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Should motherhood have an upper age limit, and if so, would that constitute age discrimination? - A contextual analysis of artificial reproduction and age in the Swedish healthcare system -

Bergman, Anna-Karin (2004)
Department of Law
Abstract
Artificial insemination using the husband's sperm (AIH) and artificial insemination using sperm from a donor (AID) are artificial techniques which have been used for a long time, however, other forms of artificial procreation such as, in vitro fertilization (IVF), egg donation, embryo donation, and surrogacy are seen as truly modern reproductive techniques and did not come into use until the mid 1980's. Although adoption has been seen as a good and functioning alternative for couples that are not able to conceive by natural means, these modern reproductive techniques give the woman a chance to experience pregnancy and the miracle of birth. However, they also give rise to a number of legal problems such as the status of the child conceived... (More)
Artificial insemination using the husband's sperm (AIH) and artificial insemination using sperm from a donor (AID) are artificial techniques which have been used for a long time, however, other forms of artificial procreation such as, in vitro fertilization (IVF), egg donation, embryo donation, and surrogacy are seen as truly modern reproductive techniques and did not come into use until the mid 1980's. Although adoption has been seen as a good and functioning alternative for couples that are not able to conceive by natural means, these modern reproductive techniques give the woman a chance to experience pregnancy and the miracle of birth. However, they also give rise to a number of legal problems such as the status of the child conceived through egg donation or AID. Another problem arising from the modern techniques of reproduction is that it is not accessible to everyone. With regard to egg donation (the recipient) there is an upper age limit, thus the technique is not accessible to women over a certain age. This situation produces the questions: can an upper fixed age limit for women seeking contractual egg donations be seen as age discrimination? Is this possible age discrimination viewed as justified and if so on what grounds? In addition to these questions one can also ask oneself if there are other grounds such as gender that can be argued as a base for discrimination? The prohibition of discrimination is considered one of the fundamental principles of international law and can be found in most treaties regulating human rights. See i.e. Article 14 ECHR, Article 2 CRC, Article 2 ICCPR and Article 1 additional protocol 12 to the ECHR. Since I have chosen to look at this topic from a European perspective, Article 14 ECHR and Article 1 of its additional protocol 12 has been used as a base for investigating the problem of possible age discrimination. When analysing these two regulations, a couple of questions arose with regard to the actual text of the provisions. They do not expressly state age as a ground for discrimination and they also exclude a guarantee of the principle of equality. Even though age can be interpreted in the list of protected grounds (not seen as an exhaustive list), by not expressly stating it there is a risk of forming a hierarchy between grounds covered by the text and the grounds that can be interpreted in the list. Thus, the result would be that age holds less weight than it would, had it been covered in the text of Article 14 ECHR and Article 1 Protocol 12. This of course creates a problem from the beginning regarding the argument that fixing an upper age limit is seen a discriminatory. However, one must see the principle of non-discrimination in relation to the specific subject in which it operates, thus, in this case artificial reproduction treatments (especially the area of egg donation), which are performed at licensed hospitals and therefore seen as part of the national healthcare system. The healthcare area is a rather complex system in itself and the complexity increases when you limit your investigation to artificial reproduction. Looking upon healthcare from a general perspective, it can be seen that discrimination on the basis of age does occur. This becomes clear e.g. when an old person with a broken leg does not receive the same treatment as a young person with a broken leg. However, all age-related limitations are not to be seen as discriminatory, since they are in one way or the other justified on the basis of e.g. economy, individual need or implications on that aged people are part of a special category or group. Women of different ages, for various reasons, turn to artificial reproduction techniques in order to conceive. However, it is not likely that a woman in her early thirties, who for one reason or another, cannot conceive by natural means, will be denied access to treatment. The reason for this being that society still view women of this age ''motherly'' and young enough to care for the child to be until he or she turns 18. Another reason for including women in there thirties and excluding women in there fifties is that with old age the medical risks, for the woman and for the child, increase. According to general medical knowledge regarding female reproduction, the risk of giving birth to a child with chromosome disorders is manifestly higher if the woman has reached a sufficient age. Thus, in the end you will have to weigh the woman's right to become a mother and found a family against the best interest of the child, which includes the right to be emotional and socially cared for, until he or she is at least 18. In most cases, when a child's rights are weighed against the rights of an adult, the child's rights has to be put first, since this is seen as being in the best interest of the child, which is stated in Article 3 CRC. During the course of this thesis I have dealt with situations where discrimination on the basis of age can be argued. However, having an age limit with regard to e.g. egg donation treatment, can per se amount to discrimination but is in the end to be seen as justified since, having old parents giving birth is not regarded as being in the 'best interest of the child'. Although age discrimination can, in my view, be justified another question arises: can an upper age limit be viewed as discrimination on the basis of gender? In some hospital regulations the woman must not be over 40 when the treatment commences, but the upper age for men is set at 55. The reason for this is that male and female reproduction systems function differently. Even though a man's fertility decreases with age, he does not go through a stage where the reproductive activity suddenly stops functioning (menopause). Another argument for not viewing this situation as gender-based discrimination is that men and women are not viewed as comparable subjects, this based on the simple fact that men cannot bear children. Thus, the conclusion is that since we are missing out on a very important criteria (comparable subject), discrimination on the basis of gender cannot at all be argued when viewing the issue from a strictly physiological perspective. The tables are turned, however, when viewing the issue from the perspective of 'parenthood'. Under this concept, men and women is seen as equally important to the child and since they do not differ in a crucial sense such as biology, the difference in age limit, in this sense, can be viewed as discriminatory on the basis of gender. However, again it is important to remember that there is also an upper age limit for men at 55 (in Swedish hospital guidelines), so it is not possible for a man in his 70s to be part of an egg donation treatment on a much younger wife. (Less)
