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Human Reproduction vol.15 no.3 pp.502–504, 2000
DEBATE continued
The welfare of the child
Problems of indeterminacy and
deontology
Darren Langdridge
Department of Behavioural Sciences, School of Human
and Health Sciences, University of Huddersfield,
Queensgate, Huddersfield HD1 3DH, UK
This debate was previously published on Webtrack 97,
December 3, 1999
Recent literature has addressed arguments about the importance
of the ‘welfare of the child’ principle (Blyth and Cameron,
1998; Golombok, 1998) in the assessment of the provision of
assisted conception services. Two broad positions have emerged
concerning the application of this principle: (i) the minimum
welfare principle, and (ii) the maximum welfare principle.
Pennings (1999) attempts to provide a commonsense resolution
to this debate by proposing a ‘reasonable welfare principle’
for the welfare of the child. Whilst, the attempt to move
beyond the two present positions is welcomed, there are a
number of significant problems with the arguments presented
by Pennings (1999).
Pennings (1999) correctly outlines the two most widely
recognized positions (maximum and minimum welfare
principles) concerning the welfare of the child and the
provision of assisted conception services. Whilst we are
broadly in agreement with the arguments and criticisms
presented for the maximum welfare principle, there are a
number of significant problems with his presentation of the
minimum welfare principle. The most notable problems with
Pennings’ (1999) argument concern, firstly, his inadequate
account of how to determine welfare and, secondly, his
unproblematic presentation of deontological arguments about
the provision of assisted conception services. Furthermore, it
can be argued that these criticisms, once again lead to a
minimum welfare criterion and that this is the only principle
which is beyond individual moralizing, self-interest and
prejudice.
There is, however, a more minor (though potentially significant), problem highlighted by Pennings (1999), when he
discusses the maximum welfare principle, that we shall briefly
address (though by no means answer) before tackling the
major problems as we see them. In an attempt to frame the
argument for and against the respective positions on the
welfare of the child, Pennings (1999) reiterates an important
assumption (which was made originally by the editors of the
Lancet) on medically-assisted procreation, which requires
further examination: ‘Since we can control (at least to some
extent) the circumstances in which a child is made when the
candidates are infertile, we ought to restrict our co-operation
502
to those cases which maximize the welfare of the child. At
the same time this fact explains why the standard for medicallyassisted reproduction must and can be higher than for natural
reproduction’ (Pennings, 1999, p.1146, my italics).
Whilst this proposition appears, upon first inspection, to be
sensible, the conclusion does not, necessarily, follow from the
premise. Assisted conception techniques are indeed under the
control of service providers, and this offers the opportunity
for only providing the service where we can maximize the
welfare of the child. However, this only explains why the
standard can be higher and not why it must be higher. There
are, arguably, potential explanations for why the standard of
care should be higher where we exert some control over the
event, but this is by no means an issue beyond debate. Whilst
service providers have a duty of care to their patients, whether
this must extend to assessing the welfare of a child conceived
through assisted conception is still open to question despite
being enshrined in UK legislation [Human Fertilisation and
Embryology Act, 1990; section 13(5)]. For the purpose of this
paper however we shall set this argument aside and move on
to the most significant immediate criticisms of Pennings’
(1999) position.
The indeterminacy of the welfare of the child
Pennings (1999) clearly presents the case for consequentialist
arguments about the welfare of the child and argues that
greater follow-up research on children in ‘alternative’ families
(e.g. lesbian households) will provide the answers about who
should and who should not be allowed access to assisted
conception services (at least according to this particular ethical
criterion). This position presents an unproblematic case for
what constitutes adequate welfare of a child. However, debates
about child welfare in the adoption and child protection
literature have been concerned with what exactly constitutes
‘the best interests of the child’ or welfare of the child for
some considerable time and have yet to reach any degree of
consensus (for a summary, see Fernandez, 1996). In fact, there
is increasing agreement about the great difficulties involved
in assessing the welfare of a child due to the open-endedness
and indeterminacy of the concept.
The indeterminacy of the ‘welfare of the child’ principle
stems from the potentially insoluble difficulties entailed in
identifying possible outcomes for a child, assigning probabilities and attaching values to these outcomes. How can we make
a judgement at the very beginning of a child’s life about what
level of satisfaction, happiness and so on that they will achieve
as they develop into an adult? Not only is it difficult to state
the criteria with which to judge welfare but it becomes
impossible to assign values to these criteria and make projective
© European Society of Human Reproduction and Embryology
The welfare of the child
judgements about which people will enable a child to reach
these criteria and which will not.
It is not difficult to give examples of persons born into
dreadful circumstances (arguably ‘worse than death’) who
have ultimately achieved a very high standard of personal
welfare, quality of life and achievement. Conversely, there are
equally many occasions where persons are born into what are
ostensibly (and according to all the criteria presently employed
for assessing prospective parents) extremely propitious circumstances where they experience nothing but great suffering and
poor welfare. That is, it is a ridiculous exercise to attempt to
predict the future welfare of a child (and then adult) when
there are so many variables at play.
