Human Reproductive Technologies and the Law

A Joint Submission to the Science and Technology Committee inquiry by
the Catholic Bishops’ Conference of England and Wales
and the Linacre Centre for Healthcare Ethics

 June 2004

Executive Summary

Law exists to protect the innocent from unjust harm. It is appropriate, therefore, that legislators should take an active interest in assisted reproduction. The embryonic phase is the earliest stage in human life; accordingly the embryo is the possessor of rights and interests which need to be respected. Being vulnerable, dependent and unseen, however, the embryo is especially liable to having these rights and interests neglected or set aside. All the more important, then, that human lives at this stage be given the protection of the law.

We recommend that UK law be amended along lines similar to the provisions in recent Italian legislation. This prohibits both experimentation on and destruction of embryos, and the creation of embryos who will not be immediately transferred to the mother’s body. It also prohibits surrogacy and use of donor gametes.

At the very least, offspring should be given identifying information on their donor parents, and cells from those unable to give consent should not be used to create embryos. We would also urge that assisted conception be withheld from those who are not infertile or are not committed in marriage to a heterosexual partner.

While we have an in-principle objection to all non-sexual production of embryos, there is an urgent need for the law to protect women and children from at least the most serious harms which such production can involve.

Law and reproductive freedom

1.   We welcome the opportunity to contribute to the consultation of the Science and Technology Committee on Human Reproductive Technologies and the Law.[1]  Although we are not able to deal with all the issues mentioned in the terms of reference, we offer the following brief reflections, which we hope may be of some assistance. These do not exhaust our concerns regarding new reproductive technologies, but merely single out those concerns we believe the law should urgently address. While it is not the business of law to prohibit every moral wrong, legal intervention is called for in areas that involve, or can involve, particularly serious harm. Assisted reproduction is one such area.

2.   The terms ‘reproduction’ and ‘reproductive technologies’ properly include any process which results in the creation of a human zygote or embryonic human organism, regardless of whether that human life was created for pregnancy or for research. Thus all human cloning is ‘reproductive’, in that it results in an embryo. We do not accept the distinction put forward by those who try to differentiate between cloning for live-birth [‘reproductive’] purposes and cloning for destructive [‘therapeutic’] research. Clearly in the latter case it is inaccurate to use the term ‘therapeutic’, as the subject of the research does not benefit at all, but loses his or her life.

3.   Law exists to protect the innocent from unjust harm. A legislature that fails to protect the innocent has failed in its primary purpose. Given the potential, intrinsic to assisted conception, for violation of the basic rights of human beings it is vital that the law in this area be particularly robust. The rights of children to protection from physical and social harm – before and after birth – should be of paramount concern. In the same way, the rights of women to protection from unjust harm [for example, from being used as surrogate mothers or as mass-producers of ‘donor’ ova] should be recognized in law. Such practices do not merely harm those immediately involved, but affect society as a whole, which is encouraged in the progressive fragmentation of parenthood and loss of a sense of parental obligation. Increasingly, children are seen as the object of  ‘consumer choices’, rather than as new human beings to be accepted unconditionally.

4.   Assisted reproduction involves various branches of the health professions [that is, public bodies], and is offered by the NHS. It is in the interests of society as a whole that the activities of health professionals in this area be controlled, especially since public money is spent on IVF and similar procedures. Choices in assisted reproduction are not merely ‘private’, as is sometimes claimed. Even in the case of natural conception some prohibitions are accepted as part of the law: incest, for example, is prohibited. Nor does the law tolerate abuse of children after birth, regardless of how they were conceived.

5.   However, the law on reproductive technologies does not protect the rights of other children to immunity from deliberate attack, let alone their rights to a stable identity, access to their genetic parents, and so forth. In the case of abortion, the HFE Act permits abortion up to 24 weeks, and up to birth if the child is ‘seriously’ disabled. This is a major violation of the child’s right to immunity from deliberate attack, and the right of the disabled child, in particular, to immunity from lethally unjust discrimination. In the same way, the fact that the law allows lethal experimentation on embryos, and even their deliberate creation for this purpose, is a serious violation of the rights of those early human beings. 

