“No Father Required”? The Welfare Assessment in the Human Fertilisation and Embryology Act 2008

Abstract

Of all the changes to the Human Fertilisation and Embryology Act (1990) introduced in 2008, foremost to excite media attention and popular controversy was the amendment of the so-called welfare clause. This clause forms part of the licensing conditions which must be met by any clinic before offering those treatment services covered by the legislation. The 2008 Act deleted the statutory requirement that clinicians consider the need for a father of any potential child before offering a woman treatment, substituting for it a requirement that clinicians must henceforth consider the child's need for 'supportive parenting'.In this paper, we first briefly recall the history of the introduction of s.13(5) in the 1990 Act, before going on to track discussion of its amendment through the lengthy reform process that preceded the introduction of the 2008 Act. We then discuss the meaning of the phrase 'supportive parenting' with reference to guidance regarding its interpretation offered by the Human Fertilisation and Embryology Authority. While the changes to s.13(5) have been represented as suggesting a major change in the law, we suggest that the reworded section does not represent a significant break from the previous law as it had been interpreted in practice. This raises the question of why it was that an amendment that is likely to make very little difference to clinical practice tended to excite such attention (and with such polarising force). To this end, we locate debates regarding s 13(5) within a broader context of popular anxieties regarding the use of reproductive technologies and, specifically, what they mean for the position of men within the family.

‘Supportive Parenting’, Responsibility and Regulation: The Welfare Assessment under the Reformed Human Fertilisation and Embryology Act (1990)

“…The reform of the UK's Human Fertilisation and Embryology Act (1990) (the 1990 Act) after almost twenty years in operation provoked prolonged, sometimes heated debate. The 1990 Act had represented an attempt to offer a framework for responsible science, harnessing the promise of assisted reproductive technologies and embryo research, whilst containing them within acceptable moral boundaries. One dominant theme in the anxiety provoked by the new 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’.…”

From ‘Virgin Births’ to ‘Octomom’: Representations of Single Motherhood via Sperm Donation in the UK News

“…Arguments against single women using donor sperm have pervaded debates about who ought to be permitted access to assisted reproductive technologies (ARTs) in the UK since the 1940s (Barton, ). More recently met with disapproval from politicians (McCandless & Sheldon, ), fertility professionals (Lee, Macvarish, & Sheldon, ) and the general public (Kailasam, Sykes, & Jenkins, ), it is clear that despite changes to prior emphases on children's ‘need for a father’ in the legislation on assisted reproduction (Human Fertilisation and Embryology Act, ), single women using donor sperm remain at the heart of concerns about the choice to have a child, the meaning of motherhood, and the future of family life. This article seeks to contribute to understanding the social responses to single mothers by sperm donation by scrutinising UK media representations of this social group through the lens of social representations theory.…”

Assessing child welfare under the Human Fertilisation and Embryology Act 2008: a case study in medicalisation?

“…In this regard, s.13(5) appeared to be importantly out of step with other legal provisions introduced to recognise same‐sex couples (most notably the Civil Partnership Act (2004) and the Adoption and Children Act (2002)). Indeed, even before 2008 the HFEA had amended its guidance to clinics explicitly to emphasise that they must take care not to discriminate against any prospective patients (see generally McCandless and Sheldon ).…”

“…In 2008 s.13(5) was amended as part of a broader reform process. Powerful arguments in favour of simply deleting the section altogether, which had gained some traction not just in academic work (Jackson , ) but also in earlier parliamentary consideration of the issues (House of Commons Science and Technology Committee ), fell by the wayside.Rather, the focus centred squarely on the exact form of words that should be used to replace the phrase ‘the need of that child for a father’ with concerns about discrimination coming to dominate the parliamentary debates (McCandless and Sheldon ). After lengthy discussion, the following new wording was agreed:

S.13(5) A woman shall not be provided with [infertility] treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for supportive parenting) , and of any other child who may be affected by the birth.

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“…The revision of this one phrase took over eight of only 80 hours of parliamentary time available to debate an Act that runs to over one hundred pages. The changes were also accompanied by extensive media debate, with the question of the deletion of the phrase, ‘need for the father’, proving particularly controversial (McCandless and Sheldon ). In the light of this level of interest, the study reported here sought to find out how these changes impacted upon clinical practice, drawing upon interviews with those working most directly with the new regulations: clinic staff.…”