Sperm preservation in children: a prescription for consistency with both child protection and the criminal law

People under the age of 18 with cancer sometimes require treatments that will render them infertile. It may therefore be necessary, during the brief interval between diagnosis and the commencement of cancer treatment, to offer them the opportunity to produce sperm, through masturbation, for cryopreservation.

The purpose of this article is to provide a framework for justifying this as a clinical activity, and avoiding it being construed as a sexual activity under the terms of the criminal law. Of equal importance, the article puts into place measures to ensure that this clinical activity is entirely consistent with the safeguarding principles of child protection. Although written with specific regard to the law in England and Wales, the points of conflict with national, federal and state laws that both protect children and proscribe criminal activities will resonate in many jurisdictions. The common law has yet to address the potential conflict between sperm donation and safeguarding children, since no charges are yet laid. However, the conflict is leading to disquiet amongst paediatric oncologists, heightened by the rising importance of child protection within an increasingly risk averse environment.

Obtaining sperm for cryopreservation from boys with cancer is not a straightforward process. At the outset, it is acknowledged that the patient group incorporates a range of ‘children’; from boys who are entering puberty, to young people approaching 18 who are otherwise indistinguishable from adults. Add to this a wide variation in their background and experience, and it will be appreciated that the group is heterogeneous. Nevertheless, while clinicians recognize this diversity, the applicability of the criminal law in this context turns only on the age of the patient.

An assessment has to be made as to whether it is likely that the boy will be able to ejaculate. This is related to pubertal development rather than age. However, when cancer is diagnosed, patients are invariably anxious and often feeling ill, creating a situation where even a sexually active person may not be able to ejaculate. In such circumstances, the expectation that they will produce a specimen in such alien circumstances is likely to compound their distress.

If the patient wishes to pursue fertility preservation, he needs to know exactly what it will involve, and it must be at this stage that a careful history is taken about his experience and understanding of masturbation, and informed consent obtained.

Procurement of the semen sample is usually by masturbation on site at a licensed ¹ fertility or andrology unit. It is well recognized that pornographic literature is usually supplied by the fertility unit to aid orgasm and ejaculation. ² A Code of Practice ³ stipulates that clinics make specific provision for children and young men who wish to bank sperm but this only covers issues of access to information and consent and makes no mention of access to pornography. The harm that could result to a child or young person from being exposed to pornography might be ameliorated by discussion with clinicians or other professionals after the procedure is finished, although such counselling is not invariably provided at present.

Some sperm banks provide pornographic material to minors. ⁴ It has been shown that pornography is advisable to aid ejaculation in men being asked to provide a semen sample in a fertility setting. ⁵

Statute provides a duty to safeguard and promote the welfare of children ⁶ (applicable to NHS Trusts), and to investigate whether significant harm ⁷ has occurred.

From a wider perspective, ‘Working Together’ ⁸ provides comprehensive recommendations in relation to the training that is required for health professionals' whose work will bring them into contact with children. From the perspective of those charged with safeguarding children in the hospital setting, these duties are likely to extend to preventing paediatric patients' exposure to pornography. If they have been victims of sexual abuse, sexual imagery may further traumatize them, and there will be children whose past history of abuse is unrecognized. In taking all reasonable measures to safeguard children, clinicians (or Trusts) responsible for assisting sperm preservation in boys could be anxious, that providing pornographic imagery to facilitate masturbation may be construed as illegal.

But it is the Sexual Offences Act 2003 (SOA 2003) that contains specific provisions. An adult commits an offence if he intentionally causes a person less than 16 years to engage in a sexual activity, ⁹ with a separate and additional offence of abusing a position of trust ¹⁰ if in a clinical setting.

Although an offence is committed by causing a person less than 16 years to watch a sexual act or to look at sexual imagery, ¹¹ this only occurs when the adult who is causing the child to view these activities is doing so for his own sexual gratification.

What is the legal position of the clinician who encourages a person less than 16 years old to ejaculate for cryopreservation? The SOA 2003 was not drafted with the intention of prohibiting this particular activity; albeit one that has sexual reproduction as its eventual goal. However, as it stands, the Act quite clearly proscribes any adult inciting or causing sexual activity by a child.

