Revisiting the Regulation of Human Fertilisation and Embryology

236 Pages·2015·1.107 MB·English

by  Kirsty Horsey (ed.)

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Revisiting the Regulation of Human
Fertilisation and Embryology
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The Human Fertilisation and Embryology Act 2008 was a major update to the
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0 UK’s laws on the use and regulation of reproductive technology and assisted
7 reproduction. Since the enactment of the new law, the sector’s regulatory body,
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3: the Human Fertilisation and Embryology Authority (HFEA), has also consulted
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t on various related topics including barriers to egg and sperm donation in the
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UK, multiple births/single embryo transfer and using IVF technology to prevent
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g mitochondrial disease.
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i This book critically considers recent developments in human fertilisation
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n legislation, asking whether the 2008 Act has achieved its stated aim of being fit
Sa for purpose. Bringing together a range of international experts, the book evalu-
a, ates the fresh risks and challenges emerging from both established and existing
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n technologies and techniques in the field of human fertilisation and embryology,
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o as well as offering valuable insights into the social and regulatory challenges that
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al lie ahead. Key topics include problems with DIY assisted conception; the lack of
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reform in respect of the regulation of surrogacy arrangements; and mitochondrial
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o DNA transfer.
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t As a review of the status of assisted reproduction legislation, this book will be
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r of great use and interest to students, researchers and practitioners in medical law,
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v bioethics, medicine and child welfare.
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y [ Kirsty Horsey is Senior Lecturer in Law at the University of Kent, UK.
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Biomedical Law and Ethics Library
Series Editor: Sheila A. M. McLean
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Scientific and clinical advances, social and political developments, and the impact
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0 of healthcare on our lives raise profound ethical and legal questions. Medical law
7 and ethics have become central to our understanding of these problems, and are
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3: important tools for the analysis and resolution of problems – real or imagined.
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t In this series, scholars at the forefront of biomedical law and ethics contribute
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] to the debates in this area, with accessible, thought-provoking and sometimes
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g controversial ideas. Each book in the series develops an independent hypothesis
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i and argues cogently for a particular position. One of the major contributions of
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n this series is the extent to which both law and ethics are utilised in the content of
Sa the books, and the shape of the series itself.
a, The books in this series are analytical, with a key target audience of lawyers,
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n doctors, nurses and the intelligent lay public.
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l Available titles: Defending the Genetic Supermarket
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C The law and ethics of selection the next
of Human Fertilisation and generation
y Embryology Colin Gavagham
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si Reproducing regulation
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e Kirsty Horsey & Hazel Biggs The Harm Paradox
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ni Tort law and the unwanted child in an era
U Intention and Causation in Medical of choice
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y Non-killing Nicolette Priaulx
b The impact of criminal law concepts on
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e euthanasia and assisted suicide Assisted Dying
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a Glenys Williams Reflections on the need for law reform
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l Sheila McLean
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w Impairment and Disability
o Law and ethics at the beginning and end Medicine, Malpractice and
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of life Misapprehensions
Sheila McLean & Laura Williamson V.H. Harpwood
Bioethics and the Humanities Euthanasia, Ethics and the Law
Attitudes and perceptions From the conflict to compromise
Robin Downie & Jane Macnaughton Richard Huxtable
The Best Interests of the Child in Human Population Genetic
Healthcare Research in Developing Countries
Sarah Elliston The Issue of Group Protection
Yue Wang
Values in Medicine
What are we really doing to patients? Coercive Care
Donald Evans Rights, law and policy
Bernadette McSherry & Ian Freckelton
Autonomy, Consent and the Law
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1 Sheila A.M. McLean Saviour Siblings
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2 A relational approach to the welfare of the
l Healthcare Research Ethics and child in selective reproduction
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p Law Michelle Taylor-Sands
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Regulation, review and responsibility
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0 Hazel Biggs Human Population Genetic
7 Research in Developing Countries
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: The Body in Bioethics The issue of group protection
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2 Alastair V. Campbell Yue Wang
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o] Genomic Negligence Stem Cell Research and the
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e An interest in autonomy as the basis Collaborative Regulation of
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D for novel negligence claims generated Innovation
n by genetic technology Sarah Devaney
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S Victoria Chico
a, End of Life Decision Making for
ni Health Professionals and Trust Critically Impaired Infants
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o The cure for healthcare law and Resource allocation and difficult
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li policy decisions
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C Mark Henaghan Neera Bhatia
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y Medical Ethics in China
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i A transcultural interpretation Forthcoming titles include:
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e Jing-Bao Nie
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i The Jurisprudence of Pregnancy
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U Law, Ethics and Compromise at the Concepts of conflict, persons and property
y [ Limits of Life Mary Neal
b To treat or not to treat?
d Richard Huxtable Regulating Risk
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d Values in health research governance
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o Regulating Pre-Implantation Shawn Harmon
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w Genetic Diagnosis
o A comparative and theoretical analysis The Umbilical Cord Blood
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Sheila A.M. McLean & Sarah Elliston Controversies in Medical Law
Karen Devine
Bioethics
Methods, theories, domains The Legitimacy of Medical
Marcus Düwell Treatment
What role for the medical exception?
Sara Fovargue and Alexandra Mullock
Revisiting Landmark Cases in Pioneering Healthcare Law
Medical Law Essays in honour of Margaret Brazier
Shaun D. Pattinson Catherine Stanton, Sarah Devaney, Anne-Marree
Farrell and Alexandra Mullock
The Ethical and Legal
Consequences of Posthumous Birth, Harm and the Role of
Reproduction Distributive Justice
