Frozen embryos, genetic information and reproductive rights

Bioethics

Volumn 21, Issue 8, 2007, Pages 439-448

  Chan, Sarah ^a   Quigley, Muireann ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

Embryos; Genetic information; IVF; Reproduction; Reproductive rights

Indexed keywords

BIOETHICS; CELL FATE; CONFERENCE PAPER; CONFLICT; EMBRYO; EMBRYO INDUCTION; ETHICAL THEORY; FERTILIZATION IN VITRO; FETAL RIGHTS; GAMETE; GENETIC LINE; GENETIC TRAIT; HUMAN; PARENTHOOD; REPRODUCTIVE HEALTH; REPRODUCTIVE RIGHTS; RESEARCH ETHICS;

CRYOPRESERVATION; EMBRYO; FEMALE; FERTILIZATION IN VITRO; GREAT BRITAIN; HUMANS; MALE; PARENTS; REPRODUCTIVE RIGHTS;

EID: 34548442152     PISSN: 02699702     EISSN: 14678519     Source Type: Journal    
DOI: 10.1111/j.1467-8519.2007.00581.x     Document Type: Conference Paper

References (36)

1. [2004] EWCA Civ 727.
2. Evans v Amicus Healthcare Ltd and others [2003] EWHC 2161 (Fam).
3. Evans v Amicus Healthcare Ltd and others [2004] EWCA (Civ) 727.
4. Evans v United Kingdom (App No 6339/05) (ECHR).
5. L. Halman, A. Abbey F. Andrews. Attitudes about infertility interventions among fertile and infertile couples. Am J Public Health 1992 82 : 191 194.
6. See J. Harris. 2004. On Cloning. London: Routledge.
7. Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004.
8. J.A. Robertson. Embryos, families, and procreative liberty: the legal structure of the new reproduction. South Calif Law Rev 1986 59 : 939 1041 Steinbock. Reproductive rights and responsibilities. Hastings Cent Rep 1994 24 : 15 16.
9. Steinbock, op. cit. note 8.
10. D. Statman. The right to parenthood: an argument for a narrow interpretation. Ethical Perspect 2003 10 : 224 235.
11. Where so doing does not infringe any overriding rights of bodily integrity: in the case of embryos in utero, a woman's right to bodily integrity will conflict with the exercise of any negative rights of procreative liberty that might be asserted. We therefore confine our discussion to the case of IVF embryos to avoid confusing the issues.
12. G. Calabresi. Do We Own Our Bodies. Health Matrix 1991 1 : 5 18 Harris. Who Owns My Body. Oxford J Legal Studies 1996 16 : 55 84 Munzer. Kant and Property Rights in Body Parts. Canadian J Law Jurispr 1993 VI : 319 341 Nedelsky. Property in Potential Life?. Canadian J Law Jurispr 1993 VI : 343 365.
13. For example the patents held by Myriad Genetics covering the breast cancer genes BRCA1 and BRCA2, which have been enforced to prevent some researchers from carrying out tests on these genes.
14. An obvious example of this being the Celera project to sequence the human genome and file patents on some of the information thus gleaned.
15. Some of the best-known cases in this regard include the Moore case (Moore v Regents of University of California 1990 271 CalRptr 146 Supreme Court of California), in which a cell line was developed and patented from a patient's tissue samples; and the Greenberg case (Greenberg v. Miami Children's Hospital Research Institute, Inc. 2003 264 FSupp2d 1064 United States District Court, S.D. Florida), in which researchers filed a patent on a gene sequence obtained from patients' samples and genetic information. In both of these cases the courts' final legal analysis rejected the idea of property interests in genetic material and biological samples, preferring to frame the patients' rights in other terms; but from a philosophical and ethical perspective the question remains open.
16. T. Murray. 1997. Genetic Exceptionalism and Future Diaries: Is Genetic Information Different from other Medical Information?' In Genetic Secrets: Protecting Privacy and Confidentiality M. Rothstein, ed. New Haven: Yale University Press.
17. R.A. Spinello. Property rights in genetic information. Ethics and Inf Tech 2004 6 : 29 42.
18. J. Locke. 1964. The Second Treatise of Government: An Essay Concerning the True Original, Extent and End. In John Locke, Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus. P. Laslett, ed. Cambridge: Cambridge University Press.
19. R. Nozick. 1974. Anarchy, State and Utopia. Oxford: Basil Blackwell.
20. H. Steiner. 1994. An Essay on Rights. Oxford: Blackwell. p. 233.
21. Ibid, p. 236.
22. A.D. Moore. Owning genetic information and gene enhancement techniques: why privacy and property rights may undermine social control of the human genome. Bioethics 2000 14 : 97 119.
23. Spinello, op. cit. note 17.
24. C. Foster. Current Issues in the Law of Genetics. New Law J 2003 153 : 29.
25. Ibid.
26. Some of the statutes that cover, or could potentially cover, these include the Data Protection Act 1998, the Human Tissues Act 2004, the Human Fertilisation and Embryology Act 1990, the Health and Social Care Act 2001, and the Human Reproductive Cloning Act 2001. This is all supplemented not only by the relevant common law but by various UK regulations and European directives.
27. The Patents Act 1997 (as amended at 29th April 2006), s. 1(1).
28. Ibid, s. 1(2)(a).
29. G. Laurie. 2004. Patenting and the Human Body. In Principles of Medical Law. A. Grubb, ed. 2nd edition edn. Oxford: Oxford University Press: 1079-1102. p. 1085.
30. Ibid.
31. The issue of rights over embryos becomes important because of the availability of assisted reproductive technology: if the embryo is in utero, the woman's right to bodily integrity would override any rights of control the father might have over the physical or informational property contained in the embryo.
32. R.W.J. Hickey. Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title. Mod Law Rev 2003 66 : 368 383.
33. The apportionment of shares in joint property is in proportion to the value of the contributions of the property-owners. How this might be determined in relation to IVF embryos is an intriguing question. For example, it might be suggested that the woman should have a greater right because she has contributed more physical material (as the oocyte is physically larger than the sperm) and slightly more of her genetic material (in the form of mitochondrial DNA) to the embryo. One might envision various other circumstances which might change the relative value, objective or subjective, of each partner's contribution. However for the purposes of our analysis, we assume that the value of the property contributed by each parent can be regarded as approximately equal unless otherwise specified.
34. These rights are often phrased in terms of consent rather than property rights. However, as we have discussed, any requirement for consent to the use of genetic material and genetic information implies a right of control over such material in the first place, which can be viewed as a type of property right.
35. This may be illustrated by analogy with the use of other personal information. Simply because a patient gives their doctor medical information does not imply that the doctor can use it for any purpose he may choose. The information held on the medical record may be used for the patients own health care. The possession of this information by the doctor does not authorise, without consent, use of the information for other purposes, nor does it imply a wider public access.
36. There is an obvious logical objection to the existence of a right not to have one's own genetic children. Consider the situation of identical twins who share the same genetic information. If there were a right not to have your own genetic children, you ought to have the right to stop your twin from reproducing and hence creating offspring who would be genetically yours. As this is evidently not the case, it cannot be that there is always a right to prevent one's genetic children from coming into existence.