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Hard cases

The IVF Museum · Hard cases

Hard cases

Every new power in the laboratory brought a new question for everyone else. Eleven cases that tested the law, and changed what people thought IVF was for.

Black-and-white photograph: Robert Edwards, in glasses and a jacket, in the foreground, and Patrick Steptoe, in a white shirt and dark tie, seated behind him with his arms folded.
Robert Edwards (in front) and Patrick Steptoe (seated behind, arms folded). Date not recorded.Reproduced from Sammy Lee, Ethics in Biomedicine (UCL Faculty of Biosciences), page 53. Original photographer not credited.

The first hard case was IVF itself. Edwards and Steptoe were told, by colleagues, churchmen and the press, that they should not do it. They went on, and published, and argued in public. Many of the cases below began with one family who wanted a child, or wanted to save one, and found that no one had yet decided whether they could.

In the United Kingdom most of these questions came to the Human Fertilisation and Embryology Authority, set up under the 1990 Act, and then to the courts. Families whose names appear here made their stories public themselves.

Eleven cases

1973 to 1978

The Del Zios: an experiment stopped

Doris Del Zio's fallopian tubes were blocked, and repeated surgery had failed to open them. On 12 September 1973, in New York, her gynaecologist William Sweeney collected eggs from her and sent them to Landrum Shettles at Columbia-Presbyterian Medical Center. Shettles, who had claimed in the 1950s to have fertilised human eggs in a dish, mixed them with her husband John's sperm and set them to incubate, meaning to put an embryo back into her womb.

Colleagues found out. The chairman of Shettles's department, Raymond Vande Wiele, had the culture brought to his office and took out its stopper, which ended the experiment.

The Del Zios sued for 1.5 million dollars. Their case came to trial in New York in the summer of 1978, in the same weeks that Louise Brown was born in England. The jury awarded Doris Del Zio 50,000 dollars for her suffering, and her husband 3 dollars. Shettles left Columbia. In Martin Johnson's words, the affair led to "a lengthy court case and much negative publicity".

The question. Who decides whether an experiment on a human egg or embryo may go ahead: the doctor, the patient, or the hospital?

1985

Baby Cotton: a baby for a fee

On 4 January 1985 a baby girl was born in London to Kim Cotton, who had agreed through an American agency to carry a child for a couple from abroad. She was paid £6,500. The baby was made a ward of court before she could leave hospital.

On 11 January Mr Justice Latey gave care of the child to the couple who had commissioned her. The way she was conceived, he said, did not decide the case: her welfare came first, and they could give her a good home.

Parliament moved within months. The Surrogacy Arrangements Act 1985, which received Royal Assent on 16 July, made it an offence to arrange surrogacy for profit. Surrogacy itself stayed lawful, and still is in the United Kingdom, so long as no one makes a business of it.

The question. Can a woman be paid to carry a child for someone else?

1987

A grandmother gives birth

In Johannesburg in 1987, Pat Anthony, then in her late forties, carried embryos made by IVF from her daughter's eggs and her son-in-law's sperm. Her daughter had lost her womb. On 1 October 1987 Mrs Anthony gave birth to triplets, and the press called her the first woman to bear her own grandchildren.

The law had not imagined it. Under South African law at the time the woman who gave birth was the mother, so her daughter and son-in-law had to adopt their own genetic children.

The question. Who is the mother: the woman who gives the egg, or the woman who gives birth?

1997

Diane Blood: consent after death

In 1995 Stephen Blood fell into a coma with meningitis. Before he died, doctors took sperm from him at his wife's request. Stephen and Diane had been trying for a child, but he had never given written consent, as the 1990 Act required for storing and using sperm.

The Human Fertilisation and Embryology Authority refused to let her be treated, and in October 1996 the High Court agreed. On 6 February 1997 the Court of Appeal held that the sperm should not have been stored without written consent. But European law gave her the right to be treated in another member state, and the Authority had to think again. It allowed the sperm to go to Belgium. Her sons Liam and Joel were born in 1998 and 2002.

