top of page
  • Writer's pictureDurham Pro Bono Blog

Artificial insemination – is the donor’s consent essential?

By Valerie Travis

The Human Fertilisation and Embryology (HFE) Act 1990 regulates the collection, storage and use of gametes and embryos. Ordinarily, patients must consent freely with no strict formality requirements. However, this Act imposes strictly requires the donors’ effective and written consent to authorise the gametes’ storage and use. Schedule 3(1)(2) defines ‘effective’ as consent that has not been withdrawn. The English law adopted this bright-line approach because the person’s autonomy over their gene pool, is sensitive. This position has generated issues illustrated in two key cases: R v Blood,[1]where the donor could not provide written consent, and Evans v UK,[2]where consent was withdrawn. The bright-line rule lacks logic and consistency. The law should be reformed to consider gametes as property.


Blood involved a situation whereby a wife managed to extract sperm from her dying husband, as she argued that he had expressed his wish that sperm should be taken from him so she could bear their child posthumously should he die. However, the Human Fertilisation and Embryology Authority (HFEA) refused to treat her due to the lack of her deceased husband’s written consent. The Court of Appeal advised the HFEA to exercise its discretion to allow the sperm’s exportation.[3] They considered that since this problem was unlikely to re-occur, the wife should be able to exercise the European law of cross-border services. She was treated in Belgium, where written consent is unnecessary.


The Blood case provoked controversy and calls for legislative amendments. However, McLean reviewed the law and recommended retaining the rules because the special status of gametes demanded a high standard of proof of the donor's intent.[4] The British Medical Association’s Ethics Committee said, ‘the doctrine of informed consent, which is central to medical ethics, must not be eroded’, and asserting what Stephen would have wanted is insufficient proof.[5] Although Diane proved they wanted to start a family, there was no evidence that Stephen contemplated assisted reproduction, which raises ethical issues, and probably never contemplated that he would never meet his children.[6] Control of genetic material was not to be surrendered lightly.[7]


Nevertheless, the arguments against the use of Stephen’s sperm are unconvincing. As Jansen explained, when a woman chooses a companion, she also chooses someone to complement her genetically and father her children, giving Diane a substantial justification for using her deceased husband’s sperm.[8] Shapiro also questioned the reasons to deny a widow, who knew her husband’s wishes and considered the disadvantages of posthumous parenting, the decision-making role in creating a child.[9] There is no overwhelmingly good reason to deny a woman using her husband’s sperm.[10]


Price observed that Blood was viewed as a ‘victory for common sense and justice’ when it was merely a compromise.[11] Diane spent thousands in litigation and had to travel for a chance to have the family that Stephen wanted. McLean suggested that had the HFEA examined any enforceable Community rights and refused to allow exportation, the Court would not have asked the HFEA to reconsider its decision.[12] Also, as mentioned, the Court perceived the decision in allowing exportation as a ‘one-off’ that was not setting a precedent. The Court and McLean were subsequently proved wrong.


Later cases came to light, such as L v HFEA,[13] where the HFEA’s wide discretion meant that the rule is not ‘bright-line’. Similarly, in B v University of Aberdeen, the terms of the deceased’s will constituted sufficient consent to meet the legislation’s requirements.[14]Blood provided a loophole for those who cannot evidence written consent. The legislation remains silent on the collection of sperm without consent. Although there is no requirement for an intervention when the patient is unconscious, doctors must act in their patient’s best interests.[15] Hence, extracting sperm from an unconscious patient is possible, and once the extraction is done, the power to allow export is far-reaching, whilst the common law evidences that judges are sympathetic to people in such situations. Therefore, the legal framework is deceptive[16] as it seeks to protect the sensitive nature of gametes with the bright-line rule when, in practice, the requirement for written consent is not absolute.


Moving to the withdrawal of consent,[17]Evans froze six embryos with her then-fiancé, Johnston, before removing her ovaries for medical reasons. However, upon their separation, Johnston withdrew his consent. At the European Court, Evans argued that the UK infringed Article 2 (the right to life of the embryo), Article 8 (Evan’s right to private life) and Article 14 (freedom from discrimination) by refusing the embryos’ use.[18] However, the Court considered the wide margin of appreciation afforded to States regarding the recognition of embryos’ ‘right to life’ and the regulation of medically assisted reproduction. Also, the Court thought that Britain had carefully considered the issues and struck an acceptable balance between Evan’s and Johnston’s competing interests. Women and men have an equal right to withdraw their consent. The Court found no violations, and Evans lost her only chance to have biological children.


The legislation ‘masquerades as protecting gender equality’.[19] Lind explained that some commentators compare men to women, arguing that forcing women to provide their eggs to men would be unacceptable, and thus the law is rightfully applying equality between the genders.[20] However, treating men and women as being in the same position regarding fertilisation is indirectly discriminatory because the consequence for each gender is different.[21] A man would never be in Evan’s position because medical technology facilitates the storage of sperm better than it does with eggs. In Evan’s case, the less certain procedure of freezing unfertilised eggs was not even available at the clinic. The legislature fell into the fallacy of believing that men and women are in the same position when discussing reproductive rights. Hence, the law treats unlike cases alike[22] and does nothing to alleviate women’s dependent and disadvantaged position.


Moreover, when conception happens during sexual intercourse, the law is unsympathetic to men and grants no control over their procreation.[23] If Johnston fathered a child during sexual intercourse, he would be unable to choose whether Evans continued with the pregnancy. Lind questions why accidental sexual intercourse is the only situation that leads to support obligations.[24] The only difference is that the infertile women’s embryo is formed outside their bodies.[25] Additionally, the man’s involvement in a clinical infertility venture evidences the deliberate move to procreate.[26] ‘Foisting’[27] an unwanted child on Johnston would not have been a greater injustice than preventing Evans from ever having a genetically related child.


