- Yali Cong, Ph.D.
Associate professor of medical ethics,
Department of Medical Ethics, Peking University Health Science Center, 38 Xueyuan Rd. Bejing, 100083, China
Eubios Journal of Asian and International Bioethics 14 (2004), 48-9.
Based on a case that happened in 2001 in China, the author wants to show the ethical and legal issues arising from a woman's wish, which should be her basic right to have a child by assisted reproduction technology. This paper attempts to analyse if there is some relationship between bioethics and happiness, and to find if there is some reason that bioethics should provide help for those whoever need it. The case is about a woman whose husband was sentenced to death, she applied to court to allow her to have a child for her husband by artificial insemination of her husband. The conclusion of paper is that there is no direct relationship between bioethics and happiness, virtue and vice of bioethics not only depends on its moral background, but also the legal system, social psychology and other social circumstances.
The common idea of the society
It is no doubt that many people who considered the case support Mrs. Zheng, even though there is no detailed data from a large scale questionnaire. In a class of medical students, among the 20 students, 3 were against Mrs. Zheng's request, including one who held sympathy in morality; while 17 students supported Mrs. Zheng. In another 47 student class, 26 were for and 21 against.
The main reason for support is that it is Mrs. Zheng and her husband's right. The main reason against is from the viewpoint of the child's growth, which they think it is not good to the child. And there is another reason, misunderstanding maybe: now that her husband's right of life is deprived, let alone other rights. I found that with the raising of grade of the students, the number of persons against also rose.
The emerging of the issue related with the development of biomedical technology
__The issue of "whether the death row criminal " has a right to have a child is related to the development of biomedical technology. Before, people couldn't raise such a question or had such request because there is no possibility for a death row criminal to have a child due to the punishment of depriving of freedom, and many rights, such as having a child, are mainly based on the freedom. But now, artificial insemination provides the possibility to have a child without violating the jail regulation, even if the criminal does not has freedom.
Now the issue is: now that we have the technology, should we use it? Just like the dream we want to fly before, but now we have plane, and can use it to make our dream come true. However, we also discuss human cloning, which we shouldn't do even if we have the technology and can do it. So this maybe a similar situation.
The current legal views of China
Issue 1: Whether the death row criminal has the right to have a child?
Some people said it is a blank field, because there is no direct and clear declaration in current law. But more people opposed it, and they said: only if there is no clause in current law to show objection, that means it is allowed. In the current Criminal Law of China, there is no clause to mention the right to have a child is deprived, so it means Mrs. Zheng's husband has the right. But people can easily raise a question that if the criminal is a woman, such a request will violate the other law (e.g. if the woman is pregnant, she will not be executed. But she would be given the death penalty if not pregnant), so this raises another question, and not the same issue.
The problem is that the request of artificial insemination was made by Mrs. Zheng, and there is no doubt Mrs. Zheng's request is reasonable, and moreover the behavior of taking the sperm of her husband will not violate the current regulation for the jail management.
Issue 2: Now that the criminal has such a right, can this right be realized?
This means the right and its realization are not the same thing, moreover, respecting the right and supporting the right to realization are also different. The latter relates to the individual's happiness to much extent.
In the discussion, some experts said the realization of such right is difficult, because the doctor is not allowed to go into the jail, let alone to take the sperm. Also, the judge will not support Mrs. Zheng's request so easily because the worrying about the possible effects to society that more family members raise such request and it will produce a bad effect to the children. In fact, it is true in the field of law, many judges will take a passive way to avoid any answer and let such request "die" naturally.
But many people argue that the judge should support Mrs. Zheng's request and which will show society the progress of law in China, and they mentioned that not so many wives would like to have a child for her criminal husband like Mrs. Zheng, so the worrying is not necessary.
So, the situation is subtle: if the judge does not support Mrs. Zheng's request , it does not mean it is illegal; but if the judge does support Mrs. Zheng's request, it is perfect and it is also legal.
The real psychology----the reflection of two different traditions
Psychology argument 1: To have a child and continue the generation for the big family is a strong tradition.
We have a words in China: among the three unfilial pieties, having no child is the worst. The original aim of Mrs. Zheng's request was just such an idea, she hoped the child could be a comfort to grandparents.
Psychology argument 2: Relationship, not the individual's right, is the most important in current China.
The child holds very important status in the family and society. For example, if something is good to parents but not good to child, the common value in China is to work for the interest of child and give up the parents' interest. The most important reason for those people who don't agree to support Mrs. Zheng's request, not because she and her husband don't have right, but because this is not good for her child's growth. For example this child will be brought up in a single-parent-family, the child maybe has to bear the discrimination from others, and there is financial difficulty for family, all these will produce bad affects to the child's psychology. Till now, China has not developed a common value to think about the unclear interest of potential child or fetus, and will easily justify his behavior of supporting the interests of persons who already exists here, but not concern much the interest of a person who has not existed.
Of course some people argued that this is not an absolute factor, which will be avoided by better education and shouldn't be regarded as a factor for legal judgment. On the contrary, the right of parents is clear, and should be supported.
Even the two traditions co-exist now, which one can win depends on the values of the field of law and the judgers.
Biomedical technology and happiness
Happiness is pursed by everyone, it is not only a subjective feeling, but connected closely with culture and its values in each special region. In China, the whole and harmonious family, the health and progress of child, and individual development are all necessary factors in the formulation of happiness.
Whose happiness is also a question. Some people think that if their own rights are realized it is happiness, some people think if they give up their rights and can obtain other people (including children, parents, other family members, and so on)'s interest in return, that is happiness.
Due to the fact of under development of the legal system, the judges are facing and will face many problems which will not be clear in current laws or regulations. Under such circumstances, the moral sense and level of judges will play an important role in decision making, which will relate to the client's happiness. In China, many court cases show a special phenomenon, that is the color of "personal rule" behind the rule by law. It also shows a connection between law and politics, and the idea of some important governors will produce fundamental effect to the outcome of judge. The situation of an undeveloped legal system, the psychology to avoid potential problems and relatively lower professional morality level, all these can explain the result of the balance of two tradition and the fate of this case.
In fact, many people know this result at an advanced stage, that is Mrs. Zheng's request comes to nothing. To many people, they can just understand the result, but they also think it is imperfect, because it is not active to protect the reasonable right of clients, and the most important is that such protection does not harm social interest at all and does not violate the current regulation.
The conclusion of paper is that there is no direct relationship between biomedical technology and happiness, virtues and vices of bioethics not only depend on its moral background, but also legal system, social psychology and other social circumstances. Usually, people have to not only think whether we should support the client's request, but also should balance the possible outcomes of providing support.
P.S. Some kind people once gave a suggestion: to ask Mrs. Zheng's husband to donate sperm to sperm bank.