Medical Law: Text, Cases, and Materials

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In practice, de facto tolerance of the evasion of reproductive travellers may be inevitable; as one of Culley et al’s respondents put it: ‘what are you going to do, confiscate their passports?’ 40 But whether characterised as a pluralistic ‘safety value’ 41 or as out-and-out hypocrisy, 42 there is at the very least a mixed message being sent about the status of the extra-territorial prohibition of international commercial surrogacy. IV. INTERNET-ASSISTED REPRODUCTION AND THE UBIQUITY OF FACEBOOK 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’. 49 First, the distinction between so-called ‘altruistic’ and ‘commercial’ gamete donation and surrogacy is increasingly unsustainable in law and policy. 19 Further, this division of practices is not experienced as meaningful by many participants in CBR, and is openly rejected by some. 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: Some reported that fertility doctors were unwilling to provide any form of information at all. Dian, for instance, said:

As Purshouse has observed, by characterising patients ‘as capable adults responsible for their own choice’, informed consent cases appear ‘to be developing separate rules to those governing the rest of medical negligence’, 11 where judges continue to draw attention to patients’ vulnerability. 12 For the UK Supreme Court to draw an analogy between patients and consumers in the context of informed consent is also interesting given the increasing recognition that consumers fail routinely to understand and use information disclosures. One response to the issues raised by overseas travel is to try to educate people about the implications of undertaking CBR, by providing information about clinical standards of care and the legal status of children born from such arrangements. Counsellors and patient support group representatives interviewed by Culley et al in the UK, for example, thought the only feasible response to reproductive travel is to educate people, and ensure that ‘they go into it with their eyes open and fully aware of the implications’. 52 Central Issues sections at the start of each chapter outline the key concepts covered, and further reading sections at the end provide guidance on further sources for researchThirdly, 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 The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based on medical paternalism. They also point away from a model based on a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. 10

Secondly, pre-contractual disclosures are often explicitly intended to reduce or eliminate liability. Even if there is evidence that some patients think that by signing a consent form, they have waived their right to sue if something goes wrong, 37 the consent form is not a contract, and the patient is free to change her mind after signing it.Regulating Autonomy: Sex, Reproduction and the Family- co-editor, with Fatemeh Ebtehaj, Martin Richards and Shelley Day Sclater (Hart 2009) Rethinking the Preconception Welfare Principle’ in K Horsey and H Biggs (eds) Human Fertilisation and Embryology: Reproducing Regulation (Routledge Cavendish, 2006) 47-67 Review from previous edition This is the best text, cases and materials book on medical law around. It explains the law and ethical literature in an accessible manner while still being thorough. I cannot recommend it highly enough." - Dr Craig Purshouse, Senior Lecturer in Law, University of Liverpool Look, I was following what people were saying about contracts and to get the contract looked at … I think some of the advice that people have shared was it costs a lot of money to have your contracts looked at and it’s not actually legal or legally viable in Australia anyway. There’s no real — … So I didn’t actually — then I decided not to seek legal advice because I just thought it was almost pointless.