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The Legal Implications Of The Provision Of IVF Services In Jersey

Nicola Davies

The development of a new technology

The world of assisted reproductive medicine has come a long way since the birth of the first "test tube baby" in 1978. The fifth annual report of the Human Fertilisation and Embryology Authority shows that in 1994 a total of 24,708 In Vitro Fertilisation ("IVF") treatment cycles were undertaken in the UK alone, of which 3,477 resulted in live births.

The ability of doctors to create embryos outside the human body brought in its wake many ethical and legal dilemmas. In the UK the Government’s response was to introduce the Human Fertilisation and Embryology Act 1990 (the "1990 Act") to regulate infertility treatment centres in the UK, and to provide a statutory answer to many of the questions of legal uncertainty that had arisen in the twelve years since the birth of Louise Brown. The 1990 Act provides in section 49(7) that Her Majesty may by Order in Council direct that any of the provisions of that Act shall extend, with such adaptations, modifications and exceptions as may be specified in the Order, to any of the Channel Islands, but by convention this would not be done unless the States of Jersey so requested. To date they have not, and indications are that they are unlikely to do so, for a number of policy reasons which will be examined later. The 1990 Act therefore does not apply to Jersey.

This study attempts to analyse some of the numerous legal issues that will arise when IVF services are made available in Jersey in the absence of specific legislation governing the subject.

The legality of IVF and the status of embryos

IVF involves the creation, storage and sometimes the destruction of embryos outside the human body. In the absence of legislation authorising or prohibiting these activities, it is necessary to consider whether there are any general legal principles in the Island which would affect their legality, and in particular the status of an unborn child under Jersey law.

As might be expected, Jersey’s jurisprudence does not expressly consider the legal status of an unborn child, and therefore the precise status of an embryo or foetus under the customary law is not entirely clear.

An edict of King Henry II [1] of France, promulgated in 1556, made the practice of concealing a pregnancy or the birth of a child a capital offence. It has been argued [2] that in doing so the law was giving tentative recognition to the rights of foetuses, but it is submitted that this is a non sequitur. The law makes it an offence to mistreat animals, but it does not follow that animals have legal rights. Similarly, the fact that the law makes concealment of pregnancy an offence does not necessarily entail an acceptance that a foetus has rights.

Nevertheless, it would certainly appear that the Norman Coutûme had some regard for the welfare of an unborn child, at least where the pregnancy was well established.

In 1694 Basnage [3] reported that the death sentence was sometimes postponed if the condemned was a pregnant woman. Basnage cited two cases where pregnant women had been sentenced to death. In the first case, the pregnancy of the woman was held not to be a valid reason to delay the execution, since the pregnancy was thought to be not more than 15 days advanced. In the second case, the execution of a woman who was seven months’ pregnant was deferred until after the birth.

As is the case with most civil and customary law jurisdictions, there is no detailed analysis of the reasons for these decisions and therefore it is not easy to ascertain whether the courts were trying to distinguish between the legal status of a foetus at two weeks gestation and one which may be capable of survival, or whether the decision in the first case was reached simply because of the inability of doctors at the time to prove the existence of a pregnancy during its very early stages.

Whether or not these two cases can be construed as conferring rights on unborn children, it is clear that they deal only with pregnancy and could not be comfortably extended to embryos that are not "en ventre sa mère". Equally, given that in one case the execution of a woman who may have been two weeks’ pregnant was authorised, it would seem that a foetus at such an early gestational age has no legal protection. It therefore appears that there is nothing that would prevent the creation and storage of embryos outside the human body (particularly given that embryos are generally frozen at the 2-8 cell stage - roughly two days after fertilisation), and that it would be possible for doctors to practise IVF without committing any offence known to Jersey law.

