Content and scope

Determining the content and scope of the right to procreate is highly important due to its broad application. Reproductive rights are most relevant in the context of abortion, contraception, freedom from sterilisation, and freedom from coercion in pregnancy management, but also with regard to access to infertility treatment, freedom to engage in reproductive contracts or multiple-party interventions, and in relation to receiving funding for procreative assistance.

Yet it is argued in the literature that there is no satisfactory account of a right to procreate and that we should refrain from grounding practices or policies on the assumption that there is such a right. Yvette Pearson (Reference Pearson2007), for example argues that because reproduction is so fundamental to human existence the general assumption is that it does not need any argument in its defence. Pearson holds that attempts to defend a right to procreate rely on arguments developed to defend an individual's choices to refrain from procreation (p. 107), and that such an alleged right ‘seems no more than a compelling fiction that provides comfort to those who are unable to provide a sound defense of the actions of those whose procreative activities are questioned or restricted’ (p. 108). Because the idea of the right to procreation was developed on the basic rights to privacy, equal protection and bodily integrity, it was never acknowledged as a constitutional right (Coleman, Reference Coleman2002, p. 61). Margaret Brazier (Reference Brazier, Harris and Holm1998) further maintains that although women may have many desires, the desire for children is the only one which gets the status of a right.

Laura Shanner (Reference Shanner1994–1995) argues that the right to bear or beget children is not a justified rights claim. She identifies two critical problems with the rights rhetoric in reproduction. First, the distinction between positive and negative rights claims necessitates a different justification for assisted reproduction. Second, a procreative right is usually claimed to be limited by the rights of offspring. Shanner concludes that while rights are helpful in a political or legal context to protect individuals and families from governmental intrusion, the rights model is problematic, inadequate and inappropriate to describe the legal and moral status of claims for assisted reproduction.

Even strong supporters of procreative liberty, such as John Robertson, do not argue that there is a positive right to procreate. In Robertson's view, an important point about reproductive rights is that ordinarily they are rights against the state limiting or restricting an individual's reproductive choices or efforts to obtain reproductive services from a willing provider. They are not rights to have the state provide the services or resources needed.Footnote ²⁴ Nor do they obligate private individuals to provide access to services or resources that the provider chooses not to provide. A private clinic need not meet the heavy burden the state must satisfy to ban a required reproductive service. Under such a view, as long as the private provider is not acting on impermissible discriminatory grounds, he or she does not violate a person's procreative liberty by choosing not to treat them. (Robertson, Reference Robertson2004, p. 20; 1994, p. 23) Writing on this question, Pearson (Reference Pearson2007, p. 109) shows that there is a disagreement as to whether the right to procreate is positive, so that individuals may have a claim on others to assist them in their reproduction process, or if it is negative, so that it merely requires that others leave them alone in their reproductive choices. If we were to recognise a positive right to procreate we would have to justify the forcing of women to become gestational surrogates or to submit to foetal surgery, confinement or caesarean sections to fulfil the right of another person to procreate. Since the right of self-determination and the principle of informed consent will always trump our motivation to procreate, the latter could not even enjoy the status of a prima facie right (pp. 111–12). On the other hand, if we classify the right to procreate as a negative right, namely the right ‘against public or private interference’ (Robertson, Reference Robertson1994), it should be seen more as a liberty central to one's personal identity and sense of self, so that merely donating a gamete or serving as a gestational mother may not necessarily be protected under such a meaningful understanding of the purported right to procreate (Pearson, Reference Pearson2007, p. 112).Footnote ²⁵ Additionally, even if the main essence of the right to procreate is abstaining from interference with one's freedom to make reproductive choices, it is unclear whether such a right protects one from public interference only (Robertson, Reference Robertson2004, p. 20; 1994, p. 23),Footnote ²⁶ or against individual clinics’ and physicians' interferences as well.

A relevant factor in assessing the reproductive interests of persons seeking ARTs is answering the questions of whether they are committed to the wellbeing of the resulting child, and whether they will rear and care for the resulting child just like parents who reproduce coitally (Robertson, Reference Robertson2004, p. 21). Under such a test, reproductive cloning or using ARTs for the creation of children that others would rear does not represent a strong reproductive interest which may serve as a justification for a right to procreate.

