Challenges and Prospects in the Regulation of Human Reproduction

Discussant

Parents in various countries have contemplated having grandchildren from their deceased sons‘ sperm - however, posthumous grandparenthood (PHG) has been permitted as a matter of policy only in Israel, leading to a significant body of litigation. Using document analysis of all published court cases involving PHG in Israel, we explore this turbulent sociolegal debate, framing the rulings within family theory. In this context, we introduce a new notion, the “extended family of choice,“ created by parents after the death of a son in order to have grandchildren. We argue that PHG disrupts existing theoretical notions of the family, which are based largely on three continuums: traditional/postmodern - collective/individual - and nuclear/extended. Our findings demonstrate that Israeli courts have permitted parents to be extremely proactive and creative in pursuing PHG, the only limitations being an objection by the surviving partner, or the absence of one living biological parent.

Parenthood tends to be regulated along binary, conventional, gender categories. Parents are either (legal) mothers or (legal) fathers in most jurisdictions. Static legal notions of motherhood and fatherhood are increasingly at odds with the fluidity of motherhoods and fatherhoods on the ground. A trans man can give birth to his child, thus undertaking what is conventionally understood as the reproductive role of mothers, whilst being legally man and seeking to be legally recognised as his child‘s father. Similarly, a trans woman might contribute sperm to the conception of her child, yet demanding to be designated as her child‘s legal mother in accordance with her gender identity. Drawing on recent case-law around the issue of trans parenthood, this presentation addresses two questions: to what extent these cases succeed in redefining conventional notions of motherhood-fatherhood - whether this redefinition has come to benefit some parents – mothers or fathers – more than others.

The paper tells a story of shifting normativities, from tradition to modernity and back, in the recognition of legal parenthood for families created through cross-border surrogacy. These families, once back home, struggle to establish legal parenthood. The ECtHR has pushed for domestic authorities to rectify this situation. However, it has filled the legal limbo with genetic essentialism and allowed for gender discrimination. While giving full effect to a genetic father‘s foreign birth certificate based on identity and best interest arguments, the Court accepts that a genetic mother must adopt to establish a legal parent-child relationship. The paper critically dissects the Court‘s biologically determined view of parenting, which sidelines the social parent and contradicts the purpose of assisted reproduction to overcome biological barriers. It concludes by rejecting the gender-discriminatory element of power and control over legal motherhood imposed by the procedural step of adoption.

Due to groundbreaking scientific progress and improved tools such as CRISPR/Cas9, human genome editing has not only become possible, but is also getting safer, more precise, and more accessible. While these advances are welcome, significant concerns remain over the potential misuse of human genome editing technologies, in particular regarding heritable genome editing. In addition, concerns exist about variable regulation of human genome editing in different jurisdictions, which could give rise to a new dimension of reproductive travel. A binding framework at international level thus seems much needed. By building on soft law and different existing policy responses existing, this paper discusses some of the most prominent challenges regarding regulating genome editing of embryos at international level. In particular, the paper reflects on possible ways to reconcile the fear of abuse of human genome editing with the wish to make use of its potential benefits as a tool for public health.

The combination of reproductive technologies with several methods of preimplantation genetic testing, screening and diagnosis, and the possibility of gene editing call for the reconsideration of reproductive rights, as well as the recognition of new rights for the designer babies to be born. The right to be informed about genetic heritage and about prenatal genetic interventions should constitute a new form of genetic privacy. Parents may receive personalized consultation before requesting preimplantation or prenatal genetic interventions. Information should cover both the imminent and long-term consequences of such interventions. Parental self-determination should be reassessed as the boundary between parental rights and reproductive self-expression may be blurred. Health and other traits should be distinguished - and societal concerns, such as competitiveness, justice, and discrimination, should be reinterpreted in this new legal framework.