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IVF, donor conception and surrogacy: Is progressive global regulation possible?

4 July 2011
By Louisa Ghevaert
Partner at Porter Dodson Solicitors and Advisors (
Appeared in BioNews 614
Assisted reproduction in the form of IVF, donor conception and surrogacy is challenging global attitudes towards medical science and is presenting a unique global regulatory challenge.

Take IVF, which has been around since the late 1970s and has led to the birth of millions of babies across the world. The UK has opted for a closely regulated legislative framework overseen by the Human Fertilisation and Embryology Authority (HFEA), which includes a comprehensive system of licensing and control of fertility clinics across the UK. For example, recognising that multiple births present a significant fertility treatment risk for mothers and babies, the HFEA introduced a single embryo transfer policy in 2007. Between 2008 and mid 2009, the IVF multiple birth rate fell in the UK from 23.6 percent to 22 percent with an overall pregnancy rate of 31.3 percent (1). The HFEA has also set a new target of 15 percent for all IVF multiple births for each UK licensed fertility clinic to meet by April 2012.

In contrast, IVF policy and practice in the USA has developed differently. Greater emphasis is placed on the fertility sector’s ability to self-regulate but the recent case of 'Octomum' has called into question best practice and confidence in reproductive technologies in the country. The case involved a Californian fertility doctor who transferred 12 embryos into Ms Nadya Suleman (six times the recommended number of embryos for a woman in her early thirties) which resulted in the birth of octuplets in January 2009. It unsurprisingly attracted international headlines and ultimately led to the Medical Board of California's decision last month to revoke the fertility doctor’s licence as from 1 July 2011. It is difficult to imagine such a case occurring in the UK, in view of the rigorous regulatory framework in place, but it is always possible that similar cases could occur again in less regulated jurisdictions across the world.

The scale of infertility and numbers of people seeking to rely on fertility treatment and law continues to grow and this creates additional pressure and problems for nations and policy makers. People are increasingly crossing borders to access fertility treatment, donor gametes and surrogacy in the face of restrictive legislation in their homelands. In the UK alone, infertility is currently estimated to affect one in six couples (about 3.5 million people) at any one point in time. If the numbers of single people and same-sex couples looking to conceive are added into the equation as well, the scale of infertility and demand for assisted conception increases dramatically. However, whilst the UK has adopted a careful middle ground approach to fertility treatment, policy and practice, other countries have far more restricted approaches. This raises very real questions about the scale of infertility, the demand for fertility treatment outside the UK and the numbers of people who are prepared to cross borders for assisted conception.

Surrogacy also creates legal and practical difficulties on an international scale due to conflicting laws and practice. There have been a series of internationally publicised surrogacy cases in recent years where intended parents and their surrogate born children have found themselves embroiled in serious legal difficulties, with babies stranded abroad and their intended parents risking criminal sanction.

In 2009, a Swedish couple experienced problems getting their 13-day-old surrogate born son home safely from the Ukraine. When they applied for a passport at the Swedish Embassy in Kiev they were told they would have to wait. As surrogacy is prohibited in Sweden, the Swedish Foreign Ministry demanded extra legal paperwork. In another case, a Japanese baby girl was left marooned in India in 2008 when her Japanese intended parents' relationship broke down during the pregnancy. A complex legal battle ensued after her Japanese intended mother decided not to keep her. Her decision created serious legal difficulties preventing her Japanese intended father and grandmother from obtaining a passport to enable the child to travel home to Japan.

Furthermore, in April this year a French family hit the headlines when they were caught trying to cross the border from Ukraine into Hungary following the refusal by French authorities to issue passports for their surrogate born twins (surrogacy is illegal in France). The French couple were faced with no option but to appeal for another country to grant the twins passports so they could travel home (since Ukrainian law did not recognise the twins as Ukrainian citizens due to a conflict of national laws).

Underpinning assisted reproductive technology, including IVF, donor conception and surrogacy are some very fundamental issues about the right to have a child and a family life, the interests of children conceived using assisted conception techniques, and the structure of modern day families. In addition, sensitive and difficult issues may arise surrounding altruism, commercialism and freedom of choice. Assisted reproduction techniques now enable children to be conceived and families to be created in a number of different ways that were simply not possible 40 years ago. Fertility treatment and practice now has a global reach which has out-paced legislation and regulation.

Until we begin to get to grips with these issues in their widest sense, it is difficult to see how any form of progressive international consensus or regulation will be reached in relation to assisted reproduction. In the meantime, IVF, donor conception and surrogacy remain key topics for debate, policy formulation and regulation amongst nations across the globe.

1) Latest figures show multiple births continue to fall
HFEA |  13 May 2011
5 March 2012 - by Daniel Malynn 
Hosted by 7 Bedford Row chambers, this intellectually stimulating event highlighted the uncertainty and lack of consensus around surrogacy law. However, such was the emphasis on surrogacy the event title was never formally answered. Yet I nevertheless came away with the feeling that some key issues in surrogacy, applicable to the wider agenda of assisted reproduction, were thoroughly explored. Moreover, it established some momentum to press for law reform in the area....
5 March 2012 - by Fiona Duffy 
The long-awaited guidelines for Irish couples who have children born abroad through surrogacy, issued on 21 February, have all but avoided some of the most fundamental legal issues surrounding surrogacy...
5 March 2012 - by James Brooks 
The Court of Appeal in Rennes, France, has upheld an earlier decision to accord civil status – similar to nationality – to twins carried by a surrogate mother in India for a French couple...
6 June 2011 - by Kyrillos Georgiadis 
The US fertility doctor who helped 'octomum' Nadya Suleman give birth to a total of 14 children through repeated IVF treatments, has had his licence revoked by the Medical Board of California....
16 May 2011 - by Chris Chatterton 
The UK's fertility regulator published a report last Thursday that it says indicates its success at reducing multiple births from fertility treatment by promoting elective single embryo transfer (eSET)....
18 April 2011 - by Nisha Satkunarajah 
France's highest court has denied French citizenship to 10-year-old twins born to a French couple using a surrogate in the USA, reaffirming the country's ban on surrogacy...
20 December 2010 - by Dr Aarathi Prasad 
The final session of the Progress Education Trust's 'Passport to Parenthood' conference debated whether the facility to receive treatment outside of a patient's home country presents a genuine solution to meeting the growing demand for fertility care - or whether it generates new problems of its own....
26 August 2008 - by Antony Starza-Allen 
A baby born to an Indian surrogate mother for a Japanese couple has found herself in the middle of a legal battle over her nationality, the legal status of her parents and immigration rights. Moving towards a closure of the saga, the Indian Supreme Court last week...
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