Nobody's Child, Everybody's Children:

Changing Conceptions of Welfare

Child welfare and the legal regulation of fertility treatment are topical issues, but there is also an enduring interest in fertility advances and welfare in Britain and overseas. While the Anglo-Welsh regulatory system is viewed as a leading example internationally, it is often criticised in Britain. This regulatory framework is about to change following a controversial Select Committee Report and the subsequent Government consultation (2005), which led to the recent publication of a White Paper outlining proposals for legislative amendments (December 2006). Consequently the research agenda is being opened up again.

In the context of assisted conception, the welfare provision is outlined thus:

A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth.

s.13(5) Human Fertilisation and Embryology Act 1990 (1990 Act)

Commentators have examined the inclusion of the phrase ‘the need … for a father’, and have questioned whether it is appropriate to legislate for child welfare in this context. In the majority of instances, the focus has been on the normative construct of ‘the family’; the potential effect of s.13(5) on access policies, particularly for lesbian women and single women; the (il)legitimacy of the role of doctors in decision-making regarding access; and the possible challenges, on human rights grounds, or calls for s.13(5) to be revoked.

Both the regulatory body, the Human Fertilisation and Embryology Authority, and the Government have recently revisited the child welfare issue. The former has moved towards a presumption in favour of treatment except where a risk of serious harm can be shown; the latter has indicated the proposed removal of any reference to the ‘need for a father’ but nevertheless made a case for the retention of child welfare considerations in the revised statute. Therefore, this paper will focus on the changingconceptualisation(s) of child welfare, with specific consideration of the value judgments present in Anglo-Welsh legal discourse and policy on/around assisted conception since the inception of the 1990 Act. Using recent examples, this paper will track the value issues informing ‘welfare’ discourse in this specific context in order to question the evidence base for the Governmental recommendation for its retention in the 1990 Act.