Who do they belong to? In Vitro Fertilisation

As you will have seen from the legislation describing the classification of parenthood according to the HFE Act 2008, the issue as to who precisely is the ‘mother’ and ‘father’ of a baby born as a result of IVF can be complicated to say the least.

Taking the most extreme scenario and classifying all parties involved as potential ‘parents‘:

Couple seeking IVF (intended parents):1x Father and 1x Mother
+ Donor sperm:1x Father
+ Donor egg:1x Mother
+ Surrogate:1x Mother
+ Surrogate’s husband/partner:1x Father
Total parents of resulting child =3x Fathers and 3x Mothers(!!!)

It is easy to see how this can cause problems for all parties involved as the case of Leeds Teaching Hospital NHS Trust v. A demonstrates:

Case Study: Leeds Teaching Hospital NHS Trust v A

Mr and Mrs A; and Mr and Mrs B were undergoing IVF treatment at the same hospital (Leeds Teaching Hospital). Unfortunately, an error occurred resulting in Mrs A’s eggs being fertilised with Mr B’s sperm. The mistake only became apparent when Mrs A gave birth to mixed race twins.

The issues as to who was the twins’ father and which were couple were to take custody of the children soon arose. Mr A was sadly caught in a legal loophole in that, in the eyes of the law, he had not consented to donor insemination (DI) of his wife with Mr B’s sperm.

Conversely, Mr B had also not given consent for his sperm to be used to fertilise another woman other than his wife – it had effectively been stolen from him. Because of this, the presiding judge ruled that Mr B had to be classified as the legal father of the twins.

However, it was ruled that Mr and Mrs A should retain custody of the children since they had already settled them in to a loving home. Mr A could apply for parental custody of the twins or the couple could adopt them.

The judge also stressed however, that regardless of outcome, the twins must be provided with all the information regarding their origins and contact with Mr B was to be made possible.

(Brazier, Cave 2007)

It is important to note from the above the deliberate instruction that the twins were to be given information regarding their genetic father and should be allowed access to him. Whilst the issue could not be avoided in this case (due to the twins being mixed race), it was still specifically stated that he children must be given full information about their true origins.

But what of children born via DI under conventional circumstances? Should they have the right to know their genetic father?

The original HFE Act 1990 stipulated that in fact anonymity be granted to both sperm and egg donors, while granting any resulting children the right to limited information with regards to the donor that made their existence possible. For example. The Act specified that individuals born as a result of DI must have the right to know whether they are genetically related to their partner if planning to marry. However, the act specified that the HFEA alone would make the decision as to whether the information provided to donors included their genetic parents’ identities.

This ruling was met with criticism by many groups, who argued that it was everyone’s right to know ‘where they came from’. Adopted children have this right so why shouldn’t children born as a result of gamete donation?

As a result, April 2005 saw the introduction of new HFEA regulations which ruled that all future children born as a result of gamete donation made from that time forward would, at 18, have the right to know the identity of their genetic parents.

Whilst this ruling upheld the HFEA’s commitment to the welfare of children born as a result of reproductive technologies, clinics at the time feared that donation rates would drop.

Their fears were soon proved justified with the HFEA reporting that within one month of the new regulations coming in to effect there were just 12 sperm donors in the whole of the UK, and by June, only 10 existed. Added to regulations specifying that when a donor’s sperm has resulted in successful pregnancies in 10 families, he must be taken off the donor list, the removal of the right to anonymity for donors meant that the UK faced a nationwide sperm shortage.

As a result, women attending 8 of the 21 UK fertility clinics began buying sperm from two US sperm donation banks at an average price of $450 per sample. It seems sensible therefore to ask; what then of the ‘welfare’ of these children that will probably never truly know where they came from?