Then came a second fight, to name Stephen on their birth certificates. The Human Fertilisation and Embryology (Deceased Fathers) Act 2003, which received Royal Assent on 18 September 2003, let a father who had died be named, if he had agreed in writing. The naming is symbolic: it gives him no legal status as a parent.

The question. What does a person's consent mean when they can no longer give it?

2001 to 2005

The Hashmis: a sibling to save a son

Zain Hashmi had beta thalassaemia, a blood disorder that a matched stem cell transplant could cure. No one in his family was a match. His parents, Raj and Shahana Hashmi, asked to have their embryos tested both for thalassaemia and for tissue type, so that a new baby could be born free of the disease and able to give Zain cord blood.

The Authority agreed in principle in late 2001 and granted a licence in February 2002. The campaign group Comment on Reproductive Ethics went to court to stop it. The High Court quashed the licence in December 2002. The Court of Appeal restored it in May 2003, and on 28 April 2005 the House of Lords agreed, unanimously, that the Authority had the power to allow it.

The question. May an embryo be chosen to help someone else?

2002 to 2004

The Whitakers: going abroad

Charlie Whitaker had Diamond-Blackfan anaemia. Unlike Zain Hashmi's illness, it could not be tested for in the embryo, so tissue typing would only help Charlie and would do nothing for the embryo itself. In 2002 the Authority said no.

Michelle and Jayson Whitaker went to Chicago for treatment, and their son Jamie was born in June 2003. In July 2004 the Authority changed its policy and allowed tissue typing even where the embryo was not itself at risk.

The question. If one country says no and another says yes, what is a rule worth?

2003 and 2008

A boy or a girl?

Choosing an embryo's sex to avoid a disease carried on the X chromosome had been allowed for years. Choosing it for any other reason was another matter. In November 2003 the Authority published its report Sex selection: options for regulation, after a public consultation, and recommended that sex selection for non-medical reasons should not be allowed, by any method.

The Human Fertilisation and Embryology Act 2008 wrote that ban into law.

The question. Is choosing a child's sex a private choice, or a matter for everyone?

1981 to 1997

Cloning: the impossible, and then Dolly

In 1981 Karl Illmensee and Peter Hoppe reported mice cloned by moving nuclei from early embryos into fertilised eggs. Others could not repeat it. In 1984 James McGrath and Davor Solter, after their own careful attempts, concluded that cloning a mammal by simple nuclear transfer was probably biologically impossible.

On 5 July 1996, at the Roslin Institute near Edinburgh, a lamb was born from a nucleus taken from an adult sheep's udder cell. Dolly was announced in February 1997 and described in Nature on 27 February. She lived until 14 February 2003. Laws against human reproductive cloning followed in many countries, including the United Kingdom in 2001.

The question. Just because it can be done, should it?

1998 to 2006

Stem cells: hope, fraud, and a way round

In 1998 James Thomson's team in Wisconsin grew human embryonic stem cells, using embryos left over from IVF and given for research. The cells could in principle become any tissue, and the embryos were destroyed to obtain them. IVF had made the debate possible.

In 2004 and 2005 Hwang Woo-suk's team in Seoul reported human stem cells made by cloning. In January 2006 a Seoul National University investigation found the work fabricated, and Science retracted both papers.

In August 2006 Kazutoshi Takahashi and Shinya Yamanaka showed that four genes could turn ordinary mouse skin cells back into cells much like embryonic stem cells, without an embryo at all. Yamanaka shared the Nobel Prize in 2012 with John Gurdon.

The question. Can good ends justify using embryos, and who checks the science?

2008

L v HFEA: the same question, again

Eleven years after Diane Blood, another widow, whose husband had died suddenly in 2007, asked to use sperm taken from him at the time of his death. Again there was no written consent. On 3 October 2008 Mr Justice Charles held that the sperm could not lawfully be stored or used in the United Kingdom. Whether it could go abroad was left to the Authority to decide.

