Enacting Discrimination: A Human Rights Defence of Selecting for Deafness.
Master of Bioethics and Health Law
Section 8.3 of the New Zealand Advisory Committee on Assisted Reproductive Technology’s Guidelines on Preimplantation Genetic Diagnosis prohibits the use of preimplantation genetic diagnosis (PGD) to “select embryos with a genetic impairment seen in a parent”. The aim of this dissertation is to show that if a deaf couple was denied access to PGD to select for deafness, and a complaint was made to the New Zealand Human Rights Commission, it is likely that Section 8.3 would be found to infringe their right to freedom from discrimination, because it causes unjustified differential treatment on the basis of disability. To be legally justified, Section 8.3 needs to serve a sufficiently important purpose, and have a rational connection with its purpose. The purpose of the provision is not apparent, so several prominent moral arguments against selecting for deafness will be critiqued. Two possible purposes will be considered: to prevent harm to the potential child, and to prevent harm to society. The arguments these purposes are based upon are shown to be unsound. Moreover, Section 8.3 is not rationally connected with either of these possible purposes, and it is a wholly disproportionate response to the (presumed) attempt to achieve them. Section 8.3 appears to infringe Section 19(1) of the New Zealand Bill of Rights Act 1990 and breach Part 1A of the Human Rights Act 1993. New Zealand’s legal commitment to the United Nations Convention on the Rights of Persons with Disabilities means that, if Section 8.3 is discriminatory, it must be abolished.