Status of embryo

6.   Fertilisation is the origin of a human life, although some human lives originate through twinning;  i.e., later, asexual reproduction by an existing embryo. Recent evidence has confirmed the dynamic organization of the early embryo, the rapid activation of genetic information from the parents, and the fact that ‘polarity’ is present from the earliest stages of the embryo’s existence.[2] The embryo has, from the very beginning, a ‘front and a back’ and parts with specific functions:  he or she is never a ‘simple cell’ or group of undifferentiated cells. Differentiation does, of course, progressively occur in the course of development; for example, some cells are allocated to form the placenta, itself an organ of the embryo. Such changes are simply part of the maturation of one and the same living individual, who will go on developing after he or she is born. It is much to be regretted that, to judge from the debate that preceded it, the HFE Act was influenced by mistaken scientific and philosophical views on the nature of the embryo.

7.   If the human embryo is the same individual as the older human being, this has immediate moral implications. There is no such thing as a ‘subhuman human’: a human being/organism with subhuman moral status. Human status is not something we have to ‘earn’ by reaching some arbitrary level of functional ability. If fertilisation is, in the normal case, the origin of a new human individual – a life distinct from the parents -  that individual will have rights and interests from fertilisation onward in regard to his or her well-being. They have rights and interests of which they are unaware, just as newborn babies do. These rights and interests should not be entirely subordinated to the interests, or perceived interests, or desires or wants, of adult human beings.

Protection of embryos

8.   Our first concern is the protection of the human embryo from deliberate harm. We would therefore urge that the law be amended to correspond to the recently-enacted Italian law[3] on medically assisted procreation, to forbid the creation of embryos in greater numbers than will be immediately transferred to the mother’s body. Given the dangers of freezing for the embryo, we would urge that the law prohibit freezing except as a response to the unforeseen needs of existing embryos. The law should proscribe any plan to create and freeze so-called  ‘spare’ embryos: embryos should not be created for any other purpose than the immediate transfer of each embryo to the body of his or her mother.

9.   The law should above all prohibit the deliberate destruction of human embryos, including their destruction by means of non-therapeutic experimentation: a practice entirely ruled out by Italy and other legislatures. In the words of the Declaration of Helsinki  [revised 1975]  ‘In research on man, the interest of science and society should never take precedence over considerations related to the wellbeing of the subject’. Embryo research is ‘research on man’ – that is, on the human being – in his or her earliest stages. Given the embryo’s inability to consent, it is especially important that research should only take place if intended to benefit the embryo him/herself.

10.   It is deeply regrettable that, at a time when adult stem cells – though not cells from early embryos - are being used successfully in treatment,[4] research is being carried out on stem cells extracted from embryos who are destroyed in the process. Should any treatment eventually result from such exploitative procedures, this will create serious problems of conscience for patients and health professionals who object to the way in which those treatments were developed. Society should legally exclude all research that involves, or is closely linked to, the destruction of human embryos. Instead, we should promote research using stem cells from other sources:  research which leads to treatments all can accept, as they do not involve the sacrifice of human lives.

11.   The current regulation of human cloning remains highly unsatisfactory. The  Human Reproductive Cloning Act 2001 prohibits not cloning itself [by using an adult nucleus and an unfertilized egg]  but merely the transfer of the embryo clone to the body of a woman. This is wholly inadequate: it is cloning, not the gestation of clones, which should be made unlawful. It is true that cloning by embryo splitting [5] is unlawful; however, we would urge that this prohibition be extended to embryo splitting for diagnostic purposes, which also risks creating a twin of the embryo being tested.

12.   In any case, preimplantation genetic diagnosis, like all forms of ‘quality control’ of the embryo, should be legally excluded. While discrimination on the grounds of sex [e.g. by discarding embryos of the ‘wrong’ sex] should be excluded by statute, there are reasons no less serious to reject discrimination on the grounds of disability. Apart from the violation of the embryo’s rights, there are obvious dangers in sanctioning a procedure whose long term eugenic potential is profound, given likely advances in our knowledge of the human genome.

Provision of cells/gametes for the creation of embryos

13.   Cells from children should not be used to create embryos, whether for research or for birth. Children, including embryos and foetuses, are not property, and should not be made to be parents or ‘clone originals’ for the benefit of others. Furthermore,  the use of any gamete,  cell or cell-line to create an embryo should at very least be prohibited where the ‘donor’ of that cell or cell-line or gamete [including the embryo or foetus] has not given his or her consent. This prohibition should also apply to cases where the donor is an adult who has died by the time conception would occur, and to cases where the donor’s genetic material is transplanted to a patient as ovarian/testicular tissue.

