The fourth session of the 2023 PET (Progress Educational Trust) Annual Conference – 'How Much Change Do We Want? Updating Fertility, Embryo and Surrogacy Law' – was chaired by Andrew Spearman, partner and head of the family team at Laytons, and began with an insightful presentation from Kathy Niakan, professor of reproductive physiology at the University of Cambridge.
Her talk, titled 'Ensuring that We Learn from Donated Embryos,' highlighted the multifaceted benefits of human embryo research – ranging from advancements in mitochondrial replacement therapy to deeper understandings of aneuploidy, cell fate, miscarriage, and human stem-cell-based research for diseases and drug therapy. She argued that embryo models, while very valuable, could not wholly replace donated embryos. She went on to underline the importance of addressing the unique challenges faced by patients and researchers in relation to the donation and receipt of embryos.
At present in the UK, only a tiny proportion of unused embryos (fewer than one percent) are donated to research annually across all programmes, and the number of embryos donated has declined massively (see BioNews 1219). Furthermore, only one in five licensed centres recruit embryo donors for research, due to ad hoc agreements between clinics and researchers which are driven largely by donor interests or a long history of collaboration. Professor Niakan shared her experience of patients who often struggle to find research projects to which they can donate embryos, with only those determined to persevere through the system succeeding. The logistics and cost burden of transporting embryos to a research centre creates a further barrier, leading Professor Niakan and her colleagues to take shippers in person to collect embryos that a patient has consented to donate. This is not sustainable.
Professor Niakan proposed a solution – offer all patients and gamete donors the option to donate to research. She argued that enbling this should be a licence requirement, with the provision of an annually updated broad consent alongside a central human embryo banking system, drawing parallels with the successful UK model for banking fetal tissue. This approach, she argued, would streamline the donation process and potentially increase the number of embryos available for research, resulting in higher quality and more innovative research.
Following Professor Niakan's compelling presentation, Emily Jackson, professor of law at the London School of Economics and Political Science, addressed another pressing area for change in a session titled 'Time to Act: Rethinking Parenthood and Assisted Conception'. Professor Jackson began by highlighting the limitations of the parenthood provisions in the Human Fertilisation and Embryology (HFE) Act of 1990 (as modified by the HFE Act of 2008), including the assumption that the person giving birth is automatically the mother. She described how the Act applies different rules based on various scenarios according to the marital status, sex and gender of the individuals involved. Professor Jackson criticised the outdated and complex nature of these rules, pointing out the difficulty of completing legal parenthood forms, and the potential for unnecessary court hearings – and unnecessary patient anxiety – if the forms not completed correctly.
To simplify the process, Professor Jackson proposed a general legal presumption that two people seeking treatment together intend to be the child's legal parents, unless they specifically 'opt out' of this presumed intention. The argument was that such a move would eliminate the need for complex forms.
Professor Jackson then focused on the recognition of modern families, recommending a shift to more gender-neutral language such that that everyone could be registered as a parent (gestational or non-gestational) rather than than as 'mother' or 'father'. Currently, when a parental order is granted following surrogacy the parents are identified on the child's birth certificate as parents, so a structure for this is alreadyin place. Professor Jackson suggested that this strategy would treat same-sex and different-sex couples in the same way in relation to parental status, and might also enable a child to have more than two legal parents (for example, if same-sex female parents wished the sperm provider to have a parental role).
The third presentation – 'Counselling: Does the Law Need to Change?' by Angela Pericleous-Smith, chair of the British Infertility Counselling Association (BICA) – argued for a different approach to counselling provisions within the legal framework. She considered the adequacy of the HFE Act requirement for clinics to provide suitable opportunities for counselling.
Pericleous-Smith told the audience that BICA now has a sufficient number of registered members to allocate more than one counsellor per clinic. However, she expressed concern about the provision of counselling and the number of sessions falling short of patient needs, and also pointed to inconsistencies between clinics. The question, 'Should counselling be voluntary?' does not necessarily have a straightforward answer, because of confusion regarding the distinction between therapeutic, support and implications counselling (see BioNews 1194).
Implications counselling for third-party reproduction should be mandated, advocated Pericleous-Smith. However, she acknowledged the difficulty in amending a non-statutory requirement alongside the evolving profiles of patients and donor identifiability. She argued that 'a child created through third-party reproduction does not have a voice, yet will live with the lifelong implications of the decisions others made'. This was a powerful case for prioritising the voices of donor-conceived people.
The final presentation, by Andrew Powell – specialist family law barrister at 4PB – delved into the intricacies of surrogacy law in the UK, and was entitled 'Would the Law Commissions' Recommendations Make UK Surrogacy Law Less Fragmented and Less Obscure?,' Powell began by quoting Baroness Hale's observation that UK surrogacy law is fragmented and, in some ways, obscure.
Powell continued to provide a comprehensive overview of the current legal landscape, highlighting the unenforceable nature of surrogacy arrangements. Earlier this year, the Law Commissions of Scotland and of England and Wales published reform proposals that would allow intended parents to be legal parents from birth in domestic surrogacy cases, and would establish regulated surrogacy organisations to oversee surrogacy agreements within a new pathway (see BioNews 1185).
Powell expressed reservations about the proposed reforms, particularly their limited impact on international surrogacy cases. He argued that the while the reforms would be a step in the right direction, the law would remain cumbersome and inflexible, potentially driving a two-tier system as intended parents seek surrogacy abroad. Powell concluded by quoting the government's less-than-promising response to the Law Commissions' report, stating that 'Parliamentary time does not allow for these changes to be taken forward at the moment'.
The session concluded with a wide-ranging Q&A session. Participants discussed the idea of creating resources for safe surrogacy abroad, similar to the information available for adoption. Concerns were raised about legal documents that do not acknowledge fatherhood, and suggestions were made for a 'parent-parent' model to address inconsistencies for same-sex and opposite-sex couples. On the topic of embryo research, there was a general consensus that substantial numbers of patients are willing to donate to research, and reducing paperwork challenges through centralised processes would be helpful.
In summary, the speakers effectively met the challenge of addressing how much change is needed in their respective domains, and provided valuble suggestions for future reforms.
PET would like to thank the sponsors of this session (Hertility) and the other sponsors of its conference (the Anne McLaren Memorial Trust Fund, the Edwards and Steptoe Research Trust Fund, ESHRE, Born Donor Bank, Carrot Fertility, Ferring Pharmaceuticals, Merck, Theramex, the Association of Reproductive and Clinical Scientists, and the Institute of Medical Ethics.).
Register now for PET's next free-to-attend event, Fertility Treatment for Single People: Who Should Pay?, taking place in Edinburgh on Wednesday 10 January 2024.
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