The destruction of embryos ex utero

When IVF is carried out, doctors usually stimulate the ovaries of the patient with drugs to cause super-ovulation. The ova produced are removed from the woman and mixed with sperm in vitro. The result may be the creation of numerous embryos. In order to avoid higher order multiple pregnancies occurring, in many jurisdictions (including the UK) doctors are restricted in the number of embryos which can be replaced in the uterus in any one treatment cycle. The "spare" embryos may be used for research, allowed to perish, or frozen for use in future treatment cycles, according to the wishes of the genitors. This raises the question of whether the destruction of frozen embryos constitutes an offence under Jersey law.

As might be expected, such authority as exists in Jersey law focuses only on the situation where a foetus is being destroyed in or expelled from a mother. Since the mother is neither carrying the embryo, nor is she pregnant when it is in vitro, it is difficult to see how law relevant to miscarriage or abortion can apply to the destruction of embryos ex utero.

In the absence of specific legislation it would therefore appear that no criminal offence under Jersey law is committed by disposing of unimplanted embryos.

The "ownership" of frozen embryos

If Jersey law does not regard an unimplanted embryo as a person, the question arises as to whether it should be considered as the property of its parents.

If the status of the embryo remains unclassified, it exists in a legal vacuum, with no certainty as to how it should be treated. Could it be stolen, criminally damaged or bequeathed? Must (or may) it be destroyed if the genitors have died? Is it in being for the purposes of testamentary disposition? What should happen to the embryo if the couple being treated disagree as to what should happen to it (particularly following a divorce)?

Foreign courts have on several occasions considered the person versus property dichotomy in relation to embryos, with differing results. In Del Zio v Presbyterian Hospital [4] the US District Court for Southern California treated the embryos as chattels, whereas in Davis v Davis [5] the Tennessee Superior Court decided that the embryo was neither property nor a person, but a special category of its own over which the gamete ova and sperm providers have dispositional control. This view now seems to be gaining tentative approval in California. [6]

The issue of whether an unimplanted embryo is a chattel has never been considered by the English courts, probably because the 1990 Act confers so many dispositive rights on the gamete providers that there would be little to gain in obtaining a decree that the embryo was property. In Jersey, the 1990 Act does not apply and in these circumstances, the issue of how the embryo should properly be regarded in law is of greater significance.

It seems clear that under Jersey law the unimplanted embryo would not be regarded as a person, but would the Jersey courts therefore consider it as property, or would they opt for the half-way-house adopted in Davis v Davis? Certainly, if the Jersey courts look to their French roots it would appear unlikely that they would regard an embryo as a chattel [7], but to do otherwise would entail a significant shift in the Island’s customary law principles. Given that there is no obvious solution to what is a question of metaphysical proportions, it would perhaps be futile to predict the outcome.

It is suggested that if the 1990 Act is not extended to Jersey, legislation should be enacted to clarify what rights the biological parents are to have over unimplanted embryos. This would avoid complex legal debate in the event of a disagreement between the "parents" over the disposition of the embryo.

The duty of confidentiality

The professional and ethical duty of confidentiality is one of the fundamental duties owed by a doctor to his patient. In the UK, it is now clear that there also exists a concomitant legal duty [8], and it is likely that this approach would be followed in Jersey. In relation to infertility services, the confidential nature of the doctor/patient relationship is likely to be of particular importance, given the intimate nature of the information disclosed to the doctor and the perceived stigma that remains attached to infertility.

Nevertheless, where donor gametes are involved, there are powerful arguments in favour of certain information being made available, if not to the public, then at least to a child born as a result of IVF treatment. These arguments tend to revolve around three main principles - firstly, a child’s "right" to know who his parents are, secondly, the need to know one’s genetic background for medical purposes, and thirdly, the need to avoid unwitting consanguinous marriages.

Over the last 20 years in the UK, there has been an increasing acceptance of the fact that adopted children often wish to trace their biological parents, and provision has accordingly been made for them to inspect the Register of Births and the Adopted Childrens’ Register for this purpose [9] . Jersey followed suit (albeit some 20 years later) by enacting the Adoption (Amendment No. 3) (Jersey) Law, 1995, which came into force on 1st January, 1996.

