It has been ten years since the 1990 Human Fertilisation and Embryology (HFE) Act was updated in 2008. Over the past ten years the laws governing fertility treatment and legal parenthood have remained largely static. But society has continued to evolve at a rapid pace.
The second session of the Progress Educational Trust's 2018 Annual Conference 'Make Do or Amend: Should We Update UK Fertility and Embryo Law?' was dedicated to the understanding the disparity between our current assisted conception legislation and the ever-changing needs of society.
The session was opened by Natalie Gamble, solicitor and founder of the specialist family law firm Natalie Gamble Associates. In her thought-provoking talk, 'Mums, dads and parents: why UK fertility law doesn't go far enough in recognising diverse modern families', Gamble explored the legal issues of assigning parental rights following fertility treatment.
Gamble highlighted the positive legal changes that came about after the 2008 HFE Act amendment – in particular, the greater clarity around the assignment of parenthood for same-sex couples. However, it became apparent throughout her talk that the current legislation does not meet the needs of many UK families and in some circumstances it is woefully inadequate.
'As families have become more diverse, the laws' deficiencies have been revealed,' Gamble said. Indeed, there has been an explosion of legal cases over the last ten years which have required the family court to clarify the parentage of children born through assisted reproduction. The sheer number of these legal cases clearly demonstrates the extent to which society has outgrown the current legislation.
The reassignment of parentage via parental order in surrogacy cases seems to be particularly problematic and Gamble recounted how the court has expressed its frustration over the fact that it cannot always grant a parental order 'which is clearly in the child's best interests'. For international surrogacy cases, this can mean that children are left stranded overseas. We undoubtedly need to do better to protect these children, but in order to do so we need a law with a greater degree of flexibility.
Gamble ended her talk by theorising what legislative improvements could be made. In reference to the current UK fertility laws, Gamble suggested that we should 'tear them up, throw them away and start again'. It is highly likely that the family unit will continue to diversify and it is important that children have parents that are legally recognised as such.
Gamble believes that the current legislation could be replaced by one, all-encompassing, rule of thought: 'Where a child is born through artificial insemination or the transfer of an embryos, the legal parents of the child are the persons, who at the time the child is conceived, intend to be the legal parents of that child and each legal parent can choose whether they are registered as the child's mother, father or parent'.
The focus of the session shifted to the online fertility industry with Erika Tranfield, director and co-founder of PrideAngel, a web-based connection service for sperm donors and recipients, exploring whether the growth of the fertility industry online was viable.
Tranfield argued that online sperm donors possess a number of distinct characteristics compared to fertility-clinic-based sperm donors, such as the desire for 'cooperation and communication in the reproductive decision'. These differences may therefore mean that online services can help to meet the growing demand for sperm donors by recruiting men that are unwilling to donate through a fertility clinic.
The presentation also helped to delineate the advantages of using a known donor, such as getting to meet the donor and become familiar with their personality prior to donation, as well as the ability to create extended families should all parties wish to do so. The importance of choice in terms of how families are created was greatly emphasised. 'We bring together co-parents and alternative families, we believe in giving people the information so they make their own informed decision and that really is key, that people have a choice,' said Tranfield.
Tranfield acknowledged the safety issues associated with online sperm donation websites but believes that fertility clinics can help to support online connection services by being more open to treating patients that approach the clinic with a known donor, by reducing the quarantine period for donated sperm samples, by encouraging intrauterine insemination over IVF treatment and by ideally reducing overall treatment costs.
The final two presentations both focused on egg freezing. Dr Kylie Baldwin, a medical sociologist and senior lecturer at De Montfort University, examined the factors that motivated women to pursue social egg freezing. In contrast, Emily Jackson, professor of law at the London School of Economics, examined the legal pressures that influence the timing of when social egg freezing is performed.
The number of women opting to freeze their eggs has more than doubled since 2013. However, Dr Baldwin has found that women are not consciously choosing to delay motherhood. Egg freezing is instead being performed, according to Dr Baldwin, in response to a 'social context that does not encourage, support or particularly reward early childbearing'. Indeed, a woman's fertility may have already started to decline by the time she has been able to achieve job security, financial security and a suitable relationship in the current social climate.
Dr Baldwin identified that egg freezing can prevent women from 'panic partnering', in which women establish a relationship with a less than ideal partner to maximise the chance of having a child before their fertility declines. Egg freezing was also identified as a means of maintaining 'reproductive currency' in future relationships. Indeed, the option of having offspring with a shared genetic heritage was particularly desirable for many women.
While we now know a lot about why women opt to freeze their eggs, Dr Baldwin pointed out that 'less is known about the second half of the egg freezing story'. It will certainly be interesting to find out if the decision to undergo egg freezing subsequently affects the relational and reproductive actions of these women.
At the close of the session Professor Emily Jackson brought some much-needed attention to the storage limitations associated with egg freezing. Under current legislation, women can only store their eggs for ten years, unless they are likely to experience premature infertility, in which case storage can be extended up to 55 years.
For women opting to pursue egg freezing this creates a difficult conundrum. You can either freeze your eggs at a younger age, when the number of eggs collected and the overall egg quality would most likely be higher compared to later life – but there is a risk that you may need to discard the eggs before you are ready to use them. Alternatively, you could freeze your eggs later in life to maximise the chance of being able to use them, but the likelihood of the treatment being successful is much lower due to the age-related decline in egg quality.
The clear unfairness of this situation dominated the first half of the public discussion. The panel heard how the unfeasibly high legal costs required to initiate a judicial review were preventing patients from contesting the current legislation. As a result, clinics are being forced to discard eggs against the patient's wishes to adhere to the laws governing gamete and embryo storage.
The second half of the public discussion focused on the use of unregulated sperm donors, with opinion divided about the safety of online sperm donation sites. Tranfield used her own personal experience of using an unregulated sperm donor to conceive her youngest daughter to illustrate how treatment outside of the fertility clinic can create a much desired 'non-traditional' family.
It is clear that current UK fertility law is failing to keep up with the ever-expanding definition of family and the rapid changes in scientific practice. The big question is, how long will we need to wait until a fertility law is designed that works for all types of families and all types of assisted conception?
The Progress Educational Trust would like to thank the sponsors of its conference - the Anne McLaren Memorial Trust Fund, the Edwards and Steptoe Research Trust Fund, the European Society of Human Reproduction and Embryology, JMW Solicitors, Ferring Pharmaceuticals, the European Sperm Bank, the London Women's Clinic, Vitrolife and the Institute of Medical Ethics.