Reproductive Medicine Scenarios. IVF and surrogacy problem questions. Analysis of two example cases.
Example Medical Law Problem Question
Two years ago Nicky discovered that she had breast cancer and required chemotherapy. She was informed by the doctors that following treatment she would be infertile. Nicky and her husband, Oliver, wanted a family and, knowing that it was the only way they could have their biological child, they underwent IVF at Hillsbank Clinic and then froze three embryos prior to Nicky undergoing chemotherapy. The treatment for the cancer was successful and at present there is no indication of the cancer remaining. However, Nicky and her husband have separated and Oliver no longer wants to have a family with Nicky. He has refused to give his consent to one of the frozen embryos being implanted in Nicky.
Katie and her husband, Luke, had been trying to have a baby for ten years with no success. Tests showed that Katie was infertile. They realised that their only chance to have a child would be to use a surrogate mother. They saw an advertisement in the London Evening Standard which said that Miriam was prepared to act as a surrogate mother in return for a fee of £15,000 plus expenses. Katie and Luke contacted Miriam and an agreement was made whereby Katie and Luke would pay the fee and expenses and Miriam would hand over the baby after it was born. They artificially impregnated Miriam with Luke's sperm.
The pregnancy went well and the baby was born healthy but Miriam has now said that she has bonded with the baby and will not hand it over to Katie and Luke.
Discuss the legal and ethical issues relating to these problems.
The two situations discussed below provide a prime opportunity to examine some of the issues at the forefront of medical ethics. The scenarios themselves are by no means unique - with around 60,000 IVF cycles recorded each year1 and hundreds of registered surrogacy arrangements2 in place, modern reproductive arrangements are not a niche issue. Furthermore, the issues surrounding reproductive autonomy are limited not just to the sphere of medical ethics and the law, but can instead be used as a means to examine wider social phenomena.
The first half of this essay will deal with Nicky and Oliver's situation, with an emphasis placed on the role consent plays within medicine, and the manner in which competing consents were balanced in Evans v United Kingdom.3 The second half will turn to the issue of paid surrogacy, with particular focus on the exploitative potential of commercial surrogacy and the problems with determining legal parenthood within surrogacy situations.
Nicky, Oliver and Fertility Treatment
The Legal Position
The facts of Nicky and Oliver's situation closely mirrors those of Evans v United Kingdom4 and so we can turn to the case for guidance on the parties' legal position. Like Nicky, the applicant in the above case chose, with her then partner, to freeze a number of fertilized embryos in the wake of a cancer diagnosis. Following the breakdown of the relationship, her partner withdrew permission for use of the embryos, essentially extinguishing the applicant's last chance for a genetically related child.
Under Schedule 3 of the Human Fertilisation and Embryology Act 1990 (HFEA 1990) it is possible for either party to withdraw consent for the storage of fertilised embryos or to refuse to give consent for the use of those embryos. Applying this to Nicky and Oliver's situation, it would appear that the lack of one party's permission is sufficient to stop the implantation procedure from going ahead. Indeed, this was the line taken by the court in Evans - although it was argued that the applicant had an ECHR Article 8 right to family life, it was countered that her partner had a mirroring right to control his own family life by avoiding the existence of his genetic child,5 and that this right was backed by the HFEA 1990.
The one benefit that Nicky might make use of in the wake of Evans is that instead of Oliver's refusal for use (and presumably, storage for that future purpose) there is now a 12 month-cooling off period provided by Schedule 3 Para 4a of the HFEA 1990, so that disposal of the embryo is not immediate following one party's withdrawal of consent.6
Nicky and Oliver's problem raises a number of interesting ethical queries regarding the nature of consent and the resolution of situations where one consent conflicts with another.
It is first worth noting the central position that consent holds within medical ethics (and consequently, within the practice of medicine.) Without consent, medical procedures become illegitimate practices - exposing practitioners to both civil and criminal sanctions,7 as well as charges that they have violated patients' right to bodily autonomy.8
It is therefore essential that proper consent be established before a procedure takes place. The HFEA 1990 acts to extend the requirement for consent to be obtained for procedures that might happen to an individual's gametes whilst they are under the control of a fertility clinic or other institution. We can therefore view Nicky and Oliver's situation as a conflict of bodily autonomy. On the one hand, Nicky wishes to make use of her stored gametes and exercise her right to a family. At the same time, Oliver also has a stake in the use of the gametes - he has provided half of the genetic material, is given the opportunity to refuse consent by the law, and as argued in Evans, avoiding the existence of a child can be considered a way of exercising the right to private and family life.