Pressure for this information to be made available to adopted children has focused on their having a moral right or a psychological need to know who their biological parents are, and arguably the same logic should apply to children born as a result of the use of donor gametes.

However, one problem with extending the "right to know" argument to such children is that it will rarely be public knowledge that donated gametes have been used [10], whereas in practice it is very difficult to keep an adoption secret (not least because the adoptive parents will suddenly acquire a child without any obvious signs of pregnancy!). To grant the child born as a result of donated gametes a right to know the identity of his biological parents will entail overriding the husband and wife’s right to confidentiality.

It should be borne in mind that a child born without fertility treatment may not have any identified father. Children born to an unmarried mother will not necessarily know the identity of their father, and even children born during the subsistence of a legal marriage may not have the father that they believe, if their mother has committed adultery [11] . It may therefore be argued that a child born of donor gametes is in no worse position than such children, most of whom will probably never question their paternity and will show no signs of psychological damage.

A child born as the result of IVF using donor gametes could be disadvantaged in case of illness if he cannot ascertain the identity of the gamete donor, as his doctor may be deprived of valuable information in making a diagnosis, particularly where a child is suspected of having or carrying a genetic illness. Again, whilst these are clearly valid concerns, the same difficulty will arise in relation to naturally conceived children who do not know the identity of their genetic fathers.

Donor gametes are required to be routinely screened for infection in the UK in accordance with current best practice and, as a minimum, IVF centres are required to adopt HIV screening procedures and the guidelines for testing issued by the British Andrology Society from time to time. Furthermore, gamete collection centres are required to consider the personal and family history of any proposed donor, including any history of heritable disorders or transmissible infection. [12]

These practices should help to minimise the risks of genetic illnesses or infectious diseases being passed on to children by sperm donors. As Jersey will probably import gametes from the UK (see below) Jersey patients should benefit from these protections even in the absence of specific legislation or guidelines in Jersey.

The need to know one’s genetic background is probably not, it is submitted, a particularly compelling reason for overriding the right of a donor and gamete recipient to confidentiality.

One of the other potential difficulties in not revealing to a child the identity of his biological parents is the danger of the child unwittingly marrying or forming a sexual relationship with a blood relative. The Feversham Committee [13] considered the subject in the context of artificial insemination by donor in the late 1950s and concluded that the risks of this happening were "minimal". However, whilst more recent studies have confirmed this view [14] it must be borne in mind that the risks will greatly increase where the gene pool from which gamete donors are drawn is very small (as was acknowledged in the Feversham Committee Report).

The Feversham Committee was looking at the position in the UK, where there is a population of some 60 million people. Jersey has a population of only 85,000 and therefore a much smaller gene pool from which to draw gamete donors. It has already been recognised in the Island that this is a problem so far as adoptions are concerned, and arrangements have been put in place whereby children placed for adoption in Jersey are offered only to families in Guernsey and vice versa. Similar arrangements would have to be made so that gamete donors for Jersey patients would come from outside the Island. If such arrangements were not made, there would be a strong argument in favour of a child born of donated gametes being given information about the donor sufficient to eliminate him as someone to whom the child may become related by marriage, if not actually to identify him.

The UK approach

Section 31 of the 1990 Act requires the Human Fertilisation and Embryology Authority ("the HFEA") to maintain a register of information relating to gamete donors, patients receiving infertility treatment and any children born as a consequence of such treatment. An obligation is imposed upon the holder of a licence issued by the HFEA to carry out IVF, to provide this information to the Registrar.

Furthermore, sub-sections (3) and (4) of section 31 provide that the HFEA must make certain information available to a person who was, or may have been, born as a result of treatment services regulated by the 1990 Act, upon that person attaining the age of 18. At present the 1990 Act requires the HFEA to inform the applicant whether he or she may have been born as a result of donated gametes, but not to disclose the identity of the gamete donor. Children born through medically assisted reproduction are therefore treated differently from adopted children, in that they are not permitted to know who their biological parents are. As an additional safeguard against unwitting consanguinity of marriage, sub sections (6) and (7) provide that a person between the ages of 16 and 18 who proposes to marry can require the HFEA to disclose whether the information contained in the Register shows that the minor and the intended spouse might be related.

