“…test tube babies (IVF) are
with us; and there is no use saying it ought never to have happened...All you
can do is try to tame it.” (Kennedy,
Treat Me Right, p.13, Clarendon Press
1988)
How does the law seek to
“tame” IVF treatment?
What problems are faced by
the legislator in seeking to do this?
Do you think IVF treatment should be regulated by the law?
In 1978, a baby girl was born and society stared in
awe. Some people heralded the birth of the first test tube baby as a staggering
medical breakthrough. Others condemned it as immoral, against Gods law. In
Vitro Fertilisation (IVF) is where the ova (egg) from a woman and sperm from a
man are fertilised outside the body and then placed in the woman’s uterus.
Controlling IVF treatment is fraught with ethical and practical
difficulties. This essay will discuss issues such as artificial insemination,
treatment abroad, embryo donation, destruction of gametes and embryo’s, paternity
of IVF babies, anonymity of donors, cloning and advanced screening.
If the man is impotent, his sperm can be injected
into his partner artificially (AIH) whilst if he is infertile, the problem can
be overcome by artificial insemination by donor (AID). The two types of
Artificial Insemination pose different problems.
If a man dies and his sperm is used after his
death, he cannot by way of section 28 of the Human Fertilisation and Embryology
Act (HFEA) be treated as the father of the child. This prevents the child
having a claim on the deceased’s estate and also prevents the child having
paternal relations. However a recent court decision has held this to be
contrary to human rights law. The mother in that case, Diane Blood, said “It is important that the birth certificates
tell the truth and not a lie.” 1
Whilst s28 confers legal parentage on a husband (s28(2))
or partner (s28(3)) where they are being treated together by a licensed clinic,
there is a loophole where it comes to being treated abroad. In U V W (Attorney
General Intervening) 2, the partner of a woman who
gave birth after IVF treatment in
Treatment in a foreign country was also relevant in
R V The Human Fertilisation and Embryology Authority, ex parte Diane Blood 3. The HFEA was again overcome
by European Law allowing medical treatment in any member of the EU. It was held
that the refusal to allow gametes taken from DB’s comatose husband to be taken
to
Another problem arose In Leeds Teaching Hospitals
NHS Trust V A 4 where
two potential fathers both claimed to be the legal father of a child born of
IVF.A mix up of sperm left white couple Mr & Mrs A having mixed race twins.
Under s28, Mr A would be the father as he was treated with his wife but was not
due to his lack of consent for another mans sperm being used. Mr B, whose sperm
was used, was held to be the legal father, “although
his rights are akin to those of an unmarried father and so he does not have
automatic parental responsibility.” 5 The only option left for Mr A
to become the twins’ legal father was to adopt them with his wife.
It was clear in
In both
Once someone is treated as the father under s 28,
they have the same rights as a natural father, even if the relationship with
the mother ends. This was the case in Re CH 9. This can be contrasted to that under s 28(6)
where if a man donates sperm, he is excused from any parental responsibility. Donors
are excused parental responsibility because they consent to their sperm being
used for others.
It can also be the identity of the mother which is
unclear. Surrogate mothers are those who carry a child for a couple. Sometimes
this is done using IVF using the commissioning couples’ gametes. Under s27 of
the HFEA the mother is defined as the person who gives birth to the child. There
is no requirement for a biological relationship. The surrogate mother would
legally be the mother, despite any surrogacy agreement. This is because the commissioning
parents cannot enforce any agreement under the Surrogacy Arrangements Act 1985,
s1A.
Normally the surrogate mother would pass the child
over to the commissioning couple at birth for them to adopt the child. A
surrogate mother of an IVF child is however unlikely to be able to prevent biological
parents from adopting a child once
it is born IF she has given up the child as the
child’s welfare is the most important to the court. This was the situation in Re
MW 10
Many argue that children born of IVF treatment should
be given information about their biological father. It has been argued that
dropping the protection of anonymity for donors is justified as the lack of
knowledge of IVF children is a “fundamental
violation of their human rights.”11 It has
also been argued though that if anonymity were lifted, the numbers donating
sperm would plummet and the donors left would be mostly older men, with weaker
sperm.
If anonymity were lifted children would be given a
right without a matching responsibility. If they were to gain these rights,
would it be fair to give donors rights too? Would the donor be able to have
direct or indirect access to the child? Or would such rights only work one way?
Most people who call for anonymity to be lifted want no rights or
responsibilities for the donor and no responsibility for the child. Many
potential donors would be scared off donating by the prospect that one day,
someone they don’t know could knock on their door and call them Dad.
