Column

Saving the Human Fertilisation and Embryology Act?

‘Law marches with medicine, but in the rear and limping a little.’

This insight from an Australian judge sums up the recent career of Human Fertilisation and Embryology Act 1990. The act is a patchwork of prohibitions and regulations, overseen by the Human Fertilisation and Embryology Authority. However, it suffers from blind spots likely to beset any legislative attempt to channel and control medical progress. It seeks the middle ground between liberal and restrictive positions, and is based on the scientific knowledge available in 1990.

Anti-abortion groups, dissatisfied with the compromise, have waged guerrilla war against the Act in the courts over the past few years. Ironically, their line of attack has been opened up by breakthroughs like cell nuclear replacement (CNR), which creates the risk of human cloning, as well as the potential for new cures.

The government banned reproductive cloning in 2001. However, conscious of the UK’s £50bn bioscience industry, it sought to keep open the possibility of therapeutic CNR, subject to control by the HFE Authority. Which is where the courts come in.

In November 2001, the Pro-Life Alliance managed to convince the High Court that the 1990 act did not apply to CNR. Mr Justice Kay read section 1, which states that the act only applies to embryos created by fertilisation, literally. Since CNR precisely does not involve the mixing of sperm and egg it cannot be said to involve fertilisation, and is therefore wholly unregulated in British law. A new statute, preceded by an acrimonious public debate on the ethics of stem cell research, would be necessary.

But in March 2003 the House of Lords came to the rescue. They looked beyond the literal meaning of section 1 and purported to divine the intention of parliament when it passed the act. Its broad purpose, they found, was to protect all embryos, no matter how they were created, so CNR has to be covered by the act.

However, this conclusion creates more problems than it solves. The ‘intention’ to regulate CNR is entirely fictional, since the procedure was impossible at the time the act was passed. It cannot be known whether licensing or outright prohibition would have been preferred. The whole scheme of the act presumes fertilisation; no one can know what specific measures would have been taken with regard to CNR. Though they deny it, the Lords have usurped the powers of parliament by up-dating the terms of the act.

In such a controversial area it is surely desirable that change be effected democratically. Legal fictions supported by a presumption in favour of government policy cannot be the right way to address issues of human identity and human rights. If the act is growing obsolete and vulnerable, it should be replaced.