Views vary from an expansive approach conferring a right to procreate in a wide variety of cases represented, most notably by John Robertson (Robertson, Reference Robertson2008; Reference Robertson2004; Reference Robertson1996)Footnote ²⁷ through a more moderate approach of relational autonomy limiting the effects of reproductive decisions on families, individuals and the community at large (Suter, Reference Suter2008; Reference Suter2007), to a very restricted version of procreative liberty, holding that there is no such constitutional right so that governments may regulate in the area of ARTs without almost any limitations (Sunstein, Reference Sunstein2002).

A disagreement arises with regard to the question of whether the right to a biologically related family is included under the right to health care, so that if a person cannot, through no fault of his or her own, reproduce without medical or technological assistance, they should receive such assistance as part of their welfare rights (Brock, Reference Brock1995; Warren, Reference Warren, Rhodes, Battin and Silvers2002). Other related difficult and controversial questions are in what ways infertility is comparable to medical conditions covered by insurance; whether mandatory coverage of fertility care mitigates disparities in treatment;Footnote ²⁸ and whether those who are not economically self-supporting should be entitled to receive assistance in their attempts to procreate, and if so, to what extent.Footnote ²⁹

A controversy also arises with regard to the question of whether the right to procreate is distinct from the right to choose the number of children one should have, and more generally of whether the right to procreate is satiable, namely that the fundamental interests promoted by it can be fully satisfied (Dillard, Reference Dillard2010; Conly, Reference Conly2005), and whether it can be extended to the right to use non-coital methods of reproduction like sex or gene selection through flow cytometry and pre-implantation genetic diagnosis (Coan, Reference Coan2010; Rao, Reference Rao2008), whether for medical or social reasons.Footnote ³⁰

With the rise of pre-implantation genetic diagnosis techniques and other methods to select embryos, a more controversial question arises. This is the question of whether reproductive freedom includes the right to determine what kind of children to have, thereby entailing a duty to procreative beneficence. In this respect, one should ask whether parents owe any duties to choose the best prospective offspring with the best opportunity of the best life (Brock, Reference Brock1995; Savulescu, Reference Savulescu2001; Parker, Reference Parker2007).

Finally, even if one is able to determine the content and scope of the right to procreate shaped by the issues mentioned above, there may still be questions with regard to the limits that should be placed on such a right. While the idea of the interests of the future child is a well accepted – although not uncontroversial–limit to the right to procreate, other categories of limitations, especially those concerning the infliction of harm on others or on the society, for example by passing on ‘violence’ genes or genes associated with serious and burdensome diseases, limitations protecting public goods like clean air or slowing population growth, or those protecting or preserving valuable features of the society, seen as such by at least a large group of the society, such as the separation of religion from the state, are more disputable (Brock, Reference Brock2005, pp. 386–95), and create much ambiguity.

Values

What are the moral objective values and interests underlying the (negative) right to procreate?Footnote ³¹ Reviewing various theories that may underlie a right to procreate reveals six categories of values that are at the heart of this right.Footnote ³² First is the value of autonomy understood as self-determination.Footnote ³³ Such value relates to the freedom to procreate and to make intimate decisions regarding procreation and parenthood deriving from our recognition of its instrumental worth to one's self and one's life (Priaulx, Reference Priaulx2008). However, one may argue that freedom itself is not sufficient to warrant a right, and that ‘what we really value is not the capacity to decide whether to have children but actually doing so or not doing so in a way that achieves autonomy’ (Dillard, Reference Dillard2010, p. 185).Footnote ³⁴ It can also be argued that since reproduction may create harm to others, including offspring, it is problematic to view individual liberty and personal autonomy as the overriding principles in the context of procreation (Pearson, Reference Pearson2007, p. 111). Also, from the fact that there is such a significant number of unplanned pregnancies,Footnote ³⁵ and that culture and tradition may also impose their values on people's reproductive choices (Warren, Reference Warren, Kuhse and Singer1999), one should seriously doubt whether these decisions are autonomous. Moreover, it may be difficult to base the idea of reproduction on autonomy, since by bringing someone into existence reproduction is an other-determining act, making us defer to the interests of the future child and not ourselves as procreators (Dillard, Reference Dillard2010, p. 186).