If we view the process of assisted conception as a single procedure from the creation of the embryo via IVF through to implantation, then it can be argued that consent to the existence of a child takes place at the point of fertilisation - indeed this is the stance taken by the law with regard to naturally conceived children - parental rights cannot be extinguished through the withdrawal of consent after fertilisation. If it is held that the creation of an embryo constitutes an irrevocable consent to the birth of a child, then it follows that it would be ethically permissible for Nicky to continue with the procedure without Oliver's permission - she is simply continuing a process which began years before.
It is, however, possible to distinguish the IVF process from natural conception. Firstly, even if we regard the entire IVF process as a single procedure, the possibility remains for consent to withdrawn during the process. Indeed, if a patient was to withdraw consent for surgery midway through the procedure, it would be ethically untenable for the surgeon to continue the operation. If the same reasoning was applied to the scenario above, then it follows that when Oliver withdraws consent the procedure must halt (until implantation, at which point Nicky's reproductive rights supersede Oliver's.)
Furthermore, arguments that assisted conception should mirror natural repercussion (ie. that once an embryo is created consent for the continued existence of that embryo rests solely with the gestating woman) ignore the fact that a significant reason behind the current situation is that to provide fathers-to-be with such rights would involve a gross invasion of the mother-to-be's body. No such issue exists with assisted conception - the embryo can be destroyed without affecting the bodily autonomy of either party, and therefore the argument that it is impossible to withdraw consent is far more ethically and practically viable.
Whilst the imbalance between the two parties' situations is undeniable - the embryo represents Nicky's last chance for a genetically related child, whereas it does not for Oliver - the use of a 'bright-line' system of consent is still defendable. Whilst in this situation the imbalance is clear the protection of consent is not predicated subjectively - that is, the tragedy of an individual personal situation cannot overwhelm the need for effective and ongoing consent. We might find it unpalatable to imagine a situation in which an organ donor changes their mind minutes before a life-saving operation, but we would find it even more problematic if that individual was forced to undergo unwanted surgery. This is arguably the reason for the current legislative position -with autonomy protected with concrete, if inflexible consent requirements. To do otherwise would risk creating a hierarchy of consent, rather than the unilateral situation that currently exists.
In summary, Nicky and Oliver's situation illustrates the complex legal and ethical problems that contemporary reproductive medicine can present. The law finds itself in an untenable position - having to balance the very personal nature of assisted conception with the requirement to enshrine consent in as protective a manner as possible.
Katie, Luke, and Miriam and Paid Surrogacy
The Legal Position
Whilst surrogacy arrangements are far less common than the use of IVF, the legal and ethical issues they present are just as compelling. Three decades have passed since the Warnock Committee9 posited the need to outlaw paid surrogacy, and yet the issue still remains a matter of much contention. Indeed, with the contemporary cases of Baby Cotton10 and Baby IJ11 the debate over commercial surrogacy is as lively as ever. There are two primary legal issues involved in Katy, Luke and Miriam's situation: the payment for surrogacy and Miriam's refusal to transfer guardianship to Katy and Luke.
Under s.2 of the Surrogacy Arrangements Act 1985 it is illegal for commercial payments to be made to a surrogate, and therefore Katy and Luke have committed an offence (as affirmed by cases such as Re C (Application by Mr and Mrs X)12.) Although they might attempt to argue that they were merely attempting to provide the reasonable expenses allowed by s.54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), the fact that the advertisement clearly differentiates between expense payments and commercial payments means this argument will likely fail. Furthermore, under s.3 of the Act several other individuals may well be found to have committed an offence by publishing Miriam's advert - although for the purposes of brevity such offences will not be evaluated here.
