Developments in the Human Fertilization and Embryology - Case Study Example

Criticism of the Human Fertilization and Embryology Bill “… we encountered many areas of genuine moral conflict, areas where it could not truly be said that the law represents a general consensus of what acts should or should not be punished. in such cases, it is our view that the law should not attempt to be the arbiter of moral values, but should take a neutral stand” (Lord Devlin1977 report of the Royal Commission on Human Relationships). The Human Fertilization and Embryology Bill was recently introduced into the Parliament in 2007 after a public consultation in 2005.The Bill aims to amend and update the existed legislation pertaining to assisted reproduction and embryo research (the original Act was the Human Fertilization and Embryology Act 1990) taking into account the recent developments in the Human Fertilization and Embryology research and development. Although still in its debating stage it has yet to be passed by both the House of Lords and the House of Commons and be subsequently ratified by the Queen and its anticipated date of passage is the year 2009.It was formerly known as the Human Tissue and Embryos Bill and in summary provides for a number new enactments which have proved controversial and thus the reason for the delay in the passage of the Act. In summary the Bill is aimed at regulating the conception,birth and growth of all the human embryos conceived outside the human body,the conception and growth of the hybrid or inter-species embryos which have been created from a combination of human and animal genetic material for research .The Bill will ban any kind of gender selection of the offspring for non-medical reasons.The Bill will provide for and retain the former duty for the court to account for the the welfare of the child in providing fertility treatment,but there will no longer be a reference to the “need” for a “father” .The Act makes some landmark changes to family law by recognizing the rights of same sex couples to become legal parents of embryos which come under the definition of this Act.That is they are a product of IVF(artificial insemination) or donated eggs or embryos.There seems to be considerable flexibility in the former restrictions on the use of data collected to allow for better research in the future.Last but not the least the Act provides for a increased for legitimate embryo research activities which are still subject to regulatory controls under the anticipated Act. The Bill was long over due to the technological achievements in the regulation of assisted reproduction and embryo research.Until this Bill the current applicable law remained the Human Fertilisation and Embryology Act 1990) which was widely criticised being based on outdated laws which could not be reconciled with the fast pacing world of science.This can be seen by the controversy created in 1997 when the question of the ethical legal legitimacy of human cloning arose (after the debut of the celebrity cloned sheep Dolly) there was a world wide uproar as to its scientific and ethical implications. However the step was much lauded by the science community as to the uses of the DNA.(It should be borne in mind that cloning technology cannot be restricted to producing identical genetic twins of another organism and it can broadly be classified as recombinant DNA technology or DNA cloning, reproductive cloning, therapeutic cloning.) However the experiment was a failure and Dolly died in 2003 after terrible bodily conditions like lung cancer and crippling arthritis. Dolly was able to live almost a decade and have children the natural way. Dolly was a result of reproductive cloning or "somatic cell nuclear transfer" (SCNT), whereby the geneticists are able to transfer DNA from the nucleus of a donor adult cell to an egg whose nucleus, and thus its genetic material, has been removed. This is a useful study as now the scientists are considering therapeutic cloning based on this study by cloning and organs for transplants. However modern science is still facing challenges in this field and it has been reported that such attempts have failed with in minutes of initiation. There were proposals for a while asking for the utilisation of genetically modified pigs from which organs suitable for human transplants could be transplanted.