Seminar 1 - Assisted Reproduction
Reading Notes
G.T. Laurie, S.H.E. Harmon, and E.S. Dove, Mason and McCall Smith’s Law and Medical
Ethics (11th edn, OUP 2019). Chapter 8.
● The distinction between infertility and childlessness may seem narrow but it may also
be significant in relation to resource allocation. It could be held that, whereas the
treatment of infertility is clearly a medical matter, childlessness can be seen as a
social problem which should be funded from a different source.
○ This might serve to justify the relative scarcity of the latter facilities in the
NHS.
● 10% of marriages/partnerships are said to be infertile. Couples may also give thought
into reproducing for genetic reasons, such as bearing an adverse recessive
characteristic.
● Unlike the body, the status of an embryo can be left in legal limbo. There has been a
consistent lean towards medical research and advancement, and that it should not
be restrained unless it can be shown to be positively harmful.
● Why should we do more and control assisted reproduction when any attempt to
control natural reproduction would be condemned?
● For donor insemination: ‘effective consent’ must be in writing and signed and can
apply to the use, storage, and or disposal of gametes or of embryos resulting from
their use.
● IVF: an embryo is an organism which of itself, has the potential for human
development, and is deserving of some respect and protection in law. A balance has
to be reached between the importance of reproductive autonomy and the moral value
of any human embryo, and the justification for ‘risk-taking’ in the context of the ‘do no
harm’ principle.
M Brazier, ‘Regulating the Reproduction Business?’ (1999) 7 Medical Law Review 166.
● The law does not interfere with the reproductive choices of the naturally fertile. What
justification is there for interference with the choices of the unfortunately infertile?
● The debate on fertility treatment has become a weapon to attempt to defend
conventional families
● Section 13(5) has been described as ‘so imprecise as to be either all-embracing or
meaningless’.
● Gissen has labelled British laws as representing a ‘permissive solution’ to the
dilemmas promoted by reproductive medicine.
R Thornton, ‘European Court of Human Rights: Consent to IVF Treatment’ (2008) 6
International Journal of Constitutional Law 317.
Cases
Y v A Healthcare NHS Trust [2018] EWCOP 18; [2018] 8 WLUK 10.
, Wife (Y) sought a declaration from the Court of Protection that it would be lawful to retrieve a
sperm sample for storage and subsequent use. The declaration was granted in her favour.
Greater weight is placed on the past wishes, values and feelings of an incapacitated
individual. A relative other than his wife could provide the necessary written consent for
storage and use after retrieval. It has to be done specifically with the direction of that patient.
The judge still allowed retrieval.
Warren v Care Fertility (Northampton) LTD [2014] EWHC 602 (Fam); [2015] Fam 1.
In 2008, Beth Warren named as H’s partner, enabling her to use sperm after death, and for
him to be named on birth certificate. Beth sought a declaration that it would be lawful to store
H’s sperm beyond the initial 10 year period. A declaration was granted in her favour. The
clinic did not provide H with the relevant information that he would have needed in order to
comply with the requirements to extend the initial period of storage. H’s intentions were
clear. HFEA regulations were to be interpreted purposively with Warren’s Article 8 rights.
L v Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam); [2009] EU LR
107.
An out-of-hour application was made and a declaration of lawfulness was granted based on
an erroneous interpretation of the Human Tissue Act 2004. L applied to the court to
determine the lawfulness of the storage, use and export. Charles J confirmed that continued
storage and use would be unlawful. However, the Authority had a wide discretionary power
to permit export. L was allowed to export the sperm for use in the US. Demonstrates some
of the problems with the rushed nature of medical law cases. Evidence that ‘Blood’ was not a
one off case that it was perceived to be?
Evans v United Kingdom (6339/05) [2006] 2 FLR 172.
Her former partner refused to agree to the future storage and use of the embryos and sought
to have them destroyed. Evans lost in the ECHR. She relied on Article 8 and 2, however, her
ex partner also argued that his article 8 rights were engaged and infringed upon. The courts
afforded exactly the same rights to both parties in the situation, they were not prepared to
balance or prioritise either party; the bright line rule. However, both parties were not in the
same position, he could go on and have many children in the future, she could not.
Re R (A Child) (IVF: Paternity of Child) [2003] EWCA Civ 182; [2003] Fam 129; affirmed by
the House of Lords [2005] UKHL 33; [2005] 2 AC 621.
L Teaching Hospitals NHS Trust v A [2003] EWHC 259 (Q.B.); [2003] 1 FLR 1091.
A caucasian couple (Mr A and Mrs A) were undergoing IVF treatment together. When the
twins were born, it was apparent that they were of mixed race and it was established that the
sperm used had been provided by Mr B who was also being treated with his wife. The issue
of fatherhood was settled mainly on the basis of the consent requirements in s28 of the 1990
Act. Mr A did not consent to Mr B’s sperm being used, he was therefore not the legal father
by virtue of s28(2).
S28(6) which excludes parenthood in the case of a consenting donor, could not be applied
because Mr B did not consent to the use of his sperm. Mr B remained the legal father of the
twins by virtue of their genetic relationship.
R v Human Fertilisation and Embryology Authority, ex p Blood [1999] Fam 151.
