Extraterritoriality for cross-border reproductive care: should states act against citizens travelling abroad for illegal infertility treatment?

Underground Gamete Donation in Sunni Muslim Patients

This qualitative study focuses on the "underground" practices of Sunni Muslim physicians and patients who are performing and undergoing religiously prohibited third-party gamete donation. It is based on face-to-face interviews with two Sunni Muslim gynecologists and 25 Sunni Muslim women who underwent third-party gamete donation treatments and gave birth to a baby. The analysis of the interviews sheds light on patients' experiences regarding donation and explores the experiences of the gynecologists. The patients shared with us their inner conflict regarding childbearing using either donated sperm or a donated egg. They expressed a subversive attitude toward the religious authorities and the Islamic fatwa (religious ruling) that prohibits third-party gamete donation. The gynecologists provide fertility care involving third-party gamete donation despite Islamic religious prohibitions; in consequence, they suffer feelings of guilt for their actions. The study participants challenge accepted binary conceptions regarding the boundaries between religious laws and the desire to produce offspring, between what is allowed and what is forbidden, between guilt and happiness, and between the desire to maintain a marital relationship and the desire to comply with cultural-religious rules. Based on Gloria Anzaldua's theory of the borderlands, and the context-informed approach, this study underscores the importance of giving voice to Sunni Muslim patients who underwent third-party gamete donation treatments and contributes to a deeper understanding of their dilemma of finding a reproductive solution that does not run counter to religious values.

OUP accepted manuscript

STUDY QUESTION

What information and support should be offered to donors, intended parents and donor-conceived people, in general and in consideration of the availability of direct-to-consumer genetic testing and matching services?

SUMMARY ANSWER

For donors, intended parents and donor-conceived offspring, recommendations are made that cover information needs and informed consent, psychosocial implications and disclosure.

WHAT IS KNOWN ALREADY

Trends indicate that the use of donor-assisted conception is growing and guidance is needed to help these recipients/intended parents, the donors and offspring, navigate the rapidly changing environment in which donor-assisted conception takes place.

STUDY DESIGN, SIZE, DURATION

A working group (WG) collaborated on writing recommendations based, where available, on evidence collected from a literature search and expert opinion. Draft recommendations were published for stakeholder review and adapted where relevant based on the comments received.

PARTICIPANTS/MATERIALS, SETTING, METHODS

Papers retrieved from PUBMED were included from 1 January 2014 up to 31 August 2020, focusing on studies published since direct-to-consumer genetic testing has become more widespread and accessible. The current paper is limited to reproductive donation performed in medically assisted reproduction (MAR) centres (and gamete banks): donation outside the medical context was not considered.

MAIN RESULTS AND THE ROLE OF CHANCE

In total, 32 recommendations were made for information provision and support to donors, 32 for intended parents and 27 for donor-conceived offspring requesting information/support.

LIMITATIONS, REASONS FOR CAUTION

The available evidence in the area of reproductive donation is limited and diverse with regards to the context and types of donation. General conclusions and recommendations are largely based on expert opinion and may need to be adapted in light of future research.

WIDER IMPLICATIONS OF THE FINDINGS

These recommendations provide guidance to MAR centres and gamete banks on good practice in information provision and support but should also be considered by regulatory bodies and policymakers at a national and international level to guide regulatory and legislative efforts towards the protection of donors and donor-conceived offspring.

STUDY FUNDING/COMPETING INTEREST(S)

The development of this good practice paper was funded by European Society of Human Reproduction and Embryology (ESHRE), covering expenses associated with the WG meetings, the literature searches and dissemination. The WG members did not receive any payment. The authors have no conflicts of interest to declare.

DISCLAIMER

This document represents the views of ESHRE, which are the result of consensus between the relevant ESHRE stakeholders and where relevant based on the scientific evidence available at the time of preparation.