(xeno-transplantation.) In this vein the Bill addresses the controversy pertaining to such hybrid cloning techniques.This is one aspect of the Bill that sparks much controversy as the government was initially reluctant to allow for such research after the fate of Dolly’s failed experiments and the conservative lobbyists were expecting a complete ban on the creation of embryos made by fusing human and animal cells. The Bill has sparked further controversy with its lack of an ethical premise or accompanying literature or Guidance similar to the Warnock Report which accompanied the original 1990 Bill. There are a host of ethical, moral and social issues which need to addressed with in the Bill which have been a subject of academic debate for the previous two decades particularly the query whether we can allow the concept of parenthood to transform into legal responsibility, rather than being based upon a biological relationship .On a positive note the bill allows for the HFEA(Human Fertilization and Embryo Authority) to introduce arrangements to expedite the relevant important medical research more quickly. It is worth discussing at this point how the Bill will affect the other statutory enactments pertaining to family and medical law before delving into a discussion of the ethical and moral premises at risk here.The current Bill is based upon The Human Fertilisation and Embryology (Quality and Safety) Regulations (SI 2007/1522) implementing the European Union Tissue and Cells Directive. Where as the original 1990 Act regulated the creation, keeping and use of embryos outside the human body and the storage and use of gametes to create embryos and made a number of activities mandatorily licensed it prohibited the placing of human embryos or gametes in a woman and restricted itself largely to fertility treatment but now the bill is all set to extend these to non-medical fertility services. Controversially enough the fertility services are gaining a rather commercial aspect to them due to the Bill allowing them to be advertised and sold even online “for the purpose of assisting women to carry children, but which are not medical, surgical or obstetric services.”(see explanatory notes of the Bill).This will potentially even include the web based business concerns allowing a “Fast food” kind of delivery for donated sperm for self -insemination. . The Bill amends the concept of an Embryo and Gamete in the S.1 of the 1990 Act so as to ensure that the Act applies to all live human embryos regardless of the manner of their creation, and to all live human gametes (eggs and sperm). The Bill has retained the definition of the “live human embryo” but due to scientific advances there is an assumption this does not only include embryos “created” by fertilization.The Original 1990 Act excluded certain types of embryos created artificially by the combining together human and animal gametes, or human embryos altered using animal DNA or animal cells. These were not called embryos but categorised under the section 4A of the 1990 Act as “inter-species.The Bill under what will be 1(6) after the passage of the Act gives the secretary of the State the mandate to expand the definitions of “embryo”, “eggs”, “sperm” or “gametes”, in the light of further scientific developments. The Bill will amend a number of other statutes like Children Act 1989 to allow the same se parent to have parental responsibility for a child(Clause 43).The Bill also has far reaching consequences for disclosure of information pertaining to congenital disabilities under the Congenital Disabilities (Civil Liability) Act aswell as for maintenance under the Child Support Act 1991 and the Adoption and Children Act 2002.The Bill also amends the .Mental Capacity Act 2005 (Clause 39 ) to clarify that the provisions of the Mental Capacity Act 2005 do not enable a consent under the Human Fertilisation and Embryology Act 2008 to be made on behalf of another person. The main controversies thus pertain to the question of Hybrid Embryo’s,the changing notion of the biological and legal parents and siblings and finally the much resented “abortion” clause.The licenses for the production of such embryos were already in place before the Bill but now there seems to be an open field for the scientists to experiment with the likes of part human –part animal embryos (a chimera like combination),Transgenic embryology and even true hybrids. However the Bill is careful not allow such a hybrid embryo to be allowed to develop beyond fourteen days and be implanted in a human or animal womb.Despite this carefully inserted clause and the arguments in the favour of the better studies in the interests of curing lethal diseases the argument is that this crosses the limits of law and ethics in a society.Then we have the issue of the need of a father no longer being a welfare issue of the child.This makes sense for same sex female couples trying to start a family but this will distort the traditional notions of the family home.This also means that there will be deep psychological and sociological impacts upon the society in terms of the missing “father figure”.1Equally controversial is the use of “Saviour siblings” which allow the use of the cells from the artificial sibling babies babys bone marrow or umbilical cord are used to treat the older child. This is a potentially life saving treatment but it distorts the notions of “humanity” and rights of the embryo to a complicated