Assessing Child Welfare under the Human Fertilisation and Embryology Act: the new law (study)

This study was funded by the Economic and Social Research Council, Research Council Number ES/I017607/1.

The team working on the study were Dr Ellie Lee, Reader in Social Policy, University of Kent (PI), Sally Sheldon, Professor of Law, University of Kent (Co-I), Dr Jan Macvarish, Research Associate, Centre for Health Services Studies, University of Kent (RA), with an advisory group: Eric Blyth (Professor of Social Work, University of Huddersfield), Gillian Douglas (Professor of Law, Cardiff University), Prof Geraldine Hartshorne (Professorial Fellow, Warwick Medical School), Kirsty Horsey (Lecturer, Kent Law School), Jennie Hunt (Senior Infertility Counsellor, Hammersmith Hospital), Clare Lewis-Jones (Infertility Network UK), Sarah Norcross (Progress Educational Trust), John Parsons (former lead consultant in the Assisted Conception Unit, Kings College Hospital) and Alan Thornhill (Scientific Director, The London Bridge Fertility, Gynaecology and Genetics Centre).

Study Summary

Infertility is estimated to affect around one in six or seven UK couples (approximately 3.5 million people) and some 35,000 patients make use of IVF each year. Since 1990, infertility services have been subject to a highly complex system of statutory regulation: the Human Fertilisation and Embryology Act (1990) and accompanying Code of Practice issued by the Human Fertilisation and Embryology Authority (HFEA). Controversially, in 2008, the legal requirement in place since 1990 that clinicians providing treatment take account of “the welfare of any child who may be born as a result of the treatment” including “the need of [a] child for a father” was replaced with a new mandate: they must henceforth consider the child’s need for “supportive parenting”.

On the basis of original empirical research conducted within two years of the coming into operation of these changes to s.13(5), this project assessed the impact of the amendment of this provision. We explored the extent to which there is any continuing potential for exclusion of patients seeking infertility treatment services, assessed ongoing tensions or problems in the application of the reworded section, and traced the fit between what Parliament had intended it to achieve and its operation in practice. Our exploration relied on a detailed analysis of the published documentation which accompanied this reform process, and a series of semi-structured interviews which explored the views of clinicians, clinic counsellors and nursing staff.

While s.13(5) generated significant attention following its introduction in 1991, this study represents the largest and most significant discussion of its operation and the first empirical work to be done on it following its reform. It has thus generated a unique data set, which provides a fascinating case study in the translation of law on the books into law in practice.


Journal articles reporting and discussing the study

Lee, E., Macvarish, J. and Sheldon, S. 2014. ‘Assessing Child Welfare under the Human Fertilisation and Embryology Act 2008: A Case Study in Medicalization? Sociology of Health and Illness 36(4): 500-515.

Sheldon, S., Lee, E. and Macvarish, J. 2015. ‘‘Supportive Parenting’, Responsibility and Regulation: the Welfare Assessment under the reformed Human Fertilisation and Embryology Act (1990)’. Modern Law Review 78(3): 461-492.

Lee, E., Macvarish, J. and Sheldon, S. 2015. ‘After the ‘need for….a father’: ‘The welfare of the child’ and ‘supportive parenting’ in UK assisted conception clinics’. Families, Relationships and Society (available online early, Open Access)

PDF of full research report

PDF of summary of study findings


Other resources from the study

Report by Medical Xpress

Write up of an event held at the British Library to discuss the findings of the study, published in Bionews.
“In the 80 hours of Parliamentary debate given to the Human Fertilisation and Embryology Bill in 2008, a full ten percent were devoted to a heated discussion of the clause on the ‘welfare of the child’ that might be born as a result of treatment…”

Discussion of some of the findings took place as part of an event at the University of Kent on February 25, 2015:

Science, Law and Bio-Ethics: Kent/Ghent Bioethics Collaborative Initiative, February 2015. Organised by Kent Law School, Bioethics Institute Ghent, and the University of Kent, Centre for Interdisciplinary Studies of Reproduction (CISoR)


Related reading

Jackson, E. 2002. ‘Conception and the Irrelevance of the Welfare Principle‘. Modern Law Review 65: 176-203

Jackson, E. 2008. ‘Re-thinking the pre-conception welfare principle’. In K. Horsey and H. Biggs. Human Fertilisation and Embryology: Reproducing Regulation. London and New York: Routledge Cavendish

McCandless, J. and Sheldon, S. 2010. ‘“No Father Required”? The Welfare Assessment in the Human Fertilisation and Embryology Act (2008)’. Feminist Legal Studies 18(3): 201-225

McCandless, J. and Sheldon, S. (forthcoming) ‘Another Blow to Fatherhood’?: Rewriting the Family through the Welfare Clause of the Human Fertilisation and Embryology Act in G Haddow, M Richards and C Smart (eds) Reproducing Parents and Kin: Assisted Reproduction and DNA Testing.