sou · H4B311 · 2016-02-24 00:00:00 — However, the most central starting point for decisions in this area is the principle of the best interests of the child. This is because new forms of assisted fertilisation should not be permitted unless they are held to be consistent with this principle. The point of departure should continue to be that children conceived through assisted fertilisation should not be exposed to greater risks than other children. If there are gaps in knowledge in some particular respect, society has a particular responsibility for monitoring and safeguarding the interests of the children. In such cases the pro- cedure should only be permitted providing that, as a result of legal regulations put in place or other action taken, the procedure can nevertheless be held to be consistent with the principle of the best interests of the child. If this is not the case, the precautionary principle should be applied and result in the procedure not being permitted. Finally, it is important when taking decisions in this area to also take account of the risk of a selection of individuals, an objecti- fication of reproductive cells, a commercialisation of the breeding of children and too technified a view of human beings. Treatment using only donated reproductive cells Under the present regulations in the Genetic Integrity Act (2006:351), an assisted fertilisation may be carried out with a couple’s own reproductive cells or with either a donated egg or donated sperm. But the regulations do not permit assisted fertilisation using only donated reproductive cells, i.e. using both a donated egg and donated sperm or using a donated fertilised egg. This system, which has been justified on the grounds that there must always be a genetic link between the prospective child and at least one of its prospec- tive parents, means that some couples cannot be offered treatment for involuntary childlessness. As of it will be possible for single women to under- go insemination or fertilisation outside the body (in vitro fertili- sation) in the Swedish health system. Then the situation described for some couples in the previous paragraph will also apply to some single women. To simplify reading we will assume in the following that the rules about single women have already entered into force. Part of our remit is to consider whether a requirement of a gene- tic link between the prospective child and at least one prospective parent, and thus a ban on treatments using only donated repro- ductive cells, should continue to apply to assisted fertilisation. If we conclude that this should be the case, we have also to consider whether egg donation can be permitted in a marriage or cohabiting relationship between two women. Our view is that the genetic link requirement should be abolished and that treatments using only donated reproductive cells should be permitted in the Swedish health system if there is a need of the treatments, the risks to the parties involved, and especially to the children, can be regarded as acceptable and the other arguments against permitting the treatments do not carry sufficient weight. We begin by considering the need. There are couples in which both persons have infertility problems that could overcome their childlessness by being treated using only donated reproductive cells. There are also single women who could do so. Moreover, there are couples and single women who currently undergo treatments of this type abroad. It has thus been established that there is a need for these treatments in the Swedish health system. The need is even greater if account is taken of the decrease in the number of children available for adoption in recent years and the fact that many countries do not permit adoption by same-sex couples or single persons. We therefore go on to consider whether the risks to the parties involved, and especially to the children, can be regarded as acceptable. It can be noted that there is very limited research about families created through the treatments concerned. A large part of the explanation for this limited research is that these treatments are a relatively new phenomenon in many countries. So there are not that many people who have been born through such a treatment and who have also reached adulthood. At the same time, the gaps in the knowledge base decrease substantially if account is also taken of the research that is available about two closely related paths to parenthood, namely treatments using donated reproductive cells and adoption. The main evidence from this latter body of research is as follows. Generally speaking, families created through a treatment using donated reproductive cells or through an adoption seem to do well. What is important, from a child perspective, seems to be that the social and legal parents are open and honest with the child, that they gradually give the child the information it needs to develop a secure and stable identity and that the child is subsequently given the opportunity to trace its own genetic origins. In such circumstances the fact that there is no genetic link between the child and its social and legal parents seems to be of very importance for the child's psychosocial develop- ment and well-being. The following should also be added. There is nothing in the research about other treatments using donated reproductive cells to indicate that knowledge about gene- tic parents and genetic full or half-siblings somewhere else entails any risk for the children or for other parties involved. is there anything in the research about early adoptees to indicate that this is the case. We therefore make the assessment that such knowledge does not entail any risks for children created through a treatment using only donated reproductive cells. So, the results of the research available do not provide any evidence that the risks of a treatment only using donated repro- ductive