Athena Granger - University of Brighton
INCAPACITATED INCUBATORS? A LEGAL RESPONSE TO ANNA SMAJDOR’S THOUGHT EXPERIMENT
Recent developments in the law surrounding posthumous conception are indicative of a societal movement towards an increasingly lax perspective of informed consent. The demonstrable ambiguity in legislation surrounding informed consent relating to conception has reformed the legal landscape, threatening negative implications for the concept of personhood and human rights. The myth of a fertility crisis further compounds this through an implied scarcity, empowering those within the medical and legal sectors to explore and permit morally defunct alternatives. This essay will seek to address the pitfalls of Anna Smajdor’s thought experiment proposing whole body gestational donation; namely the experiment’s degradation of consent and its justification of late-term abortion. This essay will also address developments in English law surrounding surrogacy and posthumous conception to ultimately conclude that the law is outdated and defunct; leaving it ripe for exploitation if not reformed.
THE THOUGHT EXPERIMENT
Anna Smajdor’s thought experiment imagines a new use for people diagnosed with brain death; whole body gestational donation (“WBGD”). Inspired by Rosalie Ber, Smajdor proposes a system akin to that of organ donation to facilitate WBGD.
Smajdor argues that WBGD avoids the moral and health issues surrounding surrogacy, positing that pregnancy is comparative to the contracting of a disease due to its numerous risks. The avoidance of these risks, Smajdor hypothesises, makes the concept of WBGD more attractive than traditional pregnancy even in prospective parents capable of natural reproduction.
Smajdor’s paper is indicative of a scientific movement towards more advanced methods of conception, but represents a slippery slope for society due to its dismissive nature towards the importance of informed consent. This slippery slope is aggravated when one looks to recent developments in the legal sphere combined with medical advances meaning that WBGD is not outside of the realms of possibility.
WHAT IS SURROGACY?
Surrogacy involves a biological woman, the surrogate, bearing a child on the behalf of another person, the commission parent. Most of those who enter into such an arrangement are unable to independently reproduce, meaning that surrogacy is their only option to have a child genetically linked to them. There are two forms of surrogacy; traditional and gestational. Traditional surrogacy involves the surrogate’s egg being artificially inseminated with the intended father’s semen, this could be the semen of a donor or of a commissioning parent. Gestational surrogacy involves both egg and insemination being either the source of donors or of the commissioning parents and requires in-vitro fertilisation.
The governance of surrogacy varies widely throughout the world. The United Kingdom’s heavily circumscribed system is characterised as “based upon tolerance rather than positive acceptance”. Advertising for a surrogate, advertising to be a surrogate, or advertising as willing to assist with a surrogacy agreement are statutorily prohibited. Third-parties offering services matching surrogates to commissioning parents for any payments is also an offence, with a partial exemption introduced in 2009 for not-for-profit organisations. The effect of these prohibitions is that lawyers cannot assist in the drafting of a surrogacy contract if they can be construed as negotiating its terms.
Further, surrogacy agreements in the United Kingdom are not binding. In law, surrogacy arrangements are used to indicate the intentions of the parties. This allows the court to navigate any issues which may arise throughout the agreement; such as parental rights. For example, if a surrogate refuses to relinquish the child, the family court has the ability to hear an application for residence made by the commissioning parents. In this instance, the court passes judgment on to whom parental rights should belong by assessing what is in the best interests of the child.
CONSENT
Surrogacy is a highly contentious subject. People are regarded as carrying an intrinsic rather than mere instrumental value, whilst surrogacy promotes the use of people as a means to an end. Surrogacy serves to reinforce the reproductive division of labour through fortifying the perception of women as incubators. The effect of this is that gestational contribution becomes worthless, perpetuating the societal view that biological women are for the purpose of reproduction at the behest of third parties. WBGD and posthumous conception expand these critiques to disproportionate levels. People incapable of defending their rights are put forth as incubators or breeders, eroding their personhood and dignity through the implementation of a presumed consent model comparable to that of the organ donation framework.
