Do Same Sex couples have a greater right to Fertility Treatment?

Emily McTernan “argues that states have greater reason to provide fertility treatment for same sex couples than for heterosexual couples” (1). She bases her argument on the premise that greater access to fertility treatment for same sex couples will encourage a diversity in of ways of life and that this diversity is a social good. In this posting I will argue that she is mistaken and that same sex couples do not have a greater right to fertility treatment.

In what follows I will restrict my discussion of fertility treatment to IVF. McTernan argues that IVF cannot be justified as an element of general healthcare. Healthcare she assumes should be concerned with disease and infertility is not normally a disease. She defines disease as an adverse deviation from normal species functioning and this deviation is a deviation from what is statistically normal given someone’s age and sex. Of course there are exceptions.  A women with a specific problem such as blocked fallopian tubes has a disease and using the above definition has a right to fertility treatment, has a right to IVF. However for most couples, especially if the women is older, infertility is not a deviation from what is statistically normal, and as a result most couples do not have a right to IVF based on a right to healthcare. I agree with McTernan.

Accepting the above of course doesn’t automatically mean people don’t have some right to IVF or that the state shouldn’t provide IVF. After all the state provides such things as libraries, parks and sports fields. Accepting the above only means that the states provision of IVF should compete with the states’ provision of libraries, parks and other things which help its citizens flourish. Let us accept that the state should provide some funding for IVF commensurate with other requirements it has. McTernan argues that within this provision same sex couples should be prioritised in order to encourage a diversity in ways of life.

I now want to argue that McTernan’s argument is unsound and that in allocating IVF we shouldn’t prioritise same sex couples. Firstly I will argue McTernan’s reason for such prioritisation is unsound and secondly present an argument against any such prioritisation. McTernan believes that we should encourage diversity in ways of life. Offering priority in access to IVF to gay couples might increase diversity in child rearing. However if diversity in ways of life is an unqualified good then perhaps the state should reform the law on bigamy and even encourage polygamous marriage as by doing so it would encourage different sorts of relationships. Few people would support such a reform but even if such a reform could be justified other examples could be imagined to show that not all diversity in ways of life are good. Nonetheless let us accept that diversity is sometimes desirable, is a qualified good. It follows diversity in child rearing might be such a qualified good and hence should be encouraged. What exactly does McTernan want to increase diversity in? Does she want to increase diversity in child rearing or simply diversity in relationships? Child rearing involves loving, safe guarding, nurturing and guidance. I don’t believe McTernan wants to change these basics. It follows she wants to increase a diversity in relationships. However the state could also encourage a gay lifestyle, in order to increase a diversity in relationships, by tax incentives. Few would support such a proposal. Such a proposal seems to be mistaken for surely the amount of diversity in sexual orientation in a society should be determined by people’s natural inclinations rather than by government policy. Accepting the above means of course if sexual orientation in a society should be determined by people’s natural inclinations rather than by the state that the state has reason to permit gay marriage. Accepting the above also means the state has no reason to prioritise access to IVF for gay couples.

Gay couples cannot have children unaided by anyone else. It might be suggested that this fact means gay couples should be prioritised in accessing IVF. However even if gay couples cannot have children unaided by others IVF is not the only option open to them if they want to have children. Both male and female same sex couples might be able to adopt a child. Male couples might also use surrogacy and this need not involve IVF. Female couples can use AID. It seems to me the fact that gay couples cannot have children unaided does not mean they should be prioritised in accessing IVF.

I now want to argue there is a second reason as to why gay couples should not be given greater priority in accessing IVF. My argument is based on fairness. Let us assume that gay couples are given greater priority in accessing IVF. It might then be objected such prioritisation is unfair. Fairness requires that everybody’s needs are considered. It does not follow of course that everybody’s needs should be satisfied equally. However it does require that if some peoples’ needs aren’t satisfied equally that some reason can be given for this. Let us assume that people have a need to have children who are genetically related to them. Let us consider a gay and a heterosexual couple both of whom are unable to conceive children without IVF. Both couples have the same need. Fairness requires that if the needs of these couples are satisfied unequally that there that some reason can be given for this unequal satisfaction. The need of both couples are identical, to have children they are genetically related to. If the needs of both couples are the same then any reason given for unequal treatment must depend on the outcomes for any children so conceived or some benefit to society. The outcomes for any children depends on the parenting skills of the couples involved. Perhaps for instance either gay or heterosexual couples make better parents. However there seems no evidence to support such a reason. Perhaps then society might benefit from unequal satisfaction. It is difficult to see how society might benefit except for promotion of greater diversity, but I have argued above that whilst society must permit greater diversity it should not try to alter the natural diversity occurring within it. In conclusion it would seem that the encouragement of a diversity in ways of life does not give us a reason to prioritise IVF for gay couples over heterosexual couples. It further seems that fairness requires that all couples are given equal priority.

1. Emily McTernan, 2015, Should Fertility Treatment be State Funded? Journal of Applied Philosophy, 32,3. Page 237