One is I knew that technically by the law of New South Wales, we were breaking that law. [Another parent] kind of put my feelings in that regard at ease in saying "well, if they arrest you for it, they’re going to arrest hundreds of other people who have done exactly the same thing that you’re thinking of doing", which made me feel better about being more open about it. the main IVF doctor that I saw here in Sydney was very against offshore surrogacy. I mentioned it to her just to get her idea and she said ‘oh that’s terrible. These are women that are terribly exploited and you’ll go over there and you’ll get a disease and you’ll be in some terrible baby factory and what not’. Anyway, she said those things and then I just shut down that dialogue with her. The relationship a consumer has with a retailer will almost always be less intimate and trusting than the doctor–patient relationship. Not only are doctors in a relationship of trust with their patients, they are also under a professional duty to make the care of their patient their first concern. 18 It is unusual for a retailer to be under a duty to question a consumer’s choices, 19 whereas a healthcare professional should query a patient’s decision, if it seems to be at odds with her previously expressed wishes. 20 In Mordel v Royal Berkshire NHS Foundation Trust, 21 for example, Ms Mordel had initially decided to undergo all six standard prenatal screening tests, but then answered ‘no’ when asked whether she wanted the test for Down’s syndrome. Jay J found that the sonographer had been negligent in failing to question whether Ms Mordel, whose English was not perfect, had understood the question, given that it contradicted her earlier choice. Adjuncts in the IVF laboratory: where is the evidence for "add-on" interventions?' (2017) 32 Human Reproduction 485-491 (with Joyce Harper et al.)

Regulating Embryo Research: A Regulator’s Perspective’ in Mark Flear et al (eds) European Law and New Health Technologies(Oxford University Press, 2013) 275-281. Jill Peay'Mental Health, Mental Disabilities and Crime' in A. Liebling, S. Maruna and L. McAra (eds) The Oxford Handbook of Criminology6th Editon, (2017) [FORTHCOMING]

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

There are multiple differences between pre-contractual information disclosures to consumers and the process of gaining a patient’s informed consent to medical treatment. First, as Tallis explained in the context of a debate over whether patients should be redefined as customers: Should a patient choose a riskier procedure that may lead to the best possible outcome but with the greatest potential side effects, or the safer option where the patient knows the outcome will not be ideal? How should a patient choose between the psychological burden of a wait-and-see approach versus the potential complications and cost of a serious surgery? How does a patient weigh the cost in taking extended time away from work for recovery against a longer-term reduction in ability from not acting? 22

External resources

UK law and international commercial surrogacy: "the very antithesis of sensible"' (2016) 4 Journal of Medical Law and Ethics197-214. 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. In a similar vein, O’Neill has argued that the purpose of informed consent is not so much to ensure patients make autonomous choices, but rather to guard against deception and coercion. 105 According to Loewenstein and others, and with obvious resonance for patients as well as consumers, there are ‘serious limitations on the amount of information to which people can attend at any point in time. Bounded attention renders many disclosures useless because consumers ignore them.’ 52 Too much information can be as much of an obstacle to informed choice as too little. 53 Brown 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

Rethinking the Preconception Welfare Principle’ in K Horsey and H Biggs (eds) Human Fertilisation and Embryology: Reproducing Regulation (Routledge Cavendish, 2006) 47-67 Healthcare professionals may face particular difficulties in communicating about uncertainty and the risk of failure. 78 The tendency discussed earlier for people to be over-optimistic when presented with information about risk has also been studied in the medical context. When doctors express prognostic uncertainty, it is common for patients to ‘mistakenly place themselves in the most optimistic prognostic group’ 79; or to ‘view hazards as more risky for other people than for themselves’. 80 Where a treatment has a low chance of success, it is not necessarily sufficient for a doctor simply to alert the patient to this. Optimism bias and the fact that the doctor is willing to proceed with treatment in their case, may encourage patients to believe that their treatment is likely to succeed. 81 Death, Euthanasia and the Medical Profession’ in M Johnson, J Herring, B Brooks-Gordon, M Richards (eds) Death Rites and Rights (Hart, 2007) 37-55 Jill Peay'An awkward fit: offenders with mental disabilities in a system of criminal justice' in M. Bosworth. C. Hoyle and L.Zedner (eds) (2016) Changing Contours of Criminal Justice: Research, Politics and Policy(Oxford: OUP, 2016)Then [my partner] Wayne mentioned the word—the phrase ‘commercial surrogacy’. At that point Dr C said ‘no’. He just doesn’t want to know anything about it. He said don’t talk to me about that. It’s illegal, it’s—basically, the door was shut at that point here in Australia. Medical decisions may also be more difficult than the decision to buy a new product, involving, as Epstein puts it, ‘a series of complex trade-offs’: Jill Peay 'Mental incapacity and criminal liability: Redrawing the fault lines?' International Journal of Law and Psychiatry40 (2015) pp.25-35

Childless by circumstance – Using an online survey to explore the experiences of childless women who had wanted children' Reproductive Biomedicine and Society Online (2021) Vol.12 pp.44-55 (with Dilan Chauhan and Joyce C. Harper) 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. 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: 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: Yeah, Umar has already cut out the pictures and cropped them. [Laughs] So yes we will tell the child who they are. Like I said we’ll probably inform the egg donor or just message her on Facebook to say thank you and this is what you’ve done for us. We want to keep in touch somehow if you’re happy to. But I guess that’s her call. But yeah, we’re more than happy to do that.For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more. Compensating Egg Donors' in Sumi Madhok, Anne Phillips and Kalpana Wilson (eds) Gender, Agency and Coercion (Palgrave, 2013) 181-194. 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. Withholding and withdrawing life-prolonging treatment and the relevance of patients’ wishes: reforming the Mental Capacity Act 2005' in White, Ben P. and Willmott, Lindy, (eds.) International Perspectives on End-of-Life Law Reform: Politics, Persuasion and Persistence. Cambridge Bioethics and Law. (Cambridge University Press, Cambridge, 2021) pp.232–249