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Family Law

The leading authority on all aspects of family law

15 SEP 2014

View from the Foot of the Tower: Stemming the tide

View from the Foot of the Tower: Stemming the tide
There have been some very complex and ethically difficult cases arising from artificial insemination and disputes afterwards in the last 2 years. A development in science might lead to some even more difficult legal issues.

Randall Monroe’s excellent book, What if, posits a number of peculiar questions and provides answers to them.

One of the 'What if' questions is the theoretical possibility that stem cell research might advance sufficiently such that a stem cell taken from a person’s bone marrow can be altered into becoming a sperm cell. The 'What if' question is – 'what if a woman used her own stem cell to become a sperm cell, and then used that sperm cell to impregnate herself?'

This is not possible yet, but it could be in the future. Scientists have already been able to turn stem cells taken from males into sperm cells.

Randall Monroe sets out in very zingy and cogent style that to create a child that has paternal and maternal DNA from the same source runs a considerable risk for the child; it is in effect a shortcut to being where the Royal families of central Europe ended up after three generations of in-breeding.

The issue with having the same person provide both male and female DNA is that you don’t end up with a clone of the mother as you might initially think.

The child has DNA that only exists in the mother, but not the SAME mix of DNA. Instead, the mother’s ‘sperm cell’ contains one shuffled set of DNA, the egg cell contains another, and the child ends up with a fresh shuffled set.

Why that is problematic is that the whole mixing and shuffling of DNA that is the consequence of sexual reproduction is a good method of avoiding nasty genetic disorders. If the mother has any genes that are hereditary diseases that don’t get passed on unless both parents have the gene, then having all of the DNA come from one source is bad news.

If it became possible then, there are good ethical reasons not to do it. But at the moment, there are not necessarily legal reasons why it could not be done.

The Human Fertilisation and Embryology Act 1990 (HFEA) makes it an offence to 'store' gametes without a licence, but not to 'create' them. [Rather obviously, human beings are creating gametes fairly regularly as an organic and natural process and you’d have to live in quite a dystopian society to demand that they only do so if they have a licence.]

One couldn’t undertake a clinical artificial insemination without a licence, and one would imagine that any clinic would be ringing up the Human Fertilisation and Embryology Authority if a woman came in with the test tube of male gametes and revealed that they had been made from her own stem cells.

But that only covers insemination done in a clinic – if it is a licensed one, they probably won’t do it, and if they are not licensed then they are committing lots of offences under the HFEA. The Act as it stands would not really cut it for anyone who decides to go the ‘turkey baster’ route.

Would there be potential child protection issues? One might argue that knowingly or recklessly conceiving a child in circumstances where he might acquire your hereditary disease might be s 31 significant harm, and that the harm is attributable to an action ‘not being what it would be reasonable to expect a parent to give to him’

However:

(a) The wording of s 31 is not ‘action’ but ‘care given’.

(b) At present, a child is not a legal creature until birth, so ‘care given in the womb’ isn’t a threshold issue. (it can come into issues of risk of future harm – if the mother abused drugs or alcohol in pregnancy that increases the possibility that she will do so when caring for the child, and in a similar way if the mother is assaulted by her partner during pregnancy the risk of the child being exposed to violent behaviour once born is increased).

(c) If we were going to interpret s 31 this widely, you’d also be inadvertently scooping up parents who were in loving relationships and just happened to share those hereditary disease genes and passed them on. Were they reckless in having a child? What if they knew that say Huntingdon’s chorea had been in both of their families historically? Nobody surely would want to see care proceedings being issued on parents in those circumstances.

Even the criminal law doesn’t seem to help. If someone makes their own sperm cells and impregnates themselves with them, they’ve consented, so there’s no suggestion of sexual assault. Even the widely drawn s 1 of the Children and Young Person’s Act 1933 (the one that was used in the Ashya King case) doesn't assist:

'(1) If any person who has attained the age of sixteen years and [F1has responsibility for] any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement)',

surely requires there to be a child at the time the offence was committed, and here the 'offence' is in the moments before the child is conceived and thus not in existence.

Thus, if it becomes possible for a female to produce their own sperm cells, not only will the male species become utterly redundant (save for breaking things around the home, explaining the first two minutes of a movie and removal of excessively large spiders) there will be some need for some rewriting of statute, depending on how easy it is to do this.

[If it were to be criminalised, it would be a fairly simple test if someone is suspected of it. It would be beyond any prospect of chance that a person’s baby has DNA that only comes from the mother unless either (a) this has happened or (b) they have had sex with their twin in which case the cuffs are still going on.]

I’m going to coin a phrase for it, in the hope that when it takes off as a phenomenon historians will find that I gave it a name: 'Narcissistic Pregnancy'.

[It all seems very far-fetched now, but the ‘gesture control’ in the 2002 film Minority Report seemed utterly amazing when we first saw it and now you can buy a mobile phone that will do it for about £50.]

Very well, the 'Narcissistic Pregnancy' is a relatively unlikely scenario. Even if the technology becomes possible, would women really want to do that in the real world? Even if they wanted a baby, and even if they REALLY REALLY loved themselves, wouldn’t the risk of genetic disease put them off? Probably.

But where else does this technology go? Well, one possible avenue would be for homosexual couples. At present, homosexual couples who want to have a baby are restricted to artificial insemination (if female) or surrogacy (both male and female couples). The drawback of that, is that the child is the biological and genetic child of only ONE of the couple.

That of course might not be a drawback for many couples, but there will be some for whom the idea of having a child that is genetically related to both is deeply attractive (that’s a very primal and natural drive and this represents a method by which that might be possible in the future. It is something that we take for granted in heterosexual couples that part of the underlying thinking of having a child is to create a life together, to share in that process and to pass on ones genes). Article continues below...

