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.