The court kept her name private, and the museum does too.

The question. Should the law bend for one person's grief?

2008

A new Act for a new century

The Human Fertilisation and Embryology Act 2008 received Royal Assent on 13 November 2008. It brought the 1990 Act up to date with what the cases above had shown.

It allowed research on embryos combining human and animal material. It banned sex selection for non-medical reasons. It allowed embryos to be chosen to help a sick brother or sister, though not to provide a whole organ. It replaced the duty to consider a child's “need for a father” with the need for “supportive parenting”. It allowed a woman's female partner to be the child's second legal parent, and unmarried couples and civil partners to apply for a parental order after surrogacy.

The question. How should the law keep up with the laboratory?

From the library

Cover of the book Ethics in Biomedicine by Sammy Lee.

Sammy Lee, Ethics in Biomedicine

UCL Faculty of Biosciences, about 2012. ISBN 978-0-9539089-3-6.

The lectures on ethics that Sammy Lee, an embryologist who had worked in IVF since the 1980s, gave each year to biosciences students at University College London. It walks through surrogacy, posthumous conception, saviour siblings, sex selection, cloning and stem cells, with the slides he used to start the argument. Where the museum gives a fact from these cases, it has been checked against the original judgment, Act or paper.

Photograph of the curator's copy.

About the sources
  1. The Del Zio case: Henig RM. The lives they lived: second best. New York Times Magazine, 28 December 2003. Embryo Project Encyclopedia, Arizona State University: Landrum Brewer Shettles (1909 to 2003). Johnson MH. A short history of in vitro fertilization (IVF). International Journal of Developmental Biology 2019;63:83 to 92, doi.org/10.1387/ijdb.180364mj. The trial was a jury trial in New York; the museum has not yet seen the court record, so the damages are given as reported.
  2. Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846 (Latey J, 14 January 1985). Surrogacy Arrangements Act 1985, c. 49 (legislation.gov.uk).
  3. Pat Anthony: contemporary press reports, October 1987. The exact age reported varies between 47 and 48.
  4. R v Human Fertilisation and Embryology Authority, ex parte Blood [1997] EWCA Civ 4003; [1999] Fam 151 (Court of Appeal, 6 February 1997). Human Fertilisation and Embryology (Deceased Fathers) Act 2003, c. 24.
  5. R (Quintavalle) v Human Fertilisation and Embryology Authority [2003] EWCA Civ 667 (16 May 2003); [2005] UKHL 28 (28 April 2005).
  6. HFEA press release on tissue typing, 21 July 2004. BBC News reports on the Whitaker family, 2002 to 2004.
  7. HFEA. Sex selection: options for regulation. November 2003.
  8. Illmensee K, Hoppe PC. Cell 1981;23(1):9 to 18. McGrath J, Solter D. Science 1984;226(4680):1317 to 1319. Wilmut I, Schnieke AE, McWhir J, Kind AJ, Campbell KHS. Viable offspring derived from fetal and adult mammalian cells. Nature 1997;385:810 to 813. Human Reproductive Cloning Act 2001, c. 23.
  9. Thomson JA et al. Science 1998;282:1145 to 1147. Kennedy D. Editorial retraction. Science 2006;311:335. Takahashi K, Yamanaka S. Cell 2006;126:663 to 676. The Nobel Prize in Physiology or Medicine 2012 (nobelprize.org).
  10. L v Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam) (Charles J, 3 October 2008).
  11. Human Fertilisation and Embryology Act 2008, c. 22 (legislation.gov.uk).
  12. Further reading: Sammy Lee, Ethics in Biomedicine (UCL Faculty of Biosciences, about 2012), ISBN 978-0-9539089-3-6. Most of these cases appear in his lectures. Facts on this page were checked against the judgments, Acts and papers above.

The IVF Museum · Hard cases
Compiled with AI-assisted research and checked against the original sources. Undergoing peer review. Corrections are warmly welcomed.

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