cells are higher than the risks of other treatments using donated reproductive cells, for example treatments using a donated egg. The risks must therefore be regarded as acceptable. We now move on to consider the third point above, i.e. whether there are other arguments of sufficient weight against permitting the treat- ments in question. One argument that has been put forward is that permitting these treatments would be an expression of too technified a view of human beings. This argument is saying the treatments concerned using only donated reproductive cells must be regarded as so foreign to Swedish society that they should continue to be banned. same time, it can be noted that there are great similarities between these treatments and certain paths to parenthood that are already permitted, including treatment using a donated egg and adoptions. The essential difference is that the treatments in question create a child that does not have any genetic link to its social and legal parents. This difference can certainly be regarded as foreign to Swedish society. But, in view of the knowledge development that has taken place in recent years and the changes that this has resulted in, these treatments cannot be regarded as so foreign or so technified that they should be banned for that reason. Therefore we do not con- sider that permitting the treatments would be an expression of too technified a view of human beings either. Other arguments put forward are that permitting treatments only using donated reproductive cells may result in an objectification of reproductive cells, a changed view of parenthood, a greater risk of intimate relations between full genetic siblings and a risk that we may, in the future, accept procedures in the Swedish health system that must be viewed as unacceptable today. On its own, none of these arguments constitutes a sufficient reason for not permitting the treatments. can they be regarded, together or in combination with other arguments, as constituting such a reason. So, in our view, the genetic link requirement should be abolished and treatments using only donated reproductive cells should be permitted in the Swedish health system. It should be possible to perform treatments using a donated egg and donated sperm or using a donated fertilised egg. In making these assessments there is no reason to consider the question of egg donation in a female same- sex couple separately. The framing of the regulations The rules about treatments using only donated reproductive cells should conform, in all essential respects, to the rules that now apply to fertilisation outside the body. In the main this means the following. The treatments should be available to couples and single women. In the case of couples, they should be required to be married, registered partners or cohabiting partners. A further requirement should be that the other person in the couple, i.e. will not carry and give birth to the child, should give their written consent to a fertilised egg being inserted into the body of the prospective mother. A further requirement should be that it is medically justified to perform the treatment. Only the “university hospitals” should be allowed to perform the treatments and they should be preceded by information and a special assessment, in the same way as treatments using a donated egg or donated sperm. When a treatment using a donated fertilised egg is to be performed, the prospective parents should be specially informed of the fact that the prospective child may have genetic parents and full siblings in other families. The special assessment should be adapted to the circumstances in the individual case. But it should always include conversations with professionals with training in behavioural sciences who have good knowledge of the area. Ahead of a treatment using only donated reproductive cells it is particularly important to assess the ability of the prospective parents to deal with the fact that there is no genetic link between them and the prospective child. When a treatment is to be performed using a donated fertilised egg, it is also important to assess their ability to deal with the facts set out above, i.e. that the prospective child may have genetic parents and full siblings in other families. If a treatment is refused, the couple or the single woman should be able to request an examination of the matter by . It should, in turn, be possible to have the decision of the Board examined by the general administrative courts. As stated above, it should be possible to perform a treatment using only donated reproductive cells either using a donated egg and donated sperm or using a donated fertilised egg. The rules on donation of reproductive cells for the first type of treatment should conform, as far as possible, with the rules that currently apply to donation for fertilisation outside the body. However, under these rules it is not possible for a donor to withdraw their consent to a donation after the point in time when a donated egg has been fertilised or donated sperm have been used for fertilisation. We propose amending this rule and permitting a donor to withdraw their consent up until the time when the fertilised egg created from a donated egg or donated sperm has been inserted into a woman’s body. The conditions for a donation of a fertilised egg should be broadly the same as those for a donation of eggs or sperm. However, in the case of a donation of fertilised eggs, potential donors should also, for example, be informed that their own children may have genetic full siblings in other families. A further condition for the donation of such eggs should be that the fertilised eggs have been created from the donor couple’s own eggs or sperm or from the donor woman’s own eggs and that the couple or the woman are the parent(s) of at least one child. If all the conditions for a donation of fertilised eggs