Individual wellbeing or good is the second value underlying the moral right to procreate. It is argued that when persons wish to have and raise children, doing so generally contributes in very substantial ways to their wellbeing, whether this can be understood by positive conscious experience, like pleasure or happiness, the avoidance of negative conscious experiences, such as pain or suffering, the satisfaction of peoples' informed preferences or desires, or by the fulfilment of objectively good features of human beings (Brock, Reference Brock2005, pp. 382–83). Regardless of the need to substantiate the utilitarian basis for reproductive liberty in facts or personal experiences indeed showing a positive claimed contribution of procreation to one's wellbeing, such value can sometime support the paternalistic limitation of reproductive freedom, since on every occasion one has to assess the contribution of a particular aspect of reproductive freedom on one's wellbeing in order to determine the extent of such a liberty, and to limit its extent when securing that right will not promote the good of the person (Buchanan, Brock, Daniels and Wikler, Reference Buchanan, Brock, Daniels and Wikler2000, p. 220).

Another value underlying the right to procreate, although less commonly recognized, is equality, particularly equality of opportunity and expectations between the sexes (Brock, Reference Brock2005, p. 383). Given that it is women who bear most of the burdens of procreation and childrearing, reproductive freedom enables women to decide whether to (continue to) assume these burdens or not, and to determine the extent of the limits imposed upon them. Acknowledgement of the right to procreate thus helps mitigate those unjust gender disadvantages that women suffer, and the effects of other forms of gender discrimination against women that are not tied specifically to reproduction (Buchanan et al., Reference Buchanan, Brock, Daniels and Wikler2000, p. 222). Yet a question may be raised as to whether reproductive decisions are the right forum within which one has to determine and reconstruct those social and legal conditions and practices to correct or compensate for inequalities in society, whether in the area of reproduction or outside it. Such a question is important because deciding on what burdens one has to assume in the area of reproduction has profound implications on other existing parties, for example potential surrogate mothers, gamete donors, progenitor partners and also on potential creatures who are yet to be born.

A fourth value concerns the relationship between the person begetting a child and the child to be born, regardless of whether the child is genetically related to the person begetting him or her, or not (Asch, Reference Asch1995). It is argued that such a relationship is of intrinsic constituent value to the ultimate value or wellbeing of both the holder of the right to procreate and the child, and that such a relationship may already have powerful impacts during pregnancy (Sperling, Reference Sperling2004). However, one can hold that even if such a relationship is indeed valuable, it leads only to the moral right to parenthood and not to the moral right to procreate or to create one's own children (Dillard, Reference Dillard2010, pp. 187–88). The latter rights are not necessary conditions for having such a valuable relationship. Furthermore, it may be that people will hold a more valuable relationship with children whom they did not create. This is because the idea of creating one with the intent that he or she will serve as a replication of one's self may turn the relationship with one's children to be less other-regarding and to move it into the self-regarding side of the spectrum underlying the act of procreation (p. 188).

A fifth value associated with procreation concerns the creation of life. It can be argued that human life per se is of ultimate value, justifying the moral right to procreate. However, one has to wonder whether creating human life as such is of ultimate value for the wellbeing of the potential right-holder and/or the child to be born. Indeed, there is some point in joining Joseph Raz's and Ronald Dworkin's contentions that life itself is a precondition for the good but it is not part of the good (Dillard, Reference Dillard2010, pp. 188–89). Moreover, to argue that the creation of life per se is of value for the person seeking to procreate would make it difficult to justify the moral right to decide not to create new life and, at times, to extinguish life through suicide or abortion. Nor can the creation of life be regarded as valuable to a creature who has yet to exist, as there is no subject to whom such value can be ascribed.

