Is it right always to try to meet demand? Are some 'needs' or 'demands' more pressing than others?
It is important to try to meet demand, because failure to do so makes it more likely that unregulated and potentially unsafe practices will prosper.
For example, online sperm donation services which operate without a license from the Human Fertilisation and Embryology Authority often use fresh donated sperm, which has not gone through the standard clinical procedures of freezing and screening for disease or infection. Unlike those who donate sperm for use by licensed clinics, those who donate sperm for use by unlicensed services are considered under UK law to be the child's legal father, with all attendant rights and responsibilities.
As to whether some 'needs' or 'demands' are more pressing than others, there have always been those who seek to disparage or deprioritise gamete (sperm and egg) and embryo donation on the grounds that the absence of pregnancy is not a disease. However, this reasoning is fallacious. Infertility is classified by the World Health Organisation not as a misfortune, but as 'a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse' ('The International Committee for Monitoring Assisted Reproductive Technology and the World Health Organisation revised glossary on assisted reproductive technology terminology', Fernando Zegers-Hochschild et al, 'Human Reproduction', 4 October 2009).
That said, we would not go so far as to endorse the concept that there is a right to have a child. Article 8 of the European Convention on Human Rights describes a 'right to respect for...private and family life', and some have interpreted this as implying the existence of a right to have a child. But in our view, attempting to ensure that everyone who wishes to have a child can do so is a matter of pursuing a laudable aspiration and addressing the disease of infertility, not a matter of protecting or enforcing a right.
An acute shortage of donor gametes is diminishing the capacity of the UK's public and private health sectors to treat infertility, resulting in growing concern and lengthening waiting lists at clinics. The shortage is widely attributed to the removal, in 2005, of entitlement to donor anonymity. There was initial optimism at the fact that the number of gamete donors actually rose slightly following the removal of anonymity, but this optimism was misplaced.
The rising number of donors has been countervailed by a decreasing willingness on the part of donors to donate sperm to banks for use by multiple families. This has resulted in a worsening shortage overall - an increase in number of sperm donors, but a decrease in available donor sperm.
We should strive to meet the needs of infertile people because prioritising the allocation of scarce gametes remains notoriously difficult, and questions of who is most deserving often arise. Currently, fertility clinics in both the public and private sectors have considerable latitude to implement their own criteria as to how gametes are allocated. This creates inequity, and a 'postcode lottery' of access to gametes.
The criteria used to prioritise gamete recipients are at best contentious and a worst downright unfair. These include the age of the prospective recipients, whether or not they have a healthy lifestyle, and whether or not they are childless. Regarding the latter, debates about the definition of 'childlessness' abound - do deceased children, children from previous marriages, or the children of one's partner mean that one should not be considered childless?
What are the legal and regulatory parameters surrounding the allocation of gametes? The Human Fertilisation and Embryology Act 1990, as amended by the Human Fertilisation and Embryology Act 2008, states that 'a woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for supportive parenting)'.
The most recent (eighth) edition of the Human Fertilisation and Embryology Authority's Code of Practice suggests that 'supportive parenting' should be interpreted as 'a commitment to the health, development and wellbeing of the child' and that 'it is presumed that all prospective parents will be supportive parents in the absence of any reasonable cause for concern that any child who may be born, or any other child, may be at risk of significant harm or neglect'. The same Code of Practice states that 'those seeking treatment are entitled to a fair assessment', and that 'patients should not be discriminated against on grounds of gender, race, disability, sexual orientation, religious belief or age'.