Lewis Browne Burdens, blessings, need and desert
Alasdair Maclean
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il About the Series Editor
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p Professor Sheila McLean is International Bar Association Professor of Law and Ethics in
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9 Medicine and Director of the Institute of Law and Ethics in Medicine at the University of
0 Glasgow.
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Revisiting the Regulation
of Human Fertilisation
and Embryology
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A Edited by Kirsty Horsey
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First published 2015
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2015 selection of editorial material, Kirsty Horsey. Individual chapters, the contributors.
The right of Kirsty Horsey to be identified as editor of this work has
7 been asserted by her in accordance with sections 77 and 78 of the
1 Copyright, Designs and Patents Act 1988.
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2 All rights reserved. No part of this book may be reprinted or reproduced
il or utilised in any form or by any electronic, mechanical, or other means,
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p now known or hereafter invented, including photocopying and recording,
A or in any information storage or retrieval system, without permission in
9 writing from the publishers.
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7 Trademark notice: Product or corporate names may be trademarks or
0 registered trademarks, and are used only for identification and
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3 explanation without intent to infringe.
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t British Library Cataloguing in Publication Data
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A catalogue record for this book is available from the British Library
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g Library of Congress Cataloging-in-Publication Data
e A catalog record for this book has been requested
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n ISBN: 978-1-138-02189-1 (hbk)
Sa ISBN: 978-1-315-76789-5 (ebk)
ia, Typeset in Baskerville MT Pro by
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r Servis Filmsetting Ltd, Stockport, Cheshire
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Table of Contents
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Preface ix
9
0 Kirsty Horsey
7 Notes on contributors xii
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t 1. Revisiting the regulation of human fertilisation and embryology 1
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] Kirsty Horsey
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i 2. From need ‘for a father’ to need ‘for supportive parenting’: Changing
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n conceptualisations of the welfare of the child following assisted
Sa reproductive technology in the United Kingdom 12
a, Eric Blyth
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o 3. The law and DIY assisted conception 31
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al Emily Jackson
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o 4. Prisoners’ access to fertility services 50
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t Helen Codd
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v 5. Thinking outside the (egg) box: Egg-share agreements, cord blood and 
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U ‘benefits-in-kind’ 65
y [ Karen Devine
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e 6. PGD past, present and future: Is the HFE Act 1990 now ‘fit for
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a purpose’? 80
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l Jeanne Snelling and Colin Gavaghan
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D 7. The ‘three parent’ misnomer: Mitochondrial DNA donation under
the HFE Act 98
Laura Riley
8. The fertility treatment time forgot: What should be done about
surrogacy in the UK? 117
Kirsty Horsey and Katia Neofytou
viii Table of Contents
9. Access to genetic and biographical history in donor conception: An
analysis of recent trends and future possibilities 136
Eric Blyth and Lucy Frith
10. Compensating reproductive harms in the regulation of twenty-first
century assisted conception 153
Antony Blackburn-Starza
7 11. ‘A less than perfect law’: The unfulfilled promise of Canada’s Assisted
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0 Human Reproduction Act 170
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l Pamela White
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12. The regulation of PGD for medical sex selection and the gendering
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0 of disability in the UK and Australia 185
7 Isabel Karpin
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t 13. New wine in old bottles and old wine in new bottles: The judicial
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response to international commercial surrogacy in the UK and
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g Australia 200
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i Anita Stuhmcke
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Sa Index 216
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Preface
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In 2007, many of the authors in this volume contributed to a collection of work
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0 critiquing the then state of play with regard to the Human Fertilisation and
7 Embryology Act 1990 and how it was faring, in the light of the Government’s
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3: announced intention to review it and the launch of the public consultation, ‘with
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t particular emphasis on those [issues] that were either not considered or were
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] under-considered when the Human Fertilisation and Embryology Act was passed
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g in 1990’ (Horsey and Biggs, 2007: xii). Chapters in the collection were written
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n academia with an interest in the field. They covered the law’s role in regulating
Sa reproduction, postmenopausal pregnancy, welfare of the child considerations,
a, payment to gamete donors, access to IVF and related treatments, preimplan-
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n tation genetic diagnosis (PGD), embryo donation, legal parenthood, surrogacy
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o and abortion. Our aim then was to inform and contribute to the debates on re-
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al regulation, although we anticipated even at that time that many issues would be
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unresolved, and would continue to generate discussion and debate once the new
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o legislation was passed.
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t Draft legislation was published in 2007 and parliamentary debate commenced.1
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r The Human Fertilisation and Embryology Act was passed in 2008. This was
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v legislation which, according to the ministers responsible for introducing it, was
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U intended to ‘ensure that the law remains effective and fit for purpose in the early
y [ 21st century’ (Department of Health, 2005: 5). However, many scholars and other
b commentators in the area were perplexed by the fact that a piece of amending
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e legislation was passed, rather than making the final outcome far less complex by
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a repealing the original 1990 Act and re-legislating (Elliston, 2009). Added to this the
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l fact that the 2008 Act came into force in various stages between April 2009 and
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w April 2010, and that the two statutes have to be read alongside each other in order
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law can currently be, notwithstanding the number of provisions that expressly give
power for future Regulations. As noted by Sarah Elliston (2009), ‘attempts to test
1 The original draft legislation was known as the Human Tissue and Embryos Bill, as it was
originally intended to merge the functions of the Human Fertilisation and Embryology Authority
(HFEA) with the Human Tissue Authority in one piece of legislation.