February 27, 2008

Right to Vaginoplasty and Designer Babies

A Twist of Word and Mind: A NEW FREEDOM FOR THE FUTURE Rambodoc, writing on "morphological freedom", defined as “an extended right to your own life, including your body” by a Swedish organization called Eudoxa, asks rhetorically why a man or woman would want to alter his structure for overtly trivial reasons. Vaginoplasty and tattooing are just two examples of this sort of morphological alteration. While upholding the individual’s personal choice and freedom of expression in these matters, he paints a future that is

fraught with potentially more complex and controversial issues like using genetic engineering and cloning to create a new type of human being that may be peculiarly enhanced. For example, a mother may be able to select a baby who is genetically engineered to see in the dark. Or one who will be free of certain deadly diseases.

I intended to write on these subjects as they relate to individual rights, but it's appropriate that someone on the front line of fire — Rambodoc is a surgeon based in Kolkata, India — should have taken the lead.

There are two different underlying questions that are raised by the doctor. The first has to do with an individual’s rights over his/her body. Body piercing, tattooing, plastic surgery, organ trade, sex for money, suicide, etc. belong here. Should the right to choose any of these for oneself be absolute and inalienable, or does the State/society have some say on this matter? To me the answer is fairly straight forward. The individual should be free to choose, provided the choice does not involve [threat of] physical violence to another.

The second question — exemplified by “the EU Commission’s directive on children’s right to be born with unmodified genes ” — is more complicated. It involves the reproductive rights of the parents, the woman's inalienable right to her body, and fetal rights, if any. Fetal rights — whenever and whatever rights that accrue to the fetus — are perhaps the most confounding of these. Closely related is the question of the State’s interest in the fetus, and whether it supersedes the parents' right to select its future. I personally lean on the side of the parents. Their reproductive rights are absolute, unless the State can establish gross negligence and dereliction of "duty of care", beyond any doubt.

A while ago I had a discussion on abortion with a brilliant economist from the University of Chicago, who had unfortunately sold part of his brain to Christian evangelists of the Ted Haggard variety! My position was — and continues to be — that the woman had absolute rights over her body, the fetus had no rights independent of the mother, and therefore, strongly pro-choice. I conceded him a caveat, though. Although the woman has no obligation to the fetus that has no rights of its own, she does have an obligation to herself to take complete responsibility for her choice.

Let me illustrate what I mean with the example that I constructed for my colleague. Imagine an E.T. [extra terrestrial with no recognized rights] on the banks of a flooded river. The water is rising rapidly, and if the E.T. did not cross over to the safe hills on the other side, he would surely die. A lone boatwoman comes along — no other boat anywhere in sight that could conceivably come to the rescue of the E.T. — and takes the E.T. aboard, committing to ferry him across. No contract or consideration here, but only an intent and commitment on the part of the boatwoman. Midway she changes her mind, and throws the E.T. overboard. Has she committed a crime?

I argue that the presumption here ought to be that neither the boatwoman’s decision to take the E.T. aboard, nor her subsequent decision to throw him overboard were made lightly. No third person has the right to judge her, unless every reasonable person can be absolutely certain that she has made these decisions without weighty consideration. That is, neither the State, nor a court of law may second guess the intent or commitment of the boatwoman, unless there can be no reasonable doubt whatsoever about malintent or malfeasance. My position on in vitro surgery, chemical use/abuse during pregnancy, and reprogenetics, is the same as the one that I hold on abortion.

Lest I be accused of plagiarism, I must attribute some of the phrases that I have used in the above paragraph to the recent judgment (2-25-08) in an unrelated case, Government of Andhra Pradesh & Ors v. Smt. P. Laxmi Devi, issued by J. H.K. Sema and J. Markandey Katju of the Supreme Court of India. Quoting James Bradley Thayer (1831-1902), Professor of Law of Harvard University, the Justices concur [para 40, 42] with

the finding, for example, that as early as 1811 the Chief Justice of Pennsylvania had concluded: "For weighty reasons, it has been assumed as a principle in constitutional construction by the Supreme Court of the United States, by this Court, and every other Court of reputation in the United States, that an Act of the legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt" vide Commonwealth ex. Rel. O'Hara vs. Smith 4 Binn. 117 (Pg.1811) ...

