Contemporary Ethical Dilemmas in Assisted Reproduction

Francoise Shenfield, Claude Sureau, Francoise Shenfield, Claude Sureau

• Publisher: CRC Press
• Year: 2021
• eBook ISBN: 9780429524127
• Edition: 1
• Topic: Medicine
• Subtopic: Gynecology, Obstetrics & Midwifery

Ethical dilemmas are more common in assisted reproduction than in any other area of medicine. Providing a framework for discussing and articulating to patients the topical issues in assisted reproduction, this text examines the ever-changing interaction between ethics, society, and scientific advances in the area. This third volume of ethical debates includes chapters on assisted reproduction for parents with HIV and Hep-C, posthumous reproduction and non-Christian religious ethics in relation to assisted reproduction.

PART I THE EMBRYO: AN ENTITY WORTHY OF RESPECT

Chapter 1Whose embryos are they anyway?

Gillian M. Lockwood

Your children are not your children.

They are the sons and daughters of Life’s longing fbr itself

They come through you but not from you,

And though they are with you, yet they belong not to you.

The Prophet by Kahlil Gibran

How different this is from the approach of the Ancient Greeks, who took the view that children (and one remained a minor in those days until the age of 30!) were the property of their fathers, who therefore exercised a right of life and death over them in early childhood and certainly during the neonatal period (the habit of exposing ‘surplus’ baby girls on the hillside as a form of infanticide is well documented).

UK law demonstrates a remarkable dissonance between the rights it ascribes to fetuses and the rights it ascribes to embryos. Even the full-term fetus does not ‘exist’ in UK law in the sense that until a baby is born it is not recognized as a separate entity from its mother. Its life may be terminated up to 24 weeks’ gestation if healthy, and beyond that for compelling maternal reasons or if there is significant risk of handicap. As long as the mother-to-be is deemed ‘competent’ she has the right to refuse any or all medical or surgical interventions that could save the baby’s life, even if her beliefs or fears seem irrational to those caring for her¹.

Under the terms of the Human Fertilisation and Embryology (HFE) Act (1990)², special status is accorded to human embryos from the moment of fertilization as befits their potential as possible people. Whether transferred or frozen, donated or experimented on, strict rules determine the conditions in which they are maintained, stored or ultimately disposed of. The Act makes it clear that embryos (like the gametes from which they are created) should not be treated as objects or possessions to which the normal rules of transactional commerce apply. Individuals may be ‘compensated’ for the trouble inherent in being gamete donors (in the UK currently £15 plus travel expenses per donation for sperm and egg donors). ‘Egg sharers’ may have all or most of the cost of their in vitro fertilization (IVF) cycle discounted in return for half or even more of their eggs, and the egg recipient is not ‘buying’ the donated eggs but rather paying for the medical and scientific skills necessary to provide the treatment. Couples or individuals who donate their surplus embryos are, at most, indemnified against the costs of storage, and a woman who receives donated embryos in a system akin to ‘preimplantation adoption’ is not purchasing the embryos any more than are adoptive parents buying the child they have placed with them.

So if embryos cannot be owned in the sense of being able to be bought and sold or even bequeathed in a will (!), why have the courts of law in the UK and elsewhere been quite so exercised about their disposition? The issue arises in the UK because the HFE Act stipulates that the informed consent of both parties who contributed gametes towards the formation of embryos must be ongoing for the embryos to be cryopreserved, continue in storage or be transferred up to the point of use.

Two cases of contested ‘embryo ownership’ (NE vs. HJ and LH vs. WH) came before the High Court in London in 2003, and one (NE vs. HJ) went to the Appeal Court and to the House of Lords, and is currently awaiting judgment from the European Court of Human Rights. In this chapter I intend to outline the two cases and draw parallels with similar eases heard in the USA and elsewhere. I endeavor to disentangle the complex web of issues relating to genetic identity, ‘family’ and rights which have resulted in contradictory and even counterproductive legislation being passed in the area of adoption and gamete donation. I hope to suggest a mechanism by which such cases may be resolved or, better still, avoided in the future and, perhaps more significantly, reduce the desperate waste and sorrow that result from over 90% of cryopreserved embryos being eventually discarded.