have been fulfilled, the donors or donor should give written consent to the eggs being inserted in a woman’s body. It should be possible to withdraw the consent until this has happened. When fertilised eggs have been donated by a couple, a withdrawal of consent by one person in the couple should be sufficient for it to no longer be possible to use the eggs. In these cases, too, it should be the doctor responsible who chooses which donated reproductive cells, or which donated fertilised egg, to use in a fertilisation outside the body. It should also be that doctor who ensures that the donation of the reproductive cells or the fertilised egg has been made by one or two suitable donors and that the donors are still alive when the treatment is performed. If a donated fertilised egg has been created from donated eggs or sperm, the donor of reproductive cells must also be alive when the treat- ment is performed. Today it is a generally held view that donors should not give rise to children in more than six families. Our view is that this should also apply to treatments using donated fertilised eggs. For treat- ments using a donated egg and donated sperm, the following rule needs to apply instead. If a donor’s reproductive cells have been used in such a treatment, he or she should not be allowed to give rise to children in more than three other families. This is because the result will then be that the prospective child can have genetic full or half-siblings in no more than six other families. Under the present rules the details of an egg or sperm donor have to be noted in a separate record, and the record has to be kept for at least 70 years. What has been stated above should also apply to a donor of a fertilised egg who personally contributed repro- ductive cells when the egg was created. As stated above, it is important that the individuals who become parents through assisted fertilisation using donated reproductive cells begin early on to tell the child about its origins. This know- ledge is often necessary to enable the child to obtain information about its genetic origins later on. We also propose the following. A person who has been conceived through a treatment using only donated reproductive cells and who has reached sufficient maturity should be able to give written consent to the disclosure, on request, of information about them to other persons who have been conceived through reproductive cells from the same donor or donors. In that case, the consent and the details should be entered in the separate record containing details of a donor. The person should also be able to access the details noted in such a record that relate to other persons conceived through reproductive cells from the same donor. If a person does not know, but has reason to suppose, that they have been conceived through a treatment using only donated reproductive cells, the municipal social welfare com- mittee should be obliged, on request, to assist that person in finding out whether any details are noted in a separate record. The arrange- ments set out in this paragraph should also apply when a person has been conceived through a treatment using either a donated egg or donated sperm or when a person has reason to suppose that this is the case. Our deliberations necessitate certain amendments to Chapter 7 of the Genetic Integrity Act. We also propose that the word givare (giver) be replaced with donator (donor) in that chapter, that a definition of the expression fertilisation outside the body be inserted in the introductory section of that chapter and that this expression is then used in all the sections of the law that do not have to talk about the first or second stage of a traditional IVF treatment (i.e. fertilisation of an egg outside a woman’s body and insertion of a fertilised egg in a woman’s body). We also propose certain con- sequential amendments to Chapters 5 and 6 of the same Act. One such amendment is the extension of the period for storing frozen fertilised eggs from five to ten years. Our deliberations also necessitate certain consequential amend- ments and editorial amendments to Chapter 1 of the Children and Parents Code. One example of consequential amendments is an addition to Section 5 to the following effect. It should not be possible to establish paternity through a judgment for a man who has con- tributed sperm for the creation of a donated fertilised egg under Chapter 7 of the Genetic Integrity Act. Surrogacy means that a woman makes her body available and be- comes pregnant with the explicit intention of handing the child over, after its birth, to a couple or a person who are themselves unable or unwilling to carry a child. Surrogacy can be partial or complete and altruistic or commercial. In partial surrogacy the surrogate mother’s own egg is fertilised using a prospective father’s sperm or using donated sperm. In these cases the surrogate mother has both a genetic and a biological link to the child. The characteristic feature of full surrogacy is that the surrogate mother’s own eggs are not used when treating her. In these cases the fertilised egg inserted in the womb of the surrogate mother has thus been created using reproductive cells from the prospective parents or donated reproductive cells. In full surrogacy the surrogate mother only has a biological link to the child. In altruistic surrogacy a surrogate mother does not receive any special payment for being the surrogate mother. However, she can receive compensation for costs of various kinds, including costs of visits to the doctor. In commercial surrogacy a surrogate mother receives special payment for being the surrogate mother. At present surrogacy arrangements are not permitted in the Swedish health system. Our remit is to consider whether to permit these arrangements in the future, on the basis that the surrogacy shall, in that case, be altruistic. If we conclude that