Caroline, Sakshi and Valentina were law student scholars, participating in the WS Society Summer Scholarship programme during July 2023. This article summarises their research and presentation.
“Around 17.5% of the adult population, roughly 1 in 6 worldwide, experience infertility, showing the urgent need to increase access to affordable, high-quality fertility care for those in need.”
IVF: Where it all began
In Vitro Fertilisation (IVF) is defined as a type of fertility treatment where reproduction takes place outside the body: “in vitro,” Latin, for in the glass. The UK has been an exceptional pioneer in IVF research, marked by significant breakthroughs in reproductive medicine. Notably, the world’s first successful births resulting from IVF procedures occurred in the UK, with the birth of a baby girl in Manchester in 1977, and a baby boy in Glasgow in 1979. The controversial impact of these momentous events resulted in the ‘Committee of Inquiry into Human Fertilisation and Embryology’ being formed in 1982. Two years later the Committee published their findings, commonly referred to as ‘The Warnock Report of 1984,’ which precluded The Human Fertilisation and Embryology Act of 1990 (HFE 1990). This legislation established the Human Fertilisation and Embryology Authority (HFEA) who are responsible for regulating, monitoring, and licensing human embryo research.
It is noteworthy that a substantial portion of the Warnock Report discourse remains relevant in present day discussions. The report astutely acknowledged the vast spectrum of moral sentiments and the inherent conflicts between religious, humanist, and philosophical convictions. It duly recognised the existence of a pluralistic society and emphasised the role of law as a reflection of prevailing moral acceptability. In the Warnock Report, the emergence of scientific advancements and medical technologies pertaining to human fertilisation was acknowledged as a catalyst for novel legal implications:
“The development of science and medical technology in the field of human fertilisation opens up many new issues for the law.”
IVF Regulation and Reforms
It is important to acknowledge that whilst healthcare is devolved, assisted reproduction is a reserved matter. Furthermore, the ECtHR expanded Article 8 of the European Convention on Human Rights, to couples or individuals looking to procreate via IVF in Evans v. United Kingdom, 43 E.H.R.R. 2 [2007]. While the Article does not support an absolute right to assisted reproduction, it is noteworthy that when considering domestic law, we all have a right to have a family - whether this is achieved via IVF or not.
Several provisions of the HFE 1990 Act underwent revisions in 2008, driven by the objective of aligning it more effectively with the requisites of the 21st Century. However, the 1990 and 2008 HFE Acts are still criticised for their limitations in practice. The 1990 legislation is still predominantly used to make contemporary decisions on IVF, despite significant changes in the fertility sector. The HFEA began a review of the law in February 2023, recognising that scientific possibilities and societal views, have once again, progressed at a rate faster than the current legislation can accommodate. The increase in private treatments raises questions about regulation and compliance. Compared to other UK regulators, the HFEA have quite narrow powers. Changes relevant to this research that are being considered are ‘futureproofing’ the law to ensure it is better able to respond to scientific developments and innovation; without re-opening the HFE Act every time:
“Scientific and social attitudes move on far quicker than law and under the current regime, innovation is left in the waiting room until approval is given to reopen the Act.”
The HFEA acknowledges that the United Kingdom holds a prominent position in the field of fertility innovation worldwide and aims to safeguard and reinforce this status. To accomplish this goal, the HFEA seeks to obtain the authority to approve trials involving low-risk novel practices and embryo research.
The emergence of 'Find my DNA' platforms, exemplified by 'My Heritage,' has raised apprehensions regarding the changes in the donor anonymity law implemented in 2005. In response, the HFEA proposes to mandate the disclosure of parental and donor information concerning associated risks. The inclusion of implications counseling is advocated, alongside the explicit enshrinement of patient safety as a fundamental principle within the legislation. Additionally, an opt-out consent model is suggested as part of the proposed measures. Lastly, the HFEA intends to facilitate automatic record sharing between the public and private sectors of fertility services.
IVF and the Future
IVF has advanced significantly and there are many reasons why we need to embrace IVF and become knowledgeable in the topic. Since the first IVF boy and girl born in the UK, +10 million babies have been born using the treatment. Assisted reproduction can offer benefits and guarantees, that a natural birth cannot. It offers multiple reproductive options to people who may struggle with infertility. It suits the concept of the ‘new’ family, which has moved on significantly from the ‘nuclear’ family structure. For a multitude of reasons, the world fertility rate (expressed as the number of children per woman) has been falling steadily since the 1970s. There is also a sharp decline in male fertility, although reasons for this are contentious. If the fertility rate keeps declining, IVF will become a popular choice for those looking to reproduce. In 2021, HFEA statistics showed that patients in heterosexual relationships accounted for 90% of all IVF patients. The number of IVF patients in female same-sex relationships increased by +33%. Single patients increased by +44% while the number of surrogates declined by -7%.
Global IVF is currently valued at $23.6 Billion Dollars, with a Compound Annual Growth Rate of 5.72% expected between this year and 2030. In the UK, the IVF market is currently valued at $514 Billion Dollars, expected to increase to $928 Billion in the next 3 years.
One significant contributor to the IVF popularity surge is the emergence of Preimplantation Genetic Testing (PGT), a form of IVF that enables the screening of factors responsible for implantation failure, miscarriages, and birth defects. Moreover, recent advancements in In Vitro Gametogenesis (IVG) have demonstrated the transformation of skin cells into healthy eggs in mice, eliminating the necessity for biological sperm or eggs. The link between IVG and Stem-Cell Derived (SCD) methods further paves the way for the realisation of ‘designer babies’ or scientifically termed as ‘preference matched offspring.’ Researchers are extensively exploring the boundless possibilities of embryo and stem cell research, with ongoing investigations into additional techniques such as Mitochondrial Donation Treatment (MDT). This innovative approach facilitates the prevention of mitochondrial diseases by creating an IVF baby with DNA contributions from three individuals.
