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Lionel Cohen Lecture: Playing God: The Regulation of Reproductive Medicine
Published online by Cambridge University Press: 04 July 2014
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007
Footnotes
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Independent Adjudicator for Higher Education. Former Chair of the UK Human Fertilization and Embryology Authority; former Principal, St. Anne's College, Oxford University.
References
1 The tussle between religious forces and democratic ones in this field is made clear by the comment of Pope Benedict at Easter 2006: “There is a move to reinvent mankind, to modify the very grammar of life as willed by God…to take God's place without being God is insane arrogance, a risky and dangerous venture.” The same opinion was voiced in England when the license for PGD offered to the clinic that treated the Hashmi family was challenged as illegal by CORE, a group fundamentally opposed to any form of interference with the embryo at any stage (R on the application of Quintavalle v. HFEA [2005] 2 All ER 555.) CORE stated that the reason they challenged the HFEA in court over the use of PGD for tissue typing was not to obtain a pronouncement on whether the technique was right or wrong in itself but to make the point that such a policy decision should be made by a democratically elected legislature, not by an unelected organization, namely, the HFEA. The gesture was too late because in 2001-2 the British Parliament voted strongly in favor of extending the law to cover research on embryos for the purposes of learning about and treating serious diseases.
2 Cmnd 9314, 1984.
3 Harris, John, Stem Cells, Sex & Procreation, 12 Cambridge Health Care Q. 353 (2003)CrossRefGoogle ScholarPubMed.
4 This compromise has been upheld by the House of Lords Select Committee Report on Stem Cell Research para. 4.21 (2002).
5 The grounds were that the statutory definition did not appear to include embryos created by processes that do not involve the union of egg and sperm. CNR does not involve sperm in the creation of the embryo. R v. Secretary of State for Health ex p Quintavalle [2003] UKHL 13. The embryo is defined in s.1 of the HFE Act 1990 as a “live human embryo where fertilisation is complete.”
6 HFE (Research Purposes) Regulations 2001.
7 March of Dimes Global Report on Birth Defects (2006); Human Genetics Commission (U.K.), Genetics and Reproduction in the 21st Century (2003).
8 Spriggs, M., Lesbian Couple Create a Child who is Deaf Like Them, 28 J. Med. Ethics 283 (2002)CrossRefGoogle Scholar.
9 No insult is intended to the disabled in striving to achieve a child with the normal complement of senses and faculties. There is no opprobrium against mothers who refuse abortions even though the fetus has been diagnosed as disabled, despite the cost to society of the disabled baby once born. In Britain very premature and disabled babies may be kept alive at the insistence of the parents, even though the doctors would choose not to and regardless of the cost. The case of baby Charlotte Wyatt was in the British headlines in 2006, just such a baby, deprived of its faculties, but kept alive at the insistence of the parents. When the baby unexpectedly became stronger and was released from the hospital, it turned out that the parents were not willing to receive her because their marriage had ended, and the child had to be taken into care and kept at state cost. No principled objection has been raised to this outcome.
10 Currie, Edwina, The Ambassador (1999)Google Scholar.
11 The Council of Europe Convention on Human Rights and Biomedicine, Article 18, provides that where the law allows for embryo research it must ensure adequate protection for the embryo and that the deliberate creation of embryos for research is prohibited. Cloning is prohibited and this is reinforced by the Charter of Fundamental Rights of the EU. There are few ratifications. This is because in England and some other countries acceptance of the research has moved on well beyond the European declarations, affected as they are by religious susceptibilities and history. There appears to be no Jewish prohibition on getting stem cells from donated embryos or on performing research on embryos. Jews are of course very sensitive about the bad use of eugenics, and also appreciate that we are all made differently, but all in the image of God. So the Jewish attitude is likely to be that stem cells should be used to cure, but not to enhance, to save a life but not to differentiate.
12 Embryo Protection Act 1990; Gottweis, Herbert, Stem Cell Policies in the US and in Germany, 30 Policy Stud. J. 444 (2002)CrossRefGoogle Scholar.
13 Medically Assisted Reproduction Law, 40/2004.
14 Planned Parenthood v. Casey, 505 US 833 (1992).
15 Public Law Number 144-99, title I, par. 128, 110 Stat. 26, 34, 1996, governs the situation.
16 Stem Cell Research and Cures Act, supported by the voters of California, termed “Proposition 71.”
17 Jones, D.G & Towns, C.R., Navigating the Quagmire: the Regulation of Human Embryonic Stem Cell Research, 21 Hum. Reproduction 1113 (2006)CrossRefGoogle ScholarPubMed.
18 E.g., PGD, ICSI, frozen egg use.
19 Cases in footnotes 1 and 5 supra; Evans v. Amicus Healthcare [2005] Fam. 1 (a man's right to withhold consent to IVF treatment); “R (on the application of the Assisted Reproduction and Gynaecology Centre,” “HFEA,” “R,” “HFEA ex p Blood.” [1999] Fam. 151 (permission to use sperm taken without his consent from a dying/dead man). Recent decisions concerning fertility treatment under the HFE Act have been affected by the introduction into British law of the European Human Rights Convention by the Human Rights Act 1998. This gives greater weight to individual wishes. Nevertheless, human rights law does not support an absolute right to have children or to be supplied with medical assistance to do so.
20 Scott, Rosamund, Choosing between Possible Lives: Legal and Ethical Issues in PGD, 26 Oxford J. Legal Stud. 153 (2006)CrossRefGoogle Scholar. The state interest was spelled out in the case of Dickson v. UK (ECHR 18/4/06 App. 44362/04). In this case a prisoner was refused the right to artificial insemination of his wife while he was in prison. The argument that society allows children to be born to single persons in poor circumstances was not regarded as sufficient to entitle the prisoner to achieve something similar. This was because the state was asked to become an active accomplice and participant in the conception. “I believe a responsible state to be right to require of itself standards higher than those beyond its control in the free procreation market,” said Judge Bonello. In Israel, Larissa Trimbobler was granted the right to artificial insemination by her husband Yigal Amir, who is in prison for life. O'Neill, Onora, Autonomy and Trust in Bioethics 58 (2002)CrossRefGoogle Scholar; Harris, John, Rights and Reproductive Choice, in The Future of Human Reproduction 5 (Harris, John & Holm, Soren eds., 1998)Google Scholar; Robertson, John A., Children of Choice (1994)Google Scholar; Dworkin, Ronald, Freedom's Law 104 (1996)Google Scholar.
21 FH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661.
22 The characteristics of potential gamete donors are available on the Internet, although whether their descriptions match the reality is another issue. It has even been pointed out that in an unregulated market, an embryo could be split, and once one of the twins has been born and the other embryo frozen, the frozen one could be offered for sale knowing what its twin looked like ( Annas, George J., Some Choice 11 (1998)Google ScholarPubMed).
23 Annas, George J., The Shadowlands: the Regulation of Human Reproduction in the US, in Cross Currents ch. 7 (Katz, Sanford N., Eekelaar, John, & Maclean, Mavis eds., 2000)Google Scholar.