Medical Law: Text, Cases, and Materials

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In contrast to surrogacy, the Australian prohibitions on commercial trading in gametes are far more specifically worded, criminalising only the giving and receipt of valuable consideration, rather than potentially implicating anyone involved in ‘facilitating’ the practice. This has meant that some fertility doctors are willing to recommend overseas egg donation and we found that some even facilitate shared care, with the provision of scans and tests domestically before the woman travels, as well as follow up care. Thus, if Dian had told her fertility doctor that she was travelling to receive paid egg donation rather than to pursue commercial surrogacy, she would be likely to have received domestic medical assistance and advice. In a parallel vein, general practitioners (who are not covered by the same ethical guidelines as fertility specialists) were reported by our interviewees to be assisting patients with blood and semen tests in preparation for overseas surrogacy, as well as with prescription medications and blood tests in advance and pregnancy tests post-travel for those receiving egg donation abroad. Legalising assisted dying: cross purposes and unintended consequences’ (2018) 41 Dalhousie Law Journal 60-91.

Some of our interviewees from Australian jurisdictions where criminal prohibitions on commercial surrogacy have extra-territorial effect took a calculated gamble. Isaac and his partner Gordon entered into a surrogacy arrangement in Thailand. They understood that they were breaking the law but believed that, because so many other families had not been punished or detected, that they too would be unaffected: Thirdly, the purpose of pre-contractual disclosures may be different from medical disclosures in two important ways. First, although, as Howells points out, ‘regulatory policy is no longer fixated with the idea of a malevolent trader trying to con consumers but, rather, focuses on the asymmetries of information between trader and consumer’, 33 retailers are nevertheless trying to sell their products and services to consumers. If retailers are under an obligation to disclose certain information to potential consumers, they may deliberately include it in their ‘small print’ terms and conditions, which they know are seldom read. 34

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A woman who learns … that her lifetime risk of breast cancer is ‘12%’ … needs to be made aware that ‘12%’ is not a literal representation of her own ‘true’ risk but a figurative expression of scientists’ confidence based on the aggregated outcomes of individuals whose characteristics are similar—but not completely equivalent—to her own. 77 Medical Law : Text, Cases, and Materialsoffers all of the explanation, commentary, and extracts from cases and key materials that students need to gain a thorough understanding of this complex topic. When healthcare professionals tell patients that their risk of chronic pain is ‘small’, 82 or that their condition is ‘treatable’, they should not assume that their patients’ understanding of these words is the same as theirs. To a healthcare professional, ‘treatable’ may simply mean that there is some treatment available, while patients may hear that their condition can be cured. As Batten and others explain: After years of unsuccessful IVF in Australia, Leah travelled to Greece to undergo IVF and egg donation. She explained that her GP in Australia was helping her: Some participants were also clear that they valued the service provision of commercial providers, not only to themselves, but also to the surrogate or egg donor. Gerry, who had used a surrogacy agency in Canada said:

With Jonathan Herring and Sally Sheldon, ‘Would decriminalisation of abortion mean deregulation?’ in Sally Sheldon (ed) What would it Mean to Decriminalise Abortion in the UK? The Evidence (Policy Press, 2020) 57-76 Assisted Conception and Surrogacy in the United Kingdom' in J Eekelaar and Rob George (eds) Routledge Handbook of Family Law and Policy (Routledge, 2014) 189-200.Abortion: Medical Paternalism or Patient Autonomy?’ in Abortion: Whose Right? (Hodder and Stoughton, 2002) 1-15 A gap between what matters to experts and what matters to patients is also evident in relation to the law, including but not limited to criminal prohibitions, citizenship and the rules of legal parentage. For example, in our study, it is striking how few intended parents of children born through surrogacy had sought legal formalisation of their relationship. Tom, who had undertaken surrogacy in India said:

Crucial to this ‘behavioural critique’ is the recognition that the failure to understand disclosures is not, as is sometimes assumed, confined to people who are especially vulnerable. Even if information disclosures are more likely to be used by ‘the more affluent, well-educated middle-class consumers’, 48 the tendency to misunderstand disclosures and misread information, is certainly ‘not limited to the uneducated and unintelligent’. 49Brown P, Stahl D, Appiah-Kusi E, Brewer R, Watts M, Peay J, et al. (2018) 'Fitness to plead: Development and validation of a standardised assessment instrument'. PLoS ONE13(4): e0194332 It would be possible to regard reproductive travel as an aberration, relied upon in extremis by people who are prevented, either by law or de facto, from accessing reproductive services at home. In response to the increasing numbers of people travelling for reproductive purposes, enabling more people to access local fertility services might therefore be a plausible and laudable regulatory objective. 61 But while we would support measures to improve access to services, not least because these might also meet the needs of those who cannot afford to travel, we would like to suggest that we should also be interested in what local fertility providers and regulators can learn from the experiences of reproductive travellers. Extensive past experience in consumer protection suggests that standard consumer ‘informed consent’ techniques fail. They are not read nor used, and they are beyond most people’s care or understanding… People do not pay attention to standard forms, neither long nor short, in plain language or in legalese, written or oral, separately signed or unified into one document, handed out in advance or ex post. 51 The seminal textbook for teaching any aspect of medical law...clearly written with a real depth of accessible analysis and a wealth of resources." - Caroline Chappell, Senior Lecturer in Law, University of Chester

It is, of course, important to recognise that patients’ appetite for information, and their understanding of it varies considerably. Not only are there differences between patients, but the same patient’s preferences may vary over the course of her lifetime, and in response to different illnesses. Patients who suffer from chronic conditions may ‘become experts in their own conditions and sometimes know more than generalists (such as their GPs) about symptoms and management options’. 71 At the same time, as Arvind and McMahon point out, there is evidence from patient survey data that other patients may struggle to understand or retain the information that they receive as part of the informed consent process. 72 Information about risk is notoriously difficult to understand, 73 and the way in which information is framed can be critical: if patients are told that 90% of people are alive five years after having an operation, they are more likely to consent than if they are told that 10% are dead. 74 Yeah, it would be much clearer for everyone what the boundaries are. I know that because you can’t offer not only compensation but even gifts, like technically you can’t even give them a bunch of flowers. Briefly stated, consumers have less information than traders and so have difficulty in making decisions that reflect their true preferences. There are not sufficient incentives for traders to volunteer information, so the law needs to require that the information be provided. Once this information is provided, consumers can protect their own interests by selecting the goods or services closest to their preferences. Harm will be reduced by ensuring goods and services are more likely to be in line with realistic consumer expectations based on reliable information. Avoiding problems through the consumer taking responsibility for his or her own purchasing choices must be a desirable objective. 41 In Hammarberg et al’s survey study of Australians travelling abroad for surrogacy, fewer than half of the 249 intended parents who responded had sought information from Australian IVF professionals—and of those who did, around one-third reported a negative reaction. 58 This was reflected by our interviewees. Cheryl said:I think I just really liked the way — I think we have covered this off before as well, but the agency is very respectful to the surrogate in what they call the fourth trimester, meaning, dealing with her effectively and caring — in a caring way about the fact that — how’s she’s going to feel post separation after the birth. I think for us, it’s really important to have a sense that we’re doing the right thing and that we’re not exploiting anyone.