The organ donation framework is in place to deliver life-saving treatment, whilst surrogacy is not considered to be life-saving. Presumed consent in this context is found where a person has not registered their refusal to participate, or where they have been incapacitated for a significant period prior to their death.
Smajdor argues that WBGD can be considered to be within the same realm as organ donation due to its potential to help someone to live a more substantial life. In reality, the opt-out system Smadjor imagines would be obscenely costly both in administrative and medical costs. The selection of those eligible to be WBGD would be a time-intensive process, and an extensive level of education would be required in order to give informed consent to any such system.
Further, an opt-out system robs participants of the freedom to change their mind which is the foundation for the United Kingdom’s pragmatist approach to surrogacy. Informed, unconditional and freely given consent is a condition for the surrogate parent to give in order for the commissioning parents to be granted parental rights. Informed consent is also required for any form of fertility treatment. An incapacitated person is unable to provide this. It is unreasonable to accept inferred consent on the relinquishing of the rights of a child you have gestated or genetically contributed to. This is bolstered by legislation, which dictates that surrogates must have a full understanding of the implications of giving consent to surrender their rights to the surrogate child.
Informed and free consent is impossible in the case of WBGD or posthumous conception. An autonomous decision can be made without knowing the subjective risks, but this must be countered with a high level of competence education as to objective risks. It is unlikely that any such system would be able to account for all the objective risks given the subjective circumstances in which a person becomes brain dead. Any person must be able to assess the benefits and harms of entering into any fertility or surrogacy agreement to enable a comprehensive understanding of their rights; autonomy and capacity are integral to this.
Due to the impossibility of gaining free and informed consent from an incapacitated patient; their consent must be inferred from what is in their best interests. Any decision made on behalf of an incapacitated person must be aligned with their past and present wishes, honour their beliefs and values, and take into account any other factors that person would have been likely to consider when they held capacity. For a medical treatment to be in the best interests of a patient who lacks capacity, it must be life-saving, to ensure improvement, or to prevent deterioration in their physical or mental condition.
It cannot be argued that a patient in a brain dead state would observe any benefit from WBGD or fertility treatment to facilitate reproduction. The patient would likely never know that they had contributed to the making of a child, they would likely never meet the child, and their family would likely have no involvement with the child. In many cases, this would be directly contrary to a person’s wishes. The benefit of WBGD and posthumous serves third parties exclusively, therefore failing the best interests test.
To engage with WBGD would be to bestow a person’s right to consent to a third party and, in doing so, enable the contracting out of a person’s most fundamental human rights. This has already been observed in cases petitioning the court to grant the use of an incapacitated person’s reproductive materials. Therefore, it is not unreasonable to expect WBGD to come before the court in the near future.
It is not possible for competent people to contract their human rights to another. Where posthumous conception has been achieved with inferred consent, it has enabled a person’s body to be commodified. The same would be true if WBGD reached fruition. Therefore, it is unthinkable to infer the consent of highly vulnerable incapacitated patients for the purpose of fertility treatment or WBGD.
ABORTION
One of the major issues surrounding surrogacy is abortion; be it where the child is discovered to be disabled, or where one of the parties to the arrangement no longer want the child. WBGD attempts to evade this through establishing the surrogate as a proxy of the commissioning parent, rather than as a separate entity. WBGD posits that, through consent by proxy, abortion could take place at any time of gestation due to the avoidance of significant harm inflicted upon the surrogate; who is brain dead and therefore unable to suffer.
There are four grounds for lawful termination of a pregnancy in the United Kingdom. The first stipulates that there must be a risk of physical or mental injury to the pregnant person with a defined time limit of twenty-four weeks. Beyond the point of twenty-four weeks, terminations are permissible where necessary to prevent grave permanent injury to the physical or mental health of the pregnant person or those within their immediate environment. Terminations can also be permitted where there is a risk to life, or where there is a substantial risk to be ‘seriously handicapped’. The risk element must be seen as substantial by “informed persons with no personal involvement in the pregnancy and its outcome”.
