Many newspapers have covered the story of a woman in her 70s in India giving birth to her first child after IVF treatment, as well as the subsequent backlash from other medics in India. We consider what the position would be in the UK, whether a similar situation could occur and the benefits of stricter regulation on sensitive areas of health care.
The press has reported that Daljinder Kaur gave birth after undergoing fertility treatment for two years. According to the Guardian newspaper, "there is no legal age restriction for couple who want to have IVF treatment in India, but the state-funded Indian Council of Medical Research advises against implanting embryos in women over 50."
Strictly speaking this is not entirely different from the position in the UK, although such a scenario is unlikely to happen here. The Human Fertilisation and Embryology Act 1990 requires that all providers of fertility treatment are licensed and regulated by the Human Fertilisation and Embryology Authority (HFEA). The clinic will need to assess if the patient's health will allow them to go through the treatment and pregnancy, which can be arduous. The Act requires that a woman may only be provided with treatment services if account is taken of the welfare of any child born as a result of the treatment, including the need for supportive parenting (this provision originally referred to "the need of that child for a father" but was amended in 2009). The HFEA provides further guidance on considering the welfare of the child, which specifies that any individual or couple undergoing treatment must be assessed to decide whether there is a risk of significant harm or neglect to any potential child.
HFEA Code of Practice 8 requires that those seeking treatment are subject to a fair assessment, without discrimination on a range of grounds including age. That said, it also requires that the assessment consider "circumstances that are likely to lead to an inability to care throughout childhood for any child who may be born". The Code of Practice states that treatment should be refused if any child born from the treatment is likely to be at risk of significant harm or neglect.
In practice, most clinics in the UK are reluctant to treat women beyond their mid-forties, although the usual cut-off for NHS funded fertility treatment is 43 as per the recommendations of NICE. There have, however, been examples of women being approved for treatment by UK clinics up to the age of 60. While the HFEA does not specify an age beyond which it would suspect the welfare of the child was not being considered, it may well take an interest in clinics where women significantly older than the average childbearing age were routinely being treated. The HFEA will also have regard to any failures to comply with the Code of Practice and in serious and repeated cases its Enforcement Processes could lead action being taken in relation to a licensed establishment.
The difference in approaches to regulation between different jurisdictions shows the competing interests at stake. Given the sensitive nature of fertility treatment, there are many people prepared to pay significant amounts of money to have the children they desperately want, and it will be tempting for many jurisdictions to regulate loosely in order to attract international clients who may struggle to be treated at home. At the same time, other jurisdictions have taken a more cautious approach to regulating what some consider to be an ethically charged area. The UK's approach has been towards flexible but robust regulation to appease public concern, as well as gain an international reputation for rigorous and safe treatment and research. The latest news coming out of India has clearly drawn criticism from some quarters, but may also draw more older individuals and couples looking to become parents.