I do not think “natural child” is the same as “biological” child. As I recall, under the UPA a husband is considered to be the natural father of a child born to his wife (according to the UPA).

                    So at least here (and the 1973 UPA is still used in many states) they do use “mother” and “father” in ways that seeem to equate it them to female legal parent and male legal parent.

                    Maybe the ultimate conclusion is that the language–even within law–is used in a variety of ways depending on where you are and what statute you are looking at. I do feel confident in saying you cannot always assume that “mother” (as used in law) means “genetic mother” although it sometimes might mean that.

                    And beyond all the law talk lies common usage. Here, again, I am confident only in saying that usage varies. I suppose the only way to be really clear is to ALWAYS include the appropriate modifier–“social”, “legal”, “genetic” or whatever.

                • Sorry to have just sort of dropped off on this–the weekend (with it’s various holidays) intervened. You have made me realize that there’s a more complicated story in the language used in statutes. I suppose it is unsurprising that the language isn’t consistent. It’s probably also unsurprising that the later statutes are more likley to be gender neutral and use “parent” rather than “mother” or “father.”

                  But that said, I disagree with most of your second paragraph. I don’t think it is fair to assert that the law generally uses “mother” and “father” to mean genetic parent. (Indeed, if anything “mother” is most typically the woman who gives birth.) I think you can use legal process–adoption if not ART–to become a mother or a father. That usage of “mother” and “father” is both social/cultural and legal. And, as has been discussed so many time, states that issue new birth certificates on adoption aren’t falsifying the birth certificates. In the states I’m aware of a birth certificate is supposed to reflect the legal parentage of the child (and not the genetic parentage). So issuing a new one when there are new legal parents keeps them accurate. To the extent people feel that information is concealed the problem is with the underlying rule that says that birth certificates should show legal parentage.

    • Actually, the Constitution is to “secure the blessings of Liberty to ourselves and our posterity” – posterity means our future descendents. We are obligated to secure their rights as much as people that exists already.

      And people do not have a right to reproduce with anyone they please! What about siblings, and children, and people in comas? That’s incest and rape. There is no right to incest and rape, or adultery either. And there is no right to maim a baby in the womb, right? People have a right to be protected before they are born, so they are born to situations that are ethical, to people who have a right to reproduce together.

      Even if someone cannot be identified, they still cannot be excluded from the definition of father. Alana has a father she cannot identify.

      • I’ve never seen much discussion of what “posterity” (as used in the Constitution) means, but somehow I doubt that it is as cut and dried as you present it. But that said, I agree with you that the right to reproduce is at best a limited one. I’m sure some would say it isn’t even right protected by the Constitution. After all, unless you read posterity as you do, there’s nothing in the Constitution about reproduction or having children or anything else to do with family law.

        • Definition of POSTERITY
          1: the offspring of one progenitor to the furthest generation
          2: all future generations

          That’s what it means in the Constitution too, in other words, all the rights and blessings of liberty it secures for “ourselves” it also secures for “all future generations.” This is unarguable, so please don’t keep saying that future people don’t have rights.

          • I might regret this, but it looks like you are making a broad argument about rights. It seems to me unworkable to assert that (in general?) people who do not exist yet have rights. One of the things about rights is that they are mine (or a person’s) to raise or not raise, to use as I choose. Thus I might have the right to bear arms but I don’t have to bear arms. I have the right to petition congress, but I can choose not to. I have the right to practice my religion or not practice my religion. These sorts of rights only make sense if they are attached to a person who is invoking them.

            You certainly see lots of assertions about the rights of future generations in the context of political debate. So in the context of climate change, people do talk about the rights of our descendants who will come of age in 2100. But I think this is rhetorical deployment of “rights” rather than a real legal argument.

            But maybe there’s no point in going too much furtehr down this road–I think I’d refer back to my more specific discussion of the rights of the as-yet-unconceived child. Does that child have actual constitutional rights? Who can raise them? (If the child is unconceived, there are no parents yet, are there?) Does the state raise them? I don’t tend to want to assume that the state knows best about the future.

  7. I’m with Marilynn on this one.

  8. Julie,

    I think I finally understand what you are asking – sorry I took it off track.

    No I don’t think you can ask is it in the best interests of “this” child before the child is concieved. You can’t apply the BIC test as it is stated as a child. You can only ask if it is in the Best interests of Children.

    Doing anything else takes you down the slippery slope of Eugenics (negative eugenics for clarification). No – not the same – but the same as well.

    ART can only look at what can be the consequences of specific actions by the adults who participate on the mental and physical health of any given child created throughout their lifetime and ensure the least harm possible. To do that they must look to either current DC individuals (all different feelings and experiences) and recognise the voices of those who have reached adulthood and explored/lived their reality. They should have/could have looked to adult adoptees (all different feelings and experiences) before they went full force into creating individauls via this method to develop a proactive best practices to start with.

  9. You again forget that our idea of rights and equality is based on the non-materialist belief in a human soul that inhabits a human body. It is our souls (or if you prefer, our consciousnesses) that are equal and have rights, not our bodies, not our circumstances. And there is every reason to believe that souls and consciousnesses enter a body after it has been formed, and people come to life at about five or six weeks. The soul that enters the body is equal, perhaps even the same, as the one that enters another body, forming in another womb, from different egg and sperm. It is essential to human rights to believe that souls ensoul bodies as if from a queue, entering the next body that is ready to be ensouled. It is essential to believe that you could have been born to a woman in China or a woman in Brooklyn, but by happenstance of timing, you ensouled the body forming in the woman who you know as your mother, and if she had not become pregnant, you would have taken that next body in China and been Chinese. Otherwise you are left with Materialism, and the belief that people are their bodies and their circumstances, and there goes the basis of human rights and equality.

