Letter: Letter: Is GIFT illegal?

From DEREK MORGAN

As the Human Fertilisation and Embryology Bill goes back to the House
of Commons for the report stage, confusion over the legal status of the
controversial infertility treatment GIFT (gamete intrafallopian transfer)
continues. Virginia Bottomley, the health minister, has reiterated the government’s
aim to exclude GIFT from the bill, when donated sperm or eggs are not involved.
But this stance has real dangers for both patients and practitioners. There
are doubts about the legality of GIFT and the wisdom of leaving the resolution
of the issue to the courts.

GIFT is now subject to common law. This has some worrying consequences
for those who want to keep the procedure outside the legislation. First,
there are some ‘trespasses to the person’ (which include medical procedures),
to which one cannot lawfully consent. There are limited circumstances where
the law may regard a woman’s consent to GIFT as void, and hence the procedure
unlawful. The law holds that it is not in the public interest that people
should cause, or try to cause, actual bodily harm to others, without good
reason.

The determination of the public interest is a matter for the courts,
applying any relevant statutory provisions, whether directly or by analogy
to the common law. For GIFT the relevant analogy would be the new statutory
licensing authority’s regulations for GIFT using donated gametes.

The statutory authority will determine how many eggs or embryos may
lawfully be transferred. The interim licensing authority (ILA) now states
that no more than three eggs or embryos should be routinely transferred
to reduce the risk of multiple pregnancies.

Recent reports of the routine transfer of four, five and even six eggs
(some clinics acknowledge that they ‘occasionally’ transfer eight or more)
raise grave legal doubts. Given the known increased risks to the woman and
each fetus in a higher order pregnancy, a prima facie case for caution on
the part of a practitioner of GIFT is established. Add to this the existing
ILA guideline and its statutory successor, and I am persuaded that circumstances
exist in which GIFT is and will continue to be unlawful.

There is another sense in which the law of consent impinges on the conduct
of GIFT, illustrated by the recently reported experiences of Helen Pusey,
who underwent GIFT and had quads. Two died, and two are severely disabled.
According to her, the possibility of multiple birth following GIFT was mentioned
only once, early in the morning, minutes before the operation to transfer
eggs and sperm. Even the meagre legal requirements for disclosure of information
and advice about a surgical procedure do not appear to have been complied
with. Failure to discharge this duty may render a practitioner liable in
negligence.

English law requires that the patient be alerted to ‘a substantial risk
of grave adverse consequences’. The multiple pregnancy rate associated with
GIFT and the consequent risks of disability or death in the resulting fetus
or child are obvious candidates. To protect against liability in negligence
for non-disclosure, doctors must give their patients time for discussion,
reflection and judgment. This is precisely what the counselling opportunity
demanded by the bill seeks to provide for women undergoing IVF or GIFT with
donated gametes. Again, these regulations will form the analogy against
which the standards of a non-licensed centre performing GIFT will be judged.

The suggestion from the Royal College of Obstetricians and Gynaecologists
that procedures for monitoring GIFT should be established in a voluntary
code of guidance prepared by the licensing authority is better than nothing.
But whether that will afford anything more than a veneer of protection to
women presenting for treatment services or indeed for participating clinics
is doubtful.

The apparent freedom from review vaunted by the Royal College is more
illusory than real. Faced with the Scylla of statutory control and the Charybdis
of the common law, it strikes me as extraordinary that the medical profession
should want to sail through the channel on the raft of clinical freedom
rather than in the more securely built, and more easily navigable Human
Fertilisation and Embryology Authority.

Derek Morgan Fellow in Health Care Law Centre for Philosophy and Health
Care University College Swansea