... Thayer also warned that exercise of the power of judicial review "is always attended with a serious evil", namely, that of depriving people of "the political experience and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors" and with the tendency "to dwarf the political capacity of the people and to deaden its sense of moral responsibility".

Justices Sema and Katju go on to refer [para 56] to the observation by the Constitution Bench decision of the Supreme Court of India in M.H. Quareshi vs. State of Bihar AIR 1958 SC 731 (vide para 15):

"The Court must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds..."

If politicians could be presumed to correctly appreciate and act on the needs of the people, unless the violation of the trust placed on them is "so manifest as to leave no room for reasonable doubt", how could we presume anything to the contrary about the parents correctly appreciating and acting on the needs of their children?

7 comments :
  1. just read this post and the interesting comments at doc's site.
    I was about to leave a comment there that next time you are in India, we should get you and doc locked in a debate and what a treat it would be for the likes of me!

    I agree with you that there is little room to doubt the intentions of parents in wanting to do what is best for the child.

    Cases like female foeticide have a different story to tell about parents and what their intentions can be if left unchecked.
    In the case of designer babies, I assume that the cost of procedure is not going to be withing the reach of everyone - so perhaps that itself will act as a check and people may opt for them only where it is deemed absolutely imperative for he well being of the unborn.

    As for Vaginoplasty and tatooing, I cannot understand why someone would undergo such torture willingly.

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  2. Usha,

    Thanks for the compliments. I don't believe that female foeticide is any different from gender neutral abortion - as long as it's not forced on the mother. I had written on this more extensively in an earlier post, A Letter to My Sister, so I will spare you from repetition.

    I don't understand why men undergo torturous hair transplants and Botox treatment either. That's why I haven't subjected myself to these.

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  3. S, the link to your earlier post in the prev comment doesn't seem to work. Anyway I don't need a link as I have read all your posts but you may want to rectify it for anyone else who may want to follow the link.

    'as long as it is not forced on the mother' - sometimes it is external force from the in-laws and husband and sometimes it is the force of circumstance and sometimes it is the force of years of prejudice ingrained which makes it indistinguishable from an act of volition. "Ponna porandu seerazhiyarathai vida idu parava illai'- it is for the unborn girls own good!(standard justification by anyone who has been party to the act.)
    Where do you draw the line?

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  4. I feel that mothers are often pressured by others to abort. It's the mother's choice but often someone elses decision. The abortion clinics that do an ultrasound and show the moving image to the mother report that many mothers have a change of heart then.

    As far as cosmetic surgeries and designer babies, I take the postion as it becomes a professional challenge to the medical community, PLUS there is money involved, it is going to happen. Why not? If somebody wants it, and it's legal, they are going to get it. I hope it makes them feel better about themselves.

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  5. The link to my earlier post, "A Letter to My Sister", in my comment above is incorrect. Here is the correct one. Thanks, Usha, for catching the error.

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  6. usha,
    The general principle that I enunciated in my post - the presumption ought to be that the mother had given weighty consideration to her decision, and might not be second guessed - holds for gender selective abortions. If the mother did not wish to bring forth a female child into this world to suffer, whatever her reasoning may be, no one has the right to second guess her. Remember the Tamil film, Karuthamma? If Karuthamma's mother were to anticipate her future, and decide to abort, what right does the society have to prevent her? What would have Karuthamma preferred?

    En vidhi appothe therinthurinthale, garpathil naane karainthiruppene

    Had I known my fate then
    I'd have dissolved in the womb...

    --- from the Tamil film, Sindhu Bhairavi, Lyrics: Vairamuthu, Music: Ilayaraja

    We may try to address her prejudices, if any, but in the end, the choice is the mother's.

    acronn,
    I agree with both your points. Thanks for visiting. Please come again :)

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  7. Vaginoplasty surgery involves not just incising into vaginal walls and suturing them tighter, but looking for ligaments, tissues, and muscles to tighten before closing vaginal wall in layers again.

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