Finding ways around unwanted childlessness

Unwanted childlessness is common. It’s estimated that about one in six couples will experience unwanted childlessness, and it often comes as a huge shock to people. Most people’s experience of sex education at school suggests that as soon as they have sex, they’re going to get pregnant. Struggling to conceive is often shocking, and people often want to find ways around unwanted childlessness in order to have a baby.

Photo by Iakov Filimonov.

Two mechanisms that are available are fertility treatments and surrogacy. Fertility treatments could be the use of donated sperm and eggs for people who don’t have their own, or in vitro fertilisation, which is when an embryo created outside the woman’s body is placed inside the woman’s body. Surrogacy, which is mainly for people who can’t carry a pregnancy, is when another woman carries the baby for the intended parents.

Technical innovation in assisted conception

Some methods of assisted conception are actually quite low-tech. For example, surrogacy – where a woman inseminates herself with an intended father’s sperm – can be and has been done for a very long time without any technical support. Similarly, a woman could use a sperm donor without needing any technical know-how or support.

The really big technical innovation in relation to assisted conception is in vitro fertilisation, where an egg is fertilised by sperm outside of a woman’s body, and the embryo is transferred to her uterus for the pregnancy. That first happened in the UK in 1978 with the birth of Louise Brown, and that technique has absolutely transformed millions of people’s lives.

It has also transformed surrogacy, because it’s made it possible for intended parents to create an embryo using their eggs and their sperm, and have that embryo carried by another woman. This means people who engage in surrogacy arrangements can have a baby that’s genetically related to both of them.

Identifying a child’s legal parents

One of the most important legal implications of assisted conception techniques is being able to identify who a child’s legal parents are, which is obviously incredibly important for children and for parents, and has a huge range of legal implications. This is particularly important in cases where a third person is involved in the conception, either because you are using donated sperm or eggs, or because a woman is carrying a pregnancy for somebody else. In those circumstances, it’s important that there are clear laws setting out who the child’s legal parents are from birth.

When in vitro fertilisation first happened, there were also real concerns about the ethics of using and storing embryos outside of a woman’s body. Clear legal rules about the safety of the environment in which that happens are also important. For example, in the UK, you can only create an embryo outside of a woman’s body if you have a licence from the regulator. The lab has to be safe, and the practices in that lab have to be safe. The safety of patients is obviously paramount.

It’s also essential that a clear record is kept of the births of people born as a result of assisted conception so that children, for example, are able to find out who their genetic parents are in the future. The keeping of a register of conception of birth is vitally important.

Altruism or commercialisation

There are really interesting questions about how far assisted conception should be carried out on a purely altruistic basis and how far it should be done as a commercial enterprise. In many countries, it’s actually a bit of both. For example, in the UK, most fertility treatment is provided in the private sector. Most people undergoing fertility treatment pay for it themselves rather than it being provided by the NHS. Clinics are making money out of that.

Egg donors in the UK can be paid up to £750 per donation to compensate them for the inconvenience, expense and time. Sperm donors can be paid a lesser amount of £35. Those amounts are set so that they’re not a huge incentive to people but recognise that people are giving up their time and their effort in order to help others.

Photo by Olena Yakobchuk.

Surrogacy is particularly complicated. In many parts of the world, surrogacy is provided on a commercial basis. The US is an example of that. In the UK, surrogates are meant to provide their services altruistically – there’s a preference for altruism in the law – but the law allows people to be paid reasonable expenses, and it also, importantly, allows the court to authorise other payments beyond reasonable expenses. So, the reality, slightly confusingly, in English law is that surrogates can be paid and the courts generally will authorise those payments after the event.

But surrogacy in the UK is not allowed to be practised by commercial agencies. Anyone involved in matching surrogates and intended parents can’t do so in the UK on a for-profit basis. There’s a confusing mix of elements of commercialisation and elements of altruism, and that picture is quite common throughout the world.

Why reproductive travel exists

There are huge differences across the world in how assisted conception and surrogacy is regulated. Different countries have very different attitudes towards different aspects of assisted conception. There are countries which don’t allow egg donation. There are countries which don’t allow commercial surrogacy. And there are countries which don’t allow preimplantation genetic diagnosis – the selection of embryos before transplantation.

