Legal and Regulatory Risks to Patients: The UK Context

Abstract

This chapter deals with legal and regulatory pitfalls from the point of view of United Kingdom (UK) patients seeking various forms of fertility treatment in the UK. Other jurisdictions will have different legal systems which apply if UK patients travel abroad for fertility treatment.

The UK has led the way in assisted reproductive technology, treatment, and regulation. The UK pioneered the development of in vitro fertilization (IVF) and saw the birth of the world’s first IVF baby, Louise Brown, in 1978. This marked the start of the assisted reproductive revolution in the UK which, combined with changing social attitudes towards conception and family life, has brought about fundamental changes in the construction and character of modern families.

Assisted reproductive technology and practice is rapidly developing and it continues to outstrip law and policy. The assisted reproductive sector operates on an increasingly global scale and this, aided by the advent of the Internet and developing markets around the world, brings with it a myriad of medical, legal, and practical challenges and risks for patients to overcome in their journey to parenthood.

Assisted reproduction now enables children to be born, and families to be created, in ways that were not possible 35 years ago. It has shifted the balance away from traditional concepts of family derived from principles of legitimacy, biology, and birth toward the increasing primacy of legal parenthood. This quantum shift has brought about the creation of assisted reproduction law, notably the Human Fertilisation and Embryology Acts of 1990 and 2008 (HFEA 1990 and HFEA 2008) and associated regulations, as a separate and distinct legal framework from mainstream family law. While family law is designed to provide flexible post-birth legal outcomes for children and those who care for them, assisted reproduction law is designed to regulate assisted conception and provide legal clarity and certainty about the status of parents and children. Assisted reproduction law governs legal parenthood, the basis from which flows the legal rights of children born using assisted reproductive technology, and from which the legal obligations of their parents are derived.

Assisted reproduction law remains an evolving and fast-moving area of law and policy. It is complex and it requires an in-depth knowledge of the law (both past and present), UK public policy, the circumstances of patients and the practical implications of their family-building plans, and increasingly an understanding of international family law. It is often multi-faceted and therefore requires specialist advice from those skilled and experienced in assisted reproduction law.