An unmarried couple, NE and HJ underwent fertility investigations after 18 months of primary infertility. These revealed that NE had early ovarian cancer, and the couple were advised that IVF with embryo cryopreservation was the only prospect for NE potentially achieving genetic motherhood, as a bilateral oophorectomy would need to be performed. At the time, NE was advised that egg cryo-preservation was not possible. Six embryos were created and stored and NE underwent surgery, but the couple separated before any of the embryos could be transferred. HJ wrote to the fertility unit requesting that the embryos be taken out of storage and perished, as he was exercising his right under the Act to withdraw consent to their continued storage or use.

LH and WH were a married couple with two embryos in storage following an unsuccessful ‘fresh’ transfer as part of an IVF treatment cycle. The couple divorced before the frozen transfer was planned, and WH requested that the embryos be perished. LH, who was aged 37 at the time of the divorce, is subfertile due to polycystic ovary syndrome (PCOS), and wanted to have the frozen embryos transferred. LH has a 17-year-old (laughter from a previous relationship.

In both cases the man now has a child from his new relationship, and both claim that it is not an issue of possible financial liability for a child or children born from their stored embryos, but rather that they do not wish there to exist children born to their ex-partners who would stand in the same genetic relationship to themselves as their own newborn babies.

Although the legal criteria of ‘ownership’ would not ordinarily be influenced by the personal circumstances of the claimants, there are significant differences between the two cases that may explain why strict application of the Act (which is quite unequivocal on the point of the need for continued joint consent for storage and/or use of embryos) proved so contentious. After all, in the case of Diane Blood and the use of sperm taken from her moribund husband, the Act was equally unequivocal that the sperm had been obtained illegally (i.e. without his written informed consent) and therefore could not be used, but the public sympathy for her plight was, I contend, a significant aspect of the eventual decision that allowed her to ‘export’ and hence use (successfully!) the sperm outside the jurisdiction of the UK Act.

Significantly, NE is now intractably infertile, and her only chance of a child to which she is genetically related lies with using these six embryos. LH is, by contrast, subfertile, but had or has the prospect of achieving a genetically related pregnancy either with a new partner or by using donor sperm.

In the case of NE, the couple were aware that their single cycle of IVF represented her only opportunity to become a biological mother. It is open to debate how informed either of the couple were about the possibility of using donor sperm to create embryos with NE’s eggs, or that the Act effectively gave ‘power of veto’ over the use of their embryos to HJ.

The case of McFall vs. Shimp (1978)³ may cast some light on the issue here. A man was found to be the only person with compatible bone marrow to save his cousin’s life. After some reflection, the first cousin declined to have the tissue removed, even in the knowledge that his cousin would probably die as a result. The issue went to court, and the court, unsurprisingly, was unwilling to order the operation to harvest the bone marrow, even though the cousin’s moral culpability was criticized heavily.

For LH and WH, they were aware that with 2 years’ infertility as a couple, their best, but not their only, chance of parenthood lay with IVF. The fact that LH already has a biological child is of only marginal medical relevance, but seems to have had a significant (negative) influence on public opinion.

Modern fertility techniques, including cryopreservation of gametes and embryos, have permitted a temporal as well as a spatial separation to emerge between the existence of a relationship and the initiation of a pregnancy. It is no longer necessary to be ‘together’ or even alive to become biological parents. This has to a large extent ameliorated the asymmetry that has historically existed between men and women in the matter of conception.

Once a man had impregnated a woman (or otherwise given her access to a sample of his semen), there was nothing (legally) he could do about the resulting pregnancy if any. This was the case even if he had believed that she was using effective contraception (as in the celebrated US case of the man who sued his ex-girlfriend who had claimed to be taking the oral contraceptive pill - unsuccessfully - for ‘sperm stealing’), or even if he had not been aware of the risk he was running (as Boris Becker found to his cost in a closet).

