Reproductive Tourism in Europe: Infertility and Human Rights

Abstract

The rapid development of health and health-related technologies poses substantial challenges to global and regional institutions beyond the usual attention given to pandemic disease, malnutrition, and sanitation standards. Given the mobility of knowledge and people, undeniably beneficial new technologies frequently raise serious ethical and public policy issues for which governments have difficulty finding national solutions. The globalization of assisted reproductive technology (ART) is emblematic. Gametes and embryos may be passed from country to country in search of one that permits the desired treatment or allows the chosen gametes to be used. For example, if a couple in Sweden seek donor insemination not subject to the Swedish regime of identified sperm donors, they might come to Britain for treatment with anonymous sperm donation. If a couple is not allowed to choose the sex of their baby in Britain, they may go to Italy, which does permit it, and return to the UK for the birth. In short, national regulation of these practices is likely to be ineffective. Is the risk that pertains to procreative tourism (1) a price worth paying for freedom of choice, or should governments seek to control it? Should they create international agreement to define and uphold universal standards? I examine the difficulties that medical developments in this area have posed for national authorities in the UK, and notably the Human Fertilization and Embryology Authority (HFEA), and consider the nature and effectiveness of European efforts to address the cross-border aspects through multilateral regulatory instruments. Regional norms regarding free trade and free movement may complicate efforts to maintain national regulatory standards. Not only are multilateral institutions weak, but economic integration also has unintended consequences for maintenance of national principles in ART. Two cases illustrate governance problems: the attempted export of gametes to a country without restrictions in order to avoid national controls and the import of gametes to overcome national shortages. Export Diane and Stephen Blood had been married five years when the latter died suddenly after contracting meningitis. In his last moments in a coma just before the life support machine was turned off, his wife asked the hospital doctors to take his sperm so that she could have the child that, she subsequently alleged, they were planning to have before his death. By chance, the hospital had a doctor experienced in removing sperm from the comatose and from quadriplegics, a technique known as electro-ejaculation. The doctor used it on Mr. Blood, without asking the HFEA for advice. If sought, the advice would have been that the removal of gametes from an unconscious person was unlawful, because he would be unable to consent, sign the necessary storage and use consent forms, or receive the required counseling. Common law, (2) confirmed in the Council of Europe Convention on Biomedicine, (3) dictates that only such procedures may be carried out on an unconscious patient as are medically necessary. The HFEA subsequently refused permission to use the stored sperm. Mrs. Blood sought to have the law overturned after a national media campaign, under the headlines of Grieving widow seeks husband's baby. There was no written consent to use or storage, but she alleged that she and her late husband had discussed posthumous birth and that he supported the idea. The two court cases in the High Court (4) and on appeal concerned the issue of consent to use and storage as required in the HFE Act, and judicial review of the HFEA's refusal, under its discretionary powers, to allow export of the sperm to Belgium or where no such rules existed. The HFEA lost the judicial review in the Court of Appeal but not the consent case. The HFEA refused Mrs. Blood's request to have the sperm exported to Belgium, largely on the grounds that, against the HFEA's established policy, the request was being made in order to avoid British law. …