An article by Peter Bowen-Walker.
Reproduced with the kind permission of The Student Lawyer http://thestudentlawyer.com/. Permission to reproduce the article does not necessarily amount to an endorsement of any of the other views or opinions expressed on this website.
“Should humans have the right to unfettered reproduction?”
According to the UN, ‘the world population of 7.2 billion (in mid-2013) is projected to increase by almost one billion people within the next twelve years, reaching 8.1 billion in 2025, and to further increase to 9.6 billion in 2050 and 10.9 billion by 2100.’
A report by the WWF stated that humanity’s use of natural resources ‘exceeded the Earth’s total biocapacity in the 1980s; [and that] this overshoot has been increasing [ever] since. In 2005, demand was 30 per cent greater than supply.’
The figures cited above are complex and multivariate and exploring them is beyond the scope of this article – nevertheless, they compel us to stop and think because all our futures will be profoundly impacted by the changes they will bring. As future lawyers practicing in this rapidly changing world, we will have a duty to “uphold the rule of law and the proper administration of justice”, we must “act with integrity” and we must “act in a way that maintains the trust the public places in [us] and in the provision of legal services”. So what duty do educated professionals have in terms of contributing to any debate on this potentially existential threat?
This article will argue that the laws of man are in conflict with the laws of nature. It will be argued that whilst human laws sit above all humans, humanity’s laws do not sit above those of nature. We have a finite planet and it is about time the law took into account this undeniable fact. So in the event of a conflict between the interests of a client and a threat to the existence of humanity – which SRA principle should prevail? Are lawyers expected to continue facilitating multinational companies when it is apparent some of their lawful activities are endangering natural resources and potentially damaging the environment? Are lawyers expected to continue promoting Human Rights when it is clear they may inadvertently be leading to damage being caused to the planet and may threaten to degrade the quality of life of future generations? Can lawyers really just sit back, provide the best service for their client – even if it is clear that in the long term, such advice will not be in the public interest?
Article eight of the ECHR provides a right to respect for private and family life. It limits the control public authorities can exert over our lives. Despite being a qualified right, any suggestion that the state could have a say in the number of children a family can or should have would be defeated by this article. Should there be any doubt about the unfettered reproductive rights of humans, Article 12 augments our right to breed by providing ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’.
Indeed, even as far back as 1968, Resolution 18 of the International Conference on Human Rights in Tehran declared; ‘Parents have a basic human right to determine freely and responsibly the number and the spacing of their children’. This resolution was significantly expanded in scope by the UN World Population Plan which extended the right not only to parents, but also to ‘all couples and individuals’. In addition, these couples and individuals should ‘have the information, education and [the] means to do so’. In other words, it is down to individuals to decide whether having one, two, five or ten children is responsible; and the contracting states should provide them with information and the “means” with which to go about their business.
So despite the fact that the earth and its resources are finite, and that humanity’s exploitation of natural resources exceeded their availability as far back as the 1980s – humans have created laws which provide them with rights to limitless reproduction (if they individually feel it was responsible).
Where countries have attempted to impose reproductive limits on their populations (such as China’s “one-child” policy implemented in the early 1980s), they have been criticised as restrictions which violate Human Rights. It is of course fair to say that the methods they employed were clear violations of human dignity – but was the underlying logic and science of the policy wrong? It should also be pointed out that other undesirable and unforeseen consequences arose from the policy which have now largely extinguished its credibility.
In a 2010 scholarly article entitled ‘The costs and consequences of assisted reproductive technology: an economic perspective’ it was stated that ‘3.5 million children have been born worldwide following assisted reproductive technologies (ART) treatment, with ART children making up to 4% of births in some European countries.’ With our current economic constraints in mind, a newspaper article, responding to a recent government proposal to increase the availability of ART to NHS patients, predicted the consequence of doing so would be to decrease funding available for other life-saving treatments such as the availability of cancer medication.
This article doesn’t claim to reach a satisfactory conclusion. Its purpose is simply to highlight some important constraints which are too often forgotten by policy-makers and which, as a result, make their way down into our laws and influence our way of thinking about what is right and wrong.
Whilst the author supports Human Rights wholeheartedly, they are clearly an imperfect work in progress. The author would ask those who champion Human Rights to be prepared to cede ground when they are found to be counter-productive for future generations and more widely, counter-productive to the stability of our life-support system – the earth.
Should humans have the right to unfettered reproduction? The author would argue not. Should the NHS spend significant sums of money on ART if it entails cutting back on other life sustaining treatments? You the reader can decide.
 WWF, Zoological Society of London, Global Footprint Network. 2008. Living Planet Report 2008. WWF, Gland, Switzerland.
 For a more lengthy exploration of the issues see Freedman, L.P & Isaacs, L. (1993) Human Rights and Reproductive Choice. Studies in Family Planning 24:18-30.
 For a more lengthy exploration of the issues, see http://www.popcouncil.org/uploads/pdfs/PDRSupplements/Vol38_PopPublicPolicy/Wang_pp115-129.pdf