chapter  3
31 Pages

The welfare of the child to be born

The welfare of the child to be born is not only a key issue for saviour sibling selection but also a central tenet in the regulation of assisted reproduction in the UK and Australia. ART regulation is most commonly justified on the basis that the state has a responsibility to protect the welfare and interests of children who are ‘incapable of participating in the decision-making process in relation to their own conception’.1 By highlighting the importance of the welfare of the child to be born, ART regulation can help ensure that the interests of the child to be born are not sacrificed to those of the parents and existing children who are in a position to actively assert their own interests. In this chapter, I analyse the role and nature of the welfare of the child principle in ART regulation and its application to saviour sibling selection. Despite the strong focus on the welfare of the child to be born in UK and

Australian ART regulation, there is no clearly defined ethical approach underlying the welfare of the child principle in assisted reproduction in either jurisdiction. This has left the welfare of the child principle open to interpretation, made it difficult to apply in practice and led to some inconsistent decisions about access to treatment in the UK in the past. To date, the ethical debate about saviour sibling selection has conceptualised the welfare of the child to be born in terms of the child’s individual interests in respect and protection from harm. I argue that, whilst these interests provide some valuable insights into the welfare of the child in assisted reproduction, they fail to account for the child within the social context of his/her family. I begin in section 3.2 by analysing the welfare of the child provisions in

ART legislation in the UK and Australia, which appear to have been included for reasons of political expediency rather than based on solid ethical foundations. There has been considerable debate about the role of the welfare of the child provision in ART law in the UK in recent years. Some commentators argue that the welfare of the child provision is meaningless in the context of assisted reproduction,2 whereas others claim it has important symbolic value.3 Although there is no clearly articulated ethical approach to the welfare of the child provision in UK legislation, current UK policy reflects a

‘harm-based’ approach to the welfare of the child in assisted reproduction. In contrast, some commentators in Australia have equated the welfare of the child provision in state ART legislation with the ‘best interests’ of the child approach found in international human rights law and other domestic laws.4

One important distinction between assisted reproduction law and other laws involving children is that assisted reproduction involves consideration of a child who does not yet exist. In section 3.3, I argue that, although a child does not in fact have any interests until he/she is born, it is possible to impute certain ‘generic’ interests to the child to be born. I then draw on the ethical debate about saviour siblings to examine in detail how the welfare of the child to be born has been conceptualised to date. In sections 3.4 and 3.5, I explore in more detail the ethical concerns about

commodification and harm introduced in Chapter 2, in the context of saviour sibling selection. I contend that, although these ethical concerns highlight relevant interests of the child to be born in respect and protection from harm, they reflect a narrow and individualistic account of the welfare of the child, whose interests are treated as largely separate to and distinct from the interests of other family members. I conclude in section 3.6 that the welfare of the child to be born should be conceptualised more broadly to include both the child’s individual interests and the collective interests the child shares with his/her family. I explore this broader conception of the welfare of the child in detail in Chapter 4.