Older and wiser

News on 17 January 2010 that Susan Tollefsen, a 59-year-old retired special needs teacher, was being considered for private IVF treatment at the London Women's Clinic in Harley Street, London '“ subject to the clinic's ethical committee's approval '“ has generated a huge ethical snowstorm about the rights and wrongs of creating pensionable mothers, the efficacy of the assisted reproduction regulatory regime concerning setting age limits for potential parents and the impact on children of those older parents.

Neither the original Human Fertilisation and Embryology Act 1990 (HFEA 1990) and its 2008 equivalent (the HFEA 2008) nor the most recent incarnation of the Code of Practice (CoP) (the 8th edition, effective on 1 October 2009) expressly stipulate an upper age limit for IVF. Indeed, arguably no upper age limit is even impliedly stated. That said, the pivotal and controversially amended (by HFEA 2008) welfare of the child principle, enshrined in section 13(5) of the 1990 Act, now provides: 'A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for supportive parenting) and of any other child who may be affected by the birth.'

Thus, arguably the future welfare of the child could potentially be compromised by being brought up by a mother in her 60s unable to cope with an energetic and demanding child.

The HFEA statutes do not define what is meant by the welfare of the child, but paragraph 8.7 of the CoP provides that those 'seeking treatment are entitled to a fair hearing' and that the licensed IVF clinic must undertake the assessment of the welfare of the child in 'a non-discriminatory way' and that: 'In particular, patients should not be discriminated against on grounds of gender, race, disability, sexual orientation, religious belief or age.' This suggests that patients must be assessed for treatment on merit, individually on a case-by case basis, and not judged on belonging to a category; i.e. 50 or over, and hence automatically excluded from accessing IVF treatment.

Under paragraph 8.15, the CoP clinics are told they should refuse treatment if it concludes that any child who may be born is 'likely to be at risk of significant harm or neglect'.

The factors listed in paragraph 8.10, while not exhaustive, do not directly or indirectly refer to an older mother (however that is defined) being a factor leading a child to be born to experience 'serious physical or psychological harm or neglect', or to 'an inability to care throughout childhood for any child who may be born'. The factors listed include the woman or her partner having previous convictions relating to harming children, child protection measures taken regarding existing children, violence or serious discord in the family, drug/alcohol abuse, and mental or physical conditions.

There has been one unsuccessful challenge in the courts concerning refusal of IVF on the basis of the age of the woman, namely R v Sheffield Health Authority, ex p. Seale (1994) 25 BMLR 1, where a 37-year-old woman was refused NHS IVF. The Sheffield HA justified this decision on their policy to only give IVF to women under 35, who had a greater chance of a live birth than 37-year-old women (and Mrs Seale had a child already). This case, unlike Tollefsen's, was concerned with 'free' NHS IVF, where resources are very limited/finite. Indeed, the National Institute of Clinical Excellence (NICE) recommended in the NHS that all PCT's provide one (initially they had recommended three) IVF treatment cycle to women aged 23-39 who are infertile, although some PCT's still do not even offer that!

Ethical questions

Critics might argue that giving IVF to post-menopausal women or even women approaching 60 commodifies children to the whims of the potential older mother to the detriment of the welfare of the child and that this is selfish, unnatural, repugnant and unacceptable.

However, older mothers have the significant advantage of experience and maturity, generally possess financial and emotional security and invariably are utterly committed and focused on being a good parent (clearly demonstrated by investing enormously emotionally and paying considerable sums of money for IVF treatment). If they have given a fully informed consent to the treatment under section 13(6) HFEA 1990 and the CoP, and thus are fully aware of the possible bad side effects '“ for example, multiple births, low birth weight, possible infant mortality and maternal morbidity etc. '“ and receive IVF in a HFE authority, and in a licensed clinic, then why should society arrogantly and in nanny-state fashion discriminate against them in such a blatantly unfair and prejudicial way and deny them this wonderful life-giving gift?

The contrasting stories of Rajo Devi, the Indian woman who after 50 years of trying unsuccessfully to have a baby, then had one at 70 with IVF, and that of Maria Carmen del Boussada, the world's oldest IVF mother at 66, who tragically died of cancer two years after giving birth to twin sons, highlight the uniqueness of each case involving older mothers. So many 'natural' children are unwanted or born into terrible circumstances in the UK, nevermind the world. Why single out, moralise or pontificate about older mums?

The appropriate ethical question ought to be are you good enough to be a mother, rather than are you too old to be one. Questions about age limits for would-be mothers are ethical smokescreens preventing us from addressing the real major issues with IVF; that primarily three quarters of IVF is available privately only (i.e. if you can afford it financially) and the other quarter (NHS) is available on the basis of a postcode lottery.