degree.The danger is that this will cause sex discrimination in the future as it can facilitate sex selection for the babies.Finally the Bill continues with the controversial debate on Abortion where as it is expected and being debated whether the time for these can be reduced to 20 weeks, from 24. Some Jurisprudential and Moral perspectives in the light of the case law It has yet to be seen how the courts will reconcile the new Bill in their judgements. There has always been a historical and judicial tussle between law and morality which goes right back to the Roman times with ancient writings suggesting that the law givers and the judges of a society should determine what is right and wrong. The diagram above presents the dilemma in a paradoxical way. Facing the unavoidable gulf between law and morality the judiciary is faced with the process of “applying the law”. One of the most controversial areas of jurisprudence then becomes the still unresolved dilemma of whether morality and law should overlap during judicial and legal reasoning or should be regarded in isolation. For philosophers like Plato there is a very close connection between law and morality as true justice is indispensable to human well-being. The field of ethics has often criticised legal arrangements and how the mechanical application of law provokes ethical and moral injustice.2 The courts have often responded rhetorically that “this is a court of law not a court of morals” as in the case of Re A 3 (Children) (Conjoined Twins: Surgical Separation) where the parents of six week old Siamese twins, Mary and Jody,(M and J) appealed against a court order granting the NHS the authority to perform an optional surgical separation .The case seemed like classic example of the Dworkinian notion of hard cases making bad law where Ward L.J stated.4 "The sanctity of life doctrine is so enshrined as a fundamental principle of law and commands such respect from the law that I am compelled to accept that each life has inherent value in itself however grave the impairment of some of the bodys functions may be. ” 30  Consider the case of Queen v Dudley and Stephens5 where three sailors of a shipwrecked crew decided to murder and eat the Cabin boy, after starving for a month and pleaded in their defence that they had no other course open to them. Lord Coleridge, the Chief Justice said:  "Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it.....”6 More relevant to our embryology discussion is the attitude of courts to unwanted children and their maintenance.It is interesting to see whether the Bill when passed as an Act will reflect the subjective pro-life moral views of the judges as in the case of McFarlane v Tayside HB7 which set aside what was settled law for almost two decades 8.It was held that a woman could not recover for maintenance costs for wrongful conception and wrongful birth as this was purely an economic loss.9The legal reasoning behind this case is interesting as three of the five Law Lords relied on the principle of distributive justice while the rest argued that its would not “fair, just and reasonable” to let the woman claim. The reliance was heavily on morality unlike the Re A case, where Justice Ward was very clear in saying that “This is a court of law and not a court of morals”. As Dickens10 notes, "Underlying judicial refusal to award damages to cover costs of rearing a healthy child... is the view that all human life is a gift or blessing... However, this celebration of children denies the compatible social and legal reality that many conscientious, responsible couples do not want children either at all or at particular times" (Dickens 1990, p 87). It is yet to be seen what kind of approach will be taken by judges in these cases to come.Various matters of interpretation arose even under the 1990 Act. In R v. Secretary of State for Health, ex parte Bruno Quintavalle (on behalf of Pro-Life Alliance) 11 and Quintavalle (on behalf of Comment on Reproductive Ethics) v. Human Fertilisation and Embryology Authority12 where the Court of Appeal and House of Lords faced numerous conflicts in determining whether emerging technologies came within the regulatory framework.