Families, Fertility And Future Proofing 

Published on 13 March, 2023 | Eleanor Scott

As regular readers of this ‘blog will no doubt appreciate, home life in the UK has changed considerably in recent decades.

In addition to great shifts – some legal and some societal – in how domestic relationships are forged, maintained and even break down, there have been significant developments in how families are started.

Overall, childbirths in England and Wales have been consistently falling for a number of years.

Data published by the Office for National Statistics (ONS) last August showed that the some  624,828 children were born in 2021 – down one-third on the highest such figure ever recorded (948,271 in 1903) (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/bulletins/birthsummarytablesenglandandwales/2021).

During that time, of course, couples who experience difficulties trying to have a family of their own have been able to count on an increasing range of fertility services.

Such treatments are regulated by the Human Fertilisation and Embryology Authority (HFEA) and, according to the most recent figures, are used by about 60,000 individuals each year.

Provision of these services is governed by Human Fertilisation & Embryology Act (HFE Act), which came into force in 1990 (https://www.legislation.gov.uk/ukpga/1990/37/contents).

The HFEA has now questioned whether the Act is still fit for purpose.

It has launched a six-week consultation about potential changes to it, admitting that “while medicine, science and society have moved on… the law itself has largely stood still” (https://www.hfea.gov.uk/about-us/news-and-press-releases/2023-news-and-press-releases/fertility-law-needs-modernising-says-uk-regulator/).

The HFEA is considering a number of revisions “in the interests of patients and their families”.

They include “more joined-up and safer patient care”, involving the automatic sharing of essential health records by patients’ GPs and clinics which they attend.

However, most eye-catching of all is a measure which would see individuals who donate sperm or eggs as part of the IVF process potentially identified as soon as a baby is born.

As things stand, children born following donations of this sort must wait until they are 18 to discover information about their biological parents.

Broadly, then, the HFEA reckons that “future-proofing the law” will mean it is more able to anticipate scientific change instead of needing to react by revising the legal and regulatory framework each time that there is a new clinical development.

Having had a chance to weigh up the views of interested parties, the HFEA expects to make recommendations to the Department of Health and Social Care (DHSC) later this year.

I think that what has been proposed is an important and very positive step forward.

In addition to being more reflective of the nature of contemporary society, it offers patients no little relief.

The IVF process can be stressful enough without couples having to ensure that the right information is shared between various parts of the National Health Service.

It also provides greater freedom of choice and more clarity than is presently the case, something which can again be of help at a very sensitive time in the lives of those involved.

The issue of clarity, of course, was at the centre of a landmark court case involving the HFEA last year.

It had refused Ted Jennings permission to use the final remaining embryo from his late wife’s IVF treatment to have a child by a surrogate mother.

Mr Jennings and his wife, Fern-Marie Choya, had even remortgaged their home to pay for IVF treatment only for her to die in 2019 while pregnant with twins.

The HFEA opposed his request on the grounds that his wife had not provided explicit, written consent for the embryo to be used in such a way in the event of her death, an objection overruled by the High Court (https://www.judiciary.uk/wp-content/uploads/2022/06/Jennings-v-HFEA-judgment-220622.pdf).

The judge who heard the case suggested that the HFEA revise its consent forms “to avoid this situation occurring again”.

In its current consultation document, the HFEA has already noted that consent is a central part of reassuring patients.

Addressing the points outstanding from Mr Jennings’ case as well as being able to take account of prospective treatments would enable the organisation to make real progress and put in place the kind of structure that is genuinely capable of supporting families for many years to come.