In reality, the result of these differences is that people travel to avoid them. Within Europe, there are a whole range of crisscrossing routes that people take in order to access treatments that they can’t get, or can’t easily get, in their home country. For example, if a country doesn’t allow same-sex female couples to access treatment, they’ll just get on a plane or a train and go to a country that does allow that. If a country doesn’t allow preimplantation genetic diagnosis, again, people will travel to receive that treatment. So, the result of this patchwork of different laws is reproductive travel, where people seek treatments overseas.

Another driver for cross-border reproductive care is cost. In the UK, the regime is relatively liberal, and there are relatively few things that people can’t obtain. Two examples would be sex selection for social reasons, and anonymous sperm donation and anonymous egg donation. People might travel for those, but most other things are allowed within the UK. However, people within the UK would still travel for cheaper treatment, going to Eastern Europe for example, perhaps for egg donation. In the past, there was quite a well-trodden route to Southeast Asia for surrogacy, although Thailand and India have shut the door on surrogacy for foreigners in recent years.

Legal time limits on storage

Photo by IMG Stock Studio.

The main reason for putting time limits on the storage of sperm, eggs and embryos is not because it’s not safe to keep them for a very long time, but because people find it very difficult to make decisions about the disposal of their stored embryos, eggs or sperm. Storage limits are important so that clinics don’t have to store people’s sperm, eggs and embryos indefinitely, but the storage limits were designed before social egg freezing became possible. And they were designed really with sperm donation in mind, in the sense that most people who store sperm are doing so because they either are or are about to become prematurely infertile, maybe due to treatment for cancer, for example.

The law says there’s a 10-year limit for the storage of these cells, which can be extended up to a total maximum of 55 years. That’s a very long time, but only for people who are experiencing or likely to experience premature infertility. So, that works well for sperm storage. It also works well for embryo storage, because most people who are having a family through in vitro fertilisation will want to complete that family within 10 years, so the 10-year limit doesn’t pose a problem. Where this limit does pose a problem, which was unanticipated and unintended, is for women storing their eggs as a kind of insurance policy against age-related fertility decline.

When the law lags behind scientific progress

Those women are not suffering from premature infertility. They’re suffering from natural age-related infertility. What the storage time limit means is that if a woman freezes her eggs at the age of 25, those eggs will have to be destroyed when she’s 35, which is before she’s likely to want to use them. Many people have noticed this anomaly in the law. For a lot of women, it’s desperately unfair, because women will have paid to store their eggs for 10 years and then find they’ve got to be destroyed.

The governments have acknowledged that this is an issue and have carried out a consultation to elicit the public’s views on whether the period should be extended. We don’t yet know what the results of that consultation are, but that’s certainly an example of how the law stands still when scientific developments move on. The technique which enables egg freezing wasn’t anticipated as being a routine clinical option when this law was devised. Often, the law lags behind scientific progress.

Assisted conception techniques change lives

One of the most important things to acknowledge about assisted conception techniques is that they have brought joy to millions and millions of families worldwide who have been able to have much-loved children that they wouldn’t otherwise have been able to. That has been a hugely important medical development and, of course, a social development as well.

However, it is important to acknowledge that these techniques don’t work for everybody; not everybody who has fertility treatment goes home with a baby. For lots of people, particularly people who can’t afford treatments, unwanted childlessness continues to be a very great source of pain. One of the things I would make a real plea for at all stages of the life cycle is information.

People need information about fertility issues. They need to be taught in schools that having a baby isn’t something that happens automatically to everybody and that infertility is real and common. People embarking on fertility treatment also need really good information, not just to understand the chances of success and what the treatments involve, but to understand that sometimes it’s best to stop having treatment. Some people might have had 20 cycles of in vitro fertilisation and they keep paying huge amounts of money and going through the stress of fertility treatment. Being helped to stop treatments can sometimes be really important as well. Information that enables people at all stages of their life cycle to make informed choices is absolutely vital.

Discover more about

the ethical and legal implications of reproductive technologies

Wilkinson, J., Malpas, P., Hammarberg, K., Mahoney Tsigdinos, P., Lensen, S., Jackson, E., Harper, J., & Mol, B.W. (2019). Do à la carte menus serve infertility patients? The ethics and regulation of in vitro fertility add-ons.. Fertility and sterility 112, no. 6, 973-977

Jackson, E. (2018).The Ambiguities of “Social” Egg Freezing and the Challenges of Informed Consent. Biosocieties, 14 21-40.

Jackson, E., Millbank, J., Karpin, I., & Stuhmcke, A., (2017).Learning from Cross-border Reproduction. Medical Law Review, 25 23-46.

Regulating fertility treatment and surrogacy