Seeds of change

In an ideal world, egg and sperm donors would be motivated entirely by altruism. However, in reality, where demand greatly exceeds supply, offering limited expenses to donors arguably helps bridge the gap and throws an assisted reproductive lifeline to many desperate would-be parents.

Although on the government's hit list of public bodies, the Human Fertilisation and Embryology Authority (HFEA) is currently on the brink of one of the most important reviews yet of the laws governing this ethical minefield.

Its full and public consultation into the cap on expenses that can be paid to donors, as well as the number of families one person can donate to, is a welcome step. Radical measures are needed to increase the number of donors available in the sperm and egg donor pool in the UK, with the latest figures from the HFEA showing the number of people taking part is rapidly decreasing.

The ethical objections to paying for eggs or sperm '“ that it is exploitative, fosters unsavoury commercialisation and commodifies human life '“ are weakened by the fact that egg and sperm donors are currently paid a daily maximum of £61.28 and an overall limit of £250 for each course of donation. That is not to argue that a fully free and private market in buying and selling egg and sperm is the solution to the shortage of donated gametes '“ that would be too much of a descent down the ethical slippery slope for most people. But, sadly, there are demonstrable limits to altruistic donation.

As it stands

Section 12 of the HFEA 1990 states that it is a general condition of any licence granted under the Act that 'no money or other benefit shall be given or received in respect of any supply of gametes, embryos or human admixed embryos unless authorised by directions'. Violation of this provision, under section 41(8) of the HFEA 1990, is an offence, punishable on summary conviction by imprisonment up to six months, or a fine, or both.

Paragraph 13 of the HFEA Code of Practice fleshes out the dry bones of the skeleton Act, with paragraph 13.1 providing: 'Donors may be reimbursed all reasonable expenses incurred in the UK in connection with donating' '“ this means a standard-class rail ticket by the most direct route, for example. However, it adds: 'But not excessive expenses if these would be benefits in themselves.'

It requires that all expenses claimed should be directly linked to the process of donation, such as the cost of travel to the centre, or the cost of childcare during donation, and that donors may be compensated for loss of earnings up to the maximum amount: 'The centre should ensure that donors understand that donating gametes and embryos is voluntary and unpaid and that they may be reimbursed only for expenses and compensated for loss of earnings.'

A further safeguard built into the regulatory regime to promote accountability of clinics and reassure the public there will be no commercialisation or creation of a free market in buying and selling gametes is paragraph 13.10 of the CoP, which states: 'The HFEA expects centres to keep a central log of all expenses and reimbursement for loss of earnings paid to donors. The log should be made available to HFEA inspectors, and should contain' certain information, including the date and amount of payment, the donor's identity, the reason for payment and receipts/evidence that show expenses incurred and loss of earnings.

The practice of egg sharing, whereby a woman gets free or discounted IVF in return for donating some of her eggs (arguably a benefit in kind and controversial), is lawful.

The magic number?

The current law limiting the number of families per donor is contained not in the HFEA 1990 or 2008, but in the CoP, which specifies that the licensed clinic should 'take appropriate steps' to ensure that the limit of ten families per donor will not be exceeded.

The logic behind this 'ten strikes and the donor is out' policy was flagged up by the HFEA's sperm, egg and embryo donation review of 2005 (the SEED report), which noted that 'some people worry that the widespread use of gametes from a few donors could lead to consanguinity' but that, nevertheless, 'our research found no evidence that this risk would be significant given the relatively small numbers involved and given the large and mobile populations typically served by UK clinics'.

'The principal concern seems to be the effect on donor-conceived people (and their parents) of knowing that there might be a large number of people who are genetically related to them,' states the report, adding: 'As donors are free to set upper limits themselves, we can assume that their concerns can be addressed in this way.'

The HFEA public consultation will take place between January and March 2011.

Decisions taken on analysis of its findings will then be included, presumably, in the latest edition of the CoP or in HFEA directions.

The ongoing regulation in this fast-moving area of science shows no sign of slowing down. Is the government's decision to give the proven 'fit for purpose' legal and ethical compass that is the HFEA the chop a cut too far?