Following the unfavourable outcome in Evans, cases like Warren[28] evidence the judges’ willingness to circumvent the rules. The HFE Act 2008[29] introduced a twelve-month ‘cooling-off period’ after a donor notifies their consent withdrawal. As Laurie said, this is a well-intentioned effort but likely to impose a further year of disagreements between the parties without addressing the harm caused[30] when the embryos represent someone’s last possibility to reproduce genetically.[31] The 2008 Act has made important modifications, but lacks conceptual depth[32] and does not resolve the gender inequality created by the consent requirements.


The English law should amend the bright-line rule. When donors cannot provide express consent, clinicians should have the discretion to accept implied consent. Additionally, the American law successfully regulates frozen embryos as custody or property distribution.[33] If property rights can arise for corpses[34] or body parts once separated from the body (Theft Act 1968; Smith[35]), the English law should abandon the rhetoric that embryos cannot be recognised as property.[36] Lind suggested that a plurality of property rights could be recognised.[37] Similarly, Stone explained that had the six embryos been regarded as Evan’s and Johnston’s property, Evans would have claimed sole possession of half and Johnston could destroy his half.[38] Because the chances of live birth are less than 50% per embryo, awarding Evans possession of three embryos would not violate Johnston’s rights. Therefore, allowing contractual obligations to govern the embryos’ use will not diminish their sensitive nature.


In conclusion, the regulation of donor gametes focuses on protecting the donors’ interests at the expense of women wishing to have biological children. In practice, the bright-line rule does not protect autonomy interests adequately, and reform would improve its application.



 

[1] R v Human Fertilisation Authority, ex p Blood [1999] Fam 151. [2] Evans v United Kingdom (6339/05) [2006] 2 FLR 172. [3] HFE Act 1990, s24(4). [4] Sheila McLean, ‘Consent and the law: review of the current provisions in the Human Fertilisation and Embryology Act 1990 for the UK Health Ministers’ (1997) 3(6) Human Reproduction Update 593. [5] Clare Dyer, ‘Widow's case raises issues of informed consent’ (1996) 313(7069) British Medical Journal 1351. [6] Mary Neal, ‘R v. Human Fertilisation and Embryology Authority, ex parte Blood’ in Mary Neal and others (eds) Ethical Judgments: Re-writing Medical Law (Hart Publishing 2017) 104. [7] Margaret Brazier, ‘Regulating the Reproduction Business?’ (1999) 7 Medical Law Review 166, 185. [8] RP Jansen, ‘Sperm and ova as property’ (1985) 11 Journal of Medical Ethics 123, 125. [9] E Donald Shapiro, ‘Widow and the Sperm: The Law of Post-Mortem Insemination’ (1986) 1(2) Journal of law and Health229, 248. [10] David P T Price, ‘Giving Blood: Posthumous Fertility Treatment and a Good Old British Compromise?’ (1997) 11(2) International Review of Law, Computers & Technology 299, 310. [11] Ibid 309. [12] McLean (n 3). [13] L v HFEA [2008] EWHC 2149 (Fam). [14] B v University of Aberdeen[2020] 9 WLUK 305. [15] X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam). [16] Brazier (n 6) 186. [17] HFE Act 1990, Sch 3(4). [18] Case 6339/05 Evans v The United Kingdom [2007] 2 FLR 172. [19] Rachel Fenton and others, ‘Finally fit for purpose? The Human Fertilization and Embryology Act 2008’ (2010) 32(3) Journal of Social Welfare & Family Law 275, 283. [20] Craig Lind, 'Evans v United Kingdom - Judgments of Solomon: Power, Gender and Procreation' (2006) 18 Child & Family L Q 576, 587. [21] E Jackson, ‘Degendering reproduction’ (2008) 16 (3) Medical Law Review 346, 350. [22] Lind (n 19). [23] C Smart, 'Power and the Politics of Child Custody' in C Smart and S. Sevenhuijsen (eds), Child Custody and the Politics of Gender (Routledge 1989), 1. [24] Lind (n 19) 590. [25] Ibid. [26] Ibid. [27] Ibid. [28] Warren v Care Fertility (Northampton) LTD [2014] EWHC 602 (Fam). [29] HFE Act 2008 (as amended). [30] GT Laurie and others, Law and Medical Ethics (11th edn, OUP 2019) Ch 8. [31] Fenton (n 18). [32] Ibid. [33] Natalie Young, ‘New Technology Meets Family Law’ (1991) 21 Golden Gate University Law Review 559. [34] Dobson v North Tyneside Health Authority [1996] EWCA Civ 1301. [35] DPP v Smith [2006] EWHC 94 (Admin). [36] Mary Ford, ‘Evans v UK: What implications for the Jurisprudence of Pregnancy?’ (2008) 8 Human Rights Law Review 171, 182. [37] Lind (n 19). [38] Christopher Stone, ‘Should an exception to the consent provisions in the HFEA 1990 have been made in the case of Evans?’ (CA Stone Medical & Legal Ltd 2008).





236 views0 comments

Recent Posts

See All

Eco-fascism: The dark side to environmentalism

By Holly Downes A discussion on the unspoken dangers associated with a minority of environmentalists who blame the demise of the environment on overpopulation, immigration and over industrialization.

The Ethics of Presumed Consent in Organ Donation

By Malak Tamer Consent to organ donation in England was transformed by the Organ Donation (Deemed Consent) Act 2019 (ODDCA 2019).[1] Prior to the Act, individuals were required to ‘opt-in’ and registe

Comentarios


bottom of page