English law – evolution of law and the embryo

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Origins

Pre 20th century

20th Century

A new person

IVF

Assisted reproduction and the law

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Origins

Research on the human foetus has only been realistically possible for a few decades. Moral and legal issues arising from such research is underpinned by the status of the foetus, specifically, when a person becomes a person. As such research is so new, the law has only recently been able to start to consider it explicitly. However, the same fundamental issue is at the heart of an older legal minefield, namely abortion. Indeed, the issue of when a person comes into existence has troubled theologians, philosophers and law makers for centuries. It is at the heart of arguments about the legal status of the human embryo, abortion and research.

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Pre 20th century

For pre-enlightenment Europeans in the 1600’s the foetus had few legal protections. By the 19th century England had, arguably, promoted the foetus to equal moral standing as an adult, by making abortion a crime punishable by death (Lord Ellenborough’s 1803 Act). This reflected the broad views of the ruling classes of the time and was consistent with the increasingly liberal attitudes, influenced no doubt by the ideas from the enlightenment and others by strong religious beliefs. There followed the Offences Against the Person Act 1861. However, whether the primary intent of this law was to protect the interests of the foetus or to protect the mother from the then very dangerous abortion procedures is debatable.

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20th Century

Science, and society, continued to evolve and in leading to The Infant Life (Preservation) Act 1929 was passed. This was more explicit in its protection of the foetus, stating that if a foetus is “capable of being born alive” it can not be terminated in utero. At the time, for legal purposes, it was assumed that for a foetus was not capable of independent life before 28 weeks gestation, let alone conception be achieved in a test tube. Of course, what is meant by “capable of being born alive” is also open to debate. In C v S, one expert said that any foetus post 18 weeks is born alive. Others said that as such a foetus would require massive medical intervention, ventilation, etc, it was not really viable. The judge found that capability meant breathing unaided.

So, by the 1970’s, English law reflected a Christian sanctity of life view that the foetus should be protected to a large extent, arguably to an equal level to that of the mother.

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A new person

Moral and religious arguments as to the point at when a human comes into existence have been evolving for centuries. These ideas, along with the ever increasing pace of scientific discovery collided with the law with the development of assisted reproductive techniques. Ideas such as fertilisation, quickening, viability, development of the primitive streak, implantation, genetic uniqueness, birth, all have proponents and opponents. Historically birth has been a major landmark as it has been the only realistic point of intervention (medically). Medical developments over the last century have bought these other points from theoretical to practical consideration.

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IVF

In the late 1970’s the first human to result from fertilisation outside of the mother was born, the first IVF, or test tube, baby. This lead to all manor of new moral and legal issues. In response, the government established a committee, chaired by a leading moral philosopher Mary Warnock, to report on the developments in human fertilisation and embryology with the aim of producing recommendations for legislation.

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Assisted reproduction and the law

1984 The Warnock Report was published, recommending that a body (the Human Fertilisation and Embryology Authority) be created to oversee research in the area. This lead to a flurry of embryo related activity by Parliament.

1985Interim (Voluntary) Licensing Authority established to regulate work on human in vitro fertilisation until the introduction of government legislation, based on the recommendations of the Warnock Report into human fertilisation and embryology.

1985 – Surrogacy Arrangements Act. On a related note, the first law governing surrogacy arrangements. It made commercial surrogacy arrangements illegal.

1990 – Human Fertilisation and Embryology Act. This allows embryo research if a license is obtained from the Human Fertilisation and Embryology Authority. The HFEA has the power to grant licenses for the creation and use of embryos in vitro for specific periods of time. The stated aims were to :

•Promote advances in treatment of infertility

•Increase knowledge of congenital disease

•Increase knowledge of miscarriage

•Develop more effective contraception

•Develop more techniques for the detection of genetic abnormalities.

The Authority has to maintain a register of information about gamete and embryo donors and the resulting children. It is subject to regular review and revision via Codes of Practice.

1992 – Disclosure of information Act. Allows HFEA to disclose information to others with patient’s consent, for example to their own GP.

1994 – Criminal Justice & Public Order Act. Section 156 makes treatment with cells from aborted embryos illegal.

2001 – The Human Fertilisation and Embryology (Research Purposes). Regulations extend allowable reasons for embryo research to permit research around stem cells and cell nuclear replacement

2001 – Human Reproductive Cloning Act. Makes human reproductive cloning illegal.

2003 – Human Fertilisation and Embryology (Deceased Fathers Act). Allows deceased men to be registered as father of children born through ART after their death. However, the normal rights of inheritance do not apply.

2004 – Human Fertilisation and Embryology Authority (Disclosure of Donor Information). Regulations allow details about egg donors and sperm donors registered after 1 April 2005 to be passed on to the offspring, including the name and last address of the donor. This removal of donor anonymity has lead to a large drop in the number of donors.

2007 – The Human Fertilisation and Embryology (Quality and Safety). Regulations to bring the European Tissue and Cells Directive into UK law. Amends the HFEA Act 1990, and requires the licensing of all establishments handling gametes for treatment (e.g. IUI clinics).

2009 – HFE Act 2008 comes into force. New provisions come into force in April and October 2009, additional changes in April 2010.