by: Natalie Gamble
Published in ASRM News January 2017
|Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts—scientific, medical, legal or otherwise—as they relate to the information presented, and in no way reflects ASRM’s understanding, opinion or presentation of these facts.
UK Court of Appeal Rules Mother Can Export Deceased Daughter’s Frozen Eggs to US to Conceive a Grandchild
This UK case involves a young woman (A) who died of cancer in her twenties. She cryopreserved three oocytes during a period of remission (which she later referred to as her “babies on ice”), and, at the time of storage, completed a fertility clinic consent form in which she wrote “YES” to the eggs being stored “for later use” in the event of her death, and “NO” to the eggs “being allowed to perish.” She did not specify how she wanted the eggs to be used if she died, but her clinic never asked her to give any further detail. At the time of storage (and until her death) she was single, so when she completed the form, she must have envisaged something other than her eggs being used by a partner.
After A died in 2011, her parents (Mr. and Mrs. M) wanted to try to conceive a child using the eggs (with donor sperm) who Mrs. M would carry and who would be raised as their grandchild. Mrs. M had discussed this with A on several occasions, who had told her parents that she hadn’t gone through fertility treatment for nothing and that her babies would be “safe with them.”
Strict UK laws requiring a gamete provider to give written signed consent to any specific course of treatment precluded Mr. and Mrs. M from having treatment using their daughter’s eggs in the UK. They therefore identified a fertility clinic in the US prepared to treat them and sought discretionary permission from the UK fertility clinic regulator, the Human Fertilisation and Embryology Authority (HFEA), to export the eggs. The HFEA refused the application, and Mr. and Mrs. M challenged their decision in the UK’s High Court.
At first instance, the High Court said the HFEA had reasonably concluded there was insufficient written evidence of A’s wishes, and that export should not be allowed. However, on appeal from that decision, the Court of Appeal disagreed. That court ruled that, although A had not completed the formal additional written consent forms spelling out how she wanted her eggs to be used in the UK, her wish that they not be allowed to perish was clear and all other available evidence indicated that A wanted the eggs to be used by her mother after her death. Therefore, the HFEA decision (which was premised on A’s lack of clear consent to the use of the eggs as proposed) was unreasonable, and it should be reconsidered in light of the judgment. Subsequently, the HFEA reconsidered Mr. and Mrs. M’s export application and gave permission for the eggs to be exported to the US where treatment can proceed.
This case is an incredibly sad story which highlights how important it is for anyone storing gametes to record as clearly as possible in writing what they intend to happen if they die. However, the ultimate decision also establishes that issues of consent should be looked at in context, and not just in relation to what the formal clinic paperwork says. Ultimately, that may make the law more difficult to apply, but at the same time, it upholds UK ART law’s fundamental principle of consent: that a gamete provider has the right to decide what happens to his or her sperm or eggs.
UK Surrogacy Law Set to Change After the President of the Family Division Rules Current Law is Incompatible with the Human Rights of Single Parents and their Children
On December 14, 2016, the UK government told the House of Lords that in “early 2017” it plans to use a special fast-track procedure to change UK law to permit single parents, as well as couples, to become the legal parents of children born through surrogacy.
Although it has never been illegal for UK single parents to conceive through surrogacy under UK law, a significant barrier is created by the fact that resolving the parentage issues is complex. UK law provides that the surrogate and her husband (including those based overseas) are the legal parents of any child born through surrogacy until the intended parents obtain a UK “parental order” transferring parenthood to them. Currently, UK law only permits couples (whether married or unmarried, same-sex or different-sex) to apply for a parental order, but not single parents. The government has now decided to change UK law, so that single (biological) parents whose children are carried by a surrogate can also apply post-birth to become the sole legal parent.
The decision follows a case in which the President of the High Court Family Division made a formal declaration that the current law discriminated unfairly against a single father and his son. That case involved a single British father of a boy known as “Z”, who was born through a US gestational surrogacy arrangement. A US state court order, confirmed by a birth certificate, established that the father was the sole legal parent, but UK law treated the gestational carrier as the boy’s mother and as the sole parent with responsibility. Instead of living under the radar in the UK with unresolved parentage (as many other UK single fathers through US surrogacy have done), at some risk, Z’s father decided to challenge the law.
He applied for a parental order and asked the UK court to extend the existing legislation to grant him one or to formally declare the law in breach of human rights principles. The President of the Family Division ruled that under UK law, the only person with parental responsibility for Z was the US gestational carrier, and his inability to grant a parental order to change that made the law incompatible with the father’s and the child’s human rights. The British Secretary of State for Health, representing the government, initially sought to defend the existing law, but in the final stages, altered course and agreed to the court declaration that the law was discriminatory. The government ultimately agreed that there was no justifiable basis for the surrogate children of couples to be granted secure parentage, but not the children of single parents.