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As I understand things, turning stem cells into sperm is more feasible than turning them into egg cells (as egg cells are the largest cells in the body, it would involve the stem cell becoming bigger rather than smaller and it might be IMPOSSIBLE – I am not Robert Winston) but it may be that once this technology advances, it will advance quickly.

Assuming that a woman can create sperm cells and a man can create egg cells, that does create the ability for a same sex couple to produce a baby that is one where both are genuine biological and genetic parents.

And one can see that there would be a target audience for that facility, and clinics who would want to provide it.

But if a child is conceived in this way (let’s dub it 'Stem-Swap Conception') are the couple then the child’s legal parents?

The HFEA 2010 establishes that legally, a mother is the person in whose womb the child grows (it doesn’t matter if the egg cell that made the child is from another woman – or indeed in our theoretical discussion a man).

'Section 33 - Meaning of "mother"

(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.'

So, we have as our couple Bella and Alice. They decide to undertake a Stem-Swap Conception. Alice has her stem cells converted to sperm cells, and impregnates Bella with them. They are both the biological and genetic parents. The LEGAL mother is Bella, as she carried the baby to term.

Where does that leave Alice? If she’s not the mother, is she the father?

It is s 37 of the HFEA 2010 that sets out the various situations in which a person becomes the father of a baby; but each of them specifies that the father must be a man. So, Alice won’t be the father (which is probably a relief to her).

If Alice and Bella were in a civil partnership or marriage, and Alice consented to the insemination then Alice will acquire Parental Responsibility as a result of s 42 of the HFEA 2008:

'Woman in civil partnership at time of treatment

(1) If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership, then subject to section 45(2) to (4), the other party to the civil partnership is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).'

If they weren’t in a civil partnership, then they can still agree that Alice will have PR by virtue of s 43 of the HFEA 2008 (particularly since we can be damn sure that no man will be treated as a father of the child):

'Section 43 - If no man is treated by virtue of section 35 as the father of the child and no woman is treated by virtue of section 42 as a parent of the child but—

(a) the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies, 

(b) at the time when the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, the agreed female parenthood conditions (as set out in section 44) were met in relation to another woman, in relation to treatment provided to W under that licence, and 

(c) the other woman remained alive at that time, then, subject to section 45(2) to (4), the other woman is to be treated as a parent of the child.'

Moving now to Jacob and Edward. Jacob has the easy task and provides his sperm for an artificial insemination of a surrogate mother. Edward has his stem cells converted to an egg cell and has his egg cell implanted into the surrogate mother for Jacob’s sperm to fertilise. (That must be a Stem-Swap Conception Surrogacy.)

The surrogate mother has PR and is the legal mother (s 33 of the HFEA 2010 – she carries the baby, she’s the legal mother even though she has no genetic relationship with the child).

Edward and Jacob had the sense not to choose a surrogate mother who was married (because if not, then the husband would be the legal father).  

Jacob is the legal father PROVIDED there was a written agreement between himself and the surrogate mother about this: 

'Section 37 - The agreed fatherhood conditions

(1) The agreed fatherhood conditions referred to in section 36(b) are met in relation to a man (“M”) in relation to treatment provided to W under a licence if, but only if,— 

(a) M has given the person responsible a notice stating that he consents to being treated as the father of any child resulting from treatment provided to W under the licence, 

(b) W has given the person responsible a notice stating that she consents to M being so treated, 

(c) neither M nor W has, since giving notice under paragraph (a) or (b), given the person responsible notice of the withdrawal of M's or W's consent to M being so treated, 

(d) W has not, since the giving of the notice under paragraph (b), given the person responsible—

(i) a further notice under that paragraph stating that she consents to another man being treated as the father of any resulting child, or 

(ii) a notice under section 44(1)(b) stating that she consents to a woman being treated as a parent of any resulting child, and

(e) W and M are not within prohibited degrees of relationship in relation to each other...

(2) A notice under subsection (1)(a), (b) or (c) must be in writing and must be signed by the person giving it.'

Edward will not be, as a matter of law either the mother (because he didn’t carry the child in his non-existent womb) or the father (because he didn’t provide the male gametes). 

So he would need a Parental Order, under s 54 of the HFEA 2008: 

'Parental orders

(1) On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—

(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

(c) the conditions in subsections (2) to (8) are satisfied...

(2) The applicants must be—

(a) husband and wife,

(b) civil partners of each other, or

(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.'

If your head isn’t already hurting from all of this (and remember that the High Court has declared that all family lawyers need to be capable of advising on the HFEA and it is not a specialised area(!)) we are about to kick it up a notch.

The possibility exists to freeze sperm cells for use after death, and the HFEA makes various provisions for that, and there’s been a lot of litigation about consent and whether the right forms are filled in, and timescales. That litigation is mind-bendingly hard. But like I said, we’re kicking it up a notch.

All of the HFEA provisions about the use of sperm cells after the death of the donor, are expressly about the donor of such cells being a man. [Oddly, this provision, which probably looked at the time to be a redundant inclusion, might potentially become important if women can produce sperm cells by genetic manipulation of their stem cells.]

So the HFEA doesn’t cover the use of sperm cells created by a woman AFTER her death. Nor does it cover the conversion of stem cells provided by a woman into sperm cells and then use, after her death.

Given that this technology might exist in the future, might women with a terminal illness who are in a same-sex partnership want to donate their stem-cells and leave instructions that they be converted to sperm cells once this is possible? And thereafter use those sperm cells to impregnate their partner? And would we need regulation about that?

Apologies for anyone who now has a headache.

Andrew has been shortlisted for the 2014 Family Law Awards - Commentator of the Year for the second year running. The Awards Ceremony will take place at The Brewery, 8 October.  

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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