Select Committee on Science and Technology Minutes of Evidence

Examination of Witnesses (Questions 860 - 879)



  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 took—although it may have been rushed into doing—the 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 twinning—and 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 cloning—or whether, as many people have said, it is to do with the risks of the technology—and, again, the risks for embryo splitting would be considered to be comparable to reproductive cloning—and 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 very well.

  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 the HFEA?

  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 Europe.

  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 not know.

  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 that choice?

  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 abnormality—and 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? James.

  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 trite—everybody has said it before—but 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 sexist?

  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 man—the 85-year old man—is still capable of procreating but I would question whether procreating—certainly at the age of 85—is 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 me—and 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.

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