Of course, the right to disclosure of information can only be exercised if the child is aware of the possibility that he has been born as a result of donor gametes in the first place. Unlike adoptions, where it may be difficult for parents to hide the truth from the child, with assisted conception techniques the true position may easily be hidden.

The Jersey position

Because of the size of Jersey’s gene pool, and the problems alluded to above, it is strongly recommended that donor gametes are supplied for the use of Jersey patients only from sources outside the Island.

The Data Protection (Jersey) Law, 1987

Article 20(1) of the Data Protection (Jersey) Law, 1987 ("the 1987 Law") provides that an individual is entitled to be informed by any data user whether the data user holds any information relating to that individual and, if so, to be supplied with a copy thereof.

Prima facie, therefore, a child would be entitled to obtain from a hospital or registrar's records details of whether or not he was born as a result of assisted reproductive technology, and whether or not this involved the use of donor gametes. He would not be entitled to require disclosure of the name of the donor(s) involved, because Article 20(5) of the 1987 Law stipulates that a data user is not obliged to disclose the information if he cannot comply without disclosing information relating to another individual who can be identified from that information, unless he is satisfied that the other individual has consented to the disclosure.

In the UK, which has similar statutory provisions regarding data subject access in the Data Protection Act 1984, it was decided that as a matter of policy children born as a result of infertility treatment should be given access only to such information regarding the treatment as is expressly permitted by the 1990 Act. Other information was accordingly excluded from the access provisions of the 1984 Act. This was achieved by amending Part IV of the 1984 Act to include the following provision:-

"Personal data consisting of information showing that an identifiable individual was, or may have been, born in consequence of treatment services (within the meaning of the Human Fertilisation and Embryology Act 1990) are exempt from the subject access provisions except so far as their disclosure under those provisions is made in accordance with section 31 of that Act (the Authority’s register of information)."

It is submitted that the States should make a similar amendment to the 1987 Law in order to ensure that relevant hospital and registrar’s records can be kept confidential, save to the extent felt necessary to avoid the consanguinity problems discussed above.

Provision of treatment

If IVF is to be carried out in the Island it will be necessary, at least for a period of time, for embryologists to be brought over from the UK at the appropriate stage in the treatment cycle to carry out certain key functions such as egg retrieval and fertilisation, as there is no local practitioner the relevant expertise.

The Health and Social Services Committee ("the Committee") would almost certainly require that any embryologists brought to the Island are licensed under the 1990 Act. Section 12(a) of the 1990 Act provides that in the UK licensed activities must only take place on licensed premises. The HFEA has no power to license premises in Jersey, but a UK embryologist would not be prevented by section 12(a) from carrying out treatment services in the Island, because the HFEA has no jurisdiction to govern activities occurring outside its designated territories.

It follows that the HFEA would have no power to regulate those embryologists’ activities in the Island. However, in practice, if they acted in Jersey in a manner which would be considered unacceptable under the UK legislation, it is likely that the HFEA would consider this as prima facie evidence of the doctor not being a "suitable person" to hold a licence for the purposes of section 16 of the 1990 Act, and revoke the licence.

Furthermore, if the embryologists concerned are exporting gametes or embryos to the Island from the UK licensed centre, then the HFEA can maintain some control by requiring the licensed centre to ensure compliance with HFEA directions.

Sources of donor gametes

Given the problems with the size of the gene pool in Jersey, it is likely that in practice all or at least some of the donor gametes to be used in Jersey will come from outside the Island. The most obvious source is the UK.

Section 24(4) of the 1990 Act provides that:-

"Directions may authorise any person to whom a licence applies ... to send gametes or embryos outside of the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions, and directions made by virtue of this sub-section may provide for sections 12 to 14 of this Act to have effect with such modifications as may be specified in the directions."