The recommendations should be used for informational and educational purposes. They should not be interpreted as setting a standard of care, or be deemed inclusive of all proper methods of care nor exclusive of other methods of care reasonably directed to obtaining the same results. They do not replace the need for application of clinical judgement to each individual presentation, nor variations based on locality and facility type.

^†ESHRE pages content is not externally peer reviewed. The manuscript has been approved by the Executive Committee of ESHRE.

Globalised quests for assisted conception: Reproductive travel for infertility and involuntary childlessness

The global movement of people across international borders to undergo assisted reproductive treatment is common, although there is little accurate data. In this article, we synthesise findings from our own empirical research on reproductive travel in addition to a review of clinical, ethical, legal, and regulatory complexities from studies on reproductive travel since 2010. Motivations for travel include legal and religious prohibitions; resource considerations; lack of access to gametes and reproductive assistors; quality and safety concerns; and personal preferences. Higher risks to mothers and children are associated with multiple embryo transfer and subsequent multiple and higher order pregnancies and the average older age of women undertaking reproductive travel. The potential exploitation of other women as providers of oocytes or surrogacy services, the lack of equity in access to assisted reproduction and the ambiguous legal status of children conceived from international reproductive travel are important ethical considerations. A range of significant legal issues remain given variable and limited international regulation. Scholarship on this trade necessarily engages with issues of power and gender, social inequities, global capitalism and the private decision-making of individuals seeking to form families. Research gaps remain given recent changes in the organisation, demands and destinations of the trade.

Being questioned as parents: An interview study with Swedish commissioning parents using transnational surrogacy

This study sought to explore how Swedish parents who had commissioned surrogacy abroad experienced the process of parenthood recognition. The study consisted of in-depth interviews with five couples and 10 individuals representing 10 additional couples who had used surrogacy abroad, mainly in India. The construction of motherhood and fatherhood in the Swedish system contradicts how parenthood is defined in the surrogacy process. This study found that the formal recognition of parenthood involved a complex and frustrating process where the presumption of fatherhood and step-child adoption as grounds for parenthood make people feel questioned as parents, negatively affecting parental welfare. Policy makers need to take into account the consequences of an unregulated situation regarding surrogacy, and focus more on the child-parent relationship when regulating surrogacy.

Cross-border reproductive care: an Ethics Committee opinion

Cross-border reproductive care (CBRC) is a growing worldwide phenomenon, raising questions about why assisted reproductive technology (ART) patients travel abroad, what harms and benefits may result, and what duties health-care providers may have in advising and treating patients who travel for reproductive services. Cross-border care offers benefits and poses harms to ART stakeholders, including patients, offspring, providers, gamete donors, gestational carriers, and local populations in destination countries. This document replaces the previous document of the same name, last published in 2013 (Fertil Steril 2013;100:645-50).

Regulation of Assisted Reproductive Technologies: Gains and Losses

Technology assessment and regulatory strategies have been proffered as ways of addressing concerns and problems arising from availability of certain medical technologies. Regulation especially is invoked as a remedy that can deliver several objectives—as a way of assuring quality care; as a way of preventing medical malpractice and negligence; as a remedy for market failure; as a way of improving performance and efficiency; and as a way of even achieving national health objectives or wider social goals such as equity and accountability. It is assumed that the key issues in regulation are its design and having proper monitoring and enforcement.

 The article reviews the regulations instituted to address issues arising from the use of reproductive technologies. Through such analysis, the article seeks to draw attention to the field of technology assessment and regulation in general as applicable to biomedical technologies, in a context of overall commercialisation of medical and health care.

