Gametes, consent and points of no return

Abstract

Disputes over stored embryos are inevitably difficult to resolve, as we have seen in the case of Natalie Evans and Howard Johnston. The Department of Health is currently reviewing the Human Fertilisation and Embryology Act 1990 following a public consultation in August 2005. In this paper, I will argue that the Act should be amended so that the point of no return for withdrawal of consent to the use of gametes is the creation of an embryo with those gametes (fertilization). By point of no return, I mean the point at which donors/providers should no longer be able to withdraw consent. I will argue that no distinction should be drawn between donors – those who give gametes for others to use for procreative purposes – and providers – those who use their own gametes for their own procreative purposes. I will also look at how egg-sharers (who both donate and provide gametes) should be regarded, and whether an exception should be made for embryo donors.

Keywords:

• Gametes
• consent
• withdrawal of consent
• Human Fertilisation and Embryology Act
• gamete donation
• frozen embryos

Notes

1 Clearly, women will be much less vulnerable in this regard once they are able to store their gametes safely for future use.

2 Such mistakes, once recognised, should be rectified as far as possible. Although personal agreements, unlike contracts, are not considered binding, individuals breaking personal agreements clearly have moral obligations to those with whom the agreement was made. For instance, it is wrong to enter into agreements which one knows one is likely not to want to keep; it is wrong not to attempt to limit the damage of breaking agreements, even if some damage is inevitable, and such agreements should not be broken for trivial reasons unless the agreements are also ones of a more trivial nature.

3 Whether they ought to be absolved of moral responsibility is disputed (see, for instance, Callahan, 1996; Benatar, 1999) and the move in the UK to identifiable donors serves to reinforce the view that genetic ties are morally binding. There is considerable literature about the relationship between genetic relatedness and parental responsibility (see, for instance, Nelson, 1991; Callahan, 1996; Benatar, 1999; Bayne, 2003; Bayne & Kolners, 2003; Draper, 2005).