Present LegislationIn Vitro Fertilisation

At the time of Louise Brown’s birth in 1978, no regulatory system existed in the UK with regards to reproductive technologies, causing widespread concern that the technology could soon be misused.

In response, the Voluntary Licensing Authority (VLA) was established in 1985. The creation of the Human Fertilisation and Embryology Authority (HFEA) followed in 1991 under the 1990 Human Fertilisation and Embryology (HFE Act); its remit being to “license and monitor UK clinics that offer IVF (in vitro fertilisation) and DI (donor insemination) treatments and all UK-based research into human embryos. We also regulate the storage of eggs, sperm and embryos.”

The forthcoming HFE Act 2008 continues this remit, containing regulation for all aspects of IVF and its associated technologies available today. More detailed information of notable developments in the most recent HFE Act are covered separately.

Focusing on IVF itself, the key areas of regulation of concern to the HFEA involve the:

  • number of eggs that may be transferred to the uterus
  • number of embryos that may be transferred to the uterus
  • length of time for which embryos may be stored for in the event that they are not used at the time of the initial IVF attempt; and their fate when their storage license does expire. Issue of ‘parenthood’ of the embryo.

Let’s address each of these in turn.

1. Number of gametes or embryos transferred

Following several high profile cases involving multiple births following IVF (which shall be covered in more detail later), the HFEA have ruled (under the 2008 Act) that centres must now establish standard operating procedures with regards to the minimisation of multiple births. This should include a means of classifying clients that should be suitable for single embryo transfer (SET), and (where applicable) the reasons why a client, who fulfilled the criteria to receive SET, ultimately had multiple embryos transferred.

If more than one embryo as to be transferred:

  • If a woman is under 40 and using her own eggs or embryos, the centre may transfer no more than 3 eggs or 2 embryos.
  • If a woman is over 40, the centre may transfer no more than 4 eggs or 3 embryos.

The woman must also be warned of the risk of multiple births associated with such transfer including:

  1. the higher risk of miscarriage and complications during pregnancy
  2. the higher rate of premature birth and the problems arising from low birth weight, the higher rate of still birth, and the higher rate of perinatal mortality
  3. the higher rate of disability and other health problems, plus the potential need for extended stays in hospital before and after birth, and
  4. the possible practical, financial and emotional impact on the family and any children.

2. Storage of embryos

The standard period of storage for embryos and gametes is stated as being 10 years., although, specific exceptions may warrant licenses for both shorter and longer periods of storage.

3. Parenthood of the resulting child

MOTHERHOOD

At the time of birth of the child, its mother is defined as:

The woman (W) who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman.

In the event of surrogacy, W may give official notice at the time of birth (via a parental order) that she consents to another woman being classed as the child’s mother i.e. the child’s genetic/intended mother.

FATHERHOOD

If W is married at the time of carrying the child and her husband’s sperm was used in the insemination process, he shall automatically be classed as the child’s father.

If a donor’s sperm or embryo is used, W’s husband/partner is still classed as the child’s father (under the previous criteria) unless he did not consent to the placing in her of the sperm and eggs, or embryos, or to the insemination; and/or the couple are judicially separated at the time of insemination.

If W is acting as a surrogate, her husband shall be classed as the child of the father. If she is not married, her partner must give his consent to being classed as the child’s father; with W also consenting that he be classed as such.

W and M may also provide official consent at the time of the child’s birth (via a parental order) that another man be classed as the father of the child I.e. the child‘s genetic/intended father.

PARENTHOOD IN THE EVENT OF FEMALE CIVIL PARTNERSHIPS

In the case of female civil partnerships, if a woman is seeking treatment using donor sperm or embryos created donor sperms, the woman’s civil partner will be classed as the child’s legal parent unless a separation order were in force and/or the partner did not consent to the placing in her of the sperm and eggs, or embryos, or to the insemination.