Medical Treatment: Decisions and the Law

9. Assisted Reproduction

INTRODUCTION

Matters relating to assisted reproduction can be both highly emotive and high-profile, and there are often strong opinions on how far science and regulation should impact on reproduction. It is a significant challenge for legislation in this area to be sufficiently future-proofed as developments in science, ethics and technology can often outpace legal reform.

The Human Fertilisation and Embryology Act 1990 (‘HFEA 1990’) was enacted after consideration of the report of the Committee of Inquiry into Human Fertilisation and Embryology chaired by Baroness Warnock. This report was published in 1984 and considered the social, ethical and legal implications of developments in the field of human reproduction following the birth in 1978 of the first child conceived through IVF.

Lord Bingham of Cornhill in R (Quintavalle) v S of S for Health summarised the divergence of views on assisted reproductive issues covered by the HFEA 1990:

‘There is no doubting the sensitivity of the issues. There were those who considered the creation of embryos, and thus of life, in vitro to be either sacrilegious or ethically repugnant and wished to ban such activities altogether. There were others who considered that these new techniques, by offering means of enabling the infertile to have children and increasing knowledge of congenital disease, had the potential to improve the human condition, and this view also did not lack religious and moral arguments   to support it. Nor can one doubt the difficulty of legislating against a background of fast-moving medical and scientific development. It is not often that Parliament has to frame legislation apt to apply to developments at the advanced cutting edge of science.

‘The solution recommended and embodied in the 1990 Act was not to ban all creation and subsequent use of live human embryos produced in vitro but instead, and subject to certain express prohibitions … to permit such creation and use subject to specified conditions, restrictions and time limits and subject to the regimes of control … The merits of this solution are not a matter for the House in its judicial capacity. It is, however, plain that while Parliament outlawed certain grotesque possibilities (such as placing a live animal embryo in a woman or a live human embryo in an animal), it otherwise opted for a strict regime of control. No activity within this field was left unregulated. There was to be no free for all.’

The HFEA 1990 regulates the creation, keeping and use of embryos outside the human body and the storage and use of gametes (sperm and eggs) to create embryos. The HFEA 1990 prohibits certain activities from being carried out without a licence. Some activities, including placing non-human embryos or gametes in a woman, are subject to an absolute prohibition.

The primary legislation, therefore,  established  a  system  whereby  the  bright lines are generally set out in the Act (for example criminalised acts,  the framework of a licensing regime, the special status of the embryo) but flexibility remains through the establishment of the Human Fertilisation and Embryology Authority (‘the HFEA’) for systems and processes and guidance to be consulted on, drafted and adapted when developments require such change – through regulatory mechanisms such as the Code of Practice, General Directions and Chair’s Letters.

The assistance of the courts is most frequently sought in relation to matters of consent (including issues of consent concerning the extraction (particularly posthumously), storage, donation and use of gametes (sperm or eggs) and embryos (fertilised eggs)) and the often interlinked issues of parenthood. Art 8 ECHR has proven to be of considerable import and utility when determining matters in relation to consent and parenthood and it is those that are the focus of this chapter. Through consideration of the legal framework currently in place and relevant key case law in the area, this chapter will also consider something which is perhaps a less regular feature of medical treatment decisions – the need to balance competing Article 8 rights of different individuals involved in disputes as to consent and/or parenthood (actual or prospective) and the right to found a family.

The HFEA 1990 and the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’) also govern the donation and use of embryos for other purposes, such as research, but these are beyond the scope of this book.

Contents

  • A Introduction  9.1
  • B The components of the regulatory regime 9.2
  • HFEA 1990 9.3
  • HFEA 2008 9.4
  • The European Tissues and Cells Directives 9.5
  • Regulations – Secretary of State 9.6
  • Regulations – Powers of HFEA 9.7
  • Directions  9.8
  • Licence conditions (HFEA 1990 s 12–15) 9.9
  • Code of Practice  9.10
  • Chair’s Letters 9.11
  • Guidance Notes/Policies/Manuals 9.12
  • C Licensing regime  9.13
  • D Consent  9.14
  • Procedure for giving consent 9.15
  • Storage periods  9.16
  • Extension of storage periods  9.17
  • Evans case – one-party withdrawal of consent pre-embryo transfer 9.18
  • Other key cases  9.19
  • E Conscientious objection 9.20
  • F Birth mother  9.21
  • G Supportive parenting provision  9.22
  • H Posthumous gamete use  9.23
  • I Preimplantation genetic screening  9.24
  • J Conclusion  9.25

updates and appendices will be provided for this chapter in due course

Return to index