‘Supportive Parenting’, Responsibility and Regulation: The Welfare Assessment under the Reformed Human Fertilisation and Embryology Act (1990)
| Published date | 01 May 2015 |
| Date | 01 May 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12124 |
‘Supportive Parenting’, Responsibility and Regulation:
The Welfare Assessment under the Reformed Human
Fertilisation and Embryology Act (1990)
Sally Sheldon, Ellie Lee and Jan Macvarish*
Section 13(5) of the Human Fertilisation and Embryology Act 1990 requires fertility clinics,
before offering regulated treatment services, to take account of the welfare of any child who may
be born as a result of the treatment and any other child affected by that birth. This paper presents
the findings of an empirical study examining the impact on practice of the controversial reform
of this section in 2008. While the broad values underpinning section 13(5) appear well embedded
in clinic staff’s engagement with ethical issues, there is little evidence that practice has been
influenced by the 2008 amendments. A complex picture emerged regarding the implementation
of section 13(5), particularly in its interaction with other factors, such as funding criteria and
professional norms around counselling, implying a higher level of ongoing attention to likely
parenting ability – particularly that of single women – than might be expected from a reading of
the statute and guidance alone.
INTRODUCTION
The reform of the UK’s Human Fertilisation and Embryology Act (1990) (the
1990 Act) after almost twenty years in operation provoked prolonged, some-
times heated debate.1The 1990 Act had represented an attempt to offer a
framework for responsible science, harnessing the promise of assisted reproduc-
tive technologies and embryo research, whilst containing them within acceptable
moral boundaries.2One dominant theme in the anxiety provoked by the new
*Respectively, Kent Law School, University of Kent; School of Sociology, Social Policy and Social
Research, University of Kent and Centre for Health Services Studies, University of Kent. We gratefully
acknowledge the support of an ESRC Small Grant, ‘Assessing Child Welfare under the Human
Fertilisation and Embryology Act: the New Law’ (RES-000-22-4291) and the guidance offered by our
project Advisory Board: Eric Blyth (Professor of Social Work, University of Huddersfield), Gillian
Douglas (Professor of Law, Cardiff University), Geraldine Hartshorne (Professorial Fellow, Warwick
Medical School), Kirsty Horsey (Lecturer, Kent Law School), Jennie Hunt (Senior Infertility Coun-
sellor, Hammersmith Hospital), Clare Lewis-Jones (Infertility Network UK), Sarah Norcross (Progress
Educational Trust), John Parsons (former lead consultant at the Assisted Conception Unit, Kings
College Hospital, London) and Alan Thornhill (Scientific Director, The London Bridge Fertility,
Gynaecology and Genetics Centre). We are also extremely grateful to all clinic staff who participated
in the study and to the following for helpful feedback on earlier drafts of this paper: Eric Blyth, Maebh
Harding, Julie McCandless, the participants in a staff seminar at Warwick Law School, and two
anonymous referees for the Modern Law Review
1 The Act establishes a regulatory regime for embryo research and for those infertility treatment
services which involve creation of embryos outside of a woman’s body and/or use of any gametes
other than her own and those of her partner. For consideration of the debates relating to s 13(5),
see eg J. McCandless and S. Sheldon, ‘“No Father Required”? The Welfare Assessment in the
Human Fertilisation and Embryology Act (2008)’ (2010) 18 Feminist Legal Studies 201.
2 M. Mulkay, The Embryo Research Debate: Science and the Politics of Reproduction (Cambridge: CUP,
1997).
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© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(3) MLR 461–492
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technologies was the likely impact on the traditional family and the 1990 Act
reflected a desire to protect and entrench a model of ‘heterosexual, preferably
married, parents’.3Section 13(5), the ‘welfare clause’, was a major plank in this
project and one which has proved controversial since the moment of its incep-
tion. The provision represented a compromise measure, which imposed a
requirement that, before offering regulated treatment services, clinics must take
account of the welfare of any child who may be born as a result of the treatment
(including the need of that child for a father) and of any other child who may be
affected by the birth.4Reform of section 13(5) became a key focus of parlia-
mentary and media attention and the eventual replacement of the wording
envisaging the need of that child ‘for a father’ with the need for ‘supportive
parenting’ represented the outcome of lengthy consideration.
Taking section 13(5) as its focus, this paper presents the findings of an
empirical study examining how this highly controversial change to legislation
impacted (or failed to impact) upon practice. It suggests that while the broad
values underpinning section 13(5) appear well-embedded in clinic staff’s engage-
ment with the ethical issues raised by their work, there is little evidence to
suggest that the way in which discretion is exercised is influenced by such
changes to the wording of the statute or specific detailed guidance regarding the
finer points of its interpretation. Further, a complex picture emerged regarding
the implementation of section 13(5), with a higher level of ongoing scrutiny
regarding motivation for parenthood and future parenting ability than might be
expected, with – in some clinics, at least – this scrutiny particularly focused on
single women. In this regard it is important to remember that regulation does not
operate in a vacuum. Professional practice is rather determined by a broad range
of influences including the ‘residue’ of earlier legal provisions, institutional
pressures, professional cultures, the individual’s own broader moral views and
emotional reactions, and economic constraints.5Our research offers a case study
of how statutory norms interact with other factors in practice, sometimes
producing unintended results.
