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Preventing cross-border fertility treatment  raises legal as well as practical concerns

13 February 2006
By Diane Blood
writer and mother who took the HFEA to court in 1996/7 to be allowed to export her late husband's sperm to facilitate treatment to bear his children.
Appeared in BioNews 345
A recent report from the Human Genetics Commission (HGC) - the UK government's advisory body on genetics - 'Making Babies: Reproductive decisions and genetic technologies' is the latest in a string of reports designed to help the UK form new legislation on assisted reproduction. I was deeply concerned to read of this report's recommendation that the Human Fertilisation and Embryology Authority (HFEA) 'should explore ways in which clinics in the UK can be prevented from preparing or otherwise colluding with individuals intent on seeking treatments which are permissible abroad, but prohibited within the UK'.

In 1998 and 2001 I travelled to Belgium to undergo fertility treatment with my late husband's sperm- a treatment which, after the sperm had been taken, was found to be prohibited in the UK due to his lack of consent in writing. In order to have the treatment I desired in Belgium, I needed to export my late husband's sperm. The HFEA sought to prevent this. We relied on the European Communities (EC) Treaty right to unhindered access to medical treatment throughout the member states of the Union. The only counter to this right is if there is some overriding public policy argument against it, which withstands stringent tests of necessity and proportionality. This is what the HFEA tried to prove in my case, but failed. I won on Appeal. On their own legal advice, which stated that it was 'unlikely that the reasons previously given by the authority could in the exceptional circumstances of this case, satisfy the test of necessity and proportionality' the HFEA then allowed me to export the sperm.

It surprises me that nine years after my Appeal Court victory, a government's advisory body could consider preventing or hindering patients from travelling abroad for fertility treatment.

There is a wealth of existing legal authority on these issues. At court we cited a number of cases, but the ones that I feel are particularly relevant here are those concerning Irish women travelling abroad for abortion brought before both the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR). In SPUC [Society for the Protection of the Unborn Child] v Grogan [1991], the ECJ ruled that a medical operation, performed in accordance with the law of the State in which it is carried out, constitutes a protected service within the meaning of Article 60 of the EC Treaty. It rejected the submission that 'the provision of an abortion cannot be regarded as being a service, on the grounds that [under Irish constitutional law] it is grossly immoral and involves the destruction of the life of a human being, namely the unborn child'.

Even more relevant, as the case particularly concerns the provision of information, is the reasoning of the ECHR in Open Door Counselling and Dublin Well Woman Clinic v Ireland [1994]. The Irish Government had tried to hinder its citizens from seeking abortions in England by preventing the distribution of information and literature on the subject. The ECHR found against them. We should not and cannot impose our laws on other countries, and within the EU the hindrance of cross-border medical treatment has already been proven to be against the law. I also think it is dangerous. It is unlikely to prevent anyone gaining the treatment they want, but may drive the treatment underground or lead to people undergoing treatment with poor advice, counselling or aftercare. These are services perhaps more relevantly provided in the UK, if the child is to be born and raised in a British society. We should also remember that the child itself did not choose the manner of their conception, and may benefit from links with a British clinic.

Many different kinds of patients travel abroad for all sorts of medical treatment that is unavailable in the UK for all sorts of reasons. No-one has ever suggested that these people be stopped. And how far should we go? For example, should British tour companies be prevented from promoting or selling trips to see bull fights when British people go on holiday to Spain? It is society and society's opinion which drives the kind of things that people want or seek, not statute, which I firmly believe should be flexible enough to move with the times. Doctors know their patients better than legislators who have never even met the people that their rules affect. In my opinion, where a patient could be treated abroad, doctors should be free to offer whatever advice or help they feel may benefit those concerned, according to their beliefs and conscience. To restrict medical practitioners in the manner proposed by the HGC impinges on their freedom of speech, and I am sure would prove impractical to implement in any event.

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