Each of these grounds carry an additional requirement of two doctors demonstrating that the ground relied upon can be substantiated unless the pregnancy has not exceeded 24 weeks.
The final ground of ‘seriously handicapped’ is ambiguous and has been the subject of substantial debate. This ground is generally met where the child has an untreatable abnormality which would render it impossible for them to function independently should they survive birth.
The element of selective reduction in WBGD gives people the opportunity to shop for children and maximise their value. The result is that commercial attitudes are introduced to the practice of surrogacy, voiding it of all humanity. Further, WBGD suggests an unlimited termination period at the discretion of the commissioning parents; dismissing the barbarism of terminating a viable foetus close to term. The right to exclude a foetus is essential to constitute a person’s possession of full legal personhood, and it is imperative that it is protected against invasion by third parties.
RECENT DEVELOPMENTS IN THE LAW
Legislation relating to fertility treatment and surrogacy was formulated with the central principle being a rigorous model of consent. The framework was intended to have extremely clear fixed limits “in the interests of morality”. A strict consent regime was seen as the most effective way of ensuring that personal autonomy was respected in a highly contentious and fast-developing area of medicine. The law has failed to keep pace with medical advances and, as a result, the central principle of consent has been eroded in relation to incapacitated patients through allowing the rights of third parties to reign supreme. This is exemplified by recent case law.
In 2018, the court was tasked with determining whether a patient’s consent to the extraction of their gametes could be inferred. The patient, Z, was incapacitated following a motorbike accident causing brain death. Z had attended fertility appointments with their partner, Y, prior to the accident. The applicants claimed that Z had also signed consent forms allowing for the storage and use of his sperm. The court applied the best interests test, taking into account the fertility clinic appointments and admissions made by Y. It was concluded that it was in Z’s best interests to have his gametes extracted. The court accepted Y’s assertion that Z had consented to posthumous conception and openly proceeded to grant extraction of Z’s sperm despite finding it “doubtful” that the consent forms granting permission to store and use Z’s sperm existed.
In 2022, a High Court case was won allowing the partner of a deceased woman to use her embryo in a surrogacy arrangement. In that case, a posthumous consent form had been provided to the woman and she had not signed it, yet her consent was still inferred.
The court has been making a gradual progression towards awarding claims finding an incapacitated patient’s interests to be of a lower worth than that of their capacitated partner for some time. In 1997, an incapacitated patient’s wife was granted the right to seek a specific direction for the exportation and use of her husband’s illegally retrieved sperm. The sperm had been illegally extracted when the husband had fallen into a coma before death. Following a judicial review of the initial refusal of the wife’s application, she was permitted to seek a direction allowing the exportation and the sperm in another jurisdiction. This was to protect her procreative liberty.
By way of contrast, where claimants have sought to use their capacitous partner’s reproductive materials without consent, this has been emphatically denied. The court has reiterated that inferred consent is never sufficient for conception because it is not appropriate for one person’s right to reign supreme over another’s.
The effect of these decisions together make clear that the value of consent is decreased significantly when one is unable to advocate for themselves. This presents gaping opportunities for exploitation. The nuanced approach of combining the best interests test with the requirement for informed consent has created a model designed to treat a human being as a means to the end of facilitating the interests of a third party. The judicial trend towards authorising fertility treatment without informed consent teeters on the edge of depreciating consent as a whole. This threatens the opening of the floodgates to procedures such as WBGD.
Fertility treatment cannot reasonably be assessed as in the best interests of an incapacitated patient save for when there is written consent. Even with written consent, it is difficult to justify the procedure a male or female body will be required to go through to retrieve reproductive materials as being within their best interests when their body is at its most frail. Whether extracting semen or eggs, the procedure requires the person to be penetrated more than once. It is invasive, undignified and without guarantee of painlessness. The same is true to a larger degree when considering WBGD due to its requirement of repeated intrusion upon a patient’s body for a significant period of time.
