Saviour siblings and the discretionary power of the HFEA

Medical Law Review

Volumn 13, Issue 3, 2005, Pages 403-411

  Sheldon, Sally ^a  

^a KEELE UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 28444466540     PISSN: 09670742     EISSN: None     Source Type: Journal    
DOI: 10.1093/medlaw/fwi028     Document Type: Article

References (39)

1. Hereafter Quintavalle (H.L.).
2. The possibility of a challenge to the European Court of Human Rights remains. However, human rights arguments are notable by their complete absence in this judgment. This can only suggest that the organisation Comment on Reproductive Ethics (CORE) have recognised the inherent difficulties in attempting to frame this challenge in human rights terms.
3. These guidelines have since been relaxed, most significantly in that HLA typing is no longer to be restricted just to those cases where PGD to test for disability is also required. For a statement of the guidelines and details of the HFEA's subsequent deliberations in this area, see HFEA Preimplantation Tissue Typing (HFEA 2004), available at: http://www.hfea.gov.uk/AboutHFEA/HFEAPolicy/Preimplantationtissuetyping
4. Human Fertilisation and Embryology Act 1990, s. 3(1): 'no person shall - (a) bring about the creation of an embryo, or (b) keep or use an embryo, except in pursuance of a licence'.
5. A second argument, made before the High Court and Court of Appeal, was not addressed in the House of Lords: The HFEA had suggested that tissue typing did not require a licence because it was performed on a cell extracted from an embryo rather than an embryo itself, see R. (Quintavalle) v. H.F.E.A. [2002] E.W.H.C. 2785 (Admin) (hereafter Quintavalle (H.C.) and [2002] E.W.C.A. Civ. 667 (hereafter Quintavalle (C.A.).
6. It is not surprising that this argument fell by the wayside. As Stephen Wilkinson and I have suggested elsewhere, this understanding would give rise to the strange result that where PGD has been allowed for the purposes of screening for genetic disorders, clinics would be able to screen cells thus obtained for other purposes (including not just tissue typing but also, inter alia, sex selection) in a way that would be unregulated. Potential parents at a high risk of conceiving a child with a genetic abnormality would thus be able to avail themselves of a range of tests forbidden to others. Given the close regulatory regime established in the 1990 Act, it seems inconceivable that Parliament could have intended such a result. See S. Sheldon and S. Wilkinson 'Hashmi and Whitaker: An Unjustifiable and Misguided Distinction?' (2004) 12 Med. L. Rev. 137.
7. Human Fertilisation and Embryology Act 1990, Schedule 2, s. 1(1)(d).
8. Its argument in the High Court and Court of Appeal had been rather different, see below n. 23 and accompanying text.
9. See e.g. S. Sheldon and S. Wilkinson, op.cit. n. 5;
10. S. Sheldon and S. Wilkinson 'Selecting Saviour Siblings' (2004) 30 Journal of Medical Ethics 533;
11. M. Spriggs and J. Savulescu 'Saviour Siblings' (2002) 28 Journal of Medical Ethics 289;
12. R. Boyle and J. Savulescu 'Ethics of Using Preimplantation Genetic Diagnosis to Select a Stem Cell Donor for an Existing Person' (2001) 323 BMJ 1240.
13. See Lord Brown, Quintavalle (H.L.) at para. 43.
14. The Pro-Life Alliance (PLA) was set up by Bruno Quintavalle as a single-issue party. It fielded sufficient candidates in the 2001 election to have the right to make a party political broadcast. The BBC's refusal to air the broadcast because the graphic images of an aborted foetus might be offensive to public feeling was upheld by the House of Lords: R (On the Application of Pro-Life Alliance) v. B.B.C. [2003] U.K.H.L. 23.
15. Josephine Quintavalle, Bruno's mother and founder of Comment on Reproductive Ethics, stood as a PLA candidate, polling just 179 votes against Michael Portillo.
16. See generally on the relaxation of locus standi, C. Harlow 'Public Law and Popular Justice' (2002) 65 MLR 1.
17. The other case, which concerned cloning, also reached the House of Lords: R. (On application of Bruno Quintavalle (On Behalf of Pro-Life Alliance)) v. Secretary of State for Health [2003] U.K.H.L. 13.
18. Observer (27 February 2005).
19. Ibid.
20. Joanne Jepson, a curate, was born with a congenital jaw defect and has a brother who has Down's syndrome. Her lawyers have argued that a reported termination at 28 weeks for reason of cleft palate was not lawful, as it failed to meet the requirements of s. 1(1)(d) of the Abortion Act 1967 for substantial risk of serious handicap.
21. Human Reproductive Cloning Act (2001).