Knowledge of ones biological father could also
create complications for the family the child is bought up in. Whilst the court
considers the welfare of the child as paramount (s13(5) HFEA), it does so under
the auspice of “the need of that child
for a father,”12 the
father being the legal one, under s28, not the biological one.
One possible compromise would be providing the
child with brief details about the father, without leaving them able to contact
them. The problem with this is the inherent human desire to find out more once
we know a little about something.
As discussed above, a clinic must have a license to
store gametes. Normally they cannot be stored under s4 of the HFEA. They can
however be stored with consent under the Human Fertilisation and Embryology
(special exemptions) Regulations 1991, purely for the purposes of research. Some
groups of society have condemned this as unethical.
Destruction of embryos needs the consent of either
partner (AIH). They can be destroyed even if the parties dispute whether they
should be, providing that one consents. There is no mechanism to inform the
other person. A Scottish MP is pressing for a change in the legislation after a
constituent of his only found out about the destruction of five embryos when
she tried to continue treatment. Her former partner had consented. The Scottish
MP has claims that “women undergoing IVF
who have had eggs donated (should) be informed prior to the destruction of
embryo’s, so that guidance, counselling and advice can be afforded.”13
Whilst great emotional weight can be attached to
embryos, some people attach similar weight to gametes as regards their use for
IVF treatment. In Mrs U V Centre for Reproductive Medicine 14,
it was claimed that the clinic used undue influence in persuading her husband
to change his consent form to disallow storage or use of his sperm after his
death. Mrs U was unable to use her dead husbands’ sperm as it was held that he
was able to change his mind and that there was no undue influence.
It is not unusual for patients to express concern
about the ethics or practise of clinics. In Mrs U 14(above),
the claimant believed the policy statement on the consent form that the clinic
used, which claimed the use of sperm after death as unethical, was unjust. She
also believed that her husband being asked to reconsider his initial consent
was unjust. In Patricia Thompson V Sheffield Fertility Clinic 15, it was held that the claimant had wrong done to her
when a clinic replaced three embryos despite her explicit request to replace
only two. The clinic’s medical opinion was that three embryo’s should be used
to increase the chance of success. Despite the minimal chance of it, she was
left with triplets.
Whilst the law states that no more than three embryos
should be replaced, some clinicians believe that “a ban on three embryos would not affect success rates, while large
sums of NHS cash would be saved by avoiding multiple pregnancies.” 16 Whilst
there are differing opinions on whether this is true, a ban on three embryos
would certainly reduce the number of multiple births. Currently “up to a third of all babies born as a
result of IVF treatment are twins.”17 With multiple pregnancies come greater risks of still
born babies, neonatal deaths, long term disabilities such as Cerebral palsy and
great costs to the NHS.
Whilst fertility treatment is primarily aimed at
helping the one in ten couples who are infertile, tissue typing in conjunction
with pre-implantation genetic diagnosis (cloning) has separate medical aims.
Many in society, particularly religious sectors have dubbed cloning as “ethically questionable.”18 Others
believe that the possible medical advantages outweigh the medical risks and the
ethical problems.
Until very recently advanced screening techniques of embryos
was illegal. That was changed by the case of
In conclusion, based on the above facts, as medical
technology and ethics change, the law on IVF treatment needs to adapt to them.
The issue of the identity of the father in law is perhaps the most contentious.
Whilst donors (AID only) should remain without any rights to a child they
should also retain their anonymity to protect their privacy and maintain the
quantity and quality of donors. The exception to this rule should be where
their sperm was meant for a purpose other than donation as discussed above.
In IVF treatment, where the man has since died,
should not continue unless written consent is present and the child should only
be able to stake a claim on his fathers’ estate if they are expressly mentioned
in a will, not by intestacy.
Surrogacy using IVF should be banned except where the
commissioning woman is unable to carry a child due to having had her womb
removed, being born without one or some similar defect preventing her from
carrying a child herself. In the interests of the child, where a woman can
carry a child herself, she should not be able to commission someone else to do
it for her.
Where treatment is being given in a foreign clinic,
gametes should only be released to it where the clinic holds a license to
practice IVF within its own country. The rights
given to the mother and father should be the same
as if the treatment had been given in the
Cloning, tissue typing and advanced screening of
embryos should be allowed under the very strict circumstances of where it is to
save another life AND that there is a strong likelihood that the couple wanting
it would have another child regardless of the decision.
