The Human Fertilisation and Embryology Act 1990 and Non‐Traditional Families
| Published date | 01 November 2023 |
| Author | Kirsty Horsey,Emily Jackson |
| Date | 01 November 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12818 |
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Modern Law Review
DOI:10.1111/1468-2230.12818
LEGISLATION
The Human Fertilisation and Embryology Act 1990
and Non-Traditional Families
Kirsty Horsey∗and Emily Jackson†
There is now a broad consensus that reform of the Human Fertilisation and Embryology Act
1990, as amended,has become necessary. Our focus in this legislation article is not on whether
the Act needs to be reformed, buton the nar rower question of whether the regulation of fertility
treatment in the UK does enough to protect the interests of non-traditional families.The 2008
reforms to the original 1990 Act took some important steps towards inclusivity, for example
by deleting the requirement that clinics consider the child’s ‘need for a father’ before providing
treatment,and enabling two women to be a child’slegal parents from birth. Our contention here
is that any new legislation should go further in order to recognise and accommodate diverse
family forms.
INTRODUCTION
Given that it regulates a fast-moving area of science and medical practice, the
longevity of the Human Fertilisation and Embryology Act 1990 is remarkable.
It has been subject to one signicant overhaul,via an amending statute in 2008,
but the basic structure of the Act and its contents continue to reect recom-
mendations made even longer ago, by the Warnock Committee in 1984.1It
is therefore not surprising that there is now a broad consensus that the Act is
‘inevitably showing its age’,2and that reform has become necessary.3
Many dierent aspects of the statutory scheme might be said to be no longer
‘t for purpose’. In part, this can be explained by the fact that, in 1990, ‘fertility
∗Reader in Law,Law School,University of Kent.
†Professor of Law, Law School, London School of Economics and Political Science. We are very
grateful to Flora Renz and two anonymous MLR referees for their helpful comments.
1Report of the Committee of Enquiry into Human Fertilisation and Embryology (London: HMSO,1984)
(Warnock Report).
2 Sally Cheshire, ‘Is the UK fertility sector facing a tipping point?’ Bionews8 July 2019.
3 Julia Chain, ‘The HFEA 30 years on – what needs to change?’ (Speech at 2021 Progress
Educational Trust Annual conference) at https://www.hfea.gov.uk/about-us/news-and-
press-releases/2021-news-and- press-releases/the-role-of- the-regulator-uk-per spectives [https:
//perma.cc/7XXF-ZR6E]. In 2023, the HFEA launched a consultation on the review of the
Act, ‘Modernising the regulation of fertility treatment and research involving human embryos’
at https://www.hfea.gov.uk/about-us/modernising-the-regulation- of-fertility-treatment- and-
research-involving-human-embryos [https://perma.cc/4A7Y-S9PZ].
© 2023 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023)86(6) MLR 1472–1488
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,which per mits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Kirsty Horsey and Emily Jackson
treatment was considered controversial and often stigmatised’4and it was there-
fore assumed that there was a need for strict additional controls over consent,
condentiality and access to treatment. The Human Fertilisation and Embry-
ology Authority (HFEA) has suggested that it would be better able to protect
patients if it had access to a greater range of sanctions, and that the very strict
limits the Act places upon data sharing are ‘increasingly out of date’.5There
is also an ongoing debate over whether the 14-day limit – which makes it a
criminal oence to carry out research on embryos after 14 days – should be
extended.6
The cur rent Chair of the HFEA, Julia Chain, has drawn attention to the fact
that: ‘The Act has much of importance to say about the embryo but is silent on
the patient and does not reect patient centred care as being a cornerstone of
good treatment.’7It could be argued that one aspect of a more patient-centred
approach would be to be more responsive to changes to family structures and
the increasing number of treatments provided outside the typical ‘“patient with
a male partner” model,including increasing numbers of patients in female same-
sex relationships, and patients with no partner’.8In this legislation article our
focus is not on whether the whole Act is in need of reform, but on this last
and narrower question of whether there are aspects of the Act which do not
do enough to accommodate the interests of non-traditional families.
Zoe Darwin and Mari Greeneld have pointed out that:‘queer people’s ex-
periences of conception, pregnancy, birth and parenting are under-recorded,
under-researched, and under-heard’.9Since the emergence of the gay rights
movements in the 1970s, ‘gay men and lesbians have had to position them-
selves in relation to a heterosexually dominated conception of the family and
raising children, from which they had largely been excluded’.10 The invisibility
of non-heteronormative families is translated into policy in a number of ways,
for example through the assumption in maternity policies that new mothers
will always have given birth, thus excluding lesbian co-mothers.11
4 Chain, ibid.
5ibid.
6 Nueld Council on Bioethics, Human Embryo Culture: Discussions concer ning the statutory time
limit for maintaining human embryos in culture in the light of some recent scientic developments (London:
NCOB, 2017); Insoo Hyun and others, ‘Human embryo research beyond the primitive streak’
(2021) 371 Science 998.
7 Chain, n 3 above.
8 Julia Chain, The HFEA: Working to Improve Access and Outcomes for All (Speech at 2022 Progress
Educational Trust Annual conference, 9 December 2022).
9 Zoe Darwin and Mari Greeneld, ‘Mothers and others: The invisibility of LGBTQ people in
reproductive and infant psychology’(2019) 27 Journal of Reproductive and Infant Psychology 341.
10 Nicola Surtees and Philip Bremner, ‘Gay and lesbian collaborative co-parenting in New Zealand
and the United Kingdom: “The law doesn’t protect the third parent’” (2020) 29 Social & Legal
Studies 507.
11 ibid.Indeed, a recent study with women who had entered shared biological motherhood arrange-
ments with their female partners highlighted that for many,the reason they did so was not only
so that the child shared biological relationships with both female parents, but also that forming
their family this way oered a ‘social and legal legitimacy that was not guaranteed with traditional
IVF’(Kate Shawand other s, ‘Sharing motherhood: same-sex femalecouples’ reasons forchoosing
shared biological motherhood’(2022) 37 Human Reproduction (supplement 1) deac107-464).
© 2023 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(6) MLR 1472–1488 1473
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