Reading Notes
G.T. Laurie, S.H.E. Harmon, and E.S. Dove, Mason and McCall Smith’s Law and Medical
Ethics (11th edn, OUP 2019). Chapter 8.
● The distinction between infertility and childlessness may seem narrow but it may also
be significant in relation to resource allocation. It could be held that, whereas the
treatment of infertility is clearly a medical matter, childlessness can be seen as a
social problem which should be funded from a different source.
○ This might serve to justify the relative scarcity of the latter facilities in the
NHS.
● 10% of marriages/partnerships are said to be infertile. Couples may also give thought
into reproducing for genetic reasons, such as bearing an adverse recessive
characteristic.
● Unlike the body, the status of an embryo can be left in legal limbo. There has been a
consistent lean towards medical research and advancement, and that it should not
be restrained unless it can be shown to be positively harmful.
● Why should we do more and control assisted reproduction when any attempt to
control natural reproduction would be condemned?
● For donor insemination: ‘effective consent’ must be in writing and signed and can
apply to the use, storage, and or disposal of gametes or of embryos resulting from
their use.
● IVF: an embryo is an organism which of itself, has the potential for human
development, and is deserving of some respect and protection in law. A balance has
to be reached between the importance of reproductive autonomy and the moral value
of any human embryo, and the justification for ‘risk-taking’ in the context of the ‘do no
harm’ principle.
M Brazier, ‘Regulating the Reproduction Business?’ (1999) 7 Medical Law Review 166.
● The law does not interfere with the reproductive choices of the naturally fertile. What
justification is there for interference with the choices of the unfortunately infertile?
● The debate on fertility treatment has become a weapon to attempt to defend
conventional families
● Section 13(5) has been described as ‘so imprecise as to be either all-embracing or
meaningless’.
● Gissen has labelled British laws as representing a ‘permissive solution’ to the
dilemmas promoted by reproductive medicine.
R Thornton, ‘European Court of Human Rights: Consent to IVF Treatment’ (2008) 6
International Journal of Constitutional Law 317.
Cases
Y v A Healthcare NHS Trust [2018] EWCOP 18; [2018] 8 WLUK 10.
, Wife (Y) sought a declaration from the Court of Protection that it would be lawful to retrieve a
sperm sample for storage and subsequent use. The declaration was granted in her favour.
Greater weight is placed on the past wishes, values and feelings of an incapacitated
individual. A relative other than his wife could provide the necessary written consent for
storage and use after retrieval. It has to be done specifically with the direction of that patient.
The judge still allowed retrieval.
Warren v Care Fertility (Northampton) LTD [2014] EWHC 602 (Fam); [2015] Fam 1.
In 2008, Beth Warren named as H’s partner, enabling her to use sperm after death, and for
him to be named on birth certificate. Beth sought a declaration that it would be lawful to store
H’s sperm beyond the initial 10 year period. A declaration was granted in her favour. The
clinic did not provide H with the relevant information that he would have needed in order to
comply with the requirements to extend the initial period of storage. H’s intentions were
clear. HFEA regulations were to be interpreted purposively with Warren’s Article 8 rights.
L v Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam); [2009] EU LR
107.
An out-of-hour application was made and a declaration of lawfulness was granted based on
an erroneous interpretation of the Human Tissue Act 2004. L applied to the court to
determine the lawfulness of the storage, use and export. Charles J confirmed that continued
storage and use would be unlawful. However, the Authority had a wide discretionary power
to permit export. L was allowed to export the sperm for use in the US. Demonstrates some
of the problems with the rushed nature of medical law cases. Evidence that ‘Blood’ was not a
one off case that it was perceived to be?
Evans v United Kingdom (6339/05) [2006] 2 FLR 172.
Her former partner refused to agree to the future storage and use of the embryos and sought
to have them destroyed. Evans lost in the ECHR. She relied on Article 8 and 2, however, her
ex partner also argued that his article 8 rights were engaged and infringed upon. The courts
afforded exactly the same rights to both parties in the situation, they were not prepared to
balance or prioritise either party; the bright line rule. However, both parties were not in the
same position, he could go on and have many children in the future, she could not.
Re R (A Child) (IVF: Paternity of Child) [2003] EWCA Civ 182; [2003] Fam 129; affirmed by
the House of Lords [2005] UKHL 33; [2005] 2 AC 621.
L Teaching Hospitals NHS Trust v A [2003] EWHC 259 (Q.B.); [2003] 1 FLR 1091.
A caucasian couple (Mr A and Mrs A) were undergoing IVF treatment together. When the
twins were born, it was apparent that they were of mixed race and it was established that the
sperm used had been provided by Mr B who was also being treated with his wife. The issue
of fatherhood was settled mainly on the basis of the consent requirements in s28 of the 1990
Act. Mr A did not consent to Mr B’s sperm being used, he was therefore not the legal father
by virtue of s28(2).
S28(6) which excludes parenthood in the case of a consenting donor, could not be applied
because Mr B did not consent to the use of his sperm. Mr B remained the legal father of the
twins by virtue of their genetic relationship.
R v Human Fertilisation and Embryology Authority, ex p Blood [1999] Fam 151.
