Conception and the Irrelevance of the Welfare Principle

Date01 March 2002
AuthorEmily Jackson
Published date01 March 2002
Conception and the Irrelevance of the Welfare Principle
Emily Jackson*
This article challenges the assumption that their future children’s welfare is a
relevant consideration when deciding whether to provide a person with assisted
conception services. It does not argue that infertility treatment ought to be
available as of right. Rather, this article’s proposal is that section 13(5) – which
specifies that no-one shall receive assistance with conception unless account has
first been taken of the welfare of any child who might be born – should be deleted
from the Human Fertilisation and Embryology Act 1990. Extending the ‘welfa re
principle’ to decisions taken prior to a child’s conception is shown to be unjust,
meaningless and inconsistent with existing legal principle.
The purpose of this article is to challenge the prevailing assumption that a principle
derived from family law should inform legal involvement in decisions taken prior
to a child’s conception. In recent years, the ascendancy of the ‘welfare principle’
has meant that few people are prepared to question its supposed universal
relevance.1It seems to have become the received wisdom that children’s welfare
must always be a central consideration when we make any decision that may affect
their lives. Even if we admit that there will be uncertainties about precisely where a
child’s best interests lie in any particular case, the moral propriety of giving
priority to children’s welfare is seldom disputed. As a result of this apparent
consensus, the expanded scope now given to the welfare principle through its
incorporation in the rules governing the provision of infertility treatment has gone
largely unnoticed.2In the Parliamentary debates leading up to the passage of the
Human Fertilisation and Embryology Act in 1990, the inclusion of a welfare
principle was neither challenged nor defended. Instead, it was simply assumed to
be self-evidently true that their future children’s welfare ought to be taken into
account before a couple is offered assistance with conception, and this assumption
undoubtedly persists today. In this article I suggest that there are, on the contrary,
several compelling reasons to be sceptical about the welfare principle’s
colonisation of reproductive choice.
Before I begin, some clarification is necessary. I am not concerned here with the
question of whether a particular assisted conception technique is safe, when I
acknowledge both that doctors have special expertise in evaluating its impact upon
future children, and that they are entitled to take this into account when making
treatment decisions. If this were the sole purpose of the pre-conception welfare
principle, it would be as uncontentious as basing the decision not to prescribe a
particular medicine to pregnant women upon evidence of its propensity to cause
birth defects. The welfare principle that I criticise here is not, however, a statutory
ßThe Modern Law Review Limited 2002 (MLR 65:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.176
* Law Department, London School of Economics. My thanks to Helen Reece and Sally Sheldon.
1 A notable exception is H. Reece, ‘The Paramountcy Principle: Consensus or Construct’ (1996) 49
Current Legal Problems 267.
2 The exception is G. Douglas, ‘Assisted Conception and the Welfare of the Child’ (1993) Current
Legal Problems 53.
adaptation of clinicians’ common law duty of care. Rather its principal purpose is
to ensure that prospective patients are judged fit people to bring a child into the
world prior to acceptance onto an infertility clinic’s treatment programme.3And it
is this requirement that clinicians should routinely evaluate people’s parenting
ability prior to conception that I will argue is incoherent, disingenuous and
Of course, for the vast majority of people, deciding whether or not to conceive is
not susceptible to legal control. People who conceive through heterosexual sexual
intercourse do so without any external scrutiny of the merit or otherwise of their
decision. Monitoring these exceptionally personal choices in order to identify ill-
judged or improper conception decisions would be unreservedly condemned as an
unacceptably intrusive abuse of state power because, as Alexander Capron has
whatever advice one might be justified in giving friends who are making a selfish, rash or
otherwise irresponsible choice about reproduction, or whatever moral criticism one might
properly mount of such conduct, the consequences of giving legal effect to a judgement of
parental irresponsibility seem unacceptable both for the individuals involved and for
Certainly, during the second half of the twentieth century the ‘science’ of eugenics
was resoundingly denounced for its assumption that the state has a legitimate
interest in vetting the quality of potential parents. For recent legislation to
explicitly distinguish between wise and unwise conception decisions might then
seem profoundly unlikely. Yet in the limited sense that I describe below, our
collective blindness to the possibility that the welfare principle is not universally
relevant is facilitating legal involvement in the qualitative assessment of some
people’s procreative preferences.
In this article, I largely take for granted that there are good reasons for not
imposing a child welfare filter upon individuals’ conception decisions, even when
the choice they have made may seem foolish or disturbing. At the outset, it is worth
spelling out precisely what these reasons consist in. I would suggest that there are
broadly two different justifications for the presumption that normally exists in
favour of privacy in procreative decision-making. First, interfering with a
particular individual’s decision to conceive a child would usually involve violating
their bodily integrity and sexual privacy. We do not sterilise people who have been
convicted of violent offences against children because however gruesome their
crime, their person must remain inviolate. The second and I would argue equally
important reason for respecting people’s conception choices is that the freedom to
decide for oneself whether or not to reproduce is integral to a person’s sense of
being, in some important sense, the author of their own life plan. For most people,
these two justifications for reproductive privacy mesh together in the requirement
that we treat both their body and their life plan with respect. We should, however,
remember that those individuals whose procreative preferences can be disregarded
without simultaneously violating their bodily integrity and sexual privacy
nevertheless retain their interest in being able to make exceptionally personal
and important decisions according to their own conception of the good.
3 Evidence to support this claim can be found in the Human Fertilisation and Embryology Authority’s
guidance to clinics setting out the factors to be taken into account when assessing the welfare of the
child: Human Fertilisation and Embryology Authority Code of Practice, 5th ed (London: HFEA,
April 2001) paras 3.11–3.18.
4 A.M. Capron, ‘Tort Liability in Genetic Counseling’ (1997) 79 Columbia Law Review 618, 665.
March 2002] Conception and the Welfare Principle
ßThe Modern Law Review Limited 2002 177

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