'Parenting test' isset to be removed

PERHAPS unsurprisingly, when the Human Fertilisation and Embryology Act was passed in 1990, one of the key principles was providers of assisted reproduction services should have consideration for the welfare of the potential child.

More controversially, the relevant section in the legislation specifically mentioned this should include consideration of the potential child's "need for a father". This last requirement was inserted at the final stages of the bill's passage through parliament and is widely seen as a political compromise to discourage the creation of same-sex or single-mother families.

Over the years, the welfare provision has been controversial. Although the body that oversees the operation of the Act - the Human fertilisation and Embryology Authority (HFEA) - has regularly produced guidelines as to what is to be considered when assessing the welfare of the future child, the provision itself leaves open the possibility that decision-makers can make service provision decisions based on little more than their own moral position. Indeed, the House of Commons select committee on science and technology, in its review of the legislation, described the welfare provision as being both discriminatory and "impossible to implement". Moreover, the committee even doubted its practical value in actually offering protection to children born following assisted reproduction and recommended it should be abolished in its present form.

Predictably, this caused concern in certain quarters. From the select committee's perspective, however, speculation about the future welfare of a potential child, when used to deny access to assisted reproduction, was essentially a form of guesswork. The current familial or financial circumstances of intending parents may change and a denial of services now would inhibit their future capacity to have a child. Much better, in the select committee's opinion, to allow existing social services to intervene if and when that becomes necessary following the birth of a child, when welfare assessments can more appropriately be made.

Following the committee's review, the department of health conducted its own inquiry, the outcome of which was published in late 2006. Despite the select committee's arguments, the department has concluded the general welfare provision should remain. Based in part on submissions received during the consultation process, the department was convinced there is a role for this provision: it also concluded the obligation to make such inquiries should be proportionate. Quite what this means will be subject to further HFEA guidelines.

However, the department did accede to the committee's view that the "need for a father" provision should be removed from the act.

Although these recommendations may seem relatively benign, they are, in fact, quite radical for two reasons. First, people who conceive naturally are not subject to the kind of "fitness-for-parenting" tests the law requires where assistance is needed in reproducing. Of course, some people might argue they should be, but that is another matter and would require a radical overhaul of the rights people have in making private decisions. Additionally, the non-conceived embryo is, by virtue of this provision, given "protection" that is not extended to the embryo that is already in the womb. It might, of course, be argued if we have the opportunity to intervene - which assisted reproduction provides us with - then we should do so. However, there are other opportunities for intervention during pregnancy - such as making the embryo or foetus subject to the control of the courts when there is a real anticipation of harm - that courts have refused to engage in because the embryo is not a legal person. Thus, the non-conceived embryo is, by vetting parents, given protection not contemplated when the embryo actually exists.

Second, by removing the "need for a father" provision, there should be fewer barriers to the provision of assisted reproduction to single or same-sex couples. It seems self-evident this will be the subject of considerable controversy. For some, this is a step too far: for others, it is a recognition that we should not discriminate against people on grounds that are not relevant to their capacities to parent. The final outcome of the department's report remains to be seen and will doubtless be subject to debate in due course.