Once embryos have been created, however (and here we are not concerned with the moral status of the human embryo, or the point at which life may be said to begin, but simply that in at least 20% of favorable cases there is a realistic prospect of a healthy pregnancy and birth resulting from the transfer of frozen-thawed embryos), this historical asymmetry between men (who lose all power of veto at the point of ejaculation) and women (who enjoy absolute rights to control every aspect of the pregnancy including its destruction) no longer exists.

If we define ‘power of consent’ as the right to use the embryo with the consent of only one gamete provider and ‘power of veto’ as the right of either to prevent transfer or even continued storage, then we can envisage several possible scenarios in which the inherent symmetry/asymmetry of the reproductive relationship may be recognized, enshrined in law or overruled.

(In the interest of simplicity we must ignore the fact that, under the terms of the UK HFE Act, an embryo that is created using donor sperm for a woman in a relationship with a man who will be the ‘social’ and hence ‘legal’ father of any resulting child has theoretically the chance of its transfer being ‘vetoed’ by more than one man We could also imagine a nightmare scenario in which a married couple who have achieved successful pregnancies through IVF agreed to donate their surplus embryos and then subsequently divorce, with the ex-wife wanting to withdraw her consent to the donation as she wishes to use the embryos herself to have what would be full siblings of her existing children, and the ex-husband wanting to withdraw his consent to the donation so that the embryos could be perished!)

The great divergence in size between gametes contributed to the creation of an embryo, and the greater physical contribution that the woman usually (but not inevitably, as in the case of a surrogate pregnancy) makes, should not necessarily be arguments against maintaining that symmetry exists between the man and the woman, and that both could have the power of consent or of veto (but not both). One argument for symmetry is that both parties face the same potential consequences, i.e. genetic or biological parenthood, from decisions made concerning the use of the embryos, so they should be treated equally. It may be the case, in the era of the ‘one-night stand’, that many men are never aware that they are fathers in the genetic if not functional sense, and probably as many believe, falsely, that the paternities which are attributed to them are truly theirs. But that would hardly entitle a woman to have disputed embryos transferred to her womb against the express desire of the ‘father’, by simply promising never to reveal to him or let him find out whether any child had been born as a result of the transfer.

Some sperm donors have described considerable distress and trauma at the mere prospect that there are ‘children’ of theirs ‘out there somewhere’ that they will never know or even know about. This situation may become acute when the donor becomes an actual, functional father and is aware of the real conundrum of the ‘nature versus nurture’ debate at first hand, or worse still, finds that he is unable to become a father.

A parallel explanation has been advanced to account for the decline in the number of young women willing to ‘egg share’ since the ending of donor anonymity in the UK. To suspect that one is a ‘genetic’ parent is one thing, but to be potentially confronted with the evidence, even 18 years later, is something else. This is not, however, to ignore the real joy that many adopted people find in discovering their ‘genetic’ roots or that they have siblings or half-siblings that they never knew about. We must hope that similar positive outcomes arise from contacts between people who have ‘genetic’ if not ‘birth’ relationships.

In both cases outlined above, it is the female ex-partner who sought transfer of the embryos to herself. If true symmetry, with the power of consent, but not veto were to exist, then the man must also have the right to access the embryos and try for pregnancy using a surrogate. This case for symmetry was raised by the US case of the divorced couple JB vs. MB in 2001⁴. The couple had signed a contract specifying certain conditions under which their embryos could be perished. MB, the man, wished to access the embryos for use by his new partner as a surrogate, but the court concluded that contracts that would force a person to become a parent at a future date, when it was against their will at that date, would be against public policy.

I allude above to the arguments for asymmetry that arise from comparisons with natural conception. If a woman need not necessarily inform a man that he is to be a genetic father, or may choose to terminate a pregnancy without his consent or even knowledge, then the ‘natural’ order would seem to be highly asymmetrical. During an IVF cycle, the woman bears the brunt of the physical demands of the treatment, and this has been advanced as an argument for the maintenance of ‘asymmetry of control’ residing with the woman about the disposition of frozen em...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Preface
• Foreword
• Part I The embryo: an entity worthy of respect
• Part II The intended parents and family welfare
• Part III The offspring and society at large
• Index