Equitable Access to Assisted Reproduction: Designing regulation for efficacious realisation of the right to reproductive health
This thesis examines issues of distributive justice in the regulation of assisted reproductive technologies (ARTs). Focusing on in-vitro fertilisation and gamete cryopreservation, it locates an entitlement to access ARTs within the international human right to the highest attainable standard of health under Article 12 of the International Covenant of Economic, Social, and Cultural Rights. To establish this, it develops a normative account of the right to reproductive health under Article 12, grounded in peoples’ lived experiences of involuntary childlessness and its interconnectedness with other human rights safeguards, including that to pursue genetic parenthood. I argue that the right to health raises aspirational and procedural obligations upon states to provide ARTs, as well as an immediate obligation to ensure that where ARTs are provided, access to them is equitable. The meaning and scope of equitable ART access are examined and critiqued. The right to health raises obligations for states as well as non-state organisations, thereby necessitating careful regulatory design. The second leg of this thesis compares representative regulatory frameworks to make contextually adaptable recommendations on how ART regulation should be designed, for efficacious realisation of the right to health. Methodologically, the thesis goes beyond an analysis of doctrine and case law, to examine regulatory material and policy positions. Jurisdictions considered are Ontario (Canada), England (UK), Maharashtra (India), and Singapore. Drawing on a nuanced analyses of regulatory traditions and techniques, I demonstrate that states can, and do, meet their ART provision functions is by licensing (or delegating) them out to private fertility clinics. Where ARTs can only be provided by licensed clinics, access to them should be equitable. Recommendations are made for designing licensing conditions that further the right to health. It is further claimed that right to health does not necessitate public ART funding but justifies it. I show that a right to health approach addresses contemporary scepticism about ART funding. Based on an analysis ART funding regulation in the representative jurisdictions, I identify funding policies that are inconsistent with the right to health, and recommend practices that further the right. In doing so, I respond to concerns levelled against regulating ART provision, including those of undue medicalisation, limited resource prioritisation, and indistinguishability of ARTs from other life projects.
Assisted Reproduction, Procreative Assistance, Right to Health, Right to Reproductive Health
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