Clinics should also not press their own ethics onto
patients. The counseling normally provided when they pay for the IVF services should
be by an independent counselor with a duty to give an unbiased view.
NHS funds should only be provided for the most
‘needy’ and likely to have successful treatment in order to try tame the
increases in numbers wanting treatment. There should also be a reduction to a
maximum of two embryos replaced to safeguard NHS funds and protect against
unwanted multiple births.
In reforming controls over IVF, the legislature
should insert a sunset clause similar to that common in French law to ensure
that the legislation is reviewed after a certain period of time. IVF is a
modern practice which society is still learning to control. It has been said
that “these possibilities bring with them
huge practical and ethical difficulties. These have to be balanced against
the…feelings of people who desperately long for children…as well as the natural
desire of clinicians and scientists to use their skills to fulfill those
wishes” 14
As the worlds’ population becomes more infertile at
an alarming rate, more and more people will want the services of IVF. This
issue is still in its infancy. The issue will continue!
ESSAY DETAILS
1. DIANE
BLOOD FOR BBC NEWS ONLINE “BLOOD CLAIMS IVF PATERNITY VICTORY”
2. U V W
(ATTORNEY GENERAL INTERVENING) (1998) FAM.29
3. R V
THE HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY, EX PARTE DIANE BLOOD (1997) 2
ALL ER 687
4.
5. THE
TIMES NEWSPAPER
6. RE D (A
CHILD)(IVF TREATMENT) (2001) EWCA Civ 230
7. M V
8. ibid
9. RE CH
(1996) 1 FLR 569
10. RE MW
(1995) 2 FLR 759
11. TIM
HEDGLEY, CHAIR OF THE NATIONAL FERTILITY ASSOCIATION, ‘SHOULD SPERM DONORS BE
TRACEABLE?’ THE GUARDIAN NEWSPAPER
12. SECTION
13(5) HUMAN FERTILISATION AND EMBRYOLOGY ACT 1990
13. BBC
NEWS ONLINE
14. MRS U V
CENTRE FOR REPRODUCTIVE MEDICINE (2002) EWCA CIV 565
15.
PATRICIA THOMPSON V
16.
17.
RICHARD KENNEDY, SECRETARY OF THE BRITISH FERTILIITY SOCIETY, THE
TELEGRAPH
NEWSPAPER,
18.
HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY PRESS RELEASE FOR REUTERS
NEWS-‘DESIGNER BABY BAN OVERTURNED IN
19.
REUTERS NEWS-‘DESIGNER BABY BAN OVERTURNED IN
20. SUZI
LEATHER, HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY, REUTERS NEWS-
‘DESIGNER BABY BAN OVERTURNED IN
WORD
COUNT: 2475
BOOKS/REPORTS/ARTICLES
QUOTED OR USED IN THE RESEARCH FOR THIS ESSAY
1.
JONATHAN MONTGOMERY, HEALTH CARE LAW(2ND ED,2003)
2.
BRENDAN GREENE, ESSENTIAL MEDICAL LAW
3.
ERIKA M. SZYSZCZAK, JUDICIAL REVIEW OF PUBLIC ACTS, EUROPEAN
LAW REVIEW, 1998
4. BBC
NEWS ONLINE “BLOOD CLAIMS IVF PATERNITY VICTORY”
5. THE
TIMES NEWSPAPER
6. TIM
HEDGLEY, CHAIR OF THE NATIONAL FERTILITY ASSOCIATION,
‘SHOULD SPERM DONORS BE TRACEABLE?’ THE
GUARDIAN NEWSPAPER
7. BBC
NEWS ONLINE 11TH FEBRUARY 200316.
TELEGRAPH NEWSPAPER,
8.
RICHARD KENNEDY, SECRETARY OF THE BRITISH FERTILIITY SOCIETY,
THE TELEGRAPH NEWSPAPER,
9.
HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY PRESS RELEASE
FOR REUTERS NEWS-‘DESIGNER BABY BAN
OVERTURNED IN
2003
10.
REUTERS NEWS-‘DESIGNER BABY BAN OVERTURNED IN
2003
11.
SUZI LEATHER, HUMAN FERTILISATION AND EMBRYOLOGY AUTHORITY,
REUTERS NEWS- ‘DESIGNER BABY BAN
OVERTURNED IN
2003
ARTICLES
TAKEN FROM WESTLAW WEBSITE
OTHER
WEBSITES USED: SEMINARIANS WEBSITE, REUTERS, BBC ONLINE, TELEGRAPH, THE TIMES