Essay question

To what extent does the Human Fertilisation and Embryology Act 1990 (as amended) provide real choice and opportunities for assisted reproduction, and how could this be improved?

Outline answer

The Act provides comprehensive regulation in respect of most aspects of infertility treatment and includes permissive and restrictive elements. It includes a conscientious objection exemption which could, conceivably affect access to care for patients. The fundamental principle that underpins the Act is the need for consent of gamete or embryo donors and consideration of the welfare of any child born as a result of infertility treatment. Third party involvement, whether a surrogate, a gamete donor is a central characteristic of some forms of infertility treatment and a key challenge for the law is how best to regulate such relationships. The other main factor that needs to be considered is the interests of any child born as a result of infertility treatment and how these interests can best be protected and balanced with those of gamete donors, parents and surrogate mothers. One case in issue is that of anonymity for gamete donors which will by definition deny the child’s right to information about their genetic background.

The Act imposes a significant measure of control for example by prohibiting certain activities absolutely. This includes reproductive cloning. For other controversial and future possible treatments for infertility the Act attempts to exert control. It provides, for example, for genetic modification and “screening in” for genetic characteristics. For individuals who cannot procreate, reproductive cloning might be the only mechanism by which they could have a genetically related child. Certain types of established treatment, such as ovarian stimulation drugs are unregulated by the Human Fertilisation Act 1990 even though these are not without risk and can lead to multiple pregnancy (with all the attendant risks to women and foetal development). They are “prescription only” medication.

The rules that govern parenthood have been amended by Part 2 of the Human Fertilisation and Embryology Act 2008. Pursuant to section 3(2) of the HFEA as amended only ‘permitted’ gametes and embryos may be placed in a woman. Section 3ZA excludes gametes and embryos that have been altered and will include the genetic modification of embryos or gametes where certain genes are added or replaced with the outcome of new or enhanced genetic characteristics. Section 13(9) of the Act prohibits embryo selection on social grounds in favour of embryos (or donors of gametes) for genetic conditions that are commonly perceived by society as disabling. For some couples such as those who are deaf or achondroplastic might wish to select embryos which carry the genes for these traits in order that they share certain characteristics. According to Savelescu (2001), prohibitions which interfere with procreative autonomy, can be justified only on grounds of ‘procreative beneficence’.

A major constraint for some couples is the costs involved in infertility treatment. The Act does not regulate the costs that can be charged which leads to some couples seeking treatment from other jurisdictions. The Act also regulates access to treatment and provides that treatment that involves the use of third party games can be carried out only under licence (section 4(1)). Section 13(5) requires that providers of treatment consider the welfare of any future child that could be born as a result of treatment when deciding whether to offer treatment to a couple. The Act permits screening out embryos during the selection process principally on account of genetic defects.

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