IVF can be the last hope for many couples who have struggled for years to conceive. As such it is an extremely sensitive and ever-growing part of family law. The first ever license to edit human embryos was issued last week by the Human Fertilisation and Embryology Authority (HFEA), the public 
body responsible for governing IVF research and treatment. The license was issued to Dr Kathy Niakin who will lead a group of researchers at the Crick Institute in London with the aim understanding the early stages of embryo development with a view, ultimately, to decreasing the chance of miscarriage and failure of IVF treatment.
The license allows scientists to genetically edit the genes of human embryos which are up to six days old. The researchers will use a technique known as Crispr-Cas9 which allows them to remove a small amount of DNA and disable genes which may cause IVF treatments to fail. There are strict controls on the research amid fears that it may prompt accusations of genetically modified babies, or ‘designer babies’ as they are sometimes referred to. It will remain illegal to attempt to implant a genetically modified embryo into a human womb.
IVF and fertility is an ever growing part of law and legislators must predict where technology might go and decide where it must not go. The granting of a license might improve the chances of conceiving through IVF, however the government has been clear that designer babies would be a step too far. The Human Fertilisation and Embryology Act 2008 governs IVF treatments and more generally human genetics; it bans human cloning for example. The statute also allows both men and women to be the legal parents of children who are not biologically theirs without the need for legal adoption.
Recently there have been a number of cases concerning IVF, many of which are controversial and highly complex in nature because they involve completely untested areas of law. One such case involved a man in his mid 20’s who embarked on a quest to have a child. After another femailrelation backed out of carrying the child the man’s mother agreed to be a surrogate. Mrs Justice Theis remarked:
“What is apparent from the reports is that the parties thought carefully about this arrangement, pausing, reflecting and seeking advice at each stage.”
She ruled that whilst the case was a highly unusual, the arrangement was legal under current statutory provisions.
In another case couples were forced to go to the High Court to prove they were the legal parents of their children after a number of clinics neglected to get the couples to sign consent forms which gave them legal responsibility over their children. The court found all the applicants to be the legal parents of their children and expressed concerns over seemingly widespread incompetence.
Another case involved a woman who had consented to being inseminated with two embryos. However the doctor placed three embryos in her womb causing her to have triplets, the woman was subsequently awarded £20,000 in damages.
The law is not static, and as with many cases involving science, it listens with an open ear. Given the nature of IVF treatment and the emotional consequences of errors it is clear that this area of medical science needs to be closely monitored to protect vulnerable couples and their children.
Interestingly, the UK is on the forefront of IVF law and became the first country in the world to allow three person IVF. Approving plans by 280 votes to 48 the House of Lords regarded the treatment as more beneficial than not, with Viscount Ridley remarking:
“Britain has been the first with most biological breakthroughs. In every case we look back and see we did more good than bad as a result.”
The three person process, known as mitochondrial donation, is designed to assist women who have mitochondrial diseases by removing defective parts of DNA from the egg and replacing it with parts of a female donor’s healthy DNA. The process means the child will have three biological parents however 99.8% of the child’s makeup will come from the mother and father and only 0.2% coming from the female donor. Further it does not affect the child’s identity, looks or personality. The law only allows the technique in very specific circumstances and only where a very narrow range of diseases may be avoided. Clinics can now apply for licenses from HFEA to carry out these groundbreaking treatments.
The IVF process is an emotional and exciting journey and these scientific breakthroughs provide a renewed hope of having a family for many people longing to be parents. The law will continue to adapt and grow with innovation whilst attempting to avoid the potential moral, emotional and social pitfalls of technological advancement. Navigating this relatively new area of law is complex and both couples and individuals can benefit from sound legal advice before embarking on this exciting chapter of their lives.
by Lewis Sweeney
This article was written by Lewis Sweeney, a guest blogger of Grayfords.
Lewis is a law student who studies at the University of Westminster.
He is in the process of completing his LLB and has aspirations of becoming a barrister.