The Lost Children: When the Right to Children Conflicts with the Rights of Children

Abstract

In this essay, I consider the tension between the drive toward the use of assisted reproductive technologies (ART) and the state’s failure to protect interests of children born of ART. I ask the question whether ART should be regulated for the sake of future children’s interests. Taking a narrow view of rights, this essay argues that despite the considerable obstacles posed by Derek Parfit’s non-identity problem and the ambiguity surrounding how to optimize and identify what is “best” for children under the “best interests” standard, there are still basic civil rights of children born of ART that must be ensured in ART regulation. Therefore, regulation of ART for the sake of children is justifiable and necessary but in a limited manner. To demonstrate how conflict can arise between the use of ART and the basic rights of children born of ART I first turn to the example of Israel where the use of ART can affect the resulting child’s personal status, which can affect a person’s ability to marry. This tension is particularly stark in Israel, where procreative support from the state is extreme, and relatively easy fixes could relieve much of the problem. But, the same tension plays out in other nations in which the use of ART leads to the creation of children whose basic needs are not sufficiently addressed. In particular, I discuss the lack of access to health information from gamete donors in the U.S. and the failure to provide citizenship and legal parenthood to children born of international surrogates in a number of other countries. I argue that while procreation is a valid goal it cannot come at the cost of the social and basic civil rights of children. State policy and laws must ensure that children born of ART will be full citizens upon their birth. In sum, regulating ART can be justified for the sake of future children but I suggest that such regulation be drawn narrowly and only to ensure children’s basic civil rights.