Furthermore, if one acknowledges the problem of ‘nonidentity’ it becomes impossible to compare the welfare of a
child born in one circumstance with the same child born into
another circumstance (Parfit, 1984). The ‘non-identity’ problem
relies on the fact that every individual person can only have
originated from the gametes from which they originated. It
therefore follows that it is impossible to compare child A born
in one environment (poverty, for instance) with child A born
in another environment (wealth, for instance) as all persons
are biologically the product of their biological parents, in a
particular environment, at a particular time. They are necessarily unique and any attempt to predict an alternative future
for child A born into different circumstances is impossible.
Pennings (1999), however, quickly dismisses this problem and
continues to argue that it is possible to compare the quality of
life of different children in different settings as the basis
of consequentialist arguments about the welfare of a child.
However, this position is not without its problems. There is a
uniqueness about each child born that prevents any attempt to
assess their outcome in circumstances other than that into
which they were born. Therefore, comparisons cannot be made
(and outcomes evaluated) between a particular child born
into what is traditionally considered to be less than ideal
circumstances and the same particular child born into more
fortuitous circumstances.
If one accepts the ‘non-identity’ problem outlined above
then follow-up studies of children born as a result of assisted
conception services become problematic. Commonsense and
scientific precedent suggest that clinicians and researchers
should make all efforts to assess the outcomes of children
born as a result of the new reproductive technologies. However,
all studies of this kind rely on a significant assumption.
Namely, that (following the arguments above concerning nonidentity) assessment of the outcome of child A will enable us
to make recommendations about whether future child A’s
should be allowed to exist. This is clearly not possible as there
can only be one child A, who already exists. It therefore
follows that what researchers are actually doing is assessing
the outcome of child A and then making a decision about the
existence of future child B who shares some characteristic
with child A that the researchers/clinicians have deemed of
such significance that it will determine whether future child B
should exist at all.
These arguments, however, become most difficult to accept
when one presents apparently self-evident criteria for excluding
potential parents, such as convictions for child abuse. If one
were to follow the arguments presented above it can be argued
that even in the most awful of circumstances we cannot predict
with certainty a person’s welfare or quality of life and
should therefore not prevent life through refusal of treatment.
However, this is clearly not an acceptable position for medical
personnel who have a duty of care to their patients and, at the
present time, an obligation to take account of the welfare of
the child (Human Fertilisation and Embryology Act, 1990).
This is where Pennings (1999) correctly invokes the ‘minimum
threshold principle’ where the standard does not compare the
welfare of a child with other possible children but only with
a basic notion of welfare that has a very strong degree of
consensus. This position is still problematic as it relies on
particular notions of minimum welfare. However, a child born
into the care of a convicted child abuser is a clear case where
we can (with as much certainty as we can predict any future
event) state that there is an immediate and future risk to the
child’s welfare. Persons with a conviction/s for child abuse
present demonstrable evidence of a significant future risk to a
child on the basis of their known past behaviour. There is
prima facie evidence of a risk to the welfare of a future child
in the care of this person (although this may be further
complicated if we: (i) recognize the very varied forms of child
abuse, and (ii) do not believe a person convicted of child
abuse will necessarily re-offend). Other cases, such as single
or lesbian parents, are different to convicted child abusers as
there are not circumstances where there is any immediate
demonstrable risk to a child’s welfare that may be determined
on the basis of past behaviour. As Pennings (1999) rightly
points out this is indeed a very low standard of welfare that
may not satisfy many widespread opinions about the provision
of assisted conception services. It is, however, the only
appropriate standard if one accepts the arguments presented
above.
Problems of deontology
Pennings (1999) and Blyth and Cameron (1998) argue that
there has been an overemphasis on consequentialist arguments
and the welfare of the child at the expense of other more
deontological arguments. It is indeed true that most arguments
about the provision of assisted conception services have
focused on consequentialist arguments about the welfare of
the child but, arguably, not without good reason.
According to consequentialism, the rightness or wrongness
of any act depends upon its consequences. It therefore follows
that one should act in such a way to bring about the best state
of affairs (of goodness, happiness, wellbeing etc). The exact
nature of the best state of affairs is, of course, open to debate.
Classical Utilitarians emphasized the role of pleasure or
happiness as a consequence of our actions (Raphael, 1981),
however there is no reason why we should not seek to
maximize many other factors (such as liberty, equality of
opportunity, etc) instead.
According to deontology, however, there are certain acts
that are right or wrong in themselves and not necessarily in
terms of their consequences (Gillon, 1986). This is essentially
503
D.Langdridge
a moral theory whereby certain acts must or must not be done
regardless (to some extent) of the consequences of their
performance or non-performance. There are, however, two
well-established problems for deontological ethics. The first
concerns the difficulty of how we know which acts are right
or wrong in themselves, and the second concerns the difficulty
of distinguishing between acts and omissions. In this article
we shall concentrate on the former, as it presents the most
intractable problem for a deontological argument on the
provision of assisted conception technology.
