#3535 - Ivf & Embryo Selection - Medical Law

Human Fertilization & Embryology Act 1990

• Created HFE Authority which issues guidance on ARTs and licences their use;

• Licensed activities

1. Storage of embryo

2. Storage & use of gametes

• Key principle: consent(Evans v Amicus)

• Saviour Siblings

• Parents who wish to have another child whose tissue could be used for ill sibling can test the embryo

• Quintavalle v HFE Authority- issue of HFEA’s licence being granted to test embryos for compatible stem cells for a 4 y/o boy who would otherwise die. Unsuccessful challenge by CORE. Held s11 to determine if practice proposed is “suitable” gave Authority large margin of appreciation, no reason to believe it would allow practices such as testing for blue eyed babies etc. Decided on narrow statutory basis, very little discussion of ethics.

1. Bringing the person into the world for sole purpose of assisting a sibling infringes the presumption that people shouldn’t be used simply as means to an end

• It’s extremely unlikely that’s how parents would treat him

2. Could cause psychological problems when child leans of it, esp. if matching didn’t work

• No actual evidence/guesses don’t justify denial of life saving treatment

• Savulescu’s principle of procreative beneficence (moral obligation to select best children) – in absence of some other reason for action, prospective parents must use PDG to choose an embryo w/greatest chance of leading the best life (i.e. life w/most well being) based on both disease & non disease traits, such as intelligence, even if that increases social inequality. Such choices will result in more fulfilling lives being led; i.e. we can thus create moral good w/out any particular person being harmed by it.

• Stollen– no moral obligation to select best children3 ethics approaches to morality:

1. consequentialism

2. deontology (rightness/wrongness of action depend on whether the actor adhered to certain moral rules protecting rights of others)

3. virtue ethics (focuses on agent’s character/what moral values are driving his actions)

Beneficence has a role to play in reproductive ethics; i.e. deontological & virtue ethics concerns might have a bearing on morality of decisions by certain individuals to conceive, may justify clinic’s screening policy, may explain our sense of it being morally praiseworthy to work towards better future for our kids, even if that work determines the existence of different children (e.g. have kids 5 years later b/c will be in better financial position). But by focusing exclusively on consequences we ignore key components of our sense of morality. Must look at the issue through the lens of deontological or virtue ethics, in addition to consequences approach.

• Herring – history teaches us lessons against selecting people on the basis of a trait we consider desirable at the time. We learn about things over time – how to know this is the right decision? Research suggests Down’s syndrome Ps are on average happier than healthy people. Who says disabled don’t add anything to the world?

• Pre-implantation/Prenatal Screening

• Savulescu – b/c reproductive choice to have a disabled child doesn’t harm him, couples should be allowed to make those choices, even though may have a child w/worse life prospects as a result. As rational people, we have to form our own ideas of what best prospects are & act on our value judgments - can engage them in dialogue but must respect their decisions. Deaf lesbians having a deaf child through IVF example.

• Bizarre use of Mill’s harm principle...

• Harris – we have a general moral obligation to avoid bringing disabled people into the world, regardless of the level of disability, provided we find out about it at the time when abortion’s available. Disabled have the same worth as healthy people but it’s morally wrong to bring disabled foetus into the world.

• Walsh – Harris is wrong & there’s no such obligation. Instead, there’s a moral obl. to submit each case to morally sensitive scrutiny of circumstances & context, taking many variables, incl. degree of disability, into acc.

Sterilization

1. Competent adult – must consent

2. Incompetent adult – in P’s best interests + least intrusive way of protecting those interests

3. Incompetent child – as above; Order under Children Act 1989 or wardship jurisdiction

• Don’t take into acc: interests of carers + eugenics

• Do take into account:

1. “Best interests” test – court has to believe that, considering all arguments, procedure is in P’s best interests

• ReF – middle aged woman voluntary resident in hospital w/mental age of child formed relationship w/male P, successfully applied for Decl. allowing sterilization w/out consent b/c in her best interests = wouldn’t be able to cope w/pregnancy + other contraception unsuitable.

2. Court considers medical + broader considerations (welfare, social, moral, ethical) and, under Practice Direction, may prep a balance sheet (advantages, disadvantages & likelihood of occurrence in % terms); e.g.

1. Professional opinion

2. Sterilization must be the last resort (forcing it on incompetent people = infringement of Art 3 ECHR, so must show there’s no alternative)

• ReA–sexually active P male w/Down’s syndrome, app by mother for Decl. to sterilize refused b/c was under close supervision by her & day centre, and risk not so high. Balancing exercise on ad joc basis – risks lower than for woman, this isn’t discrimination.

• ReS– woman P w/severe learning disabilities, distressed by her periods & hospital phobia, mother applied for Decl. to sterilize which was granted but then held should fit a coil instead, since sterilization is irreversible and not least intrusive to P.

3. Whether risk of pregnancy isn’t fanciful

• ReLC–LA applied to sterilize woman P who had been indecently assaulted by staff b/f being moved to a home w/much better care b/c attractive & could happen again; held: case finally balanced but level of care in new home exceptionally high and, as long as continued, such invasion wouldn’t be in P’s best interests.

• ReEve(Canada) – woman P w/learning disabilities in friendship w/a man, sterilization decl. refused b/c court very aware of eugenics argument + P no more likely to suffer from pregnancy than other women + operation irreversible. Physical integrity ranked highly – non therapeutic sterilization is a grave invasion of person’s rights & can’t be lawful.

Surrogacy

• Partial – eggs of commissioning mother fertilized & placed in surrogate

• Full – surrogate mother’s eggs are used

• Legality – not generally illegal unless

1. Negotiated/arranged on commercial basis

2. Advertised surrogacy services

3. Offer made constituting a reward for profit for the mother

• Though can pay expenses

• Non enforceable agreement (Surrogacy Arrangements Act 1989)

• A form of legal liberty

• A difficult contract to draw up b/c must allow for change of heart on both sides, abnormalities in resultant child, illness of surrogate etc. BUT can be done. Parliament is being ambivalent – not willing to follow Germany in outlawing the practice, yet doesn’t take steps to regulate it.

• Child’s legal position

1. Mother – women who carried it

2. Father – genetic, unless sperm donor

3. Commissioning parents, wanting to become legal, must apply for:

1. Adoption order; or

2. Parental order

• Reform

• Medicalize surrogacy as a treatment of choice for specific groups of cases of childlessness

• Set up an agency/use HFEA to control the tariff & prevent creation of the market

• Rather than avoiding the issues, should lay down what surrogacy arrangements shouldn’t include

• Arguments for

1. Situation liable to creating disputes potentially harmful to children

• In UK, very rare – practically, no cases where commissioning parents didn’t want the child

2. Exploits surrogates – esp. in US where agreements are largely commercialised (i.e. Warnock Report – it’s inconsistent w/woman’s dignity to use her uterus for profit)

3. Practice is too close to baby selling

• Could look at it as payment for services rendered instead (not v. different from X supporting the mother of illegitimate child through pregnancy &giving her substantial present on birth of child

• Post Brazier review - widespread agreement that some form of regulation is required – carries at least as many risks as IVF, yet largely unregulated, at least where performed outside the clinics

• ReN – mother w/husband who had fertility problems made 3 surrogate agreements but lied she miscarried, then kept babies for herself, later one child left home & told. Judge held baby would have better future w/biological father.

• ImogenGoold – surrogacy shouldn’t be legally prohibited. These...