These developments give rise to apprehensions across various legal domains, and for our study, we examined them from the perspective of family law.
IVF and Family Law
As well as the HFE consultation, in March 2023, the Scottish, and England and Wales Law Commissions published a report on surrogacy proposing reforms. It has been recognised within the profession that IVF and surrogacy cases present legal challenges, as they involve complex issues of parenthood, which can vary depending on how the child was conceived and the relationships among the parties involved. The legal landscape surrounding these cases can be multifaceted, demanding an understanding of the diverse circumstances of the child’s conception. These laws governing the establishment of parental rights consider factors such as genetic connections, residence, and marital status.
Current laws do not adequately reflect the new family structure. The Children (Scotland) Act 1995 s15(1) defines ‘parent’ as the genetic father or mother. The HFEA 2008 s33 defines the legal mother as the woman who carries the baby, providing for when a woman becomes pregnant through artificial insemination, egg donation or surrogacy. The HFE 2008 Act provides that where a woman is the surrogate - whether or not the embryo was created by her husband - then the husband will be treated as father of the child. This may raise abuse concerns as the husband could choose to block the parental order.
If a surrogate carries gametes of one genetic parent, they can apply to the court for a parental order. This must be done within 6 months of the birth and the couple must be in an enduring family relationship. A core criticism has been the time taken to obtain these parental orders. The groundbreaking decision in AB and XY [2023] CSOH 46 serves as a powerful example of embracing non-traditional family structures by granting parental orders to a couple involved in surrogacy which had separated by the time the application was made. This ruling emphasises the importance of adapting laws to reflect the reality of contemporary family dynamics and prioritising the welfare of children in such arrangements. Furthermore, decisions like Re X, Y, and Z [2022] EWHC 198 (Fam) illustrate that flexibility within the legal framework can be exercised in exceptional cases. In this instance, the court extended the time limit for applying for parental orders to safeguard the best interests of the children born through IVF surrogacy, acknowledging the complexities involved.
The principle of best interests of the child has been recognised on numerous occasions legally. In Re L (Commercial Surrogacy) [2010] EWHC 3146 a commercial surrogacy had been made lawfully in the USA. This would not be lawful in the UK, as expenses should be authorised by the court. A Parental Order was given for the best interests of the child; reflecting an area of reform to encourage surrogacy within the UK, rather than paying for it elsewhere. In X Re [2020] EWFC 39 the intended father passed away before the birth. His widow was not eligible to apply for a parental order (s54) because she had no genetic affiliation. She applied jointly with the deceased, so to acquire legal parentage. In cases like this, the Family Court has stretched the outdated surrogacy laws in the UK by taking into account the child’s best interests.
There are limited safeguards in law to monitor commercial surrogacy, which whilst criminal, could run the risk of exploitation. Surrogacy arrangements are non-enforceable; a surrogate could be paid and decide to keep the child with no remedy to recover payments. There is a grey area over reasonable expenses with no way of ensuring these are being spent in a permitted manner: it may be speculated that the courts’ willingness to allow reasonable expenses, without explicitly specifying what these are or monitoring them, renders this provision meaningless. If prospective parents change their mind, this may leave the surrogate with unexpected expenses…or a baby. If the surrogate changes their mind, prospective parents may be left without the child they were hoping for. Interests of all parties involved could be better protected.
Further proposals in the surrogacy review include creation of a National Register, Regulator and Surrogacy Pathway. The surrogate should be 21+; intended parent(s) must be 18+. One intended parent and surrogate should have a UK connection. The surrogate can withdraw consent six weeks following birth; if consent is withdrawn prior to birth the surrogate is the legal parent. If consent is withdrawn after birth, the intended parent(s) are the legal parents, but the surrogate could apply for a parental order.
A Private Members Bill, known as the Fertility Treatment (Employment Rights) Bill, was presented in March 2023. This proposed legislation aims to mandate that employers grant their employees leave to attend appointments related to fertility treatment. The introduction of this Bill serves as a tangible manifestation of the increasing demand for in vitro fertilization (IVF) and the parallel call for accommodating and compassionate policies in this domain.
To position the United Kingdom as a prominent international exemplar in IVF accessibility, a comprehensive strategy necessitates both the reform of IVF-related legislation and a meticulous scrutiny with the intention of instituting regulations pertaining to surrogacy, given their inherent interconnectedness.
Conclusions
While IVF was at one point novel, it is now a leading choice of fertility treatment. The interplay between technology and regulatory constraints has significant implications for practitioners. The law's inability to keep up with rapid changes has highlighted the need for practitioners to prepare for legislative updates and respond to emerging situations effectively.
The IVF industry's growth offers economic opportunities and personal autonomy but calls for a careful balance to address long-term implications. Reflecting on ‘The Warnock Report,’ the legal industry must remain proactive in campaigning, questioning grey areas, and ensuring adequate legislation to protect human rights in the ever-evolving landscape of technology, science, and society.
Moving forward, we must prioritise foresight and responsiveness in the legal system to navigate the challenges posed by the rapid pace of technological and scientific progress. By doing so, we can promote responsible technological advancements while safeguarding the well-being of individuals and society as a whole.