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author
Bergman, Anna-Karin
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law
language
English
id
1554823
date added to LUP
2010-03-08 15:22:38
date last changed
2010-03-08 15:22:38
@misc{1554823,
  abstract     = {Artificial insemination using the husband's sperm (AIH) and artificial insemination using sperm from a donor (AID) are artificial techniques which have been used for a long time, however, other forms of artificial procreation such as, in vitro fertilization (IVF), egg donation, embryo donation, and surrogacy are seen as truly modern reproductive techniques and did not come into use until the mid 1980's. Although adoption has been seen as a good and functioning alternative for couples that are not able to conceive by natural means, these modern reproductive techniques give the woman a chance to experience pregnancy and the miracle of birth. However, they also give rise to a number of legal problems such as the status of the child conceived through egg donation or AID. Another problem arising from the modern techniques of reproduction is that it is not accessible to everyone. With regard to egg donation (the recipient) there is an upper age limit, thus the technique is not accessible to women over a certain age. This situation produces the questions: can an upper fixed age limit for women seeking contractual egg donations be seen as age discrimination? Is this possible age discrimination viewed as justified and if so on what grounds? In addition to these questions one can also ask oneself if there are other grounds such as gender that can be argued as a base for discrimination? The prohibition of discrimination is considered one of the fundamental principles of international law and can be found in most treaties regulating human rights. See i.e. Article 14 ECHR, Article 2 CRC, Article 2 ICCPR and Article 1 additional protocol 12 to the ECHR. Since I have chosen to look at this topic from a European perspective, Article 14 ECHR and Article 1 of its additional protocol 12 has been used as a base for investigating the problem of possible age discrimination. When analysing these two regulations, a couple of questions arose with regard to the actual text of the provisions. They do not expressly state age as a ground for discrimination and they also exclude a guarantee of the principle of equality. Even though age can be interpreted in the list of protected grounds (not seen as an exhaustive list), by not expressly stating it there is a risk of forming a hierarchy between grounds covered by the text and the grounds that can be interpreted in the list. Thus, the result would be that age holds less weight than it would, had it been covered in the text of Article 14 ECHR and Article 1 Protocol 12. This of course creates a problem from the beginning regarding the argument that fixing an upper age limit is seen a discriminatory. However, one must see the principle of non-discrimination in relation to the specific subject in which it operates, thus, in this case artificial reproduction treatments (especially the area of egg donation), which are performed at licensed hospitals and therefore seen as part of the national healthcare system. The healthcare area is a rather complex system in itself and the complexity increases when you limit your investigation to artificial reproduction. Looking upon healthcare from a general perspective, it can be seen that discrimination on the basis of age does occur. This becomes clear e.g. when an old person with a broken leg does not receive the same treatment as a young person with a broken leg. However, all age-related limitations are not to be seen as discriminatory, since they are in one way or the other justified on the basis of e.g. economy, individual need or implications on that aged people are part of a special category or group. Women of different ages, for various reasons, turn to artificial reproduction techniques in order to conceive. However, it is not likely that a woman in her early thirties, who for one reason or another, cannot conceive by natural means, will be denied access to treatment. The reason for this being that society still view women of this age ''motherly'' and young enough to care for the child to be until he or she turns 18. Another reason for including women in there thirties and excluding women in there fifties is that with old age the medical risks, for the woman and for the child, increase. According to general medical knowledge regarding female reproduction, the risk of giving birth to a child with chromosome disorders is manifestly higher if the woman has reached a sufficient age. Thus, in the end you will have to weigh the woman's right to become a mother and found a family against the best interest of the child, which includes the right to be emotional and socially cared for, until he or she is at least 18. In most cases, when a child's rights are weighed against the rights of an adult, the child's rights has to be put first, since this is seen as being in the best interest of the child, which is stated in Article 3 CRC. During the course of this thesis I have dealt with situations where discrimination on the basis of age can be argued. However, having an age limit with regard to e.g. egg donation treatment, can per se amount to discrimination but is in the end to be seen as justified since, having old parents giving birth is not regarded as being in the 'best interest of the child'. Although age discrimination can, in my view, be justified another question arises: can an upper age limit be viewed as discrimination on the basis of gender? In some hospital regulations the woman must not be over 40 when the treatment commences, but the upper age for men is set at 55. The reason for this is that male and female reproduction systems function differently. Even though a man's fertility decreases with age, he does not go through a stage where the reproductive activity suddenly stops functioning (menopause). Another argument for not viewing this situation as gender-based discrimination is that men and women are not viewed as comparable subjects, this based on the simple fact that men cannot bear children. Thus, the conclusion is that since we are missing out on a very important criteria (comparable subject), discrimination on the basis of gender cannot at all be argued when viewing the issue from a strictly physiological perspective. The tables are turned, however, when viewing the issue from the perspective of 'parenthood'. Under this concept, men and women is seen as equally important to the child and since they do not differ in a crucial sense such as biology, the difference in age limit, in this sense, can be viewed as discriminatory on the basis of gender. However, again it is important to remember that there is also an upper age limit for men at 55 (in Swedish hospital guidelines), so it is not possible for a man in his 70s to be part of an egg donation treatment on a much younger wife.},
  author       = {Bergman, Anna-Karin},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Should motherhood have an upper age limit, and if so, would that constitute age discrimination? - A contextual analysis of artificial reproduction and age in the Swedish healthcare system -},
  year         = {2004},
}