22. Other contributing factors include the publication of 3D images of foetuses by Stuart Campbell, and a number of well publicised interventions made by the head of the Catholic church in England and Wales in the run up to the 2005 general election, advising Catholics to concentrate on abortion and a number of other key issues when deciding how to vote and singling out for praise the Tory leader's call for a reduction in the upper time limit on terminations. See respectively, anon. 'Secrets of Life in the Womb' http://news.bbc.co.uk/2/hi/health/ 3846525.stm
23. and anon. 'Keep Abortion a Conscience Vote, Says No. 10 Staff and Agencies' (Guardian, 15.3.05). In its most recent report, the House of Commons Science and Technology Committee has recommended that there be a joint committee of both Houses set up to consider the scientific, medical and social changes in relation to abortion that have taken place since 1967 with a view to presenting options for new legislation: Recommendation No. 77, House of Commons Science and Technology Committee, Human Reproductive Technologies and the Law (Fifth Report of Session 2004-05 (H.C. 7-1)).
24. In its most recent report, the House of Commons Science and Technology Committee has recommended that there be a joint committee of both Houses set up to consider the scientific, medical and social changes in relation to abortion that have taken place since 1967 with a view to presenting options for new legislation: Recommendation No. 77, House of Commons Science and Technology Committee, Human Reproductive Technologies and the Law (Fifth Report of Session 2004-05 (H.C. 7-1)).
25. Lord Winston noted that 'it is very strange that one form of treatment - IVF - is singled out for regulation. And not even the whole of infertility treatment is covered'. He suggests that what is needed is a body which is 'a great deal less bureaucratic, which doesn't inhibit research, which has a better consultation process with the public and which has a much more adequate inspection process'. Whether these aspirations are practically achievable is, of course, a moot point. See http://news.bbc.co.uk/go/pr/fr/-/1/hi/health/4084365.stm.
26. While the HFEA has increased its use of public consultations on controversial issues, the small number and evident partiality of those who respond render these exercises of questionable value as anything other than a public relations exercise. See e.g. Derek Morgan's comments on the small number of respondents to the HFEA's consultation on PGD: D. Morgan 'Ethics, Economics and the Exotic: The Early Career of the HFEA' (2004) 12 Health Care Analysis 7.
27. This would appear to be the view of the House of Commons Science and Technology Committee, which was strongly critical of the HFEA for apparently exceeding its jurisdiction in the Hashmi case. See its report, Development in Human Genetics and Embryology, Fourth Report of Session 2001-02 (H.C. 791) at para. 26. The Committee revisited the issue of PGD in its recent review of the legal regulation of reproductive technologies and saw 'no reason why a regulator should seek to determine which disorders can be screened out using PGD. Nevertheless, clinical decisions should operate within clear boundaries set by Parliament and informed by ethical judgments' (supra, n. 15, para. 27, p. 179).
28. (supra, n. 15, para. 27, p. 179).
29. Quintavalle (C.A.), op.cit., n. 5 at para. 128.
30. Quintavalle (H.L.) at para. 3.
31. Ibid. at para. 49.
32. Quintavalle (H.C.), op.cit., n. 5 at para. 17.
33. Per Lord Brown, Quintavalle (H.L.) at para. 62.
34. Ibid.
35. A more detailed exposition of this point and comparison of the terms of the 1990 Act and the Abortion Act (1967) is provided in Sheldon and Wilkinson, op.cit., n. 5 at 161-2.
36. M. Brazier 'Regulating the Reproduction Business' (1999) 7 Med. L. Rev. 166 at 167.
37. Ibid. at 188.
38. 'Although the questions of when life or personhood begin appear to be questions of fact susceptible of straightforward answers, we hold that the answers to such questions in fact are complex amalgams of factual and moral judgments. Instead of trying to answer these questions directly we have therefore gone straight to the question of how it is right to treat the human embryo ...'. Report of the Committee of Inquiry into Human Fertilisation and Embryology, Cmnd 9314 (HMSO 1984) at para. 11.9.
39. This was particularly clear in the stretching of the statutory language to cover cloning techniques which involve nuclear substitution into an egg cell in Quintavalle (2003) op.cit., n. 11.f R. (On application of Bruno Quintavalle (On Behalf of Pro-Life Alliance)) v. Secretary of State for Health