Self-replacement or self-replication may be another important value supported by those who argue in favour of a moral right to procreate.Footnote ³⁶ This is the idea of securing some continuity in our identities, character and values that will survive, or even defeat, the finality of our lives (Dillard, Reference Dillard2010, p. 191). Under this notion, the objective value of procreation derives ‘from the value we find in our own life, which will itself disappear but can be, to one degree or another, replaced’ (p. 191). It provides the procreator with some assurance that he or she may still contribute in the future following their death. Yet, if self-replacement is the objective value underlying the right to procreate, some challenges arise as to how, when and how many times such value can be satisfied. One can argue that one's existence, values and beliefs may survive symbolically and not necessarily physically through the creation of new life. Thus, one can continue to exist symbolically in the mind, memory, and conversation of another existing creature or through an action of ownership of that person who exists symbolically (Sperling, Reference Sperling2008b, Chapter 1). It is neither a sufficient nor a necessary condition that in order to continue one's existence and set of values following death one should create a new creature. Also, it appears that the value of self-replacement can be realized only once–this is when a person turns from a being who has not replicated herself to a being who has been replicated, thereby projecting something of his or her existence into the future (Dillard, Reference Dillard2010, pp. 194–95). If this is so, no justification can be found to support reproducing more than once or for the multiplication of lives per se. Moreover, a question arises as to when exactly procreation should take place. If it is prior to death, what value should be attached to the life of the person replicating him- or herself from the moment of procreation until his or her death? On the other hand, if it is after the death of the person-to-be-procreating, and if it is the life that previously existed that we value, what distinguishes the future child from that of his or her progenitor, and what value is and should be attached to the act of procreation if one is not able to beget and rear the child, whose very existence supports procreation itself?

Institutions

Although values are important, they are never the only factor in a legal analysis. The relevant power and competence ascribed to courts, legislators, providers and other decision-makers affect and shape the formation of rules, their interpretation and their application to concrete cases. Recent discussions in the literature focus on the question of whether it is not time that courts should be concentrated on the reproductive equality approach (Coan, Reference Coan2010; Rao, Reference Rao2008), rather than recognising a broad liberty right to procreate or leaving the area of ARTs wholly to the political process. Radhika Rao, for example, argues that while there is no general right to use ARTs as a matter of reproductive autonomy, there may be a limited right to use ARTs as a matter of reproductive equality, so that the state may prohibit the use of a particular reproductive technology across the board for everyone.Footnote ³⁷ However, if the state permits the use of ARTs in some contexts, it should not be able to forbid the use of the same technology in other contexts. Under this view, while lines drawn to differentiate between different acts would be constitutional, those exclusively/merely based upon the status of the persons involved, for example their marital status or sexual orientation, would likely be unconstitutional.Footnote ³⁸ It follows from her approach that all persons must possess an equal (non-absolute) right to the use of ARTs, and that the required inquiry should be not whether a law limits liberty but whether a law selectively denies individuals or groups the right to reproduce in a manner that offends equality.

Rao's position rejects the expansive reading of reproductive autonomy which subjects any laws restricting reproduction to strict scrutiny without being able to distinguish between different categories of regulation and the reasons underlying them (2008, p. 1460). In her view, the principle of equal liberty allows politicians some power to still regulate ARTs; it does not call upon courts to make controversial choices as to which acts are worthy of constitutional protection; it expands the courts' role of intervention, when the political process fails to represent citizens adequately to the realm of fundamental rights; and it is consistent with a long line of cases involving select or unequal deprivations of fundamental liberties (pp. 1461–62).

Andrew Coan has responded to Rao's framework of reproductive equality (Coan, Reference Coan2010). In his view, such a framework makes significant demands on an imperfect judiciary. Most seriously, these include distinguishing regulations targeting conduct from those targeting status, determining when, if ever, group status justifies differential regulatory treatment, and distinguishing invidious status discrimination from benevolently motivated status accommodations. In his view, courts may arrive at the ‘right answer’, but not every time they decide a case. Rao's approach may lead to courts upholding or invalidating too many discriminatory regulations, in which case they might do better by enforcing a broad liberty right to use ARTs or subjecting ARTs regulations to a minimal rational basis review. Likewise, Rao also overlooks the serious limitations of the political process. Indeed, as argued by Rao, ARTs users are, on average, financially better off than most other voters and they can also rely on the political support of the fertility industry. Such a group of people does not usually suffer from any significantly historically entrenched disadvantage or stigma. Yet, as Coan argues, this group is numerically very small, especially with regard to the more specialised technologies such as PGD (pre-implantation genetic diagnosis), and most of its members will not be aware of their medical condition enough of the time to make ARTs attractive to them. Hence, in Coan's view, these people are substantially less powerful than many groups to which Rao would grant special judicial protection, namely racial minorities and women. Furthermore, these individuals face opposition from the religious right and allied pro-life groups, many of which object to the use of ARTs on the grounds that they destroy human life and/or attempt to ‘play God’ and, I would argue, by feminists and activists for people with disabilities who oppose the use of ARTs for their effect on women or on people living with disability. It is thus far from clear that the interests of potential users of ARTs will receive sufficient attention and political support.