    • I don’t think I agree that it is our souls that have rights, but I confess that I’m not exactly sure what I mean when I say soul, much less what you mean. At the very least I know there’s a lot of debate about when life begins and I suspect there’s similar debate about when souls vest in bodies and such like. But mostly I think I don’t need to answer these questions to think about these issues. Surely we don’t have to agree that there is some queue of souls waiting for bodies to be conceived so they can be occupied.

      I do understand that you disagree with me, though.

  10. I’m not sure how legality plays into this, and I more commonly think in terms of morality, but we all have opinions on, and there are sometimes even policies against, some of the following:

    – Brothers and sisters / fathers and daughters / mothers and sons choosing to procreate
    – Creating a child with profound disabilities via genetic engineering
    – Having dozens of children when you can’t afford to feed even a couple of them
    – Having a child at a very old age, so your child won’t have you around even in their teens
    – Implanting dozens of embryos at once when performing IVF

    Not many of these are illegal. But when anyone has problems with these ideas, it is because they’re taking into consideration the BIC that doesn’t exist and that won’t exist unless these things happen.

    We do it all the time. Should we stop? Really?

    • It’s possible we approach these questions from different directions, as I do law more than morality. But I’d still agree with at least some of what you say. We legally restrict procreation between brother/sister, etc. (But see earlier discussion where there was some disagreement about who counts as brother/sister/father/daughter, etc.) The law does not restrict your ability to have children you cannot afford to feed, actually. I’m not sure whether I think it ought to do that. It doesn’t retrict having a child when you are old or having a child when you know you have a limited life expectancy, either. Should it? I’m not sure. (Old I feel more clear about and might be closer to agreement with you.)

      I’m not sure, however, that my answers to these questions are derived by thinking about the BIC of a child that doesn’t exist yet. For instance, I think the reasons to restrict incest have a lot to do with creating safe space so that there can be intimacy at home among close family members without it become sexualized. So my concerns there are about maintaining some lines that benefit those who are living. I’d have to think about the extent the other things you raise do lead me to think about not-yet-existent children. But in general I think my concerns are more about broad policies and setting precedents for resource allocation rather than about the BIC of specific as yet non-existent children.

      • There are policies and even laws in some countries against undergoing IVF after a certain age. An Italian woman who went abroad to get IVF over the age of 60 had the child taken away from her, which I actually found quite disturbing. There are strict laws about this in Italy. In Spain, where there are no such policies and laws, a woman who gave birth to IVF twins at the age of 66 then died at 68 from breast cancer. The twins are now motherless, and their existence would have been prevented by a simple policy.

        I personally don’t think it’s any of my business whether, say, a consenting father and his adult daughter have sex. But if they choose to try to procreate, I’ll think it’s morally wrong, only because of the BIC of the nonexistent child, who’ll have a higher chance of genetic defects and is certain to be psychologically disadvantaged.

        Having more kids than you can afford is certainly not illegal. But a lot of people clamored for some policy that fertility clinics should institute in the BIC when Nadya Suleman’s case was made public.

        • If you’re only concerned about incest is the possible offspring then do you have objections to incest that isn’t procreative sex? Or incest where one of the participants is infertile? I do. I think the taboo serves broader purposes than just preventing conception of potentially disabled offspring.

          I also think the clamoring after Nadya Suleman (which continues, of course) wasn’t just because people were worried about those kids. It was also because people were unhappy that we will all end up paying to support them. I’m suspect this was the more common basis for general public outrage, but I certainly cannot prove that.

          In the end I think there is a fairly fine (but important) line between saying “we should consider the best interest of this as-yet-unconceived child” and saying “we should consider generally whether this is setting in which people should have/raise children.” The latter is the standard public policy framing and seems perfectly comprehensible to me. It’s the former–where you focus on the one (so for non-exististent) child and then consider the specific alternatives (one of which is that the child is never brought into being) that seems impossible to me. I’m not sure we really disagree on this. Do we?

          • I don’t think consensual adult incest in the non-reproductive cases you mentioned should be illegal or is even immoral in the consequentialist “who’s harmed if I do this” manner. Which doesn’t mean I LIKE the idea of it. I don’t. But it’s none of my business if someone does something I don’t like which doesn’t plausibly harm a person who hasn’t consented to it.

            • There’s a John Sayles’ movie called Lone Star I often think of when this topic comes up. (Spoiler alert.) There are two characters–male and female–who meet early on. They are sort of star-crossed lovers, as I recall–from opposite sides of the track,I think, but maybe knew each other in high school. They finally do get together and it’s sort of gratifying (again as I recall). Then they discover that they are half-brother and half-sister. They have the same father. You know (cannot recall how) that they cannot have children. They are at first horrified, but in the end they do stay together. And it didn’t feel like the wrong call to me (which may not say much.) It always makes me think about how much I react to being raised in the same household as opposed to the genetic part. I mean, an adopted brother and sister who were genetically unrelated but raised in the same family–that would make me queasy.

  11. And, really, who other than the otherwise nonexistent child would be hurt if you cloned her? Using:

    – Her dead sister’s DNA, because you want her back
    – Your own DNA, because you know yourself and how you should be parented, and you have great potential that should be properly nurtured
    – Amy Winehouse’s DNA, because you want one of those for yourself, and she’ll be a rich celebrity when she grows up, yay

    We don’t allow this because it’s really, really, really not in the BIC that will never exist because we don’t allow it!

    If it starts happening, there will be blogs by angry, damaged adults in a few decades, who will hate the way they were created, but who still won’t wish their existence away.

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