The existing HFEA directions state that the gametes may be exported if the donor has expressly consented to the export and has been advised in writing that the laws relating to their use and the parentage of any resulting child may be different in the country to which they are exported than they are in the UK [15] . Provided that the HFEA directions are complied with, there seems to be no reason why frozen donor gametes may not be exported from the UK to Jersey.

Regulation of IVF services

Having concluded that nothing in existing Jersey law would render the provision of IVF services illegal, it is necessary to consider to what extent, if at all, the provision of these services should be regulated.

If the legislature in Jersey wished to follow the UK’s approach in providing a highly regulated environment for IVF, they would have to overcome the obvious difficulty that the insular authorities have neither the expertise nor the bureaucracy to set up and administer an equivalent of the HFEA.

If the 1990 Act were extended to Jersey, it could have the significant advantage that the jurisdiction of the HFEA would be similarly extended, so that a responsible body of appropriately qualified people would oversee the provision of IVF in the Island, and ensure that appropriately high standards were maintained.

Despite the obvious attractions of extending the 1990 Act to Jersey, there are contrary arguments including:-

  1. a constitutional objection to the availability of any form of medical services in the Island being regulated by a body existing outside the Island (the HFEA) and on which the Island is not represented;

  2. the fact that parts of the 1990 Act regulate activities which, as a matter of policy, the Committee may not wish to be authorised in the Island (eg. IVF for unmarried couples, and embryo research) [16] ; and

  3. the belief that the Committee can adequately regulate the provision of IVF services without extending the legislation to the Island.

If the 1990 Act is not extended to Jersey at this stage, the Committee is nevertheless likely to use the HFEA Code of Practice as a useful guideline in Jersey, adapted in such manner as the Committee may feel appropriate to reflect the Island’s public policy.

By virtue of Article 2 of the Medical Practitioners (Registration) (Jersey) Law, 1960 (as amended) only locally registered medical practitioners would be entitled to offer IVF services in the Island. Public Health employees are obliged under normal principles of employment law to work within reasonable guidelines issued by the employer, and could therefore be compelled to adhere to a Code of Practice. Doctors in private practice could be prevented from or regulated in carrying out IVF services by two means:-

  1. firstly, a person seeking to carry out IVF in Jersey would need to be admitted to the register of nursing homes maintained under the Nursing and Residential Homes (Jersey) Law 1994, provided that the Committee take the view that a clinic carrying out assisted conception techniques would fall within Article 3(c)(iii) of the 1994 Law (being a "technique of surgery or medicine ... as to which the Committee is satisfied that its use may create a hazard for persons treated by means of it ... and which is prescribed for the purposes of this paragraph").

  2. IVF involves the use of potentially dangerous prescription drugs and laparoscopic techniques for the removal of ova, it would seem to satisfy the definition as a potentially hazardous technique of surgery or medicine; and

  3. secondly, in order to set up any new business or undertaking in the Island it is necessary to obtain a licence from the Finance & Economics Committee pursuant to the Regulation of Undertakings and Development (Jersey) Law, 1973 (as amended).

Licences under the 1973 Law can be granted subject to such conditions and restrictions as the Finance and Economics Committee deem appropriate. If the Committee wished to permit anyone other than its own employees to offer IVF services, it could grant a licence to that person subject to compliance with the Committee’s Code of Practice.

The practical difficulty is how the Code of Practice would be policed. The HFEA has complex procedures for determining whether licensed centres are of an acceptable standard and are carrying out their obligations. Jersey would have neither the resources nor the expertise to carry out such functions without considerable assistance from outside the Island.

However, we have already seen that if the Committee utilised the services of UK licensed embryologists, the HFEA could withdraw the embryologist’s licence to practise in the UK if the person concerned was acting in Jersey in a manner which caused the HFEA to believe that he was not a suitable person to hold a licence under the 1990 Act. Furthermore, if gametes were exported from the UK to Jersey, the HFEA would have some degree of control over how they should be used in the Island. Under directions issued by the HFEA a licence holder in the UK can only export gametes if, inter alia:-

  1. the person by whom they are to be exported has satisfied himself as to the purpose for which they are to be used abroad; and

  2. the gametes may not be exported if they could not lawfully, or should not, be used in the UK for that purpose (taking account, for example, of the Code of Practice).

