Beyond the harm threshold

Some people believe that the only acceptable grounds for
preventing access to new reproductive technologies is the risk that children
would be harmed.

Accordingly, controversies surrounding reproductive
technologies often revolve around the question of potential for harm. For
example: do preimplantation screening techniques prevent harm to children? Are
offspring conceived with donated sperm harmed by the absence of the genetic
father? Is it harmful to create a child with three people's DNA?

Underlying all this is an assumption that there is a 'harm
threshold' (1) a point at which a child would suffer so much that it
would have been harmed by coming into existence. If we could establish where
this threshold lies, it would be easy to ascertain whether a particular
technique is morally acceptable, and whether it should be illegal — in theory,
at least. For those who believe that harm avoidance is the only justifiable
basis for the law, these questions are extremely important.

In the UK, many of our legal and regulatory frameworks
rely implicitly on this concept of a harm threshold: abortion is permitted up
to term if the fetus has a serious abnormality (and assuming other conditions
are met), preimplantation genetic diagnosis can be used to prevent the birth
of children with diseases regarded as sufficiently serious, and clinicians
offering fertility treatment must determine whether the child to be created may
suffer harm.

Seemingly, as long as we keep on the right side of the
threshold, we are morally and legally OK. If we transgress this boundary,
however, we may bring into being children who have been harmed by the very fact
of their existence.

Although the concept of the harm threshold has an
intuitive appeal, the questions it raises are very difficult to answer. How
much harm is too much? Ainsley Newson has pointed out (2) that in the explosion of
media outrage in the recent baby Gammy surrogacy case, the commissioning parents were criticised for apparently rejecting Gammy on the
grounds of his disability.

Yet, as Newson notes, aborting him on exactly the same
grounds would have raised far fewer questions and would be perfectly legal —
right up to term — in the UK. For babies like Gammy the issue is whether it is
better to exist with Down's syndrome, than not exist at all. Do we really believe that to end a life like Gammy's before birth is a means of preventing harm to him? Perhaps we should admit that in these cases, we do not apply the harm threshold very
consistently.

But there may still be cases where it is more obviously harmful to be brought into existence. The use of
reproductive cloning, perhaps, or artificial gametes might be so risky and
experimental as to create offspring who would have been harmed by existing. But
even in this context, it makes no sense to think the resulting child might
actually have been better off if conceived naturally: the child would not exist
if another method had been used. It is this that makes questions of harm so
perplexing in the context of reproductive technology. The idea that it is
possible to harm — or even benefit — a person simply by bringing them into
existence is deeply problematic.

These questions are so deeply entwined with our modern
technological achievements that it may be surprising to discover that they feed
into a centuries-old philosophical debate. The 11th century theologian
St Anselm sought to prove that God exists, using what is known as the 'ontological'
argument (3), Anselm invites us to imagine a being 'than which none greater exists'.

Once we have pictured this in our imagination, he points
out a problem: we can imagine a being
greater than the one we just thought of — if we think of it existing in reality rather than just in our
imagination. Through this, Anselm believed that he had succeeded in showing
that this being (God) must exist,
since we cannot logically conceive of him without presupposing his existence.

The problem with Anselm's argument was neatly pinpointed
by the German philosopher Immanuel Kant, over 500 years later (4). Something that exists is not greater than its imaginary counterpart. Either it exists or it doesn't. Likewise, if we bring something into existence, that doesn't confer additional properties on it. Bringing
a disabled child into existence is not the same as disabling a child, any more
than bringing a blind child into being is the same as blinding it.

Viewed in this way, however severe a child's suffering may
be, it can never be true to say that one has harmed it solely by bringing it
into existence. Harming, disabling or blinding is something we can only do to
people who already exist. It can't be
conflated with the process of creation itself.

This does not necessarily mean that there is no further scope for
discussion about the ethics of new reproductive technologies. I have argued
that bringing a disabled child into existence is not the same as disabling a
child. However, many people believe nevertheless that to do so is unethical.
The challenge for those who do believe this is to establish whether there are
grounds for this conviction other than that the child has been harmed. The temptation to boil down all ethical
concerns into questions of harm is so strong that it can be tempting to assume
that any moral wrongdoing must be explicable in this way.

What does this mean for harm-based legislation, and the harm threshold? We need to reconsider the role of harm in our
ethical and legal approach to reproductive technology: it will not give us the
answers we are looking for. There is no harm threshold.