Intended parents' motivations and information and support needs when seeking extraterritorial compensated surrogacy

Cross-border reproductive care (CBRC) is becoming increasingly common. Little is known about the motivations and information and support needs of people who cross borders to access surrogacy. This study aimed to explore: how those considering or undertaking extraterritorial surrogacy reach their decision; what other avenues they have considered and tried to have children; their sources of information and support; and perceptions of how others view their decision. Members of two Australian parenting support forums completed an anonymous online survey. Of the 249 respondents, 51% were gay men, 43% heterosexual women and 7% heterosexual men. Most heterosexual respondents had tried to conceive spontaneously and with assisted reproductive technology before considering surrogacy. Most respondents felt supported in their decision to try extraterritorial surrogacy by close family and friends. Surrogacy-related information was mostly sourced online and from other parents through surrogacy. Few sought information from a local general practitioner or IVF clinic and those who did reported IVF clinic staff were significantly (P < 0.001) more likely than other groups to communicate negative reactions to their decision to seek surrogacy. The apparent negative attitudes to cross-border surrogacy among health professionals warrants further research into health professionals' knowledge, beliefs and attitudes relating to surrogacy.

National self-sufficiency in reproductive resources: An innovative response to transnational reproductive travel

Transnational reproductive travel is symptomatic of insufficient supplies of reproductive resources, including donor gametes and gestational surrogacy services, and inequities in access to these within domestic health-care jurisdictions. Here, we argue that an innovative approach to domestic policy making using the framework of the National Self-Sufficiency paradigm represents the best solution to domestic challenges and the ethical hazards of the global marketplace in reproductive resources.

Implications for the NHS of inward and outward medical tourism: a policy and economic analysis using literature review and mixed-methods approaches

Background

The study examined the implications of inward and outward flows of private patients for the NHS across a range of specialties and services.

Objectives

To generate a comprehensive documentary review; to better understand information, marketing and advertising practices; examine the magnitude and economic and health-related consequences of travel; understand decision-making frames and assessments of risk; understand treatment experience; elicit the perspectives of key stakeholder groups; and map out medical tourism development within the UK.

Design and participants

The study integrated policy analysis, desk-based work, economic analysis to estimate preliminary costs, savings and NHS revenue, and treatment case studies. The case studies involved synthesising data sources around bariatric, fertility, cosmetic, dental and diaspora examples. Overall, we drew on a mixed-methods approach of qualitative and quantitative data collection. The study was underpinned by a systematic overview and a legal and policy review. In-depth interviews were carried out with those representing professional associations, those with clinical interests and representative bodies (n = 16); businesses and employees within medical tourism (n = 18); NHS managers (n = 23); and overseas providers. We spoke to outward medical travellers (46 people across four treatment case studies: bariatric, fertility, dental and cosmetic) and also 31 individuals from UK-resident Somali and Gujarati populations.

Results

The study found that the past decade has seen an increase in both inward and outward medical travel. Europe is both a key source of travellers to the UK and a destination for UK residents who travel for medical treatment. Inward travel often involves either expatriates or people from nations with historic ties to the UK. The economic implications of medical tourism for the NHS are not uniform. The medical tourism industry is almost entirely unregulated and this has potential risks for those travelling out of the UK. Existing information regarding medical tourism is variable and there is no authoritative and trustworthy single source of information. Those who travel for treatment are a heterogeneous group, with people of all ages spread across a range of sociodemographic groups. Medical tourists do not appear to inform their decision-making with hard information and consequently often do not consider all risks. They make use of extensive informal networks such as treatment-based or cultural groups. Motivations to travel are in line with the findings of other studies. Notably, cost is never a sole motivator and often not the primary motivation for seeking treatment abroad.

Limitations

One major limitation of the study was the abandonment of a survey of medical tourists. We sought to avoid an extremely small survey, which offers no real insight. Instead we redirected our resources to a deeper analysis of qualitative interviews, which proved remarkably fruitful. In a similar vein, the economic analysis proved more difficult and time consuming than anticipated. Data were incomplete and this inhibited the modelling of some important elements.

