Partner-created embryos' – time to change the law to support lesbian couples

'Shared motherhood', also known as 'reception of oocytes from the partner' or 'intra-partner egg donation', or 'reciprocal motherhood', is a type of fertility treatment undertaken by female same-sex couples. This involves one female partner undergoing ovarian stimulation in order to collect her eggs, which are then fertilised with donor sperm. The resultant embryos are then transferred into the uterus of the other female partner so they can carry the pregnancy.

Up until recently, the partner providing the eggs was registered as a 'donor' with the Human Fertilisation and Embryology Authority (HFEA), even though they were in a relationship and their eggs were used solely for their and their partner's treatment. This was in contrast to heterosexual couples, where the male partner, irrespective of marital status, is not registered as a donor when providing their gametes for fertility treatment. Furthermore, heterosexual couples are only required to undergo 'partner screening' to use their own gametes as opposed to 'donor screening' which is more time-consuming and expensive, involving a number of additional health and genetic tests.

Following the publication of guidance documents by the HFEA several years ago concerning various patient treatment scenarios, there had been an understanding among many clinics in the UK that same-sex female partners did not need to undergo donor screening by virtue of the fact that they are a couple who are in an intimate physical relationship, and therefore qualified as just needing to be screened as partners even though they need to be registered as donors. There had however been confusion among clinics over this, with some clinics requiring couples planning on using intra-partner egg donation to still undergo both donor screening and be registered as donors.

Then, this year in June 2021, the HFEA introduced a new consent form called the WPT, which allows a woman in a same-sex relationship to give her eggs or embryos for the treatment of her female partner without the need to be registered as a donor. This was welcomed as reflecting society's increasing acceptance of LGBTQAI+ families and the increase in the number of same-sex couples undergoing assisted reproduction to have children in the UK (see BioNews 1097). However, there was still confusion over whether the now dropped requirement to register these women as donors conclusively meant that there was also no requirement to medically screen them as donors either.

This led the HFEA to look again at the law and issue more clear guidance to accompany the WPT form. This was disseminated via an article in the August edition of the HFEA's Clinic Focus. The article clarified that, despite previous assumptions, same-sex female couples who intend for one partner's eggs to be used for the treatment of their partner are still required to be medically screened as donors, even though they do not need to be registered as donors anymore.

However, the real problem arises when the definition of what constitutes 'a partner' is further examined. Specifically, the issue lies in how EU provisions were transposed into UK law in 2007 - and the fact that 'partner donation' is legally confined to heterosexual couples who 'declare that they have an intimate physical relationship'. This provision incorporates the requirements of the Second European Tissues and Cells Directive into the 1990 Act. 'Partner-created embryos' are defined in paragraph 12 of Schedule 3A as 'embryos created using the gametes of a man and a woman who declare that they have an intimate physical relationship'. There is no comparable provision for two women who share an 'intimate physical relationship'. This exclusion means that they still need to be screened as donors and not as partners as heterosexual couples receiving fertility treatment would be.

This understandably led to disappointment, frustration, and anxiety for both patients and clinicians, especially for those already within their own treatment journey who may have had one treatment under one set of rules and then found themselves having to endure an additional burden of testing, cost, and delays to continue.

The process of screening for donors – as opposed to partner screening – is far more complex, time-consuming and costly. Most importantly, in this context it is a medically unnecessary screening, unless there are specific issues. Unnecessary patient testing is fundamentally at odds with the principles of good medical practice.

Very few, if any, will disagree that this aspect of UK law is outdated and should be changed. It is unfortunate that the EU provisions take such a strict interpretation of the definition of 'partner donation' and 'partner-created embryos', and that the transposition of this provision into UK law - and consequently into medical practice - occurred without due consideration. In effect, this is in breach of UK discrimination legislation, most significantly the provision in the Equality Act 2010 which enshrines the right of gay people to not face additional burdens and be granted equal and fair access to health treatment. A number of stakeholders, including the HFEA, have shared their concerns with the Department of Health and Social Care. One has to appreciate that the HFEA, as the regulator, must uphold the law. The problem lies with the Human Fertilisation and Embryology Act 1990, which is outdated and socially naive. Repeated redrafting has resulted in legislation that is no longer fit for purpose. Consequently, the law is requiring clinical tests and procedures which are not clinically appropriate and are socially unacceptable.

It is time to enact change and for the legislation to be modernised. This current anachronism lends itself as an opportunity to look again at the entire Act and not just concentrate on this one isolated issue.

However, we must also appreciate that a change in the law will take time. This raises the question of what clinics and same-sex female couples who are planning to undergo treatment should do, prior to a potential change in the law.

One proposal might be for clinics to risk assess on a 'case by case' basis, evaluating whether screening the egg provider as a partner, rather than donor, presents any risk to the recipient partner. In this case, clinics would then need to justify their decision to continue treatment without additional tests.

Of course, this would only be possible if the HFEA would agree not to take regulatory action against the treating clinics in such circumstances, as long as the risk assessment is documented and kept in the patient notes.

This suggestion would be a proportionate response to what is now an outdated and discriminatory interpretation of what a 'partner' constitutes. Critically, it would also relieve the undue burden on clinics and patients until the Act is changed.