What the human rights act will mean for decisions on human fertility

September 29, 2000

The one in six couples who are infertile are among those awaiting the coming of the act.

They will ask whether they are denied their human rights by the National Health Service or the private clinics licensed by the Human Fertilisation and Embryology Authority.

It is through the Human Fertilisation and Embryology Act that Britain deals with ethical, legal and medical issues arising from sperm and egg donation and the birth of the first test-tube baby. Built into the law were safeguards designed to strike a balance between the interests of would-be parents, the baby, other parties, the doctors and scientists, and society at large.

In other words, human rights aspects were incorporated in the law. What will happen when the European Convention on Human Rights is superimposed? The most pertinent rights will be the right to private and family life, to marry and found a family, and to non-discrimination. This is likely to stimulate challenges to the following aspects of fertility law: the prohibition on choosing the sex of a baby on social grounds; the reluctance of some clinics to treat lesbian or single women and surrogates; the anonymity of sperm donors; the limit of ten babies per sperm donor; the limit of three embryos per treatment cycle; the prohibition on cloning; and the patchy NHS provision for infertility.

The doctrines of proportionality and public safety will afford some protection to the present system, and it is likely that judges will take a robust, even sceptical, view of an alleged human right to the most extreme and unusual infertility treatments. Humanity demands continued respect for the embryo and the free will of informed adults; safety for mothers and babies; understanding for the childless; and reasonable hope of progress in research for the afflicted.

It will take all the wisdom and compassion of our judges to strike a balance, and it is to be hoped that early guidance will forestall hopeless and damaging future litigation.

Ruth Deech is principal of St Anne's College, Oxford, and chair of the Human Fertilisation and Embryology Authority.

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