Accordingly, a UK licensed embryologist would not, for example, be able to export the gametes of a donor where the number of live children already believed to have been born as a result of donations from that donor has reached 10 [17], or where the gametes are to be used to treat a person who has not been offered the opportunity to receive counselling [18] .

The practical effect of these provisions is that the embryologist who oversees the IVF services in Jersey is only likely to agree to continue to provide those services if practices and procedures in Jersey largely mirror those imposed by the 1990 Act or recommended by the Code of Practice in the UK, as to do otherwise would entail risking losing his licence to practice in the UK. This should give the Committee a significant degree of comfort in practice.

The way forward for Jersey

It seems that the Committee does not wish to extend the 1990 Act to Jersey, and on balance, there is probably no immediate need to do so.

However, if the difficulties in ensuring that guidelines on clinical matters are being observed become too great, or if the General Hospital wished to engage in embryo research or innovative treatment techniques, then this laissez-faire approach may need to be reassessed.

Nicola Davies is an advocate of the Royal Court of Jersey and practises with the firm of Mourant du Feu & Jeune, P.O. Box 87, 22, Grenville Street, St. Helier, Jersey JE4 8PX

Footnotes - (Top)

[1] - Reproduced in Isambert’s "Recueil Général des anciennes lois françaises" Vol. 13, pp 471-473.

[2] - Association of Lawyers for the Protection of the Unborn "Submission to the States of Jersey Public Health Committee in response to "Abortion in Jersey: Discussion Paper"" (1993) Unpublished.

[3] - Basnage "La Coutume Reformée du Pais et Duché de Normandie" 2nd Edition, Rouen, 1694.

[4] - 74 Civ 3588 (SD, NY, 1976).

[5] - (1992) 842 SW 2d 588 (Tenn Sup Ct).

[6] - Hecht v Superior Court (1993) 20 Cal Rptr 2d 275 (Cal CA).

[7] - "L’exigence du respect de la personne en devenir dans l’embryon s’en trouve renforcée" - see Saury R. "L’Ethique Medicale et sa Formulation Juridique" (Sauramps Médicale) p.104.

[8] - Stephens v Avery [1988] Ch 449 and AG v Guardian Newspapers Limited (No. 2) [1988] 3 All ER 545.

[9] - Adoption Act 1976 s. 51 and Adoption (Scotland) Act 1978 s. 45.

[10] - See R. Snowden, G. Mitchell and E. Snowden "Artificial Reproduction: A Social Investigation" (1983) who state that it is common place for couples using donor gametes not to reveal their use to anyone, frequently falsifying the birth register.

[11] - A 1973 study put the figure as high as 30% - G. Wolstenholme and D. Fitzsimmons (eds) "Ciba Foundation, Law and Ethics of AID and Embryo Transfer" (1973) p. 63 although a later study put the figure at only 5% - see Baroness Hooper, House of Lords Official Report, 7th December, 1989 col 1112.

[12] - HFEA Code of Practice, para 3.46 - 3.50.

[13] - Feversham Committee "Report of the Departmental Committee on Human Artificial Insemination" (1960) Cmnd 1105.

[14] - Moser W. "Population Genetics and AID" and Jacquard A. And Schoevaeri D. "Artificial Insemination and Consanguinity" in David & Price, pp 379-83 and 385-7.

[15] - HFEA "Directions given under the Human Fertilisation and Embryology Act, 1990" 1st August 1991.

[16] - Although this objection could be overcome by omitting or amending the relevant provisions of the 1990 Act in the Order extending the Act to Jersey.

[17] - Code of Practice ibid - para 7.18.

[18] - Ibid - para 6.1.

Page last updated 20 Oct 2014