Furthermore, it is argued that Rao's reproductive equality doesn't take into consideration the complication that even if users of ARTs receive majority support, there is no guarantee that they will be protected against burdensome regulation. Here, too, Coan speculates that the political process might mishandle the regulation of ARTs so badly that it would be better for the courts to enforce a broad liberty right, or that courts might enforce Rao's narrower reproductive equality approach, which may be worse than the flawed political process. Finally, Rao mistakenly assumes that when one institution acts well, the other institution acts poorly. In her view, when regulation discriminates on the basis of group status, the untrustworthiness of the political process is treated as a conclusive argument in favour of aggressive judicial review. On the other hand, where the regulation of ARTs does not discriminate, the judiciary's lack of accountability serves as a conclusive argument in favour of leaving the issue to an unsupervised political process. In neither case does Rao consider that the alternative suggested by her may be even worse.

The discussion on the libertarian ideal of reproductive autonomy represented, for example, by John Robertson, and the general rules prescribed in case-law mentioned above, versus Rao's egalitarian ideal of reproductive equality (with its institutional difficulties), reflects the position that acknowledging a liberty right to procreate, whatever that right is and whatever the values and institutions that support it are, may not be enough. There may still be cases where such a right will receive insufficient protection under the law, especially in an unregulated context. The level of legal protection and the effect of such a right will be determined by, among others, the question of whether the state adopts an approach like that in the UK, which places the decision of whether and, if so, how to regulate ARTs in a regulatory agency, for example the HFEA (Human Fertilisation & Embryology Authority),Footnote ³⁹ or whether to leave such decisions to patients and providers, as in the US, where there is almost no federal regulation of IVF, leaving each clinic to regulate for itself its policy and practice,Footnote ⁴⁰ and where reliance on private funds allows IVF to escape the law's scrutiny.Footnote ⁴¹ Granting too much discretion to providers may lead to discrimination, as some empirical studies (Gurmankin, Caplan and Braverman, Reference Gurmankin, Caplan and Braverman2005; Sperling and Simon, Reference Sperling and Simon2010) and–as will be discussed below–case-law, show. Moreover, the lack of transparency of these decisions would make them remote from the public eye and difficult to challenge. This is when, given the conceptual shortfalls of the liberty right to procreate discussed above, the notion of reproductive equality may be more helpful.

The United States

Most aspects of fertility treatment are not governmentally regulated in the US. As a result, some fertility clinics establish for themselves guidelines and practice standards, but most of them (72%) do not have any set of screening protocols (Gurmankin et al., Reference Gurmankin, Caplan and Braverman2005; Storrow, Reference Storrow2007, Stern et al., Reference Stern, Cramer, Garrod and Green2001). Moreover, professional bodies such as the ASRM (American Society for Reproductive Medicine) and the SART (Society for Assisted Reproductive Technologies) have developed an accreditation programme which is only voluntary, and in any event the ethical guidelines on screening candidates issued by these bodies can be interpreted loosely enough to satisfy each and every party involved (American Society for Reproductive Medicine, 2004; Steinbock, Reference Steinbock2005). Where clinical guidelines exist, studies show that providers' opinions about access to ARTs services are even more restrictive than clinical policies (Stern, Cramer, Garrod and Green, Reference Stern, Cramer, Garrod and Green2002).

In Magdalin v. Commissioner of Internal Revenue,Footnote ⁶⁶ the Tax Court heard a petition for the redetermination of deficiencies for the years 2004 and 2005 after the respondent disallowed deductions for medical expenses claimed by the petitioner. Mr Magdalin is a medical doctor whose sperm count and motility is within the normal range and who fathered twin sons who were born through natural insemination in the course of his previous marriage. In the years 2004 and 2005 he entered into an anonymous egg donor agreement under which he received eggs to be inseminated by his sperm and two gestational carrier agreements with two different women who were impregnated through an IVF embryo transfer. As a result, two additional children were born to Mr Magdalin in 2005 and 2006 following these IVF procedures.