surrogacy should be permitted in the Swedish health system, we are also to propose how a comprehensive set of regulations covering surrogacy should be framed. Our view is that commercial surrogacy should not be permitted in the Swedish health system, and that society should also counter that type of surrogacy. The following are the main reasons for this. There is broad consensus, both internationally and in , that the human body and its parts must not, as such, give rise to financial gain. Bans on trade in organs and reproductive cells are one expression of this. It would appear to be inconsistent to intro- duce regulations permitting commercial surrogacy while maintaining such bans. Permitting commercial surrogacy would also be hard to recon- cile with developments in the EU and its Member States. The fact is that no EU country explicitly permits such surrogacy. Instead, several EU countries have explicit bans on this type of surrogacy. Moreover, commercial surrogacy is hard to reconcile with the bans on trafficking in women and children and with other rules intended to satisfy the rights of women and children well. We do not consider that altruistic surrogacy should be per- mitted in the Swedish health system either. Permitting that pro- cedure does actually have some advantages. The most important is that more involuntarily childless people would be able to become parents. A procedure in the Swedish health system would also be able to offer greater security and better guarantees than provided in many of the countries where it is or has been possible up to now to undergo surrogacy arrangements. Permitting the procedure in the Swedish health system would also mean that the prospective child can be guaranteed a right to information about its origins, and that the legal problems that can arise in a cross-border surrogacy arrangement are avoided. However, the advantages of permitting surrogacy cannot be held to outweigh the disadvantages. In the following we will describe the disadvantages to which we have attached most weight here. The first disadvantage relates to the present serious gaps in knowledge regarding the consequences for a child born after a surrogacy arrangement. It is certainly the case that the few studies available do not provide any direct support for fears that the children are harmed or that they have negative views about how they were conceived. However, these studies cover a few quite small groups of children and families. All but one of the studies originate from one and the same research group. Moreover, there are no long-term studies extending until the children reach adulthood. So we do not know how adults handle the fact that they were conceived through a surrogacy arrangement and what this can, for instance, mean for their identity development and long-term family relationships. In addition, there are no studies of what happens to the children in cases where surrogacy arrangements are not completed as envisaged, for example because one of the people involved changes their mind. Moreover, important knowledge about how the surrogate mothers’ own children are affected is not available. We consider that, on account of the shortcomings in the know- ledge base, the risks that may exist in the short and long term to, for instance, children born through surrogacy arrangements have not been established. Therefore it is not possible to draw any definite conclusions as to whether the procedure is consistent with the principle of the best interests of the child. In such circumstances, the precautionary principle indicates that surrogacy should not be permitted in the Swedish health system. Another disadvantage relates to the risk for pressure and commercialisation. In our view, there is an obvious risk that some women may be put under pressure to be surrogate mothers if the procedure is permitted in the Swedish health system. Women may also feel tacit pressure to help a close relative. The risk for pressure might possibly decrease if surrogacy between close relatives is not permitted. At the same time, a system of that kind would increase the risk of commercialisation. When it comes to surrogacy, it must also be said that it is, in general, difficult to form a view in advance of what it is like to carry a child and then give the child away to the prospective parents. Even after a careful assessment, and with requirements in place saying, for instance, that a prospective surrogate mother must have given birth to her own child or children, it is not possible to make sure that the woman's consent has not been the result of pressure applied, feelings of inner compulsion or economic motives. In view of the serious risks that a surrogacy entails for the surrogate mother, what has been said above is a very weighty argument against permitting surrogacy in the Swedish health system. A third disadvantage has to do with the mater est rule and the surrogate mother’s possibilities of changing her mind once the child has been born. Our view is that any regulations in this area must be consistent with the mater est rule, and thus mean that the surrogate mother is automatically regarded as the mother of the prospective child. Respect for the autonomy of a surrogate mother and her right to self-determination also requires that she must be able to change her mind once the child has been born. So, the surrogate mother must be able, for a reasonable period after the birth, to choose to keep the child. Regulations to this effect can, at the same time, result in serious problems. If a surrogate mother changes her mind, there may be severe conflicts that have an adverse effect on the child. It can also be negative for the child to know that the surrogate mother has kept him or her contrary to the will of the prospective, and perhaps genetic, parents. For the prospective parents such a course of events would be likely to be a tragedy.