As for Miriam's decision to keep the child, such a decision is not proscribed by law. Under s.33 of the HFEA 2008, parental rights rest with the woman who gave birth to the child until they are transferred via either parental order or adoption.13 In addition to her protection under the HFEA 2008, the courts are remiss to grant parental orders to those who have entered into commercial surrogacy agreements (although in practice they often are in order to protect the welfare of the resulting child.) Futhermore, S.1B of the Surrogacy Arrangements Act 1985 notes that surrogacy arrangements are not enforceable.14
Commercial surrogacy finds itself involved in a number of ethical debates. It has been argued that permitting commercial surrogacy will result in the exploitation of surrogates - that they will be reduced to objects of mere use15 - the so called 'womb-for-rent' situation.16 To the contrary, it can be asserted that commercial surrogacy is as permissible as any other payment for services rendered as part and parcel of any basic capitalist society. Therefore the justification for the illegality of commercial surrogacy can be argued to rely on a false distinction between acceptable commercial exploitation and unacceptable commercial exploitation. Whilst it could be countered that the personal physical risk involved in surrogacy distinguishes it from other commercial arrangements, there exist a wide range of physically risky employments regularly undertaken (boxing or sky-scraper construction, by way of example).17 Each involves dangerous physical risk, and yet these arrangements are permitted as a matter of personal choice. It is therefore necessary to distinguish surrogacy in some other manner before the ethical consistency of its illegality can be established.18
There remains the potential that surrogacy simply represents such a harsh exploitative risk that its illegality is justifiable. Indeed, it would be foolhardy to evaluate the potential issues with commercial surrogacy without paying heed to the numerous historical and social factors involved when evaluating the commodification of the female body. It has been argued that commercial surrogacy would become packaged alongside a variety of means by which women are economically exploited, and that therefore it would be an undesirable move to open up this particular avenue.19 Whilst this may be true, it can be countered that the exploitative potential of a particular practice does not dictate its ethical permissibility with absolute authority. In fact, it can be countered that to outlaw a practice due to the fact that it might be exploitative is itself an elitist and paternalistic policing of the female body.20 Indeed, to pretend that the current system itself leads to freedom from exploitation would be a mischaracterisation - there exists entirely the possibility that surrogates may be underpaid for their expenses if they fail to make a good agreement. Therefore, the outlawing of commercial surrogacy merely reduces the chance of exploitation, rather than eliminating it, at the cost of reducing personal liberty (and filling the courts with ineffective court cases.21)
At the same time, even if it is held to be true that commercial surrogacy is a social harm the efficacy of the law regarding it is questionable. A burgeoning body of case law (Re C,22 Re X & Y23, Re X24, Re L,25 Re D26) indicates that the courts often find themselves bound to retroactively authorise commercial surrogacy arrangements by granting parental orders, if only for the welfare of the involved child. Alternatively, a potential rebalancing act could legalise commercial surrogacy in order to better regulate it. Indeed, this would arguably provide greater protection to those surrogates who engage in commercial arrangements, who would be able to be paid set fees rather than being left to the whims of an unregulated black market. Building on this, legalised commercial surrogacy would also greater protect overseas surrogates through either the creation of a domestic market for surrogacy or by bringing them under the protection of a regulated market.27 This would also increase the supply of surrogates, increasing the choices available to those with reduced reproductive autonomy.28
Determining Legal Parenthood
The above scenario also leads to questions as to how legal parenthood is determined in surrogacy cases. As noted above, the UK makes us of gestational parenthood - that is, the woman who gives birth to a child holds maternal rights - but this is not the only means of determining parenthood. Whilst the current system provides certainty, the scenario above illustrates that this system can cause issues. There exist two other means of determining parenthood - genetics and intent. Under genetic parenthood systems, parental rights are given to those who have provided the genetic material for the child. Whilst this might reduce the possibility of children being kept by surrogate mothers, this will still lead to conflict in partial-surrogacy cases - for example, this would lead to Miriam being held as the legal mother and Luke as father (assuming we use genetic parenthood to determine paternity as well). Whilst this might give the commissioning couple a greater ability to enforce surrogacy contracts, it is also likely to divide a child's parents across two households if the surrogate mother chooses to keep the baby.
Under intent systems, motherhood rests with the commissioning mother - in effect the surrogacy contract becomes enforceable, providing greater legal protection to both the intended parents (who hold greater parental rights) and the surrogate (who will not be left with the baby if the parents decide they do not want to raise the child.)29 However, such systems can fall to the same uncertainty that any intent test is subject to - especially where such arrangements lack formality. Whilst this might cause uncertainty, it is arguably beneficial means of maximising the welfare of the involved child30 - the parent(s) who intend to raise the child are likely to be best placed to raise it, and as the courts have noted in the US31, it is often possible to assert that the best interests of a child are not with a parent who was ostensibly willing to contract her parental rights away (albeit in an unenforceable contract.)
