As a solicitor who deals with fertility law matters, I have come across the legal implications of IVF as it has developed throughout the years. However as a woman with PCOS and a trustee of Verity, the Charity in England and Wales that deals with fertility issues, I am in somewhat of a unique position in looking at the development of IVF over the last 40 years. The development has clearly only been possible given the advances in medicine and science.
However, it is also essential and something that I am acutely aware of that it is also the need of society’s attitude to develop as well as the law to progress in order to keep up with the continuing developments. When IVF was first developed in 1977, the law was woefully inadequate to cope with the legal questions it poses. Since introduction of the ability for children to be conceived using a variety of different medical techniques, the law has also had to play catch up somewhat to ensure that not only the children but the intended parents and any relevant donor or surrogate are all protected in the future. The HFEA 1990 Act was considerably updated in 2008 with relevant instructions for civil partnership and donor anonymity as an example.
However, many in the medical and legal worlds now consider the HFEA 2008 to also be woefully inadequate. The HFEA have granted a licence to Newcastle Fertility Clinic to develop treatment with mitochondrial diseases. This is where a third person’s gene are used to replace an unhealthy mitochondrial disease. However, technically this can lead to possibility that a baby can be born with DNA from three individuals. This ultimately leads to a legal question as to whom is the parent and whether the current law under the HFEA 2008 is adequate for these future developments.
Fertility law also poses a number of ethical issues as to whose welfare should be the priority particularly when a court is deciding situations such as contact after a surrogacy arrangement.
Whatever the future may hold, progress needs to be made in the legal understanding of these medical advances so that society through the courts can make appropriate decisions without involving intended parents in complex legal court cases. It is has been an exciting time in fertility treatments and law over the last 40 years and no doubt the next 40 years with the proposed amendments to the Surrogacy Act 1985, together with the medical advancements of IVF, will lead to yet more legal questions to answer.
Caroline Andrews is a Family Law Solicitors at Wortley Byers Law in Brentwood and a Volunteer Trustee for Verity the PCOS Charity in which PCOS is a leading cause of sub-fertility issues in women in the UK, affecting 1 in 5 women.