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Thursday, August 23, 2012

Playing the Prenatal Blame Game

A new study has come out linking paternal age to a child's risk of autism and schizophrenia.  It appears to have wide scientific support and is significant both because it explains at least part of the increase in autism diagnoses in recent years (and before people lambast me on this very controversial subject, I know there are other possible factors contributing to this increase) and because it is the first time major disorders have been linked to paternal, rather than maternal, age.

The fact that one of the disorders is autism is particularly interesting, because in the 1950's-1970's "refrigerator mothers" were blamed for causing autism with their emotional fridgidity.  (There is a great PBS documentary on this issue).  And of course, women continue to be vilified for a variety of prenatal behaviors which may impact a child's health, whether it is having children when they are older or eating sushi while pregnant.  This practice is carried to an extreme in the current criminal prosecutions of women for using drugs or attempting suicide while they are pregnant.  A recent article outlined some of these cases, and at least one state, Colorado, has a "personhood" amendment on the ballot this fall, which would define personhood as beginning at conception, thereby increasing and supporting such prosecutions.  (However, at least one court, in Oklahoma, has found a similar personhood amendment unconstitutional.)

The finding that paternal age impacts fetal development should not be so surprising--after all we've come a long way from Tudor times, when women were held wholly responsible for children's sex.  And the recent findings likely will, and should, impact the reproductive decisions of some men.  Unfortunately online comments reveal, however, that the blame game has already started.   It's understandable that some women feel relief that they're not alone being held accountable for every aspect of a child's development.  But it would be best if this finding led to more productive conversations between men and women about how best to reduce risk to our children without sacrificing the realities of our own professional and personal lives.

Posted by Cynthia Godsoe on August 23, 2012 at 11:16 AM | Permalink


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Great post Cynthia and fascinating sets of issues raised by this controversy. At the risk of posting too many comments on your post (I can't help it if I love them!), one point I would make, which I have tried to make in a few of my published papers (primarily in Regulating Reproduction: The Problem with Best Interests, 96 MINN. L. REV. 423 (2011), http://ssrn.com/abstract=1955292, Beyond Best Interests, 96 MINN. L. REV. 1187 (2012)http://ssrn.com/abstract=2014069, and an online response paper coming out soon) but also on quite different stuff I've done on this blog http://www.typepad.com/services/trackback/6a00d8341c6a7953ef0162fc1a5702970d:

We need to be careful to distinguish the pre-conception case from the fetal harm cases (often referred to as "prenatal harm").

At the risk of sounding like an apologist for my gender, fathers who tried to avoid this "harm" to their child could only do so by conceiving (i.e., supplying sperm) at a younger age, changing which sperm is produced, and thus the genetic identity of the child. As I have argued in the academic papers, the concern for Best Interests of the Resulting Child (BIRC) that would justify regulation on this ground is problematic for reasons connected to Derek Parfit's Non-Identity Problem and its partial recognition in law through the rejection of wrongful life. Although there may be substitute conceptions (like Reproductive Externalities or Non-Person Affecting Principles) that could step in to justify action, though I think only in some limited cases.

By contrast, pre-natal behavior by women who are carrying *already conceived fetuses* whose genetic code is mostly (though not completely) "locked" *might* be thought to have harmed those fetuses in a way that does not run into the same problem. I say might because there are a set of different issues/questions regarding whether (and when in development) fetuses are the kinds of things that have cognizable interests the state should protect and also whether there can be Non-Identity Problems with already conceived entities.

More analogous on the female side, I think, are regulations seeking to limit the use by older women of ARTs that I note in my published work many countries have adopted.

In any event, great post, and I think this research just released today raises some very interesting legal and ethical questions.

Posted by: I. Glenn Cohen | Aug 23, 2012 2:43:47 PM

There's never too many--I really appreciate your comments! Here, as always, you raise a great point. I agree with you that there is a distinction between pre-conception and truly prenatal (i.e. post-conception) harms. And I also agree that people should not be judged as harshly for any harms to children ultimately stemming from their decisions pre-conception as for their decisions pre-natally. That is, it is more morally culpable to abuse drugs while pregnant than to wait until you are older to have children, even knowing that the latter will increase risks to the child.

The tricky issue then becomes, as you have discussed, when moral culpability should become legal culpability. Since most legal action in the U.S. has focused on prenatal harms, rather than preconception harms, the issues obviously become really gendered. It will be interesting to see how, down the road, this research affects men's behavior and medical counseling about timing fatherhood etc.

Posted by: Cynthia Godsoe | Aug 23, 2012 4:49:32 PM

So it's starting to look like babies are better off the younger both their parents are, and worse off the later either parent has waited to have children.

What does this say about our modern economic model of staying in school to mid-20s, working for several years, and then having children at precisely the worst biological time?

Posted by: JD | Aug 24, 2012 8:23:22 AM

Good point. But risk of developmental problems is only one of the risks babies and children face. There are other risks which can be worsened if parents are not sufficiently economically secure or emotionally mature to be raising children.

Posted by: Cynthia Godsoe | Aug 24, 2012 10:47:23 AM

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