Unlike the US, the UK has no written constitution and only Parliament can change the law. However, the UK’s Human Rights Act is a powerful tool for holding unfair laws to account, and declarations of incompatibility carry significant weight: only 21 have ever been made, and all but one have prompted Parliament to change the law. The Parliamentary Committee on Human Rights makes clear that it expects a remedy to be “swift and full” if a court makes a declaration of incompatibility.
We were delighted the government decided to use a “remedial order,” the quickest route available for law reform, making it likely that the changes will come into force before the end of 2017. The government also has said that the changes will be retrospective, which means that single parents who already have children will finally be able to secure their family’s status, rescuing their children from legal limbo. It is important that such parents are aware of this, since there is likely to be a short window of opportunity to make the application once the law changes.
The impact of the change is enormously significant for single UK parents through surrogacy, who will now be able to secure their parentage and obtain a British birth certificate and passport for their children. However, the case also has prompted the government to ask the Law Commission (the independent UK body which reviews out-of-date laws in order to recommend how they should be brought up to date) to consider a formal review of UK surrogacy law as a whole. This may therefore prove to be just the first step toward wider progressive reform.
Mitochondrial Replacement Treatment Becomes Legal in the UK
The UK fertility regulator, the Human Fertilisation and Embryology Authority, announced in December 2016 that it is ready to begin issuing licenses for mitochondrial replacement treatment at UK fertility clinics. Its decision followed a 2015 legal change in which Parliament voted to approve the Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015, making the UK the first country in the world in which mitochondrial donation is formally legally permitted under license.
Mitochondrial DNA is sometimes described as the batteries of the cell. If faulty, mitochondrial DNA can cause terrible debilitating conditions for children, which are almost completely untreatable, as the disease subsists at cellular level. In simple terms, mitochondrial donation involves the “swapping” of faulty mitochondrial DNA from the egg of an affected mother with healthy mitochondrial DNA from a donor. It is a groundbreaking technique, developed through licensed research in the UK, which offers affected women the chance to conceive their own (healthy) genetic child, and minimize the risk of mitochondrial disease for all future generations of their family.
The road to UK law reform permitting this treatment was a carefully considered one. From 2012, the HFEA and a number of other professional bodies (such as the Nuffield Council on Bioethics), conducted an extensive process of public consultation and education, including focus groups, a survey, events and ethical reviews. This enabled a sensitive assessment of what might otherwise have been considered controversial issues around embryo manipulation, giving Parliament the confidence to pass the legislation by a large majority and with surprisingly little controversy.
Now that the HFEA has announced it is ready to implement the new law, licensed fertility clinics in the UK that wish to offer mitochondrial replacement treatment can apply to the HFEA for permission to do so. There is a stringent two-stage licensing process which will first require general authorization for the treatment being provided at the clinic in question, and then a specific HFEA permission for each particular case.
The regulations make clear that the mitochondrial donor is not a parent of the resulting child, nor is she an egg donor. She will remain anonymous, and it will not be possible for the child to obtain any information about her (as is the right of children conceived through traditional egg donation in the UK). The HFEA’s reasoning for this is that the mitochondria passes on no personal characteristics, rather provides the power to help the cells function normally to significantly minimize the risk of passing on the mitochondrial disease.
It is still not clear when we will see the first UK baby born as a result of mitochondrial donation, and the numbers affected are small (estimated at 150 women per year in the UK). However, for those affected, this opportunity may be life-changing, giving them their best chance to have a healthy, unaffected child who is genetically theirs.
Author’s note: This guest-authored column explaining the HFEA’s careful scrutiny, analysis and approval of donor mitochondrial replacement also highlights the importance of accurate terminology. The technique has frequently been mischaracterized in the U.S. media as “three-parent IVF,” an inaccurate description which suggests that mitochondrial donors are parents, and clouding legal issues of parentage involving all gamete donation. --Susan Crockin
“Legally Speaking: A Column Highlighting Recent Court Decisions Affecting the ARTs and the Families They Create” returns to ASRM amidst extraordinary legal developments impacting the assisted reproductive technologies. The column will appear online monthly in ASRM News, with links to court decisions for those who wish to delve directly into the courts' opinions. There will be guest authors to add expertise and unique perspectives related to significant legal topics. “Legally Speaking®” will continue its commitment to not only report on new and noteworthy court cases but also analyze their potential impact and significance on the practice of ART. --Susan Crockin, JD