14.   We have other concerns relating to the interests of those IVF offspring [a very small minority] who will survive to birth. These interests include an interest in a stable family environment, and in knowledge of, and rearing by, their own genetic parents. Research on offspring conceived through donor insemination has shown that many of these offspring are acutely conscious of the fact they have been deprived in advance of conception of half their genetic family.[6]   The new Italian law prohibits use of donor gametes, and also surrogate motherhood: a development we welcome. At the very least, the law should clearly state that offspring conceived using donor gametes will be given identifying information on their donor parents when they reach a certain age. The law, as in the case of adoption, should be retrospective, in view of the offspring’s needs and rights with regard to such information.

15.   In any case, we would urge that assisted conception not be provided to those who are not, in fact, infertile: for example, single women and lesbians should not be given donor insemination. Children conceived using donor gametes will be doubly wronged if they are deprived of both a genetic and a social father:  parents of both sexes are needed as role models, and generally to prepare the child for a world containing both men and women. Nor should assisted conception be provided to those who are not married: at the very least, it should be unlawful to create a child where the prospective social parents have not made the public commitment of heterosexual marriage. Despite the high rate of marriage breakdown, marriage is far more stable, and thus a far better environment for the child,  than is co-habitation.

Other moral concerns and matters of conscience

16.   These considerations do not exhaust our concerns with regard to assisted conception:  on the contrary, we have an in-principle objection to children being ‘produced’ by a technical procedure, rather than ‘received’ as a gift supervening on their parents’ act of love. We understand, of course, the desire to find ways of helping infertile couples, who deeply yearn for a child of their own. However, the production of human embryos in vitro, as the treatment of these embryos overwhelmingly demonstrates, promotes an attitude of willingness to reject ‘spare’ or ‘substandard’ offspring, in place of an interpersonal stance of unconditional acceptance. It is important that the integrity of this moral position is recognized, so that the HFE Act’s provision on conscientious objection to participating in any activity governed by the Act is retained and extended to any new provisions in the field.

17.   The embryonic phase is the earliest stage in human life; accordingly the embryo is the possessor of rights and interests which need to be respected. Being vulnerable, dependent and unseen, however, the embryo is especially liable to having these rights and interests neglected or set aside. A just society should, above all, exclude all deliberate destruction of the embryo or foetus and all use of him or her in lethal research, and indeed all similar provisions which make the embryo a chattel:  for example, in permitting his or her sale or purchase under certain conditions.

[1] This submission has been prepared by Helen Watt, the Director of the Linacre Centre, in consultation with John Finnis, Professor of Law and Legal Philosophy at the University of Oxford and Vice-Chairman of the Linacre Centre, and Anthony McCarthy, the Centre’s Research Fellow.

[2] Karolina Piotrowska and Magdalena Zernicka-Goetz, ‘Role for Sperm in Spatial Patterning of the Early Mouse Embryo’, Nature 409 [2001]:  517-521;  R.L. Gardner, ‘Specification of Embryonic Axes Begins Before Cleavage in Normal Mouse Development’, Development 127 [2001]: 839-847; M.A. Ciemerych, D. Mesnard, M. Zernicka-Goetz, ‘Animal and Vegetal Poles of the Mouse Egg Predict the Polarity of the Embryonic Axis, Yet are Nonessential for Development’, Development 127 [2000]: 3467-3474; K.Piotrowska, F. Wianny, R.A.Pederson, and M.Zernicka-Goetz, ‘Blastomeres Arising from the First Cleavage Division have Distinguishable Fates in Normal Mouse Development’, Development 128 [2001]: 3739-3748.

[3] As members of the Committee will be aware, Italy is a highly secular state with a [regrettably] liberal abortion regime, and its laws, including the new law on‘Medically Assisted Reproduction’ [February 2004]  cannot be thought to be in any way ‘confessional’ or ‘sectarian.’  Our present submission, too, is concerned only with principles and values which can and should be acknowledged and upheld in any pluralist society, as a matter of basic human rights and public reason.

[4] For information on successful treatments of human patients using ‘adult’ stem cells [including stem cells from umbilical cords] see www.stemcellresearch.org.

[5] It is worth noting that embryo splitting which is [near] symmetric – e.g. splitting a two-cell embryo into two new embryos – is particularly objectionable, in that it appears to destroy the original embryo in the act of creating twins.