Medical Law: Text, Cases, and Materials

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I mean Thailand didn’t have specific laws at the time. We were certainly aware that there [were] draft laws on the table, but at the time they didn’t have those laws. However through just common practice, we actually felt that the laws were quite protective of us, of doing surrogacy. So I was quite devastated, but then she said that we should just go ahead with an egg donor. At this stage the whole [issue of an] egg donor had not even cropped up. [Wayne] wasn’t there, and she wanted me to make the decision right there and then.

It is, of course, important to recognise that patients’ appetite for information, and their understanding of it varies considerably. Not only are there differences between patients, but the same patient’s preferences may vary over the course of her lifetime, and in response to different illnesses. Patients who suffer from chronic conditions may ‘become experts in their own conditions and sometimes know more than generalists (such as their GPs) about symptoms and management options’. 71 At the same time, as Arvind and McMahon point out, there is evidence from patient survey data that other patients may struggle to understand or retain the information that they receive as part of the informed consent process. 72 Information about risk is notoriously difficult to understand, 73 and the way in which information is framed can be critical: if patients are told that 90% of people are alive five years after having an operation, they are more likely to consent than if they are told that 10% are dead. 74 Provides a clear and accessible analysis of the various ways in which human reproduction is regulated. A comprehensive exposition of the law relating to birth control, abortion, pregnancy, childbirth, surrogacy and assisted conception is accompanied by an exploration of some of the complex ethical dilemmas that emerge when one of the most intimate areas of human life is subjected to regulatory control. Throughout the book, two principal themes recur. First, particular emphasis is placed upon the special difficulties that arise in regulating new technological intervention in all aspects of the reproductive process. Second, the concept of reproductive autonomy is both interrogated and defended. Winner of the 2002 Society of Legal Scholars’ Annual Prize for Outstanding Legal Scholarship by a Young Legal Scholar. The law and DIY Assisted Conception’ in Kirsty Horsey (ed) R egulating Assisted Conception (Routledge, 2015), 31-49 Death, Euthanasia and the Medical Profession’ in M Johnson, J Herring, B Brooks-Gordon, M Richards (eds) Death Rites and Rights (Hart, 2007) 37-55 Although the internet is the primary source of ‘soft’ information about the experience of fertility treatment, it is also worth noting the growing popularity of fertility and surrogacy ‘fairs’ or ‘roadshows’, which are huge exhibitions in which visitors can gather information from regulated clinics and the local regulator, while also meeting people from overseas clinics and ‘alternative’ therapists. Discussions about one’s need for fertility services have emerged from the strict confidentiality of the doctor-patient relationship to become instead a marketing opportunity for private providers. But while these ‘fairs’ provide clinics with the chance to sell their services, potential patients also value the opportunity to find out if they feel a ‘connection’ with the clinic staff and their approach.

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With I Glenn Cohen, ‘Introduction to the Right to Procreate and Reproductive Technologies’ in Tamara Hervey and David Orentlicher (eds) The Oxford Handbook of Comparative Health Law (Oxford UP, 2020) Legalising assisted dying: cross purposes and unintended consequences’ (2018) 41 Dalhousie Law Journal 60-91. We do not suggest that domestic law and policy should uncritically reflect ‘consumer choice’ in CBR, or that a reform agenda should be shaped to the expectations of those who utilise CBR, especially if there is clear evidence of harmful practices or outcomes. However, we do argue that the experiences of those who travel for reproduction offer important insights that complicate common assumptions about CBR. For instance, as we shall show below, some women found the idea of altruistic surrogacy or egg donation to be more morally problematic than compensated surrogacy and egg donation. This finding directly contradicts existing regulatory assumptions which currently prohibit and limit ‘commercial’ involvement in assisted reproduction. Adjuncts in the IVF laboratory: where is the evidence for "add-on" interventions?' (2017) 32 Human Reproduction 485-491 (with Joyce Harper et al.) In contrast to surrogacy, the Australian prohibitions on commercial trading in gametes are far more specifically worded, criminalising only the giving and receipt of valuable consideration, rather than potentially implicating anyone involved in ‘facilitating’ the practice. This has meant that some fertility doctors are willing to recommend overseas egg donation and we found that some even facilitate shared care, with the provision of scans and tests domestically before the woman travels, as well as follow up care. Thus, if Dian had told her fertility doctor that she was travelling to receive paid egg donation rather than to pursue commercial surrogacy, she would be likely to have received domestic medical assistance and advice. In a parallel vein, general practitioners (who are not covered by the same ethical guidelines as fertility specialists) were reported by our interviewees to be assisting patients with blood and semen tests in preparation for overseas surrogacy, as well as with prescription medications and blood tests in advance and pregnancy tests post-travel for those receiving egg donation abroad.

Patients’ ‘pathologies of reasoning’ 85 are not confined to over-optimism. As King and Moulton explain, patient comprehension may also be affected by ‘availability bias’, where patients ‘overestimate their risk of contracting a condition that receives substantial media coverage, such as breast cancer’; ‘compression bias’, which involves ‘patients overestimating small risks and underestimating large ones’; ‘small numbers bias’ where patients ‘misinterpret their individual risk based on a small number of known cases (my two friends both had complications after their hysterectomies, so I probably will too)’; and ‘miscalibration bias’ which involves patients being ‘overly confident about the extent or accuracy of their knowledge’. 86 Yeah, Umar has already cut out the pictures and cropped them. [Laughs] So yes we will tell the child who they are. Like I said we’ll probably inform the egg donor or just message her on Facebook to say thank you and this is what you’ve done for us. We want to keep in touch somehow if you’re happy to. But I guess that’s her call. But yeah, we’re more than happy to do that. Look, I was following what people were saying about contracts and to get the contract looked at … I think some of the advice that people have shared was it costs a lot of money to have your contracts looked at and it’s not actually legal or legally viable in Australia anyway. There’s no real — … So I didn’t actually — then I decided not to seek legal advice because I just thought it was almost pointless. The seminal textbook for teaching any aspect of medical law...clearly written with a real depth of accessible analysis and a wealth of resources." - Caroline Chappell, Senior Lecturer in Law, University of ChesterEssentially then, legal advice is ‘almost pointless’ for an unviable contract, which nevertheless is capable of going some way to protect the rights and liabilities of the parties throughout the arrangement. the main IVF doctor that I saw here in Sydney was very against offshore surrogacy. I mentioned it to her just to get her idea and she said ‘oh that’s terrible. These are women that are terribly exploited and you’ll go over there and you’ll get a disease and you’ll be in some terrible baby factory and what not’. Anyway, she said those things and then I just shut down that dialogue with her. After years of unsuccessful IVF in Australia, Leah travelled to Greece to undergo IVF and egg donation. She explained that her GP in Australia was helping her: