What we might describe as the Montgomery model of informed consent assumes that, following information disclosure and discussions with their doctor, patients will understand the risks associated with treatment, and any alternatives to it, and will decide whether to proceed after having considered this information, in the light of their values. 70 In practice, however, there is evidence that medical decisions are not always made in this rational, linear way. Patients may not understand what they have been told, and the information they receive may have little impact upon their choices. This should not be surprising. If psychologists and behavioural economists are right about the limitations on human beings’ reasoning capacities and their decision-making biases, it would be peculiar if these had no impact at all in other decision-making contexts. The donation of eggs for research and the rise of neopaternalism' in M Freeman (ed) Law and Bioethics (Oxford UP: 2008) 499-527 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. Extracts from a wide variety of academic materials ensure students acquire an overview of a range of different perspectives Essentially then, legal advice is ‘almost pointless’ for an unviable contract, which nevertheless is capable of going some way to protect the rights and liabilities of the parties throughout the arrangement.

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: The relationship between medical law and good medical ethics' (2015) 41 Journal of Medical Ethics 41 (1): 95-98 In contrast, a common theme among our interviewees is a rejection of the assumption that altruistic surrogacy is morally superior to commercial surrogacy because there are fewer financial incentives. Indeed, it was noted that there are aspects of altruistic surrogacy that might be described as coercive. For example, Beth had undergone a radical hysterectomy as part of her treatment for cervical cancer and, after an unsuccessful surrogacy arrangement in Australia, she travelled to California for an arrangement involving an egg donor and a surrogate mother. Beth found the assistance of the agency in California to be vital to the whole process. She was strongly critical of the Australian system and did not accept that altruistic surrogacy was less coercive than the commercial arrangements available in California: 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. 103

Medical Law: Text, Cases, and Materials (6th edn)

Adjuncts in the IVF laboratory: where is the evidence for "add-on" interventions?' (2017) 32 Human Reproduction 485-491 (with Joyce Harper et al.) Some of our interviewees from Australian jurisdictions where criminal prohibitions on commercial surrogacy have extra-territorial effect took a calculated gamble. Isaac and his partner Gordon entered into a surrogacy arrangement in Thailand. They understood that they were breaking the law but believed that, because so many other families had not been punished or detected, that they too would be unaffected:

Linda Mulcahy 'The Market for Precedent: Shifting Visions of the Role of Clinical Negligence Claims and Trials' Medical Law Review(2014) 22 (2) pp.274-290So I was quite devastated, but then she said that we should just go ahead with an egg donor. At this stage the whole [issue of an] egg donor had not even cropped up. [Wayne] wasn’t there, and she wanted me to make the decision right there and then. 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. 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) The Pregnant Body’ chapter in Ellie Lee and Mary Boyle (eds) Real Bodies(Palgrave, 2002) 115-132 (with Ellie Lee)

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. 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 Kai Möller 'Male and Female Genital Cutting: Between the Best Interest of the Child and Genital Mutilation' Oxford Journal of Legal Studies[online first] Regulating Non-Invasive Prenatal Testing: the view from the UK' (2014) 50 Japanese Journal of Law and Political Science 9-19.

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With Jonathan Herring and Sally Sheldon, ‘Would decriminalisation of abortion mean deregulation?’ in Sally Sheldon (ed) What would it Mean to Decriminalise Abortion in the UK? The Evidence (Policy Press, 2020) 57-76

Whose Death is it Anyway? Euthanasia and the Medical Profession’ (2004) 57 Current Legal Problems 415-442 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. The law and DIY Assisted Conception’ in Kirsty Horsey (ed) R egulating Assisted Conception (Routledge, 2015), 31-49 Medical Law: Text, Cases, and Materials offers all of the explanation, commentary, and extracts from cases and key materials that students need to gain a thorough understanding of this complex topic. To inform a more nuanced approach to the provision and regulation of fertility treatment, we must attend to the subjective experience of risk, quality, and care in CBR, especially when this involves what Angela Campbell calls ‘morally ambiguous’ or even ‘ostensibly self-injurious’ choices. 20 In this article, we suggest that it is impossible to properly evaluate the role of law in CBR without attending to its impact upon participants’ lived experiences, and that, in the light of a dramatic mismatch between law’s goals and reproductive travellers’ experiences of law, there may be grounds for some form of realignment. II. ALTRUISTIC OR COMMERCIAL: AN UNTENABLE DISTINCTION?

Medical Law: Text, Cases, and Materials (5th edn)

Because ‘the adoption of information obligations for traders is a measure that intrudes upon the freedom of the marketplace and party autonomy only to a small extent’, 42 ‘“empowering” consumers through information has become a singularly important element in the regulatory toolbox’. 43 Lauren also expressed a real sense of discontent about not being able to compensate her surrogate, saying: 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 Legalising assisted dying: cross purposes and unintended consequences’ (2018) 41 Dalhousie Law Journal 60-91. 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)