WHO COULD DISAGREE that society ought to concern itself with the wellbeing of children? Child welfare stands with peace, justice and freedom as a goal that enjoys almost universal support.

Peace, justice and freedom, however, are what the philosopher Jamie Whyte calls “hooray words”. These are notions that everybody can cheer, without pausing to consider what they actually mean, how they might be achieved and at what acceptable cost. The welfare of children is different in just one respect. It is a hooray phrase of which the law has made a fetish, causing needless distress to thousands of infertile men and women for no tangible benefit.

Before a clinic can provide a patient with IVF, it is obliged first to consider the welfare of any children that may be born as a result. Like all good hooray policies, this sounds like the height of good sense. Successful fertility treatment, after all, has a living, breathing end product with interests and rights. How can it be wrong to take these into account before embarking on a procedure that could generate a life?

This clause, however, is one of the most unnecessary and damaging pieces of medical regulation in the book. It discriminates against people who are already coming to terms with one of the most devastating of all diagnoses. It forces doctors to make arbitrary judgments that fall far outside their professional expertise. The paperwork adds hundreds of pounds to treatment bills that already average £3,500 for each attempt to conceive. And there is no evidence that it actually protects children from harm.

The provision enshrines a concept in law that was last popular in the heyday of eugenics: that the State has a right to decide who should and should not become parents. Civilised societies no longer forcibly sterilise the mentally ill or disabled, and constrain the reproductive rights of convicted criminals only for as long as they are locked up. We do not vet fertile men and women before allowing them to have sex, even when they have a history of violence or drug abuse. Expectant mothers are free to smoke and drink during pregnancy, regardless of the risk to the foetus. Yet as soon as people need medical help to conceive, an entirely different standard is applied.

Defenders of the current law argue that this sort of discrimination is fine. Social services do it every day when assessing the suitability of parents who want to adopt. Children put up for adoption, however, are already alive. They are individuals who have become wards of the State, which has a corresponding duty of care. The putative children of the infertile do not exist even as embryos. Unless we believe in pre-existing souls queuing up in the ether to be born, they cannot have meaningful rights.

It is also wrong that intervening to allow conception changes the ethical calculus. No baby has ever been born to a single individual without the intervention of another, the provider of eggs or sperm. Surgeons can unblock fallopian tubes, or reverse vasectomies, without first having to check that their patient is going to be a decent mum or dad. It is only when fertilisation occurs outside the body that special rules apply.

These rules are humiliating to men and women who already have to grapple with the stigma and suffering of infertility, and add needless stress to a gruelling treatment process. Needless, because the system does not work. It is exceedingly difficult to predict what will be good for children who have yet to be conceived, and nigh on impossible to collect the evidence that is needed to make a balanced decision. Many GPs quite properly refuse to co-operate, citing patient confidentiality. The police can be consulted, but their advice can leave doctors with a judgment of Solomon. Should a convicted thief be approved for treatment? What about a reformed drug addict or a 40-year-old who had a Saturday night brawl in his youth? It all comes down to a subjective hunch.

The British Fertility Society estimates that this elaborate, costly and time-consuming vetting prevents the birth of about ten children each year. It is rather extreme to protect a child’s welfare by stopping it from being born, and also quite unnecessary. Most rejected patients have a medical issue such as psychiatric illness or drug abuse, and would in any case be turned down for treatment in accordance with doctors’ professional ethics. Social services can easily be alerted to the very few children that are thought to be at risk.

The 1990 legislation that imposes this well-meaning but misguided burden is under review. The Royal College of Physicians, the Royal College of Obstetricians and Gynaecologists, and the Commons Science and Technology Committee have all called for its end. So sensible a move, though, would go against all the Government’s instincts.

When Caroline Flint, the Minister responsible for IVF, addressed the Human Fertilisation and Embryology Authority conference this week, she insisted that “reproductive liberty” has to be balanced by “reproductive responsibility”. This sort of new Labour rhetoric is meaningless unless applied to every bedroom in the land, but the implication is pretty plain. Infertile couples cannot expect the same rights as everyone else: the welfare of their longed for, but still imaginary, children is too important. Hooray.

Mark Henderson is science correspondent of The Times

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