In summary, modern surrogacy arrangements are often complex: legally, ethically and personally. The law finds itself pinched between its need to legislate for a contemporary scientific practice whilst also consolidating centuries of law regarding parental rights, all whilst attempting to determine the (often subjective) best interests of a child who grows older with each day in court - leading to greater problems.
As clearly demonstrated above, the ethics of modern reproductive medicine are by no means clear cut. In many ways both the courts and Parliament face an impossible task, they are asked not just to create a watertight system of laws to deal with contemporary issues, but also to do so in a way which will maintain ethical consistency as medicine develops.
In Nicky and Oliver's case we see how these attempts can lead to what some would characterise as injustice - with the ethical necessity of clear consent trumping the very personal plight of a woman losing her last chance at genetic parenthood. In a similar vein, Katie, Luke and Miriam find themselves dealing with the inflexible attitude of the UK's courts towards parenthood. We can perhaps draw one certain conclusion from the above scenarios - reproductive medicine will never be simple, but it will always be interesting.
1 The figures for 2014/2015 from HFEA are not yet available.Human Fertilisation and Embryology Authority, Fertility Treatment in 2013: Facts & Figures (HFEA 2014) 4
2 C Nye, S Patel, 'The fraught world of UK surrogacy' (BBC, 2014) Read the article here
3 Evans v United Kingdom - Application no 6339/05 (2007)
4 Evans v United Kingdom - Application no 6339/05 (2007)
5 R Thornton, 'European Court of Human Rights: Consent to IVF Treatment' (2008) 6 International Journal of Constitutional Law 317-30
6 E Jackson, Medical Law: Texts, Cases & Materials (OUP: 2013) 794
7 A Maclean, Autonomy, Informed Consent and Medical Law (CUP: 2009) 150
8 E Jackson, Medical Law: Texts, Cases & Materials (OUP: 2013) 212
9 Committee of Inquiry into Human Fertilisation and Embryology, Report of the Committee of Inquiry into Human Fertilisation and Embryology (Cmnd 9314, 1984)
10 Re: A v C 1985 FLR 445
11 Re: X & Y (Foreign Surrogacy)2008 EWHC 3030 (Fam)
12 Re C (Application by Mr and Mrs X under s 30 of the Human Fertilisation and Embryology Act 1990) 2002 EWHC 157 (Fam)
13 E Jackson, Medical Law: Texts, Cases & Materials (OUP: 2013) 842
14 E Jackson, Medical Law: Texts, Cases & Materials (OUP: 2013) 840
15 E Anderson, 'Is women's labour a commodity?' (1990) 19 Philosophy and Public Affairs 71-92
16 BBC, 'Womb for rent: A tale of two mothers' (BBC 2011) Click here to read the article
17 S Wilkinson, 'The exploitation argument against commercial surrogacy' (2003) 17 Bioethics 169-187
18 SD Pattinson, Medical Law and Ethics, (Sweet & Maxwell 2014) 229
19 A Wertheimer, 'Exploitation and Commercial Surrogacy' (1996) 74 Denver University Law Review 1215-29
20 RJ Arneson, 'Commodification and Commercial Surgery' (1992) 21 Philosophy & Public Affairs 132-164
21 As argued by McFarlane J. Re G (Surrogacy: Foreign Domicile) 2007 EWHC 2814 (Fam)
22 Re C (Application by Mr and Mrs X under s 30 of the Human Fertilisation and Embryology Act 1990) 2002 EWHC 157 (Fam)
23 Re X & Y (Foreign Surrogacy)2008 EWHC 3030 (Fam)
24 Re X (Children) (Parental Order: Retrospective Authorisation of Payments)
25 Re L (A Minor) 2010 EWHC 3146 (Fam)
26 Re D (Minors) (Surrogacy) 2012 EWHC 2631 (Fam)
27 E Jackson, Medical Law: Texts, Cases & Materials (OUP: 2013) 847
28 E Jackson, Medical Law: Texts, Cases & Materials (OUP: 2013) 869
29 E Jackson, Medical Law: Texts, Cases & Materials (OUP: 2013) 843
30 K Horsey, 'Challenging presumptions: legal parenthood and surrogacy arrangements' (2010) 22 Child and Family Law Quarterly 449-474, 455
31 Johnson v Calvert 851 P 2d 776 (Call 1993)