By and large, people espousing deontological arguments
tend to concentrate on those acts that are wrong in themselves,
such as the provision of assisted conception services for
lesbians. Pennings specifically argues that medical personnel
have the right of appeal to a ‘conscience clause’, a deontological
ethic that informs their decision-making about who should and
who should not have access to medical intervention (whether
an act is wrong in itself). Pennings argues that these moral
positions are not prejudiced but cannot (also) be reduced by
objective data. Why should this be true? The most significant
problem for this case is the fact that these are moral and not
clinical decisions. Should medical personnel have the right to
make moral decisions about access to services (supposing
we solve the consequentialist arguments through empirical
evidence)? Pennings makes a claim to normative opinion to
support his position: ‘The conscience clause should only be
abolished when a general consensus is reached that the denial
of access of some controversial groups to infertility treatment
is a form of discrimination’ (p.1150). Yet how are decisions
such as these made except by resorting to further moral
opinions?
Harris (1985) argues convincingly that, as medical personnel,
one may find certain practices unpleasant but this does not
legitimate the refusal of treatment. However, this is at odds
with the guidelines presented for medical personnel in the
Human Fertilisation and Embryology Authority Code of Practice (1998) which allow conscientious objection to the provision
of treatments deemed unacceptable to an individual.
Note, however, that this conscientious objection does not
mean that one individual’s refusal should dictate the clinic
policy for treatment provision. Whilst it appears to follow
from the argument presented above that medical personnel
should have no right to refuse to treat a patient I would not
argue that legislation should compel medical personnel to
perform acts that they find morally objectionable. It is generally
accepted that all individuals have a personal right to refuse to
act in way they find objectionable whether they are medical
professionals or not. The significant point however, is that the
moral views of some medical professionals may determine
their own actions but should not dictate general policy decisions
about, for instance, who should and who should not receive
treatment.
Conclusions
Pennings (1999) attempt to make a case for a reasonable
welfare principle that reflects the widespread (or commonsense) view about treatment provision is not convincing. There
504
are a number of inconsistencies and assumptions underlying
the arguments presented, particularly concerning the principles
of deontological ethics. This paper has set forward a number
of problems for the case presented for the ‘reasonable welfare’
principle. Pennings attempted to provide a case for a commonsense position which most probably reflects current practice
in UK clinics (Blyth, 1995). It has been argued here, however,
that he has failed to account for the difficulties inherent in
determining the welfare of a child and furthermore inadequately
assessed the problems of deontological ethics. We have argued
that the indeterminacy of the concept of the welfare of the
child (even if one abandoned deontological arguments and
accepted consequentialism) still necessitates a minimum welfare threshold. Whilst we accept this is a very low level of
welfare, it is the only position that follows from the arguments
presented.
A minimum threshold criterion relies on a very basic level
of welfare with which there is a strong degree of consensus
rather than on potentially spurious comparisons between different possible persons born into different circumstances. This
paper has argued that any attempt to make predictions about
the welfare of a future child presents such complexity and
indeterminacy that the exercise becomes pointless. We have
argued, instead, that we should concentrate on minimal but
necessary exclusions where there is a known immediate risk
to the welfare of a child. All other criteria rely on subjective
moral opinions and culturally specific normative beliefs. Whilst
individual medical personnel have the right to refuse to treat
someone we have argued that their individual moral view must
not dictate general policy decisions about the provision of
treatment. We believe that all attempts should be made to
move the decision-making about the provision of health care
services away from the moral decisions of individual medical
personnel and towards an ethic which respects the right to
treatment of all.
References
Blyth, E. (1995) The United Kingdom’s Human Fertilisation and Embryology
Act 1990 and the welfare of the child: A critique. Int. Jnl Children’s Rights,
3, 417–438.
Blyth, E. and Cameron, C. (1998) The welfare of the child: an emerging issue
in the regulation of assisted conception. Hum. Reprod., 13, 2339–2342.
Fernandez, E. (1996) Significant Harm. Avebury Press, Aldershot
Brookfield, UK.
Gillon, R. (1986) Philosophical Medical Ethics. John Wiley & Sons,
Chichester, UK.
Golombok, S. (1998) New families, old values: considerations regarding the
welfare of the child. Hum. Reprod., 13, 2342–2347.
Harris, J. (1985) The Value of Life: An Introduction to Medical Ethics.
Routledge, London, UK.
Human Fertilisation and Embryology Act (1990) HMSO, London, UK.
Human Fertilisation and Embryology Authority (1998) Code of Practice.
HFEA, London, UK.
Parfit, D. (1984) Reasons and Persons. Clarendon Press, Oxford, UK.
Pennings, G. (1999) Measuring the welfare of the child: in search of the
appropriate evaluation principle. Hum. Reprod., 14, 1146–1150.
Raphael, D.D. (1981) Moral Philosophy. Oxford University Press, Oxford, UK.
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