Is the law still coping after 25 years of IVF?
Dr Kirsty Horsey
Progress Educational Trust
24 July 2003
This Friday sees the 25th anniversary of the birth of the world's first IVF baby, Louise Brown. In that period, many developments have been made in terms of IVF and related research - particularly into 'spin-offs' of the IVF procedure such as cloning, embryo stem cell research and embryo screening. Because many of these extensions of 'basic' IVF often raise ethical issues and cause considerable debate, IVF has, it may be contended, itself been subsumed into the moral argument. If anything happens in 'test-tube baby' land, it will often result in 'Brave New World' type commentaries, with journalists and others wondering just where the 'slippery slope' will take us next.
In reality, however, IVF is a scientific procedure that has, since its first success in 1978, resulted in the births of approximately half a million children worldwide. Why then should it be derided or feared? Or perhaps it is not the procedure itself that worries people, but the regulation of it? Recently, for example, a number of calls for the law to be changed resulted from the story of the Whitaker family, who had to travel to the US in order to use IVF with pre-implantation genetic diagnosis (PGD) and tissue typing in order to be more certain that their resulting child would be able to donate umbilical cord stem cells for an existing child suffering from a rare blood disorder.
PGD is perfectly legal (if licensed) in the UK - indeed, its first uses may have been one of the factors which decided the narrow vote on the 1990 Human Fertilisation and Embryology Act and gave us the law that we have today. However, the Human Fertilisation and Embryology Authority, created by the 1990 Act to oversee the regulation of this area, decided that this extended use of PGD was a step too far. This was because the parents were seeking it for the tissue match alone, rather than to avoid the same condition (for which there is no genetic test) occurring in their next child. The HFEA distinguished the case from that of the Hashmis, where the procedure had been allowed previously, and this caused no end of claims that the law was outdated and needs bringing into the 21st century. This is by no means the only example.
But is it really the case that the law is out of date? Or is it adequately equipped to adapt to new challenges thrown at it by developments in IVF and its 'spin-offs'? In the case of IVF itself, it would appear unproblematic. What actually goes wrong in IVF except errant doctors (dealt with under criminal law), broken freezers (potentially claimed in negligence) or human error (as in any area of medicine)? Challenges to the law related to 'extensions' of IVF have been dealt with - for example, the extension of categories for which embryo research is allowed in order to accommodate the possibility of stem cell research and 'therapeutic cloning', a challenge that was able to be met initially by political reasoning and legal mechanisms when new regulations were added to the 1990 Act, and later by legal reasoning, following a legal threat to the same provisions.
Of course, there are real problems with IVF. Success rates remain low, treatment prices remain high, NHS provision is both limited and erratic, and IVF increases the likelihood of multiple births. All of these are problems that need addressing, but these are not areas where legal reform can do much to assist. Success rates are a scientific matter, NHS provision is political, and the problem of multiple births is something that must be countered by clinics' policies and HFEA licensing provisions, when scientific research into the viability of single embryo transfers (which is very firmly on the agenda if results presented at the recent ESHRE and BFS fertility conferences are anything to go by) shows that it does not further lessen the chance of success. More equitable access to IVF, higher success rates and fewer multiple births are something to aim for, but it should be remembered that law isn't the answer to everything.
For an account of scientific, political and legal developments in the first 25 years of IVF, including how the law regulating the science in the UK came into being and has fared in the 13 years of its existence, see IVF after 25 years: A history of regulation
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