Mr Magdalin filed his 2004 and 2005 federal income tax returns in which he deducted medical expenses of $62,280 under Section 213 of the Internal Revenue Code.Footnote ⁶⁷ This section allows deductions for the medical care of the taxpayer, his spouse or a dependent to the extent that such expenses exceed 7.5 percent of adjusted gross income, and provided they are not compensated for by insurance or otherwise. According to that statute, the term ‘medical care’ includes amounts paid ‘for the diagnosis, cure, mitigation, treatment or prevention of disease, or for the purpose of affecting any structure or function of the body’.Footnote ⁶⁸ The regulations addressing such a deduction add that these will be confined strictly to expenses incurred primarily for the ‘prevention or alleviation of a physical or mental defect or illness’.Footnote ⁶⁹ Magdalin argued that it was his civil right to reproduce; that he should have the freedom to choose the method of reproduction; and that it is sex discrimination to allow women but not men to choose the way they will reproduce. The respondent, on the other hand, claimed that the expenses at issue are non-deductible, since Magdalin's decision to undertake these procedures was an entirely personal and non-medical decision.Footnote ⁷⁰

The Court held that Magdalin had no medical condition or defect, such as infertility, that required treatment or mitigation though IVF procedures and so the claimed expenses were not paid for medical care. It also ruled that Magdalin could not deduct those expenses under the second alternative offered by the law, because they did not affect a structure or function of his body, leaving his bodily functions and structures the same before and after these procedures. The Court further held that the case at issue did not raise constitutional rights pertaining to the petitioner's gender, marital status or sexual orientation. Instead, it involved the question of whether these expenses were incurred for his medical care or had affected a structure or function of his body.Footnote ⁷¹

Magdalin appealed to the US Court of Appeals (First Circuit) and his appeal was rejected. The Court of Appeals ruled that the Tax Court was right in its judgment that the various expenses incurred by Magdalin were not for the treatment of any underlying medical condition suffered by him. Nor were the procedures for the purpose of affecting any structure or function of his body. Rather, these expenses affected the structure or body of the gestational carriers who were not his dependents.Footnote ⁷² A petition for writ of certiorari to the US Court of Appeals for the First Circuit was denied by the US Supreme Court.Footnote ⁷³

Canada

In Canada, health care falls within the federal jurisdiction. Each province and territory provides minimum care funded by the state, while they can provide more care if they choose to. For example, the provincial Ontario Health Insurance Plan (OHIP) funds IVF for women who have completely blocked fallopian tubes – consisting of only 1 per cent of all causes of sub-fertility (Hughes, Reference Hughes2008)–and in any event only up to three cycles. Quebec provides a tax credit worth up 30 per cent of the cost of treatment necessary due to any cause of infertility, to a maximum of $6,000 per annum (Hughes, Reference Hughes2008). A previous legal attempt to declare that the refusal of another province to cover the costs of IVF was unlawful resulted in no success. The Nova Scotia Supreme Court ruled that the decision not to fund IVF is based on the nature of the treatment and not on the personal characteristics of those seeking the treatment, thereby denying the claim that the refusal to fund IVF amounted to a breach of the petitioners' right to equal treatment under the Canadian Charter.Footnote ⁷⁴

The Buffet case provides an additional example of the treatment of the right to procreate of males in a Canadian context. Mr Buffet was an officer with the Canadian (armed) Forces. He was found to have low sperm count and sought IVF with ICSI,Footnote ⁷⁵ but his employer refused to fund this procedure. Comparing himself to female members of the Canadian Forces with infertility problems who were entitled to IVF at public expense, Buffet claimed he was denied an employment benefit which constituted adverse differential treatment based on his disability, his sex and his family status, contrary to Sections 7 and 10(a) to the Human Rights Act. As Mrs Buffet was not a member of the Canadian Forces, she was not covered by their health plan but by the Public Service Health Care Plan, and since she was fertile and her fallopian tubes were not blocked she was not entitled to IVF. The Canadian Forces justified its refusal to treatment by the claim that accommodating Buffet's needs or those of a similar class of affected individuals would impose undue hardship on them.

