New study on 'Assessing Child Welfare Under the Human Fertilisation and Embryology Act: The New Law'
In the 80 hours of Parliamentary debate given to the Human Fertilisation and Embryology (HFE) Bill in 2008, eight – a full ten percent – were devoted to a heated discussion of section 13(5): the clause detailing the requirement for clinics providing fertility treatment to take into account the 'welfare of the child' that might be born as a result of treatment. Particular controversy was attached to the replacement of the requirement, in the previous HFE Act of 1990, that the welfare of the child should include the 'need for a father', with the wording eventually decided upon in 2008: the requirement that a child's need for 'supportive parenting' be considered.
Given the Parliamentary excitement surrounding the 'welfare of the child' clause on the statute books, it is good news that a study has now been published examining how this requirement is managed in practice. 'Assessing Child Welfare Under the Human Fertilisation and Embryology Act: The New Law', an ESRC-funded study conducted by Dr Ellie Lee, Dr Jan Macvarish, and Professor Sally Sheldon at the University of Kent, combined a review of regulatory guidance and published studies on welfare of the child assessments since the 1990s Act, with face-to-face interviews with a number of staff from 20 clinics in the UK about how welfare of the child assessments are conducted now.
These interviews have generated a wealth of qualitative data showing the approach taken by different members of clinic staff - Persons Responsible, embryologists, and counsellors - to conducting welfare of the child assessments with prospective patients, and the tensions they experience in making judgements about whom it is appropriate to treat. These discussions also generated some quantitative findings about the number of cases deemed a serious enough threat to the welfare of the putative child to warrant a clinic's refusal to treat.
The study's key findings were, first, that changes to the law, constituting a more liberal approach to welfare of the child assessments, follow the trend adopted by the Human Fertilisation and Embryology Authority (HFEA) in successive iterations of its Code of Practice. The emphasis has generally moved away from a concern that a child will be born into a particular family form – the 'need for a father' – to a presumption that all patients should be able to access treatment, unless particular health conditions (including mental illness, disability, or smoking, drinking and drug use) pose a cause for serious concern.
The University of Kent study found that, consequently, very few patients are denied treatment on 'welfare of the child' grounds; and that even cases that gave rise to concerns often meant that clinics would defer treatment to allow for the resolution of problems rather than deny treatment outright.
The shift to this relatively liberal 'risk assessment' process is generally perceived by staff to be an improvement on previous procedures, and the new law itself appears to have had a relatively limited impact on clinics' previous practice. However, many clinic staff experience difficulties working out how to resolve the small number of 'difficult cases' they come across. These include questions about whether chronic health conditions constitute a barrier to treatment because of risks to the patient's health, or risks to the welfare of the putative child; and to what degree common mental health problems, such as depression, should be considered a 'risk factor'.
Staff also reported variations in, and some concerns about, the role and place of counsellors and counselling in welfare of the child assessments; namely, the extent to which counselling should be about informing couples about the treatment process and working with them to manage it, versus using it as an opportunity to gather information about possible welfare of the child concerns. It was notable that donor gamete recipients were considered to need different treatment, under the law, to other patients, regarding the kind of counselling required.
The study was launched at the British Library on 10 September, in an event chaired by Professor Emily Jackson, Professor of Law at the London School of Economics and Deputy Chair of the HFEA. The study's authors discussed their findings with an audience of 50 clinicians, policymakers and academics, and a panel of respondents made up of Dr Allan Pacey, chair of the British Fertility Society; Dr Evan Harris, member of the British Medical Association Medical Ethics Committee and former MP; and Jeremy Laurence, health editor of the Independent.
More information about the study, and a PDF of the key findings, is available online (1).