The welfare of the child. An emerging issue in the regulation of assisted conception

The regulation of assisted conception has been a contentious issue for many years and the debate shows no sign of approaching a conclusion. New reproductive technologies are being developed so rapidly that they are outstripping the provisions of the few legal frameworks that have been devised to regulate them (Ohl et al., 1996). Legislators have raised doubts as to whether any ‘single piece of primary legislation will ever be sufficient of itself to deal with such a complex area and with such fast-moving technology’ (Jowell, 1996). Year on year, fresh issues arise and are featured prominently in the media and academic journals. Lurid headlines follow reports of women being implanted with the ‘wrong’ embryo (Rogers, 1994), the misappropriation of embryos (Goodwin, 1995), women psychologically damaged by being reduced to baby making machines (Hunt, 1996) and lesbian women having ‘do-it-yourself’ babies (Rayner, 1997). Fresh controversy has been aroused by reports of the posthumous retrieval of gametes. In the UK, successful posthumous gamete retrieval has been accompanied by sceptical reporting (Ahujaet al., 1997a) and in the US, the absence of clear legal or ethical frameworks has been noted (Ohl et al., 1996). In sharp contrast to countries where assisted conception services are not subject to formal legislation and regulation, the UK position is clearly set out in Schedule 3 of the Human Fertilisation and Embryology Act 1990 (hereafter called the Act). The Act came into force after wide public consultation and a government appointed Committee of Inquiry into Human Fertilisation and Embryology. After due consideration, the Report of the Committee expressed ‘grave misgivings’ about the posthumous use of gametes because this ‘may give rise to profound psychological problems for the child and the mother’ (Warnock, 1984, p. 18). However the report made no recommendation for action, stating instead that ‘posthumous use of gametes is a practice which we feel should be actively discouraged’ (Warnock, 1984, p. 55). Accordingly, the Act did not prohibit the retrieval and storage of such gametes, it added a proviso: the effective consent of the originator was required