Applying the Right to Health to Reproductive Rights - The Case of Elective Egg Freezing

Abstract

This articles discusses elective egg freezing as a particularly illustrative example of how reproduction and preventive health converge and thus explores how a ‘health and human rights’ approach could provide an argumentative basis for the further legal advancement of reproductive rights in the area of elective egg freezing.

Technological advances within the reproductive area have brought about an imminent need for redeveloping legal concepts and principles within the area or to apply existing perspectives more broadly in the recognition that scientific advances in cryopreservation and assisted reproduction increasingly places reproductive tissues in a health setting. Delaying the use of sperm and embryos through cryopreservation has long been a key element in fertility treatments. Successfully using cryopreserved eggs to establish pregnancies is, however, a recent undertaking that has moved reproductive medicine into a new preservation age. By enabling people to procreate in other temporalities, preservation disentangles reproductive time from the somatic time of the body . Simultaneously, it challenges the normative temporalities in law, particularly in relation to assessment of when someone is deemed too old to procreate. The new preservation technology of reproductive medicine has led to the practice of so-called social freezing, that is, when young women deposit ova in order to preserve fertility for a later stage in life, where it is more socially advantageous , because they have found the partner, they wish to found a family with, finished their education or reached a place in their career and financial capacity that allows for the expenses of raising a family. This development has been a concern for many legislators – and whereas many jurisdictions allow men to freeze sperm for ‘reproductive insurance’ purposes freely, many do not allow women the same freedom e.g. due to concern for maternal age or concern that it would incentivize women to delay reproduction. Such legal boundaries add to the social constraints that in effect leave women with limited room to procreate in a socially acceptable way.

However, the breakthrough in fertility preservation adds new settings to reproduction; one related to disease and another related to health:

Infertility is recognized by the WHO as a disease. Managing and preserving fertility in children/adults facing malignant cancer is now a concern that can be addressed clinically as gametes, are being cryopreserved and then later in adult life used to create pregnancies. As infertility is rising across the globe it is increasingly becoming a disease, which affects millions of people of reproductive age worldwide; Estimates suggest that between 48 million couples and 186 million individuals live with infertility globally, making infertility the most prevalent disease in the reproductive age group. Because female fertility in particular is affected by age, the freezing of ‘young’ eggs is one possible avenue to optimize fertility and improve chances of having children later in life.

Secondly, research indicates considerable health benefits to women if ovarian tissue removed in youth is implanted back to postpone menopause by continuing its release of hormones delaying diseases such as osteoporosis. This disentanglement of egg cells from a reproductive setting demonstrates clearly that the freezing of eggs relates to preventive health and should be seen as a preventive health optimization measure.

Consequently, in legal and policy development, we need to move away from a narrow regulatory concern focused on fertility treatment and the possible ‘chills’ of this technology – to a wider ‘right to health’ focus. As cryopreservation of eggs can both be an ‘insurance’ against the most prevalent chronic disease affecting the reproductive age group, but also be used as a medicine-free way to prevent or delay menopause induced illnesses, these developments redraw the normative and argumentative basis for reproductive rights extending them beyond the classic framing:

Even in Europe, the concept of reproductive rights has not been developed quite as fully in legal practices as intended in the UN concept for reproductive rights that was first developed in the 1994 Cairo Platform for Action. The case-law of the European Court of Human Rights demonstrates that in fact only the negative aspect of the right to reproduce has been developed and even then only partly. Similarly, the EU Parliament’s motions for resolutions based on the reports on sexual and reproductive health and rights of 2001 and 2013 demonstrate a basic struggle between a fundamental rights approach (focusing on individual rights) and a subsidiarity approach, where reproduction is also seen as a social (collective) matter closely associated with state prerogatives in the domain. Thus, in the way much of the European Court of Human Rights case-law has been played out - where reproductive rights are addressed through the lens of Article 8, which leads to conflicting moral perceptions, which in turn establishes a wide margin of appreciation - human rights have not provided the dynamic argumentative basis for the development of reproductive rights that was called for in the Programme of Action developed at the 1994 UN Cairo Conference on Population and Development and at the UN Beijing Conference on Women of 1995. In other words, the tendency of European Court of Human Rights case law to favour subsidiarity arguments that allow member states a wide margin of appreciation effectively makes the European Convention on Human Rights anything but the driving force in the European legal development of reproductive rights.

Every human being has a right to the enjoyment of the highest attainable standard of physical and mental health. Individuals and couples have the right to decide on the number, timing and spacing of their children, and a right to found a family. Infertility can negate the realization of these essential human rights. Addressing infertility is therefore an important part of realizing a number of essential human rights.

The aim of this article is to explore if the development of reproductive rights can gain from foregrounding a ‘health and human rights’ perspective through the case study of egg freezing. Section 2 argues that elective egg freezing should be viewed as a preventive health optimization measure.

Section 3 gives an account of the right to health in order to establish the individual’s freedom from State interference to take preventive health optimization measures. Section 4 argues that legislation must be gender sensitive in order to capture the special biology and health potential of women’s reproductive cells/tissues. The conclusion reflects on what this analysis could mean for policy development and the permissibility of egg freezing.

Keywords: Social freezing, elective egg freezing, medical freezing, health and human rights, reproductive rights, preventive health