Conclusions

In 2010 at least 63,000 residents of the UK travelled abroad for medical treatment and at least 52,000 residents of foreign countries travelled to the UK for treatment. Inward referral and flows of international patients are shaped by clinical networks and longstanding relationships that are fostered between clinicians within sender countries and their NHS counterparts. Our research demonstrated a range of different models that providers market and by which patients travel to receive treatment. There are clearly legal uncertainties at the interface of these and clinical provision. Patients are now travelling to further or ‘new’ markets in medical tourism. Future research should: seek to better understand the medium- and long-term health and social outcomes of treatment for those who travel from the UK for medical treatment; generate more robust data that better capture the size and flows of medical travel; seek to better understand inward flows of medical travellers; gather a greater level of information on patients, including their origins, procedures and outcomes, to allow for the development of better economic costing; explore further the issues of clinical relationships and networks; and consider the importance of the NHS brand.

Funding

The National Institute for Health Research Health Services and Delivery Research programme.

Cross-border reproductive care: a committee opinion

Cross-border reproductive care (CBRC) is a growing worldwide phenomenon, raising questions about why assisted reproductive technology (ART) patients travel abroad, what harms and benefits may result, and what duties health care providers may have in advising and treating patients who travel for reproductive services. Cross-border care offers benefits and poses harms to ART stakeholders, including patients, offspring, providers, gamete donors, gestational carriers, and local populations in destination countries.

Judicial review of restrictions on gamete donation in Europe

The decision of S.H. and Others v. Austria vindicates the right of governments to enact restrictions on gamete donation against claims that these restrictions violate the guarantees of the European Convention on Human Rights. Van Hoof and Pennings in this issue predict that legal diversity on the question of gamete donation will persist in the wake of this decision and discuss how the decision itself is insufficiently protective of the private and family interests of individuals who seek reproduction-assisting medical treatment. This commentary discusses the difficult balancing work of the European Court of Human Rights, its questionable expansion of the margin appreciation doctrine in S.H. and Others v. Austria and how the decision might influence national courts in the future.

Legal perspectives on cross-border reproductive care

Global cross-border reproductive care (CBRC), and the challenges accompanying it, are here to stay. A recent issue of this journal devoted to CBRC provides an extraordinary array of insights into multiple facets, with a focus on the legal dimensions of practices by restrictive countries such as Turkey and Italy. The articles identify restrictive laws that challenge and create vulnerabilities for both citizens and providers involved in CBRC, and call instead for more modest and nuanced legislation and the closing paper presents a thoughtful and ambitious outline for a future research agenda. This commentary reflects on the implications of these legal dimensions, including their applicability to countries with more permissive CBRC policies, discusses three specific examples of legal concerns that have arisen in the USA and identifies numerous legal issues meriting future study. Together with the nuanced, more modest legislation recommended for restrictive countries, consistent legal and judicial principles for CBRC in permissive countries would respect varying perspectives on family building while attempting to address a central legal concern of CBRC, the protection of families, third-parties and providers. Any future agenda should include research and recommendations on the legal dimensions of CBRC in both restrictive and permissive countries.

Banning reproductive travel: Turkey's ART legislation and third-party assisted reproduction

In March 2010, Turkey became the first country to legislate against the cross-border travel of its citizens seeking third-party reproductive assistance. Although the use of donor eggs, donor spermatozoa and surrogacy had been illegal in Turkey since the introduction of a regulatory framework for assisted reproductive treatment in 1987, men and women were free to access these treatments in other jurisdictions. In some cases, such travel for cross-border reproductive care (CBRC) was even facilitated by sophisticated arrangements between IVF clinics in Turkey and in other countries, particularly in Cyprus. However, new amendments to Turkey's assisted reproduction legislation specifically forbid travel for the purposes of third-party assisted reproduction. This article outlines the cultural context of assisted reproductive treatment in Turkey; details the Turkish assisted reproduction legislation, particularly as it pertains to third-party reproductive assistance; explores Turkish attitudes towards donor gametes and surrogacy; assesses the existence and extent of CBRC prior to March 2010; and discusses some of the legal, ethical and practical implications of the new legislation. As CBRC becomes an increasingly pertinent issue, eliciting debate and discussion at both national and international levels, it is important to carefully consider the particular circumstances and potential consequences of this unique example.