Warnock and its contested legacy in relation to donor conceived families: the case for regulatory reform

Abstract

A generation on from the Warnock Report, the regulatory system it proposed remains largely intact, despite significant changes in the fertility sector, legal culture and wider society. In this article, we trace Warnock's legacy, focusing on the context of gamete donor conception. Drawing on illustrative examples from the ConnectedDNA research project, we analyse two aspects of Warnock's proposals - its recommendation that gamete donors should be anonymous and its key assumption that only the 'triad' of donor, recipient(s) and donor-conceived people have an interest in receiving information about each other. The jettisoning of donor anonymity coupled with a questioning of Warnock's assumptions about the meaning of 'family', illustrate the challenges inherent in a key Warnock objective: to 'future proof' fertility law. Both the global market in gametes and embryos and the accessibility of Direct-to-Consumer Genetic Testing (DTCGT) technologies were wholly unforeseen by Warnock. Similarly, contemporary understandings of donation, families, kinship and relatedness exist in tension with Warnock's original assumptions and, thus, with the principles underpinning the legislative framework. Given this, we recommend three specific reforms to the regulation of donor conception: (1) an urgent review and reformulation of information-sharing provisions, particularly with regard to donor-siblings; (2) an expansion of counselling and support provisions for those affected by donor conception; and (3) the effective imposition of a global ten-family limit. More generally, we suggest that piecemeal and ad hoc reforms to the Human Fertilisation and Embryology Act 1990 have often appeared contradictory and have failed to grapple with the global nature of fertility practice. Thus, we conclude by arguing that a comprehensive review of the legislative framework is needed to create a system of legal governance which meets the needs of the donor conceived community and remains fit for purpose in the twenty-first century.

Keywords: Warnock Report; counselling; direct to consumer genetic testing; donor anonymity; donor conception; law reform.