Examination of Witnesses (Questions 860
WEDNESDAY 27 OCTOBER 2004
Q860 Dr Iddon: Legislation on cloning
was introduced in the UK outside the 1990 act which we are largely
discussing this morning. Do you think there ought to be a consolidation
of those pieces of legislation in any new acts that Parliament
may look at?
Ms Elliston: There is certainly
no reason not to do that, and I think most people would rather
go to one statute and have relevant information rather than have
to search through the several provided. Of course the legislation
might run to about 500 pages, but I think there is no reason not
to put it together.
Q861 Dr Turner: Do you, as lawyers,
think it is possible to construct legislation which will be proof
against legal challenge from yourselves, and which will clearly
distinguish between human reproductive cloning, simply for the
sake of producing individuals, and therapeutic cloning?
Professor Mason: It can really
only be done in a negative way, can it not?such as Parliament
has already done. I think you can look at the things you must
not do. In my view, Parliament actually tookalthough it
may have been rushed into doingthe right steps in so far
as what was needed. Essentially, what was needed was to stop reproductive
cloning and stop reproduction in that way. That does not stop
cloning, in which we can include therapeutic cloning now; it does
stop the reproduction of human beings in a way that people think
is either unwise or improper.
Q862 Dr Iddon: Costa Rica are trying
to make certain practices in this area illegal; for example, the
deliberate embryo splitting. Yet, embryo splitting is a natural
process, leading to identical twins. Do you think the attitude
that Costa Ricans are taking is correct? Or should the United
Nations ignore their motion?
Professor Mason: Again, there
is a problem of how this particular jurisdiction feels. In that
jurisdiction they may feel very much that this is something that
you should not do. I myself would be inclined to say, "No,
I do not think you should deliberately make identical twins"
because I think this is a gross laboratory interference with nature.
But that is only my opinion. This is the problem with all these
things: if you get a body of people together, they are never going
to be unanimous in this area. A committee is a combination of
individuals: it really all boils down to the fact that we are
expressing our own person opinions, and that is all we can do.
Ms Elliston: I think it does come
down to what the reason for the ban on reproductive cloning is,
whether it is something to do with the uniqueness of the individual,
which is difficult if you do come down to the idea of embryo splitting
or, indeed, natural twinningand of course there are certain
situations where individuals are not unique genetically but will
certainly develop their own unique life history if allowed to
do so, which would be the same for embryo splitting as it would
be for reproductive cloningor whether, as many people have
said, it is to do with the risks of the technologyand,
again, the risks for embryo splitting would be considered to be
comparable to reproductive cloningand what exactly the
reason behind the ban is.
Q863 Dr Iddon: We are really asking
you whether legislation in this area, in which Britain is ahead
of the world, should be left to individual countries or whether
it is absolutely essential (for example, to avoid reproductive
technique tourism) to have a complete blanket legislation covering
the whole world, if that were possible. I mean, we look at how
the United Nations behave in other areas and it does not behave
Professor Brazier: I think the
difficulty is that it is impossible. If you look at the diversity
of views on issues around embryology and fertility treatment across
the world, much though I would love to see Professor Kenyon Mason's
objective achieved, that there is some general agreement on the
nature and status of the embryo at several stages, I simply do
not think that is going to happen. I would love to see a United
Nations resolution that banned the imposition of the death penalty
right across the world. That is, without doubt, whatever notion
of sanctity of life you take, a violation of the sanctity of life.
But there is no hope in my lifetime or my daughter's lifetime,
I fear, of that happening.
Q864 Paul Farrelly: I would like
to pursue, very briefly, a connected line of inquiry. Under-age
sex tourism is illegal. To what extent do the members of the panel
feel that these matters of UK law should be extra-territorial?
Should we make it an offence for UK persons to practice participate
in, assist or fund reproductive cloning, or, indeed, any practices
in this field that are not permitted by UK law or licensed by
Professor Brazier: Extra-territoriality
is a very difficult area of criminal jurisdiction. For a very
long time we limited our extra-territorial jurisdiction to offences
such as homicide and offences against the Crown: sedition and
treason. I do not believe that such extensive invasions of personal
freedom would be compatible with either the European Union treaties
in relation to freedom of movement and freedom of services or
the human rights provision. I do think we need to address procreative
tourism, in particular in one apparently minor but I think important
way. Some of the most important parts of the provisions of the
1990 act to me are those that deal with the status of the child
within the family, that seek to ensure that, if an individual
or a couple have set out to have a child by means that involve,
particularly, donated gametes, they are required to exercise their
parental responsibilities to that child. But those provisions
only apply where you seek treatment in a licensed clinic in the
UK. We have seen a number of cases of procreative tourists going
abroad, seeking treatment outside the HFEA and then returning
home, and it proving to be the case that one of the couples who
had set out on this parental enterprise has changed their mind
and now is able to say, "Ah, I am not the legal father of
the child." I think we need to do two things within the European
Union. We need to have recognition of status provisions, and also,
although within the European Union we may not be able to agree
on exactly what sorts of procedures we do or do not allow, we
ought to set, if you like, common regulatory standards, so that
you know if you access a particular form of treatment, be it in
London or Berlin or in Rome, that you are assured of the same
sort of basic level of competency and safety as you would be if
you accessed it in London.
Q865 Paul Farrelly: Does anyone have
a different view?
Mr Lawford Davies: I would simply
add that the new tissue directive which will come into force in
a couple of years will go quite a long way to achieve that by
introducing common quality and safety standards, certainly across
Q866 Dr Iddon: Is there any precedence
for refusing treatment to overseas nationals that is legal in
the UK but not permitted in their own country? That is the reverse
of the question that Paul Farrelly was asking.
Professor Mason: It really is
the same question. It is whether people are going to get round
our legislation or we are going to get round somebody else's legislation.
It is a matter of mutual trust, is it not, within the organisation?
I would have thought it was the same question.
Professor Brazier: I think there
is only example I can think of. One of the issues that I believe,
on occasion, a clinic would look at when treating a couple from
overseas would be to try to establish what the family position
will be with the couple from overseas: Will it be the case that
if the couple have approached a British clinic for treatment here,
the family relationship, the paternal and maternal responsibility
of that couple, will be recognised in the foreign jurisdiction?
I think it is a question some clinics ask. Whether they have ever,
on finding that the answer is negative, refused treatment, I would
Q867 Dr Harris: I would like to come
back to Professor Mason's analysis of eugenics, because it was
an interesting point. You made the point that you do not think
the law should consider it eugenic if it is not e state requiring
something but it is a family choice about what their "perfect
family" is. On the assumption that this is not done through
late termination and it cannot yet be done through sperm sorting,
for example, that therefore it has to be done through pre-implantation
genetic diagnosis in a pre-14-day stage. If someone's private
decision about their perfect family was that that family was 12
girls, or, even worse, 12 boys, do you think they should be allowed
Professor Mason: It is very difficult
to see, if you are going to allow them to make a choice, how you
can stop them making that genetic choice.
Dr Harris: You can at the moment. You
can say that pre-implantation genetic diagnosis can only be used
to avoid serious abnormalityand maleness has not yet been
defined as such!
Dr Turner: Only a matter of time.
Q868 Dr Harris: Well, it has not
unanimously been defined as such! So you can put restrictions
on pre-implantation genetic diagnosis.
Professor Mason: I would only
harp back to my original statement: that is not in the act; it
is in the code of practice. I would throw the question back to
you almost: Do you not think that this something that should not
be in the code of practice but is something that Parliament should
be dealing with? Really Parliament is the only person who can
deal with this. To say that one clinic will say, "Yes, I
will sex select" and one clinic will not, is totally wrong.
We must make a decision on it. The only people who can really
make a decision on it is somewhere up at the parliamentary level.
Q869 Dr Harris: The welfare of the
child provision. It seems to me that if you are going to have
a provision in law in a sensitive area then one should expect
it to provide some degree of certainty, that it should be non-discriminatory,
and that it should be necessary on the basis of evidence. If you
do not take an ultra precautionary approach, there should be some
evidence that it is necessary and that it is the only way to obtain
that desired end. Do you think that the current wording, "with
or without the need for a father" provides any of those,
or would you argue that there is evidence that in fact goes against
some of the certainty, the non-discrimination and the necessity?
Mr Lawford Davies: I would go
back to Professor Kenyon's point at the start that, on the face
of it, the act is not discriminatory. It does not prevent the
treatment of single women or same-sex couples. You can read into
it a degree of discrimination because, elsewhere in the act, children
born to single women will essentially be legally fatherless, so
it does in some way point to the desirability of being born in
anything other than a heterosexual couple. I think the inclusion
of the term "including the need of a child for a father"
then changes the basic premise. That does introduce an element
of discrimination, although, again, clinics are quite free to
take that into account and to reject it. One of the problems
Q870 Dr Harris: They are also free
to take it into account to justify not treating lesbians.
Mr Lawford Davies: And many have.
Q871 Dr Harris: For no good reason
Mr Lawford Davies: Absolutely.
Q872 Dr Harris:other than
they are not keen on them.
Mr Lawford Davies: And it certainly
has been used as, if you like, a barrier for certain clinics to
refuse treatment to groups of patients they do not wish to treat.
The rather disingenuous aspect of section 13(5) is that there
is no real way for the HFEA or any external body to determine
whether or not clinics are really complying with section 13(5),
because one clinic might be quite happy to treat a 57-year old
single woman, and say, "Yes, we have considered the welfare
of this child and we are quite happy to proceed with treatment."
There is no way to establish beyond doubt that they have failed
to comply with that.
Ms Elliston: I think the problem
with it is that it assumes there is one objective, the welfare
of the child, as a solution that can be adopted. I think that
is very difficult, once you have the principle of the welfare
of the child. I think most people would say the welfare of the
child is something which society should be concerned with, but
once you start interpreting that and putting it into practice
. . . The only real guidance we have is in terms of the HFEA's
code of practice, in the considerations that they suggest should
be taken into account in considering the welfare of the child,
and, as James has said, it is very difficult to challenge a clinic.
As soon as they have said, "We have considered the welfare
of the child," that really seems to satisfy the code of practice
and there does not seem to be an objective standard against which
that can be really measured. I think that is one of the difficulties
with this particular principle.
Q873 Dr Harris: Is it worth retaining
it? You can obtain protection of children who are vulnerable through
other means. You heard me, perhaps, questioning the other witnesses,
that if there is a risk of child abuse that applies outside assisted
reproduction as well. At least in the case of assisted reproduction
you know the due date. You know there is a plan to have a child,
so in fact they are possibly more protected. On the basis of the
answer you have already given, do you think it is necessary to
have this part of the statute, in order to achieve something other
than us feeling happy that "Parliament considers the welfare
of the child": tick.
Professor Mason: But you do not
prevent a potential child abuser having a child.
Q874 Dr Harris: No.
Professor Mason: What you do is
you take the child into care afterwards. The point is that you
do not interfere with their reproductive ability. Although I am
speaking against my own feelings in many ways, I find it very
difficult to see why, if we do not go through all this when we
apply for a marriage licence, we suddenly have to go through it
because we are disabled (in so far as we cannot have a child).
It is triteeverybody has said it beforebut we are
essentially discriminating here against the disabled in this particular
way. It is very difficult to justify that, I think.
Professor Brazier: I would wish
to see the provision of section 13(5) radically amended if Parliament
decides to amend the Act, and, in a sense, perhaps reversed, so
that, rather than having to establish the welfare of the child,
you have to establish that there is no serious risk of significant
harm to the child, which is that which is used very much in children's
legislation. I am very uncomfortable with the notion of a whole
procedure and a pregnancy going ahead, and the solution being:
"Yes, with due notice, the child can be taken into care,"
because we know, alas, that the care that we provide in care for
children in this country is not what any of us would wish. I think
the substantial difference is that there is in my mind a difference
between things that we are able to do and the things that we have
to ask other people for help to do. I might well, in various aspects
of my life, do a number of things which people in this room would
very much disapprove. I might be at a party with Professor Mason
and I might get exceptionally drunk and he would think it was
very wrong of me to get so drunk when I am supposed to be going
home to look after my small niece and fulfil other of my responsibilities.
The extent to which he could intervene to prevent me getting drunk
is limited by human rights legislation, but he is perfectly at
liberty to say to me, "No, I won't give you another drink."
In a sense, I think, that is why clinics who are providing fertility
treatment which will lead to the creation of a child who would
otherwise not be born, have some degree of responsibility for
that child, at least at the level, as I have put it, of establishing
the negative, that it is not likely that any significant harm
will arise to the child if born, in the example of parents who
might be potential child abusers, or where the child is almost
certain to be born with some terribly damaging disease.
Q875 Dr Harris: Can you think of
any other circumstances, other than the two you have just mentioned,
where the evidence is strong enough that the welfare of the child
might be so badly affected that the law should interfere with
reproductive freedom or attempt to exercise reproductive freedom?
Professor Brazier: Imagine that
I have reached the age of 65 and I still do not have the grandchildren
I very much want and it would be technically possible to use IVF
to make me a very post-menopausal mother in circumstances where,
although I might survive for another 10-20 years, I am likely
really to be in poor health, and there is no young partner on
the scene who would be able to be a suitable dad to the child,
and my own daughter is very clear that she is not going to bring
up this post-menopausal sister, that is an example, I think, where
the likely quality of the life of a child born to somebody of
that advanced age
Q876 Dr Harris: You have terminal
cancer, you are 33. I will not use the analogy of the 65-year
old man and point out how sexist you are being
Professor Brazier: Well, I would
have an answer to that one.
Q877 Dr Harris: but use the
example of a 33-year old with terminal cancer, or maybe motor
neurone disease, with a life-expectancy of four years, say. Do
you think they should be entitled on the same basis to exercise
reproductive freedom? Or are you just being ageist as well as
Professor Brazier: Assuming, in
that example, that they need assistance to reproduce and there
is no family structure in the background to provide for the child
on the death of the mother, no, I think that child is being harmed
in just the same way as my ageist example. As for being sexist,
you are right to say the 65-year old manthe 85-year old
manis still capable of procreating but I would question
whether procreatingcertainly at the age of 85is
responsible in a man. There are lots of things we can do naturally
that society would really rather we did not do and that we would
feel it morally irresponsible to assist others to do.
Q878 Dr Harris: This is a key point
for meand this will be my last point. You argue that to
orphan a child at a young age is a disaster or there is a good
chance of it being a disaster because our care services are so
poor, and some people who work in care might say, "That is
not necessarily the case, thank you very much," and that
they do a good job and their profession should not be slammed
in that general way.
Professor Brazier: No, it should
be given more money by Parliament to do it properly.
Q879 Dr Harris: Absolutely. Maybe
we should be looking at that rather than seeking to restrict the
freedom as an excuse for not providing better quality. But there
is more evidence that the welfare of the child is damaged by poverty
than by there not being a male partner in and of itself. If you
compare families where there is not a father, the main predictor
of outcome is poverty, but we do not argue that poor people should
not be given reproductive treatment except through NHS rationing
of the treatment.
Professor Brazier: I would not
argue that the absence of a father is any ground to deny families
access to in-vitro fertilisation or other assistance. It is the
ability of the person seeking treatment to raise the child and,
if there is likely to be a disaster, the support network. Support
networks are much wider than fathers.