Of course, there are multiple and significant differences between information disclosures which are made before a consumer enters into a contract with a retailer, and the information patients receive before they give consent to medical treatment. Consenting to surgery is indubitably not like buying a new phone. Doctors (and other healthcare professionals) owe professional obligations towards their patients which are unlike retailers’ contractual duties towards their customers. Information disclosures to consumers are also standardised, whereas doctors are under a duty to tailor information to the needs of the individual patient. Adjuncts in the IVF laboratory: where is the evidence for "add-on" interventions?' (2017) 32 Human Reproduction 485-491 (with Joyce Harper et al.) 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

Whose Death is it Anyway? Euthanasia and the Medical Profession’ (2004) 57 Current Legal Problems 415-442 Yeah, it would be much clearer for everyone what the boundaries are. I know that because you can’t offer not only compensation but even gifts, like technically you can’t even give them a bunch of flowers. As a result of these multiple differences, there are good reasons to be cautious about drawing too close an analogy between patients and consumers in the context of information disclosure. Of course, the people who may struggle to understand and use the disclosures that they receive as consumers are the same people who receive information from healthcare professionals when they are patients. But, as patients, the information they receive will be more tailored to their needs than the information they receive as consumers, and they will have an opportunity to talk to a specialist, who is furthermore obliged to make their care her first concern. Patients giving informed consent to medical treatment may therefore receive more useful information than consumers, and they will be able to place more trust in the information provider. As we see in the following section, however, contract and consumer law scholars do not tend to attribute consumers’ failure to understand and use information disclosures to the fact that information is either standardised or comes from an untrustworthy source. III. INFORMATION DISCLOSURES TO CONSUMERS Statutory regulation of PGD: unintended consequences and future challenges' in Sheila McLean Preimplantation Genetic Diagnosis: A Comparative and Theoretical Analysis (Routledge, 2012) 71-88. In addition to variation in patients’ appetite for and use of information, there is also variation in how much value they attach to information disclosures. Arvind and McMahon have pointed to evidence that what some patients value most in their pre-treatment encounters with doctors is not necessarily information about risks and alternatives 100; instead, patients might be more concerned about whether their health concerns are being taken seriously, and whether they are treated with compassion and respect. 101 Surveys of what matters most to patients often rank being able to trust healthcare professionals above the right to make autonomous decisions. 102 Interpersonal skills are important: patients want their doctors to be sensitive to the embarrassment of being naked in front of fully dressed professionals, to introduce themselves, and not to speak to colleagues over them, as if they are not there. 103Patients’ wishes and best interests: reforming section 4 of the Mental Capacity Act 2005’ in Lindy Wilmott and Ben White (eds) International Perspectives on End-of-Life Reform: Politics, Persuasion and Persistence (Cambridge UP, 2021) I mean Thailand didn’t have specific laws at the time. We were certainly aware that there [were] draft laws on the table, but at the time they didn’t have those laws. However through just common practice, we actually felt that the laws were quite protective of us, of doing surrogacy.

Assisted Conception and Surrogacy in the United Kingdom' in J Eekelaar and Rob George (eds) Routledge Handbook of Family Law and Policy (Routledge, 2014) 189-200. 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 While of course not all offshore providers necessarily commit much, or any, of their commercial fee into the level of service provision offered by Sally’s Canadian agency 29 (and many of our participants undertook egg donation and surrogacy abroad with no preparatory or follow up counselling), we draw on this contrast between a Canadian agency and an Australian clinic to illustrate that it is not the fee itself which determines whether practices are fair and non-exploitative—yet, the legality of surrogacy arrangements are determined solely by reference to this factor. A more responsive approach for law would be to ask: what practices are beneficial and how might they be facilitated (and perhaps also paid for) by a regime that seeks to avoid improper inducement or impaired consent? The relationship between medical law and good medical ethics' (2015) 41 Journal of Medical Ethics 41 (1): 95-98In our study, potential reproductive travellers had sought peer-to-peer information, advice and support from fellow members of internet forums and Facebook groups. This often involves users requesting information about other people’s experiences at specific overseas’ clinics or agencies, which fellow forum-users will answer. 48 As Tom says: 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] 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. 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

The Human Fertilisation and Embryology Act 1990 and Non-Traditional Families’ (2023) MLR (with Kirsty Horsey) Regulating Autonomy: Sex, Reproduction and the Family- co-editor, with Fatemeh Ebtehaj, Martin Richards and Shelley Day Sclater (Hart 2009) Optimism bias is not universal: Sharot has pointed out that ‘people with mild depression show no bias when predicting future events, and people with severe depression tend to expect things to be worse than they turn out’. 60 This, according to Sharot, leaves approximately 80% of the population who ‘expect the future to be slightly better than it ends up being’, a tendency which she describes as ‘one of the most consistent, prevalent, and robust biases documented in psychology and behavioral economics’. 61 As Howells has pointed out ‘the provision of information is one of the key tools available to enhance consumer protection’. 40 According to classical contract theory, information provision serves multiple desirable goals: 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.

Abstract

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. An underlying regulatory assumption is often that treatment at home is ‘better’ than the international alternatives. Implicit here is the premise that the law will best protect patients through discouraging international travel. Here, the patient experience diverges. It is clear that patients paying for treatment overseas feel as though they are more in control of their treatment, and that, in contrast to their experience of domestic fertility services, they do not have to be grateful for what they receive. Indeed, in many of our interviews patients have praised the standard of care they received overseas, considering it superior to that available at home. Opting out of local, regulated services is not necessarily always an unwelcome last resort then, but may have positive advantages for some patients. If this is the case, we should be interested in listening to what patients say is ‘better’ about treatment overseas, rather than just dismissing their accounts as wishful thinking. 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: 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

I think also a con of the altruistic system in general is that a really sort of fuzzy line of what can and can’t be considered a surrogacy expense. So you’re always sort of worrying like oh am I breaking the law by reimbursing this. There’s no real sort of set list of what you can and can’t pay for and I think that causes anxiety for surrogates as well.

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The Pregnant Body’ chapter in Ellie Lee and Mary Boyle (eds) Real Bodies(Palgrave, 2002) 115-132 (with Ellie Lee)