Better Together: Why devolution of fertility legislation is not a good thing

Plans have been announced recently to devolve further power to Holyrood. The plans include a proposal by the Scottish Council on Human Bioethics to devolve powers for forming legislation covering the provision of fertility treatment, genetic screening and abortion to the Scottish Parliament. The Association of Clinical Embryologists (ACE) is concerned that this may be a step too far in the process of devolution and could lead to increased fertility tourism and a perceived or realised double standard in the care available to patients within the United Kingdom.

The Human Fertilisation and Embryology Authority (HFEA) has, since its inception in 1992, worked with the fertility sector to provide a supportive and meaningful legislative framework which ensures that all clinics licensed to perform fertility treatments, such as IVF and ICSI, demonstrate that they meet a comprehensive set of standards. The HFEA Code of Practice is not only based on best safe practice in the creation of embryos but also in their responsible use in treatment and research activities, and in ensuring the safety of all people receiving fertility treatment. The HFEA has and continues to work closely with UK professional bodies including the British Fertility Society (BFS), the British Infertility Counselling Association (BICA) and ACE to develop and drive forward a best practice framework underpinned by the HFE Act 1990, amended in 2008.

In addition, the National Institute for Health and Care Excellence (NICE) has developed national Fertility Guidelines (published in 2004 and revised in 2013) which provide recommendations to commissioners, care providers and patients. To further strengthen this guidance, NICE is in the process of preparing a Fertility Quality Standard intended to further underpin best practice in the UK, which is due for publication in October 2014.

It is highly evident that within the UK, at both a governmental and professional level, patient safety and achieving and maintaining best practice standards in the provision of fertility treatment are taken very seriously. This is demonstrated by the fact that the UK legislative framework is highly regarded as an example to the rest of the world. Part of the reason for this success is that although the framework evolves, it is based on national consistency.

If the powers to legislate the sector were devolved there is a likelihood that this consistent approach would be lost. This could lead to significant problems in service delivery for treatment providers, including staff training and retention, and difficulties for patients including local availability of treatment and additional logistical challenges, when transporting cryopreserved gametes or embryos over what could become an international boundary from a legislative perspective.

Fertility treatment and the management of infertility are, in similar terms to abortion, highly emotive, ethically charged subjects. ACE, in association with our colleagues in other professional bodies and learned societies, has fought for many years to promote and standardise practice in the fertility sector in a safe and responsible way.

If the case against the devolution of legislative powers is not already compelling enough then consider this: within the current framework, there is already a situation where different Clinical Commissioning Groups (CCGs) commission NHS-funded fertility treatment to differing levels across the UK. This has led to a national 'postcode lottery' for fertility patients where some receive up to three full cycles of IVF funded by the NHS, while others receive nothing at all.

To further fragment the UK regionally and introduce variations in legislation, a new Scottish licensing authority and differing standards in practice in Scotland would lead to further and possibly insurmountable challenges in promoting common best practice standards. This, in turn, could lead to an increase in fertility tourism within the UK, with patients travelling over the Scottish border in the hope of finding improved treatment availability or terms and conditions of treatment compared to those available to them in their own country.

ACE does not aim or intend to infer that the Scottish Parliament is incapable of acting safely and responsibly when considering a framework for provision of practices pertaining to human embryology, genetics or abortion. It is however the case, in the opinion of ACE, that it is an unnecessary and dangerous process tantamount to reinventing the wheel. ACE believes that the UK is best placed moving forwards by maintaining a consistent UK-wide approach to the regulation of fertility care. By doing this it can be better ensured that the standards the UK has achieved in patient safety and treatment efficacy and availability remain consistently high and are supported by a framework allowing for continual UK-wide improvement.