Masturbation for the purposes of sperm cryopreservation could be construed as a ‘sexual activity’. From the perspective of clinicians' striving to assist the boy in the preservation of his fertility, this is simply a clinical activity, without any of the nuances generally associated with sexuality.

In the event that masturbation for the purposes of sperm cryopreservation is construed as a clinical activity, a prosecution on the basis of the SOA 2003 is neither likely to succeed, nor is it likely to be considered by the CPS to be in the public interest to prosecute a healthcare professional acting in this role. Such a conclusion is supported by the SOA 2003, ¹² since the ‘circumstances and purpose’ of the activity is subjected to the judgement of the reasonable person in determining whether the activity is considered ‘sexual’.

A further issue to consider is the qualified right to a private and family life that is provided by statute ¹³ which may also support a clinician in their decision to provide material to a minor for these purposes, since it could be argued that a failure to assist children in preserving their sperm could amount to a breach of the Human Rights Act 1998. Article 8 of the Human Rights Act 1998 is a relevant consideration in terms of addressing whether this facility should be offered to children in this situation. Article 8 establishes a qualified right to private and family life. It could be argued that in not providing children with the opportunity to preserve their sperm in this way, Article 8 may be breached. For some children, the use of pornographic material may be essential in achieving this. The only alternative is mechanical extraction; a painful, invasive and unnecessary procedure where the sample can be achieved through masturbation. Furthermore, guidelines from NICE ^14,15 concerning children and young people with cancer, combining with others on fertility assessment and treatment, provide a powerful mandate for discussing the potential impact of cancer therapy on their fertility, and the options for its conservation.

It can be argued that the Article 8 rights, when combined with this professional guidance, creates a duty for clinicians to ensure that these patients are given every opportunity which leads to successful banking of sperm.

Notwithstanding this, the Article 8 considerations act only to protect the child. They do not act as a defence that can be relied upon by clinicians after the event. Article 8 is a qualified right and to that end, the right to private and family life must be balanced against the clinician's duty to ensure that it acts in accordance with the law (which is necessary in a democratic society in the interests of public safety, for the prevention of disorder or crime and the protection of health or morals of others). On this basis, a child's rights under Article 8 should be respected only in so far as this does not amount to a criminal act and that the child (or others) does not suffer some other harm as a result (psychological).

But CPS deliberation is preceded by the involvement of the police and social services. With a duty to investigate possible crime and safeguard children, these services are obliged to respond to a complaint which may augur crime or child abuse. The social services' benchmark for child abuse is whether there has been significant harm. By comparison, the benchmark as to whether a potential crime has been committed is the Sexual Offences Act 2003.

It is possible that a previous victim of abuse, could misconstrue the activity that the fertility services subsequently ‘incited’ him to undertake; or that bereaved parents, angry and frustrated at their loss, might strike out at a potentially vulnerable aspect of the service that had ‘failed’ them; or that a vengeful dismissed employee might ‘raise concerns’ over boys masturbating in clinical areas. Complaints from any of these sources might potentially resonate with a social worker, or a police officer, and at the very least enquiries, interim suspensions, and publicity ensues.

Fertility and paediatric oncology services need to provide a uniform approach to managing boys in whom sperm cryopreservation may be appropriate. As a matter of policy, all children and young people admitted into the oncology services need to be checked to see whether they have a child protection plan. For those who are thus identified, and in whom sperm banking is considered, great care needs to be taken to avoid offering them pornography which may compound the harm caused by any previous abuser.

Whether identified as having a plan of not, where the child is considered to be competent to make a decision about both receiving the pornographic material and the giving of a sperm sample, ³ his consent should be obtained prior to being offered pornography. Invariably, the competent child should be strongly encouraged to seek his parents' advice; consistent with Lord Fraser's approach ¹⁶ however, disclosure to the parents without the competent child's consent could amount to a breach of confidentiality. In relation to those children who are not considered to be competent to make a decision about both the receiving of pornographic material and the giving of the sperm sample, a decision as to what is in the best interests of the child will need to made in close consultation with the child's parent(s)/legal guardian. Healthcare professionals should consider carefully (in close consultation with the child's parents) whether the child should be supplied with the pornographic material. In particular, the likely benefit to the child in receiving such material (and indeed the need for such material) should be weighed against the possible risk of harm to the child that could result in being exposed to the images (particularly where that child is closer to 13 years of age).