PROPOSED REFORMS
As outlined above, the issue of informed consent is slipping through the United Kingdom’s fingers as society and medical science advances at an unprecedented pace. The law as it stands is “fragmented and…obscure”, inducing confusion and enticing flippant treatment of human rights.
Most importantly, the Mental Capacity Act requires reform. It is not appropriate for the best interests test to be applied to fertility treatment of incapacitated patients where no explicit consent was provided beforehand. As cases seeking posthumous conception inevitably become more common with medical advances, it is vital that the patient’s best interests are prioritised over all else. This was the original intention of the act. This fortifies the rights of people unable to speak for themselves, and ensures that they are not left open to exploitation.
It is proposed that an additional subsection be added to the best interests test stipulating that fertility treatments will never be in the best interests of an incapacitated person unless explicit written consent is provided. No exception should be carved from this. Those wishing to opt-in to such an agreement should be mandatorily educated regarding the process of any procedure performed upon them whilst they are unable to consent. This will empower the principle of informed consent and ensure that human rights are upheld.
Additionally, the legislation surrounding surrogacy requires an enormous overhaul. Its complexity, ambiguity and contradicting nature are contrary to public policy; leaving room for exploitation rooted in a restriction of the ability to seek advice. Solicitors should be permitted to assist in the making of surrogacy agreements and any other posthumous conception contracts for a fixed fee. This would ensure that the rights of all parties were upheld and that a correct balance was struck between their interests.
Finally, a register should be formulated. This should provide all details of biological parents, irrespective of whether conceived posthumously or through surrogacy. This will enable children born of surrogacy or other methods to understand their origins, something which is integral for their developmental health. It will also lessen the margin for exploitation due to its level of regulation; no adult can have the legal right to parenthood of a child born through surrogacy without applying for a parental order. Similarly, posthumous conception requires permission from the court. This would ensure that a minority of cases slip through the administrative net; thereby upholding the rights of children and prospective parents alike.
CONCLUSION
The status of surrogacy remains a highly contentious area of law which is unfit for purpose. Surrogacy legislation and precedent in the United Kingdom is vastly outdated, ambiguous and contradictory. Smajdor’s proposal dismisses the vulnerability of brain dead patients to violations of dignity, as well as infringement to the dignity of the patient’s family. To treat reproductive utility with the inconsequentiality proposed in WBGD and demonstrated in posthumous conception reduces the value of children and adults. The debasement of informed consent has already begun, and will devolve further without reform.
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TABLE OF AUTHORITIES
CASES
AB, CD v CT (Parental Order: Consent of Surrogate Mother) [2015] EWFC 12 (Fam) ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB)
Evans v United Kingdom (2008) 46 EHRR 34
Jennings v Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam) R v Human Fertilisation and Embryology Authority Ex p. Blood [1999] Fam. 151
Re C (Surrogacy: Consent) [2023] EWCA Civ 16 Re F (Mental patient sterilisation) [1990] 2 AC 1 Re TT (Surrogacy) [2011] EWHC (Fam) 33
Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48 Whittington Hospital NHS Trust v XX [2020] UKSC 14
Y v A Healthcare NHS Trust [2018] EWCOP 18
STATUTE
Abortion Act 1967
Article 8 ECHR
Children Act 1989
Human Fertilisation and Embryology (Parental Order) Regulations 2018 Human Fertilisation and Embryology Act 1990
Human Tissue Act 2004 Mental Capacity Act 2005
Surrogacy Arrangements Act (SAA) 1985
BIBLIOGRAPHY
BOOKS
Morgan P, Family Law (1st edn, OUP 2021)
OFFICIAL PUBLICATIONS
Department of Health & Social Security, Report of the Committee of Inquiry into Human Fertilisation and Embryology (Cmnd 9314, 1984)
HC Deb 21 June 1990, vol 174, col 1187
Law Commission, Building families through surrogacy: a new law (Law Com No 411, 2023)
Royal College of Obstetricians and Gynaecologists, Termination of Pregnancy for Foetal Abnormality in England, Wales and Scotland (RECOG, 1996)
