Reforming The Human Fertilisation and Embryology Act 1990: Consent And Posthumous Conception
14th July 2023
Lisa Cherkassky, Senior Lecturer in Medical Law, has been awarded £2,500 by the Small Projects and Events Fund to host a one-day workshop in Spring 2024 to explore the proposed reform of the Human Fertilisation and Embryology Act 1990 (‘the 1990 Act’), with a focus on informed consent.
The Human Fertilisation and Embryology Authority (‘the HFE Authority’) announced in Spring 2023 that it had opened a long-awaited public consultation on the 1990 Act. This was in response to a growing number of landmark cases in which judges have authorised the retrieval, storage and use of reproductive materials for fertility treatment without proper statutory consent.
The 1990 Act contains a strict consent regime stipulating that eggs, sperm and embryos cannot be ‘stored or used’ without the informed, written consent of both parties. However, the High Court has authorised the retrieval and posthumous use of sperm from an incapacitated patient and in a posthumous surrogacy agreement, despite the Mental Capacity Act 2005 and the 1990 Act prohibiting these procedures without informed, written consent (Y v A Healthcare NHS Trust [2018] EWCOP 18; Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619; and Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48). These landmark decisions (which have attracted press worldwide) have caused concern for scholars, patients, practitioners and students, as they undermine not only the rigorous consent regime of the 1990 Act but the idea of patient autonomy, and the sovereignty of each individual to choose parenthood.
It is suggested by relevant literature that presumed consent should be enough for these unique fertility treatment procedures (e.g., posthumous conception). In support of this, the HFE Authority suggested an ‘opt-out’ system of consent in its Spring 2023 consultation, akin to the current organ donation law in the UK. This is a controversial suggestion because: it equates to presumed consent for fertility treatment; personal autonomy may be undermined; the welfare of the posthumously conceived child is unknown; confidentiality of genetic information may be at risk, and public confidence in the fertility sector could be damaged if the public knew that we could plunder the bodies of incapacitated and deceased patients for their reproductive materials. It would therefore be very timely to organise a one-day workshop for scholars, researchers and students to explore the reform possibilities for the 1990 Act, with a particular focus on the importance of informed consent.
The one-day workshop is open to scholars, researchers and PGR students with an interest in fertility law, reproductive rights, and ethics. Posthumous conception in fertility law is a niche area, but it is connected to more traditional legal topics that most law schools teach and assess, such as consent and autonomy; capacity; trespass to the person; criminal offences against the person; the welfare of the child; the remit of the courts; statutory interpretation; human rights; the treatment of incapacitated patients; reproductive rights, and general ethics. This one-day workshop aims to: explore the importance of informed consent to fertility treatment and how recent landmark cases might have undermined the authority of the 1990 Act; discuss the Spring 2023 public consultation which proposed an opt-out system of consent for fertility treatment, including how this may undermine patient autonomy; to hypothesise how this changing area of law can be delivered to law students in a way that is thought-provoking and clear; and clarify how this area relates to other areas of the law curriculum.