The reason and justification for the decision to offer pornographic material to the child for the purposes assisting cryopreservation, the process of obtaining consent, and the disclosure on which the consent is based, should be documented prior to the child being offered the material. The disclosure provided to the child or young person specific to the use of pornography, together with other supporting patient information, should be in a prescriptive format, which is delivered to the child and/or parents by trained staff that are aware of child protection issues.

Healthcare institutions should develop local protocols to follow on a case-by-case basis and that this protocol should be ratified as part of their local Safeguarding Procedures arrangements. ¹⁷ Local joint safeguarding arrangements are mandatory in respect of all matters affecting child protection, and the protocol should cover the issues below.

The procedure for referral, and the justification for the practice

It must be explicit from the outset that the whole process of sperm collection and storage is solely for the benefit of the child. The referral from the paediatric oncologist should include a statement that the patient is Gillick competent and that he understands what masturbation is. This then ensures that he knows exactly how he is expected to produce the sample. Few religions or cultures are likely to consider masturbation as an inappropriate or wrongful activity in this context. However, in some circumstances, the objections may result in the risk that sperm preservation could be abandoned. Professionals dealing with fertility preservation in children should become familiar with any religious or cultural reservations that a family might have. This will enable them to encourage the patient and his family to seek religious advice, rather than to abandon the project without further discussion.

Capacity, consent, and the initial consultation

Guidelines should be drawn up for discussions with the patient and his family, together with the age range that should be offered this facility. Providing he is competent to consent to taking part in this process, no lower age limit should be imposed on a child who has reached the appropriate stage in pubertal development.

Where the patient's consultation takes place can play a large part in his emotional state and should be taken into account. The child should be encouraged to have a parent or support person with them during the consultation, but also given opportunity to ask questions without that person there. The presence of a parent may add embarrassment to the situation and once the parent leaves the room he may find it easier to listen and ask questions. Both the patient and his parents will be offered counselling as part of the decision-making process, as well as subsequent to the decision being made. A fertility counsellor is accessible at any point during decision-making or the storage process.

The child should be provided with the DVD ¹⁸ ‘Whack to the Future’ by the Teenage Cancer Trust to give information surrounding the reasons for sperm banking. The child should also be given written information surrounding sperm banking that is aimed at younger patients.

Consultation with a member of the fertility team

After all consents are obtained, it should be made clear that ejaculates are small and the pot will not necessarily end up full; and that it is common to not produce a sample. The child should be given clear instructions where to leave the sample after production.

Specimen production room

The room should be secure and private. The patient should be told that he has no need to hurry, and that no one will disturb the room until a time which is agreed in advance. Pornography, in the form of a stimulating magazine should be provided. The magazine should be placed in an envelope and the child should be told what's inside it so there is no ambiguity. Certainty over where the material will be kept provides important evidence that this will not be accessible by other more vulnerable and younger children.

Staff training

It is necessary to ensure that staff involved have undergone child protection training. Trained staff will be more equipped to identify any potential issues concerning previous child abuse, or other risk factors whereby the provision of such material may cause harm if given to the child. This training will also support and protect staff in terms of justifying their role in supplying pornographic material to a child in a therapeutic environment. However, it must be recognized that for those working in the fertility services, children and young people banking sperm before chemotherapy will constitute a small fraction of their overall activities. To train this group of professionals in an effective way, despite their limited contact with this group of patients, will be a significant challenge.

Conclusion

The development of a formal framework for this clinical activity will minimize the risk of criticism (thereby protecting staff involved) and will also ensure interests of the children are safeguarded appropriately. It is anticipated that provided these steps are followed, there will be sufficient justification that the ejaculation is a consequence of clinical advice and activity.

If fertility services unanimously define minors' production of sperm for cryopreservation as a clinical, rather than sexual, act; and put appropriate measures in place to protect the children and young people concerned, the chances of prosecution are low. However, this is remains an unsatisfactory situation. Consideration should be given to obtaining a declaration from the Family Division of the High Court that such practices are clinical, rather than sexual. Consideration of the Article 8 arguments might weigh heavily in any court considering declaratory relief.

Nevertheless, statutory amendment would be required to put this clinical activity beyond the reach of the criminal law.