(in the context of defining embryos and saviour siblings) . At the same time much guidance can be gleaned from recent case law like the Dickson v United Kingdom 13which concerned surrogacy in a foreign domicile context.The ECHR gave some enlightening views on Parental responsibility orders in the context of non biological parenting.Similiar issues pertaining to in-vitro fertilisation and the right to life and to respect for private and family life were high lighted in Evans v United Kingdom14 Other cases have included the like of WARF/Stem cells15.R. (on the application of Smeaton) v Secretary of State for Health16; Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) Court of Appeal17 and R. v Human Fertilisation and Embryology Authority Ex p. Blood Court of Appeal18 . This essay has discussed all the different strokes involved in the current and future ethical dilemmas which will be presented by this Bill .On a concluding note it is possible to imagine Dworkin’s Hercules (who might be shaking his head in approval and disapproval over every such case for an infinity) to be confused as to the moral and ethical dilemmas posed in the 21st century..On the other hand the law has to reflect the changing morality of the society which can be gleaned from the dilemmas posed by the current Bill. References Department of Health, 2005,Government Response to the UK Stem Cell Initiative Report and Recommenda – tions-http://www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/StemCell/temCellGeneralInformation/StemCellGeneralArticle/fs/en?CONTENT_ID=4124082&chk=5mbZjS The Human Fertilisation and Embryology Bill (2007) Warnock 1984 Committee of Inquiry into Human Fertilisation and Embryology (M Warnock, chair), Report of the Committee of Inquiry into Human Fertilisation and Embryology (1984) (Cmnd 9314). JA Thomson et al. 1998 ‘Embryonic Stem Cell Lines Derived from Human Blastocysts’ (1998) 282 Science 5391, 1145 - 47. Sir Liam Donaldson 2000 ,Chief Medical Officers Expert Group Reviewing the Potential of Developments in Stem Cell Research and Cell Nuclear Replacement to Benefit Human Health (Sir Liam Donaldson, chair), Stem Cell Research: Medical Progress with Responsibility (2000) http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicy ‘Epigenetic Studies of Preimplantation Embryos and Derived Stem Cells’ HFEA Research Licence No R0145 (Newcastle Centre at Life). M Stojkovic et al. ‘ 2004 , Growth and Applications of Human Embryonic Stem Cells’ (2004) 128 Reproduction 3, 259 - 67. Only one other ES cell line has been successfully derived in the United Kingdom, at Kings College London [S Pickering et al. ‘Preimplantation Genetic Diagnosis as a Novel Source of Embryos for Stem Cell Research’ (2003) 7 Reproductive Biomedicine 3, 353 - 64]. ‘In Vitro Development and Implantation of Normal Human Pre-Implantation Embryos and Comparison with Uni- or Poly-Pronucleate Pre-Embryos’. HFEA Research Licence No R0026 (St Marys Hospital London). D Kennedy ‘Editorial Retraction’ (2006) 311 Science 5759, 335 (see also ‘Hwang Accepts Faked Clone Blame’ BBC Online 4 July 2006 http://news.bbc.co.uk/1/hi/world/asia-pacific/5144082.stm ). Hwang et al. 2005 Pluripotent Human Embryonic Stem Cell Line Derived from a Cloned Blastocyst’ (2004) 303 Science 5664, 1669 - 74; WS. Hwang et al. ‘Patient-Specific Embryonic Stem Cells Derived from Human SCNT Blastocysts’ (2005) 308 Science 5729, 1777 - 83. R Brownsword (2002) Stem Cells, Superman, and the Report of the Select Committee’ (2002) 65 Modern L Rev 4, 568 - 87 at 580. Bahadur G (2002) Death and conception. Hum Reprod 17, 2769–2775. Batzer FR, Hurwitz JM and Caplan A (2003) Postmortem parenthood and the need for a protocol with posthumous sperm procurement. Fertil Steril 79, 1263–1269. Human Fertilisation and Embryology (Deceased Fathers) Act (2003), UK. Jones HW and Cohen J (2004) Chapter 5: Cryopreservation. Fertil Steril 81 (Suppl 4), S23–S26. Kerr SM, (1997) Postmortem sperm procurement. J Urol 157, 2154–2158 .Baier, K. (1971)Ethical pluralism and moral education in C. Beck et al., Moral education. Toronto: University of Toronto Press, and.Law, Morality and Religion in a Secular Society. By Basil Mitchell (London: Oxford University Press. 1967. Pp. ix q- 141 Legislative technique and human rights: the sad case of assisted suicide, Crim. L.R. 2003, Jan, 3-12,. Disputes between parents, immunisation and the welfare of the child (Case Comment),: Med. L. Rev. 2003, 11(3), 377-380,.T Human Fertilisation and Embryology: Regulating the Reproductive Revolution (Publication Review), Med. L. Rev. 2002, 10(1), 105-107 Dickens, B (1990) `Wrongful birth and life, wrongful death before birth, and wrongful law in McLean, S (ed) Legal Issues in Human Reproduction (Aldershot: Dartmouth) 80. Cameron-Perry, JE (1999) `Return of the burden of the "blessing" 149 New Law Journal 1887. Cane, P (1997) The Anatomy of Tort Law (Oxford: Hart Publishing). .Donnelly, M (1997) `The Injury of Parenthood: The Tort of Wrongful Conception 48 Northern Ireland Legal Quarterly 10. Symmons, CR (1987) `Policy Factors in Actions for Wrongful Birth 50 Modern Law Review 269. .Dworkin,R 1985,A Matter of Principle (1985) “Is there really no right answer in hard cases? (1978) 11Blackwell Publishing Co., 1996) Websites 1. http://www.dna.gov/basics/biology/ 2. http://www.biochem.uwo.ca/meds/medna/doublehelix.html 3. www.biotechnologyonline.gov.au 4. http://www.ornl.gov/sci/techresources/Human_Genome/elsi/forensics.shtml 6. http://www.ornl.gov/sci/techresources/Human_Genome/elsi/cloning.shtml 7. http://edition.cnn.com/interactive/health/0108/cloning.timeline/content.html Read More