The Federal Court rejected the Canadian Human Rights Tribunal's characterisation of IVF as not constituting a cure but rather as offering an ‘opportunity to conceive’, stating that the goals of all infertility treatment is to remove roadblocks to conception.Footnote ⁷⁶ The Court held that, consistent with the statutes, regulations and policies, the Canadian Forces should only cover the ICSI aspect of the procedure, not the IVF. In the case of a female member, the Canadian Forces should cover only the IVF portion but not the ICSI, concluding that the fact that IVF cost more than ICSI did not constitute discrimination. The court concluded:

Israel

Every Israeli citizen is entitled to health-care services which are publicly funded and supplied by one of four health maintenance organisations (HMOs). Access to health-care services in Israel is determined by the content of the ‘medical basket’, which is updated once a year, although some services which are not in the basket may be supplied by the HMOs' committees for exceptional cases. With regard to reproductive policy, the Israeli government promotes and encourages the fulfilment of one's right to procreate in a variety of ways that are relatively exceptional by Western standards (Sperling, Reference Sperling2010). Such a pro-natalist approach can also be evidenced in IVF providers' attitudes towards candidates for fertility care (Sperling and Simon, Reference Sperling and Simon2010).

In X v. Clalit Health Services, the petitioner was an Israeli resident and citizen who had low sperm count.Footnote ⁷⁸ He married a Palestinian woman who was not an Israeli resident and was not entitled to health services under the National Health Insurance Law.Footnote ⁷⁹ In his petition to the Regional Labour Court of Beer Sheba, the petitioner argued that as an Israeli resident insured by the defendant he was entitled to free fertility care to fulfil his right to parenthood, which is an elementary human right. He further claimed that the defendant's refusal to cover such treatment was unlawful, discriminatory, violated his basic rights and was a breach of the principle of equality.Footnote ⁸⁰ Additionally, it was argued that the defendant's decision not to fund the fertility treatment was extremely unreasonable and rested on extraneous considerations. The defendant argued that the petitioner's wife was not entitled to fertility care under the law and that the HMO was prevented from charging a fee for a service which was not funded by the state. It was argued that providing medical care to the petitioner's wife, who did not contribute to the state's budget, was unfair in relation to Israeli citizens and constituted the unlawful taking of publicly funded monies. Additionally, the defendant argued that since such care would take place in the body of the petitioner's wife and not in the petitioner's body, the couple and/or the petitioner's wife should bear the costs of this treatment. It was also argued that the fact that it was the responsibility of the petitioner and not his wife for the couple's inability to procreate did not have any bearing on this matter. The Ministry of Health joined the petitioner in his claim, arguing that given that the petitioner suffered from infertility and that the fertility care could only take place in the body of the petitioner's wife, the HMO should bear the costs of such treatment in this special case.

The Court affirmed the position that the petitioner's wife was not entitled to publicly funded health services under Israeli law since she was neither a resident of Israel nor a member of one of the four HMOs. Since the HMO was willing to provide the said treatment, the Court held that the petitioner's right to parenthood was not violated without commenting on the constitutionality of such a right. The Court rejected the petitioner's and the state's claim from personal responsibility, according to which the HMO should fund the treatment to cure a condition for which the petitioner–and not his wife–is responsible. It held that publicly funded health services should be granted to an Israeli insured patient without inquiring whether the insured deliberately or negligently caused the medical condition from which he or she suffers. In response to the defendant's attempt to make an analogy from the case of a gestational mother–who, according to Ministry of Health guidelinesFootnote ⁸¹ is entitled to fertility care funded by the HMO–in which the intended (and not the gestational) mother is a member, the Court held that under such guidelines, most of the care provided to the surrogate mother takes place after implantation and is offered and funded by the HMO in which she – and not the intended mother–is a member. The court also rejected the analogy from organ donation, according to which the state funds the extraction of the organ to be transplanted and the HMO in which the recipient is a member pays for the organ transplantation surgery. It held that, unlike a donor who undergoes medical treatment for another person, the petitioner's wife will undergo fertility care for her own interests, namely to become a mother.

