Regulating Medically Assisted Reproduction:
an area of contested morality

In the recent years, the application of biotechnology in the form of medically assisted reproduction has been evolving and developing at a fast pace. Traditionally, European governments and legislators have been tending to react in a conservative manner to ethical sensitive themes such as reproductive technology, through creating restrictive measures. Legislators usually regard the safest legal approach as to being one that receives (or is expected to receive) the broadest acceptance in society, meaning that the majority of legislators in European countries choose to allow certain procreation treatments - but not others -  by justifying treatments that have high levels of resemblance to 'natural' reproduction. This semi-conservative approach leads to discrepancies and incoherence from the liberal legal point of view. One of the main issues is that the morally acceptable limits are taken into account during the lawmaking process, while the dynamic nature of reproduction technology is creating unprecedented situations constantly. This paper analyses the controversial Dutch case of Tineke Geesink from the angle of interdisciplinary law, but will also - in short - review some of the societal debates concerning medically assisted reproduction. The main aim is to discuss whether there is a need for a tolerant legal standard in order to keep up with the pace of the developments in medically assisted reproduction.

 In the spring of 2011, first-time mother Tineke Geesink gave birth to a healthy daughter named Meagan. Geesink decided to remain childless in her (single) fertile years by dedicating her time to her legal career. As reproduction methods evolved during the years, Geesink had a change of mind regarding her wish of becoming a mother. The now 64 year old Geesink currently holds the record of oldest new mother in the Netherlands. Her case demonstrates not only crossing the biologically possible boundaries, but also the legal boundaries have been tested since Dutch laws prohibit commercial (holding financial benefits for the donor) and anonymous egg/sperm donations (gamete donations). The latter measures serve the purposes of defending human dignity and protecting the fundamental right of the future child of knowing its descent. In addition, IVF-treatments for women are limited by law to the age of 45.
 The post-menopausal Geesink diverged from these Dutch prohibitions by consulting the controversial Italian embryologist Severino Antinori, who is also notoriously known for his human cloning experiments. It is no surprise that Geesink's decision was heavily criticized in the Dutch media and social discussions. Her wish to become a mother in her sixties has been labeled as a selfish act. Given the fact that the developments in medical reproduction have been subjected to it is time to review the discussions in societal, political and juridical areas and the consequences that Geesink's case has evoked.
 There are several consequences that (could) occur in the light of parenting a child in old age. The legal age limit (45 years) for undergoing IVF-treatments was established with consideration of the greater medical risks that confront  women when they wish to become pregnant at an older age. Secondly, the child could become an orphan at a young age and is often deprived of experiencing grandparents and other family members. Thirdly, the extent of the mental and physical ability of the old mother could be questioned. Parents should have the psychical capability to play with their children, they should provide the needed attention or assistance and endure the energy that is inherent to young children and teenagers. In the specific case of Meagan (Geesink's daughter), an arguable circumstance from the social stance is the fact she will be raised by only one parent. Moreover, the use of anonymous gamete donation results for Meagan in never being able to knowing her genetic background or her biological parents. 
 The previously discussed situation of Meagan being raised by a single parent does not automatically imply that she shall miss proper parental care and would be disadvantaged by the lack a father figure. Afterall, there are many children that can only rely on having one parent and were conceived naturally. The crucial difference in Meagan's future is that - if lucky - she will be challenged with burdening difficulties such as the care of an 81 year old mother by the time she reaches the adult age. Furthermore, in her adult life she will not have a family to rely on. 
 The reasoning to tolerate and make use of medically assisted reproduction possibilities are derived from modern liberal points of view regarding our biology. The human species is becoming more and more equipped in deliberate controlling and quickening its own evolution. Restrictive law are intruding fundamental human rights and therefore they can not be justified by wanting to maintain traditional attitudes towards reproduction, solely on issues of morality. Some advantages of medically assisted reproduction are then set aside too easily. For instance, the current developing technology that could prevent genetic diseases  that the child inherits by the elimination of harmful cells in the pre-conceptual phase of reproduction. 
 There is a legal diversity across different European countries in regulating this matter. Some inconsistencies can be found in the interpretations of different permitted types of medically assisted treatments. Prospective parents are seeking reproductive care outside of their home countries and there is a wide participation in fertility tourism. 
 Among other things, this development in application results in increasing possibilities for prospective parents. There is no need to settle with the limited reproduction that is given by nature. Why should we not take advantage of new reproductive treatments that allow for us to become pregnant in an age that we would find suitable? When other infertility treatments have failed, couples often take their turn to the well known IVF treatments. Since the first IVF baby in 1978, a lot has changed in the area of medically assisted reproduction.  Although restricted in many countries, commercial surrogacy and anonymous gamete donations now form common practice on a global scale. Traditional surrogacy is when the surrogate carries a baby as its genetic mother but delivers for the child for another woman. baby's genetic mother and can serve as an alternative when the egg cells (even assisted artificially) cannot be fertilized. In the Geesink case there was the issue of post-menopausal infertility while she was able to be the surrogate (and thus birth/legal mother) of Meagan herself.
 The commercial use of medically assisted reproduction in the future can mean that, for instance, not only is a childless couple able to have a baby with their own genes but  it  also enables them to select genetic material of brilliantly talented, healthy and good looking ivy-league students that match the preferred (perfect) genetic profile for their yet unborn child. The realization of procreating these so-called 'designer babies' is not far from present reality. An different example is the possibility of temporarily pausing the 'ticking' biological clock of a career-driven single woman in her mid-thirties by freezing her egg cells for later use, whenever desired. Altering human DNA in order to fulfill a dream profile of a (future) human being, for the sole purpose of pleasing prospective parents is yet highly controversial to be allowed or tolerated. In an research among medical practitioners the majority of responders were supportive of gamete donation and different forms of surrogacy. When questioned about reproductive human cloning or posthumous sperm use by the living spouse, they responded disapprovingly.
 The right to procreate is granted by Article 8 of the European Convention of Human Rights (the ECHR). The Grand Chamber of the European Court of Human Rights (ECtHR) in that national prohibiting laws preclude citizens to exercise their fundamental right of reproduction fully. But as national laws still take their to the traditional approach, legislation seems left behind by progress in this field, leaving controversial treatments unregulated for an unknown period of time. In the absence of regulation, physicians can play a role in analyzing the morality of their procedures and keep ethical and medical values in mind.
 In conclusion, the consequences of medically assisted reproduction demand for current and future artificial methods to be legally revised by countries in an objective manner. In debates of conflicting basic human rights, it is evident that restrictive (or preventive) legislation needs further validation.  Technology is bound to be ever evolving. It is the public commercial use of expanding biotechnology that in some cases asks for a cautious approach. It is strikingly difficult to find a way of dealing with new methods of technology, if the consequences of tolerating these methods touch moral values and norms of ethics. As science is changing, today's society is equally changing faster than ever and liberal views are becoming more and more prominent.