IVF
14 February 2018 by Rosalind English
ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal [2017] SGCA 20 – read judgment
It is a trite reflection that law should change with the times but every so often we see the hair-pin bends in law’s pursuit of modern technology. This case from Singapore about reproductive rights and negligence in an IVF clinic is just such an example. As the judge said at the outset, the need for the law to adjust itself to the changing circumstances of life is clearest in the area of medical science,
where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm.
Background facts
The Appellant, a Chinese Singaporean, and her husband, a German of Caucasian descent, sought to conceive a child through in-vitro fertilisation . The Appellant underwent IVF treatment and delivered a daughter, referred to in the judgment as “Baby P”. After the birth of Baby P, it was discovered that a serious mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown Indian third party instead of sperm from the Appellant’s husband. It turned out that the clinic had processed two semen specimens inside one laminar hood at the same time and failed to discard the disposable pipettes that had been used after each step of the IVF process. This had resulted in a baby being born on 1 October 2010, whose DNA did not match her father’s.
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20 March 2017 by Isabel McArdle
A clinic in Newcastle upon Tyne has been granted the UK’s first licence to carry out a trial of “three person IVF” (Mitochondrial Replacement Therapy, or MRT). The fertility technique is intended to be used by couples who want to prevent genetic diseases being passed on to their children, due to faulty mitochondrial DNA. The process uses genetic material from the mother, father and a female donor, and replaces faulty genetic material in the mother’s DNA with the female donor’s genetic material.
There have already been a small number of three parent IVF pregnancies elsewhere in the world, resulting in reportedly healthy babies.
However the technique is not without its controversies and critics.
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1 July 2016 by Rosalind English
M, R (on the application of) Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 (30 June 2016)
The Court of Appeal has ruled that a 60 year old woman may use her daughter’s frozen eggs to give birth to her own grandchild. Her daughter, referred to as A in the judgment, died of cancer at the age of 28 in 2011. The High Court had dismissed M’s argument that the HFEA had acted unlawfully by refusing to allow the eggs to be exported to a fertility clinic in the United States where an embryo would be created using donor sperm, and implanted in the mother.
The HFEA is bound by statute (the 1990 Human Fertilisation and Embryology Authority Act) to provide services using a person’s gametes only where that person consents. The difficulty here was that while A had consented to treatment for egg removal and storage, including storage after her death, she had not completed a specific form giving details of the use that was now proposed.
The essence of the appellants’ challenge was there was “clear evidence” of what A wanted to happen to her eggs after she died. “All available evidence” showed that she wanted her mother to have her child after her death, the Court was told.
Arden LJ, giving the judgement of the court, found that the judge below had reached his conclusion on the basis of a “misstatement of certain of the evidence” about A’s consent by the Committee.
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11 September 2015 by Rosalind English
A and others (In the matter of the Human Fertilisation and Embryology Act 2008) – read judgment
This case is best summed up in Sir James Munby’s own words:
This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.
These cumulative cases
must raise questions as to the adequacy if not of the Human Fertilisation and Embryology Authority’s regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has been thrown into doubt. This is a matter I shall return to at the end of this judgment.
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8 September 2015 by Rosalind English
Parrillo v Italy (application no. 46470/11) Grand Chamber of the European Court of Human Rights, [2015] ECHR 755 (27 August 2015) – read judgment
The Grand Chamber of the Strasbourg Court has ruled that the Italian ban on the donation of embryos obtained by IVF procedures to scientific research was within Italy’s margin of appreciation and therefore not in breach of the applicant’s right of private life and autonomy, even though she was willing to give the embryos to scientific research, since she no longer wanted to proceed with pregnancy after her partner was killed covering the war in Iraq. By donating these cryopreserved embryos to research she would, she argued, make an important contribution to research into medical therapies and cures.
A strong dissent to the majority judgment is worth pointing up at the outset. The Hungarian judge, Andras Sajó, found Italy’s general ban quite out of order. Not only did it disregard the applicant’s right to self-determination with respect to an important private decision, it did so in an absolute and unforeseeable manner.
The law contains no transitional rules which would have enabled the proper authority to take into consideration the specific situation of the applicant, whose embryos obtained from the IVF treatment were placed in cryopreservation in 2002 and whose husband passed away in 2003, three months before the law entered into force.
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21 May 2013 by Rosalind English
Waller v James [2013] NSWSC 497 (6 May 2013) – read judgment
So-called “wrongful birth” cases – where parents claim for the costs of bringing up a child that has been born as a result of the hospital’s alleged negligence – have long been the subject of heated debate.
Since 1999 (MacFarlane v Tayside Health Board) such damages have been refused on grounds of public policy – for the birth of a healthy baby, that is. As far as disabled children are concerned, parents can the additional costs attributable to the disability (Parkinson v St James and Seacroft NHS Trust). Now that so much more can be predicted with a high level of certainty from pre-birth, even pre-conception genetic tests, where do we stand on public policy in wrongful birth cases where the negligence not so much in failure to treat (failed vasectomies etc) but failure to inform? This Australian case gives some indication of the way the courts may approach such questions.
Background facts
Keeden Waller was conceived by IVF using the Wallers’ own gametes. There was a fifty percent chance that he would inherit from his father a blood disorder called antithrombin deficiency (ATD), a condition that affects the body’s normal blood clotting ability and leads to an increased risk of thrombosis. Keeden suffered a stroke a few days after his birth resulting in severe disabilities, which his parents, Lawrence and Deborah Waller, alleged was the result of ATD. They brought a claim in damages against their doctor for the care of their disabled son and psychological harm to themselves.
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18 October 2010 by Alasdair Henderson
A (a minor) and B (a minor) v. A Health and Social Services Trust, [2010] NIQB 108 – Read judgment
In a fascinating case involving IVF treatment, the High Court in Northern Ireland has held that no duty of care is owed to human cells and that having a skin colour different to that intended cannot be considered legally recognisable loss and damage.
Professor Robert Edwards, the British scientist who pioneered in vitro fertilisation, was recently awarded the Nobel Prize for Medicine. But while Professor Edwards’ achievements have changed the lives of millions of infertile couples around the world, they have also given rise to a whole host of thorny ethical and legal questions. A recent decision by Mr Justice Gillen in an extremely unusual case has attempted to wrestle with some of these issues, and in particular with the rights (if any) of human cells.
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