The Court mentioned that if fertility care is paid for by the HMO on the assumption that the cause of infertility lies in the petitioner, further funding should be provided for medical care during pregnancy, since the cause of pregnancy also stems from the petitioner. Such a result will not be reasonable or recommended. In the Court's view, accepting the petition would also violate the principle of equality since the HMO, which insures and provides treatment for many people, must act according to the rules and standards set for all of its members. Hence, the Court ruled that the HMO was right in refusing to fund fertility care for the wife of the petitioner. It commented that this case did not deal with the negative right to parenthood but with the refusal to fund a service which is secured only for people who are insured by the law. The Court added that, in any event, the right to parenthood and the right to receive fertility care (and more generally, medical services) are not constitutional and cannot be interpreted to have been included under the Basic Human Dignity and Liberty Law, and that no breach of an elementary human right had occurred in this case given that the HMO was willing to provide such treatment at the expense of the couple/petitioner's wife. Hence, the Court declined the petition.

The petitioner appealed to the National Court of Labour.Footnote ⁸² He argued that, given his economic background, the HMO's refusal to fund the proposed treatment – although willing to provide it–amounts to a violation of his right to parenthood. The Court (Judge Arad) held that the right to parenthood is an elementary right which is innate in every human being. Unlike the lower court, Judge Arad held that this constitutional right is located in its importance after the right to life and to bodily integrity and prior to the right to property, freedom of occupation and privacy.Footnote ⁸³ In the Court's view, such a right also extends to parenthood that is the result of IVF.

The Court reviewed the pro-natalist approach promoted by the state in its public policy,Footnote ⁸⁴ and held that such an approach fulfilled the positive aspect of the right to parenthood, namely the right to choose with whom, when, how and how many offspring one will procreate. The Court held that although the right to parenthood is not absolute, weighty reasons are needed to justify its breach or limitation, including those set forth by the constitution (the Basic Human Dignity and Liberty Law) and the legal system. The Court ruled that the right to receive public health services deriving from the National Health Insurance Law is a legal–social right that has constitutional characteristics. It held that infertility is known as ‘a disease’ and that fertility care improves the quality of the patient's life.Footnote ⁸⁵

The Court ruled that an insured citizen under the law is entitled to fertility care provided to him/her and his/her spouse based on the expected benefit of such care, a presumption of equality in parenthood,Footnote ⁸⁶ and the contribution of the male, when infertile, by providing his sperm to his partner for fertilisation. Hence, the process of in-vitro fertilisation should be regarded as including all the medical treatment performed in the bodies of both partners as one. In the Court's view, when the main medical procedure is done within the woman's body, the principle of causality applies, thereby ascribing the procedure to the person who suffers from infertility, namely the male. It follows that an infertile insured person is entitled under the law to all the medical procedures taking place in his or his partner's body, regardless of whether the latter is an Israeli citizen or resident, and the HMO must provide these procedures as part of its public coverage under the law. However, it was ruled that the person insured under the law is not entitled to medical procedures from confirmation of pregnancy and throughout pregnancy. This is because these procedures relate to the medical condition of the pregnant woman, who is not eligible under the law to receive publicly funded medical care. President Adler joined Judge Arad's decision, and held that the constitutional right to parenthood, if and as much as it exists, applies to a person's right not to suffer interference at becoming a parent. In this case, the HMO did not refuse to provide the fertility care, and so determining the extent of such a right is not necessary. Otherwise, the Court accepted the appeal.

The above three cases represent how recent instances where petitioners appealed to the idea of the right to procreate to support their claim for receiving a social good that is related to their reproductive interest (tax deduction; funding of fertility care) resulted in poor legal decisions. These decisions do not go beyond superficial distinctions made by the law (e.g. between procedures that affect a structure or function of one's body and those affecting the body of another person), or between those backed up by practices that derive from medical needs (e.g. procedures before confirmation of pregnancy and those after it). They use a fiction concerning, for example, ‘the principle of causality’, ascribing the cause of infertility to the other partner involved in the reproduction process; and they result in unjustified outcomes involving, for example, the funding of ICSI but not IVF related to it, funding IVF but not the management of a pregnancy resulting from it; or denying funding regardless of the fact that the required procedure could not take place in the body of the petitioner. Moreover, reviewing these cases supports the contention that ARTs create the possibility of reformulating what constitutes the family, and that their focus still rests on medical infertility and the need to regard it as linked to the female body (regardless of whether the man or the woman is infertile). At this stage of legal development, the idea of reproductive liberty does not seem to help the reconstruction of new meanings and the needs of reproduction and reproductive technologies.