IVF Law Flashcards
Human Fertilisation and Embryology Act 1990
Enacted after the Warnock Committee judged that IVF and embryo research required specialist regulation.
S3 HFEA 1990
Makes it a criminal offence to bring about the creation of any embryo outside the human body or to keep or use such an embryo without a licence granted by the HFEA.
S4 HFEA 1990
Prohibits any storage of gametes or use of donor gametes (incl. fresh sperm) without a license from HFEA.
More sections HFEA 1990
Offence to grow human embryo for over 14 days outside of the human body → limits experimenting on embryos.
Can only implant human embryos into the body of a woman – not a male body or animals.
Cannot sell gametes.
Access to IVF Treatment
Welfare Clause s13(5) HFEA 1990
Clinics providing IVF can only provide treatment if welfare of child would be provided for by parents
-> key is supportive parenting
Take into account age, drug use, housing, care of other children etc.
Age limit for IVF treatment?
This is provided for by the welfare clause.
Can someone in their mid-70s be present long enough to provide supportive parenting?
NHS funding for IVF
NICE (organisation that decides what the NHS should pay for)
NHS should pay for 3 rounds of IVF for infertile couples → BUT there are restrictions which are decided locally
NHS aims to offer women between the ages of 23 and 39 one cycle of IVF assuming they meet eligibility criteria:
E.g., Must be trying to get pregnant naturally for at least 12 months (a problem for homosexual women – usually forced to pay).
If there is an existing child of either the mother or father (not necessarily together) NO NHS IVF.
Who is the mother and father?
Legal mother = assumption in law that birth mother is legal mother (this can be changed after birth)
Legal father = if married, presumption of fatherhood unless he does not consent.
Do children have a right to know?
Since 2004 - children have right to find out who their biological parents are.
When child turns 18 they can find out their donor.
Note - this is only possible if parents tell them they were born from donor conception.
Rose v Secretary of State for Health and Human Fertilisation and Embryology Authority [2003]
Led to the HFE Reg 2004 Reg 2(3) provides info as to the identity of donors of sperm, eggs or embryos.
R v HFE, ex parte Blood [1997]
Facts: Retrieval was carried out when Blood was in a coma → no consent so unlawful. However, it was held that the decision to refuse the wife to use sperm amounted to an interference with her rights under the Articles of Treaty of Rome.
CA held HFEA should reconsider earlier refusal → gave permission to export gametes. Mrs Blood had a second child as a result of insemination.
Evans v Amicus Healthcare Ltd, Hadley v Midland Fertility Services Ltd [2004]
HC: consent given was in both cases only for “treatment together” with named partner and thus could not be effective for sole use by the claimants.
CA: upheld HC decision
Have absolute right not to become a parent if we withdraw consent.
Article 8 rights of ex-partner refusing is more powerful than Art 2, 8 or 14 rights of others.
->“IVF can only, put at its highest, amount to the right to have access to IVF treatment → it’s a right qualified by availability, suitability for treatment and cost”
Prisoners rights: R (Mellor) v Secretary of State for Home Dep [2001]
CA: dismissed appeal. One purpose of imprisonment is to punish criminal by depriving them of certain rights -> interference permitted by Art 8(2) involved in exercise of proportionality.
Prisoner rights: Dickson v UK [2007]
Couple did not ask for state support to pay for IVF. Held: as woman not in prison, violation of her Art 8. Woman’s age was crucial to the decision – by the time man was released L would be too old to have children. Also, fact that L and K were paying for IVF helped.
