LAST week the House of Lords debated the adequacy of the law on the regulation of fertility treatments and broadly agreed it wasn’t fit for purpose.
Introduced by crossbench peer Baroness Ruth Deech, former chair of the Human Fertilisation and Embryology Authority (HFEA), peers examined proposals for reform from two separate sources: the HFEA’s recommendations for updating the Human Fertilisation and Embryology (HFE) Act, and the proposals put forward by the Law Commission of England and Wales and the Scottish Law Commission for reform of surrogacy law.
Many stakeholders in the fertility sector have sought to dovetail these areas of law as part of a single programme of reproductive law reform.
But the distinction matters enormously. For years, organisations with a vested interest in liberalising surrogacy to exploit the market have attempted to present it as another ‘type’ of fertility treatment. The implication is that surrogacy should be considered alongside IVF under a single framework of assisted reproduction and ‘family creation’. This move aimed to pull surrogacy away from other forms of state-sanctioned parenthood, such as adoption and fostering, towards legal parenthood achieved through natural conception.
A straightforward packaging of reform of IVF and surrogacy law into a single legislative project would be the ideal result for many.
Baroness Deech, however, called for a select committee to examine reform of the HFE Act and to bring fertility regulation into line with scientific developments and modern clinical practice. Surrogacy, she argued, should be treated separately.
IVF involves helping individuals give birth to their own children whereas surrogacy introduces an entirely different set of legal, ethical and wider social questions since it involves a third party: a woman.
Mired in contractual arrangements, concerns over consent and bodily autonomy and the rights of the child, as Baroness Deech observed, surrogacy is ‘hotly contested’ in a way that fertility treatment is not. Indeed, after examining the issue in greater depth, she told the Lords that she had become ‘less certain’ that surrogacy and reproductive law could be resolved together, and was ‘not at all sure’ about integrating fertility and surrogacy law into a single framework. That is a significant statement from someone who formerly chaired the Human Fertilisation and Embryology Authority (HFEA).
Her speech rightly highlighted how fertility law faces genuine problems. The HFE Act dates back to 1990 and was last substantially amended in 2008. Since then, reproductive science and practice has changed dramatically.
Anonymity rules are all but pointless as online home DNA testing kits reveal secrets held within – with parents at times performing them on young children on their behalf, having regretted the initial anonymity of the arrangement – so donor information access requires reconsideration.
Clinics now operate in ways never envisaged when the legislation was drafted, with chargeable ‘add-ons’, such as pre-implantation genetic testing.
This invites questions on how far this should be permitted, if at all. Regulatory powers are limited and there are practical issues deserving parliamentary attention. Surrogacy, however, raises entirely different concerns.
Baroness Deech highlighted the growing risk of exploitation of vulnerable women, particularly in international arrangements. ‘With increased use comes the increased danger,’ she said.
She mentioned how proposals from the Law Commission would reduce the time available for a surrogate mother to change her mind, reduce court and Children and Family Court Advisory and Support Service oversight and transfer legal parenthood at birth.
Her concern was particularly stark when discussing commercial cross-border arrangements involving poor, vulnerable women overseas. The examples of surrogacy arrangements in countries such as Ukraine and Nigeria – now the UK’s most popular surrogacy shopping destinations after America – illustrate how difficult it is to balance the desire for a child with the realities of economic inequality and exploitation.
Undeniably the fertility landscape envisaged by the architects of IVF does not resemble the one we experience today. We have recently witnessed a series of developments which could not have been predicted when the law was in its infancy in the late 1970s. Donor conception is now increasingly common. Embryos are routinely created, frozen and transported across borders and they are stored for longer periods.
In 2022, the government increased the maximum storage period for embryos, eggs and sperm from ten years to 55 years, subject to periodic consent renewal. Advocates celebrated this overnight change as expanding reproductive choice, but there was little public discussion regarding the practical consequences.
Up to an estimated 1.2million embryos in the UK may now remain preserved for decades. The physical space required to store them in vast banks of liquid nitrogen containers receives remarkably little attention.
IVF continues to spread as people consider parenthood later in life and so too will the demand for long-term embryo storage. As parents struggle to decide whether to donate remaining, no-longer-needed embryos to science, give to others who want to raise their children or to discard them, the storage fees continue to be added to the annual bills as understandably difficult decisions are shelved in the day-to-day life of raising a family.
Beyond the logistics are new extremes. New technologies are emerging that would have seemed like science fiction only a generation ago.
Researchers have produced offspring from two male mice cells through sophisticated cell manipulation. We now see womb transplants in the UK from both living and deceased donors. One Chinese biologist, Dr He Jianku, was imprisoned and fined for breaching international ethics codes through the creation of genetically engineered babies created to avoid the passing on of HIV. He secretly recruited couples where the father had HIV and the mother did not and his experiment led to the birth of twin girls, Lulu and Nana, in 2018. A third anonymous gene-edited baby was born in 2019.
Pressure is growing to revisit long-standing regulatory limits. Debate continues over extending the 14-day rule governing embryo research as embryo models increasingly mimic early human development, raising profound questions about the definition of a human embryo itself. These are precisely the sorts of advances that ignite debate on Britain’s legislative framework as it struggles to keep pace with the breakneck speed of reproductive science.
For many this debate is long-overdue: technology does not develop in a moral vacuum. Innovation may be accelerating but the language of ‘choice’ and ‘family creation’ often obscures uncomfortable truths.
Around the world, a profitable fertility industry connects clinics, lawyers and brokers across international borders to facilitate the wishes of adults to make their ‘dreams come true’, with women reduced to egg providers and ‘gestational carriers’; the children are inevitably the ‘end product’ of a production line. Even the ‘two dad’ mice relied on a female mouse to give birth.
Far from endorsing the rapid liberalisation of surrogacy law, as the Law Commission encouraged in its 2023 Report and Draft Bill, Baroness Deech leans into greater wariness.
These concerns over surrogacy deserve far greater public attention as motherhood is increasingly being dissected into component parts. But so too are donor-conceived individuals, raising important questions about identity and the psychological consequences of being intentionally separated from your biological origins.
It is not anti-science and anti-progress to ask questions about the direction of travel. In an age of unprecedented scientific power, our first responsibility is not to the technology but to the children who are brought into being through these technologies and to the women who give birth to them.
Just because we can does not mean we should.