We begin by providing some background to the relevant law and summa-
rising the process leading to reform, before giving more information about our
study. We then move on to discuss our findings, first, regarding how the broad
values underpinning the legislation have been accepted and applied and, second,
how the regulatory framework interacts with other competing norms. The issue
of whether single women and lesbian couples should be accepted for treatment
has been a key focus in the history of section 13(5) and we end with specific
consideration of how these groups fare under the new legislation.
3 J. Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 MLR 467, 482.
4 See generally R. G. Lee and D. Morgan, Human Fertilisation and Embryology: Regulating the
Reproduction Revolution (Oxford: Blackstone Press, 2001) ch 6. An amendment seeking to
criminalise the treatment of unmarried women, introduced by Lady Saltoun of Abernethy, had
only narrowly failed in the House of Lords: HL Deb vol 515 col 787 6 Feb 1990.
5 See generally: J. Black, ‘New Institutionalism and Naturalism in Socio-Legal Analysis: Institution-
alist Approaches to Regulatory Decision Making’ (1997) 19 Law & Policy 51, 51–52.
‘Supportive Parenting’, Responsibility and Regulation
© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited.
462 (2015) 78(3) MLR 461–492
THE REFORM PROCESS AND NEW LAW
The reform process
The origins of the 1990 Act lie in a report produced by a Committee of Inquiry,
chaired by Mary (now Baroness) Warnock in 1984.6Some twenty years on,
while recognised as ‘a tribute to the foresight of its creators’,7the Act was
nonetheless widely accepted to be in need of updating and further ‘future
proofing’. Notably for current purposes, reform provided an opportunity to
revise it in the light of changing social and familial norms, bringing same-sex and
single parents more effectively within the statutory framework, while nonethe-
less continuing to privilege a two-parent model of parenting.8The vehicle for
reform, the Human Fertilisation and Embryology Act 2008, was the product of
significant consultation, review and discussion including over eighty hours of
parliamentary debate.9Consideration of the welfare clause occupied a very
substantial and, arguably, wholly disproportionate amount of this time,10 with the
proposal that the ‘need for a father’ should be deleted from the legislation
criticised as an attack on the family, fatherhood and traditional male roles in
modern Britain.11 Parliament was presented with a ‘veritable banquet of
options’12 for what wording might replace it, including the need for ‘a father and
a mother’,13 ‘support by a father and a mother’;14 ‘supportive parenting and the
6Report of the Committee of Inquiry into Human Fertilisation and Embryology Cm 9314 (1984).
7 Department of Health, Review of the Human Fertilisation and Embryology Act: A Public Consultation
(2005).
8 On the continued privileging of a two-parent model within the legislation, see further J.
McCandless and S. Sheldon, ‘The Human Fertilisation and Embryology Act (2008) and the
Tenacity of the Sexual Family Model’ (2010) 73 MLR 175 and J. McCandless, ‘The Role of Sexual
Partnership in UK Family Law: the Case of Legal Parenthood’ in D. Cutas and S. Chan (eds),
Families – Beyond the Nuclear Ideal (London, Bloomsbury Academic, 2012).
9 Hansard Society, Online Consultation on Human Reproductive Technologies and the Law, Commissioned
by the Science & Technology Select Committee (Summary Report) (2004); House of Commons Science
& Technology Committee, Human Reproductive Technologies and the Law (Fifth Report of Session
2004–2005, HC 7-1) (2005); HM Government, Government Response to the Report from the HC
Science & Technology Committee (2005); Department of Health, Review of the Human Fertilisation and
Embryology Act: a Public Consultation (2005); Department of Health, Review of the Human Fertilisation
and Embryology Act: Proposals for Revised Legislation Cm 6989 (2006); House of Lords, House of
Commons Joint Committee on the Human Tissue and Embryos (Draft) Bill, Vol 1: Report,
Session 2006–2007, HL Paper 169-I, HC Paper 630-I (July 2007) and Vol II: Evidence, Session
2006–2007, HL Paper 169-II, HC Paper 630-II (July 2007); HM Government, Government
Response to the Report from the Joint Committee on the Human Tissue and Embryos (Draft) Bill Cm 7209
(2007).
10 See McCandless and Sheldon, n 8 above for more detail and for a contrast with discussion of the
parenthood ‘status provisions’ (ss 33–47), which have significantly more impact in practice yet
received around one tenth of the time for debate in parliament and considerably less attention in
the consultation and committee processes noted above.
11 See generally, McCandless and Sheldon, above n 1, for a fuller account of this aspect of the reform
process and reporting of it.
12 Per Lord Warner, HL Debs vol 698 col 71 21 January 2008.
13 Amendment 56, tabled by Iain Duncan Smith, David Taylor, Claire Curtis-Thomas, Johan
Gummer, Michael Ancram and Geraldine Smith.
14 Amendment 108A, tabled by Baronesses Deech and O’Caithan and Lord Lloyd of Berwick.
Sally Sheldon, Ellie Lee and Jan Macvarish
© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited. 463(2015) 78(3) MLR 461–492
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