Chapter 7 - Assisted reproduction
Dorothy and her husband Tim have been trying to have a baby for a while and have so far been unsuccessful as there is both a problem with Dorothy's ability to carry a foetus to term and the quality of Tim's sperm. They have now managed to create five embryos in vitro using intracytoplasmic sperm injection (ICSI). In a first cycle of assisted reproduction, three embryos were implanted, and Dorothy lost two early on. The third is carried to 13 weeks when at a routine checkup no heartbeat can be detected and subsequent complications result in an emergency hysterectomy. The two remaining embryos are stored in a cryogenic storage facility at the NHS Trust. Dorothy and Tim are in the process of discussing how to proceed with the remaining embryos when Tim contracts meningitis and falls seriously ill. His health unfortunately deteriorates rapidly and he dies shortly after. Some years later, Dorothy is in a new long-term relationship with Andrew and they are beginning to think about having children of their own. Dorothy remembers that there are two embryos left in cryogenic storage but as she is now unable to have them implanted, Andrew's sister Anna agrees to be a surrogate. She has both embryos implanted and both are successfully brought to term. Anna has formed a strong bond to the twins and is now reluctant to give them to Dorothy and Andrew. The staff at the neonatal ward are unsure how to deal with this situation and ask Marc and Simon for advice.
Marc advises that there are two legal issues – the question of obtaining the embryos and that of the surrogacy arrangement and Anna’s change of mind. The Human Fertilisation and Embryology Act 1990 states that the embryos may be used if there is the consent of both parties. Given that Tim has died and cannot provide consent and cannot do so in the future, as he does not object Dorothy is able to use the embryos (p. 166). Marc notes that the surrogacy agreement is lawful so long as the terms correspond with those mandated by the Surrogacy Arrangements Act 1985 (p. 173) – such as that only reasonable expenses may be paid. Marc advises that, in relation to the actual enforcement of the agreement, the law is clear that the law will not intervene to force the surrogate to surrender any children born. Therefore, he states that Anna will be allowed to keep the twins should she choose to do so. Simon comes to the same conclusion and notes that assisted reproduction technologies have challenged conventional notions of family relations. Genetic parenthood is no longer indicative of there being a presumption of the strongest family bond and the advent of technologies where three individuals may be the genetic parents of a child, and a fourth individual the birth-mother, will make this issue the subject of additional debate. In the instant case, Anna has nurtured the embryos to birth and, for all intents and purposes, there is a strong physical and emotional bond which ought to be recognised. Dorothy and Andrew's emotional stakes in this arrangement must also be given recognition but in balancing the interests of all involved, Anna ought to be allowed to keep the children.
- M. Brazier, ‘Regulating the Reproduction Business’ (1999) 7(2) Medical Law Review 166 http://medlaw.oxfordjournals.org/content/7/2/166.full.pdf
- M. Freeman, ‘Does Surrogacy Have a Future after Brazier?’ (1999) 7 Medical Law Review 1 http://medlaw.oxfordjournals.org/content/7/1/1.full.pdf+html
- D. Gurnham and J. Miola, ‘Reproduction, Rights and the Welfare Interests of Children: The Times They Aren’t A-Changin’’ (2012) King’s Law Journal 29 http://www.ingentaconnect.com/content/hart/klj/2012/00000023/00000001/art00002?crawler=true
- E. Jackson, ‘Rethinking the Pre-Conception Welfare Principle’ in K. Horsey and H. Biggs (eds.), Human Fertilisation and Embryology: Reproducing Regulation (London: Routledge, 2007) http://books.google.de/books?id=doYhAQAAIAAJ
- C. Jones, Why Donor Insemination Requires Developments in Family Law: The Need for New Definitions of Parenthood (Lampeter: Edward Mellen Press, 2007) http://books.google.de/books?id=_FPTHgAACAAJ
- R. Lee and D. Morgan, Human Fertilisation and Embryology: Regulating the Reproduction Business (Oxford: Blackwell, 2001) http://books.google.de/books?id=D0JjQgAACAAJ
- J. McCandless and S. Sheldon, ‘The Human Fertilisation and Embryology Act 2008 and the Tenacity of the Sexual Family Form’ (2010) 72(2) Modern Law Review 175 http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.2010.00790.x/abstract
- S. Sheldon, ‘Fragmenting Fatherhood: The Regulation of Reproductive Technologies’ (2005) 68(4) Modern Law Review 523 http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.2005.00550.x/abstract
- J. Callahan (ed.), Reproduction, Ethics and the Law – Feminist Perspectives (Bloomington, IN: Indiana University Press, 1995) http://books.google.de/books?id=aSq5ouyOAVMC
- T. Hope, J. Savulescu and J. Hendrick, Medical Ethics and Law: The Core Curriculum, 2nd edn (Edinburgh: Churchill Livingstone, 2008), chapter 9 http://books.google.de/books?id=DOPfK6LvGR0C
- H. LaFollette (ed.), Ethics in Practice, 2nd edn (Malden: Blackwell, 2002), chapters 16 and 17 http://books.google.de/books?id=UjN9AgAAQBAJ
- B. Solberg, ‘Getting Beyond the Welfare of the Child in Assisted Reproduction’ (2009) 35 Journal of Medical Ethics 373 http://jme.bmj.com/content/35/6/373.full.pdf+html