To refuse assisted reproduction on the bare ground of age, disability, gender, sexual orientation or marital status will court a well-grounded human rights complaint.
To refuse assisted reproduction on the bare ground of age, disability, gender, sexual orientation or marital status will court a well-grounded human rights complaint.
Over the last two weeks, I have come across my 3-year-old son Jacob, tearful and with quavering lip. He has been happily lost in a puzzle or game until he apprehends my absence and finds himself, bereft. “What’s wrong?” I ask. “I was all alone,” he responds.
Jacob’s tremulous attunement to the panic in his little breast would be magnified if his parents’ days were perilously numbered. Does older parental age leave a child unconscionably exposed to the cruel plough of mortality? The Ethics Committee of the American Society for Reproductive Medicine recently revised its policy upward to a cutoff of 55 years. Evidence of maternal risk that set the earlier limit of age 50 proved to have been overstated. Canada’s equivalent professional body still sets 52 as a maternal age cutoff. Maternal risk aside, the upper cutoff remains arbitrary. A less discriminatory test would focus on the thoughtfulness and care of parental plans for sheltering a child within a capricious world.
There is no place for a regulatory state in unassisted reproductive coupling. Thus older men have long enjoyed the liberty to procreate with younger women. But doctors, lawyers and counsellors aid in the begetting of children born of assisted reproduction. There is some latitude for them to query whether they can abide their role in bringing a child into the world whose small house may lie in ruins before the age of comprehension. A responsible answer to that query can be principled in the absence of ageism, sexism, homophobia, ableism and marital status discrimination.
ARTICLE CONTINUES BELOW
ARTICLE CONTINUES BELOW
Professionals can make reasonable inquiries into the plans of aspiring parents to help a child deal with foreseeable distress before they decide to participate in those plans. A 72-year-old parent could convincingly answer that they have coupled with a caring 37 year old who will help their child come to terms with the inevitability of loss. Technology now allows that older parent to be male or female. A 25-year-old diabetic and his 26-year-old cancer-surviving partner may be longevity-challenged when she turns to assisted reproduction. A disabled couple may, like them, have made compensatory plans to deal with foreseeable fatigue and other contingencies related to the raising of their particular children. A single woman who has built a sturdy network of friends and family to step into a foreseeable breach may allay reasonable concerns about a child’s exquisite vulnerability to loss. An older woman in a polygamous relationship (as was a 70-year-old Indian woman who gave birth for the first time) may well have made a cosy enough place for a child to dwell. Two older gay men using the services of a 27-year-old gestational carrier and 24-year-old egg donor may have added to the strength of their union a rambunctious gang of fussing and eager supporters. Two married lesbians with a known gay sperm donor may well have over-secured the odds of ensuring that one of them is around to respond to a young child, plaintive in his or her loneliness, as Jacob fleetingly was in his.
“You are not alone,” I tell my own child, “I am here.” All of the parents in the above scenarios have well situated their children to be comforted by those same words from a familiar soul.
In the absence of plans like these, a caring professional could legitimately decide that further intervention is unethical, providing this exercise of thoughtful weighing and consideration is brought to bear equally on all clients and patients. But to refuse to assist on the bare ground of age, disability, gender, sexual orientation or marital status will court a well-grounded human rights complaint.
As any parent will tell you, regardless of the losses we might foresee, not a one of us, alas, can guarantee that fate will not cut us down. We all muster the wisdom to raise our children in the truth of our universal exposure to calamity. Jacob’s fleeting panic in the face of solitude is rooted in the same earth born foundation as every child born of mortals.
I gave birth to my first child at 34 and to my second at 50. My second parenting stint has an edge of vitality over the first as the co-ordination of the moving parts of my life now has a smoother rhythm; even while the best laid plans go oft awry.
Susan G. Drummond teaches family and reproduction law at Osgoode Hall Law School. She is indebted to Robbie Burns for his poem “To a Mouse, on Turning Her Up in Her Nest with the Plough.”
