Select Committee on Science and Technology Minutes of Evidence


Examination of Witnesses (Questions 880 - 900)

WEDNESDAY 27 OCTOBER 2004

PROFESSOR KENYON MASON, PROFESSOR MARGARET BRAZIER, MS SARAH ELLISTON AND MR JAMES LAWFORD DAVIES

  Q880  Dr Harris: Do you think it is better that that child (the child who would be orphaned in five years, say, in the example you gave) never existed, than took their chances in the care system as an orphan at five? That is effectively what you are saying when you deny reproductive opportunity to that mother.

  Professor Brazier: I entirely disagree with my esteemed colleague Professor Harris and his analogy of the "better never to have been born" and I think I would agree with the views which are very much taken by Professor Alastair Campbell that for several reasons, philosophical, theological and plain common sense, it is an analogy that sounds very good and, with the greatest of respect, means very little.

  Q881  Paul Farrelly: I would like to address very briefly another form of assistance, surrogacy. Back in 1998 the Brazier Committee recommended a new surrogacy act and a raft of other measures. Is anyone on the panel concerned that we have not had a new act?

  Professor Mason: I think it is absurd, first, that the acts are different, and, secondly, that surrogacy only indirectly comes under the control of the HFEA. I think the trouble here is that we are forgetting—and it is what we should really concentrate on—that we are treating childlessness. By surrogacy we are treating childlessness due to either the absence of the uterus or to the inability of the woman to carry a child. This is a medical treatment and it should, to my way of thinking, be certainly taken into the same act which is to do with the medical treatment of childlessness. That is my first point. The other point about surrogacy that worries me is that of course there are two types of surrogacy: partial surrogacy, where the surrogate mother provides the egg, and full surrogacy where we impregnate her with an embryo. It seems to me absolutely absurd that these two types of surrogacy should be treated differently. Somehow or other we have to work it out. Either we should make the particular situation where full surrogacy in actual fact is given a dispensation under the act, or, alternatively, in order to have some form of uniformity, we should unfortunately say that you cannot have partial surrogacy, or you cannot get a parental order, outside having had your child by way of a licensed clinic. But it ought to be the same, it ought to be uniform, and, whichever way you go, it has to be a matter for Parliament.

  Q882  Paul Farrelly: Is that a consensus view?

  Ms Elliston: I certainly do not agree with the latter point because the problem there would be in terms of penalising the child and penalising the parents for the way in which the child is brought into the world. I think it would be deeply problematical to go down that particular route. In terms of whether the law should intervene, I do have a slight question about whether we are talking about all types of the alleviation of childlessness. If we are going down that route, then presumably we should be looking at hormone treatment for women who require treatment to enable them to have children, and, similarly, we should be regulating much more strictly the reversal of fallopian tube surgery—because, again, that does exactly the same thing: third party intervention to help people have children, which they cannot already do. So I think it cannot just be that we are talking about regulation in the field of the alleviation of childlessness; there has to be a bit more to it than that.

  Professor Brazier: I would certainly like to see the question of the regulation of surrogacy looked at again. The report that Alastair Campbell, Susan Golumbok and I issued was in 1998, and a great deal has changed—particularly Professor Golumbok's most recent research into children born as a result of assisted reproduction, and some specific research on surrogacy, on which, I regret, I am not fully up-to-date but which I think is crucially important. I think it is very difficult setting boundaries in surrogacy. Were one to regulate, as I think one should, both gestational and partial surrogacy, one would be regulating partial surrogacy when it is achieved by means of donor insemination. Some of the evidence that came before us—we were not in a position to conduct a full review—is that there is still a small but to me quite surprising number of surrogacies that are established by means of normal sexual intercourse, and that, I presume, would fall rightly outwith the view of regulation of both the HFEA and Parliament.

  Q883  Paul Farrelly: In several US states, surrogacy arrangements are enforceable by law, so the child can be taken from the birth mother and given to the genetic parents. Would you advocate that we follow that approach?

  Professor Brazier: There were powerful arguments put before the surrogacy review that one should allow not just nominal payments but substantial payments for surrogacy arrangements. If one simply looks at the minimum wage and considers how long a pregnancy lasts, you would be looking to a sum that ran to £20,000-£30,000. Should one accept the strongly and persuasively put of view that surrogacy is just a form of reproductive service, and if you put your uterus to the service of another couple you should be paid just as much as we are all paid for putting our brains to the service of our various masters, then it follows—if you accept that thesis, which I do not—that it is an ordinary sort of contract and an ordinary sort of contract should be enforceable. I think one of the admirable parts of the evidence put to the Surrogacy Review by COTS just that. They said: "Surrogacy services are just another kind of labour; it is just another kind of contract." If it is just another sort of contract, then the contract should be enforceable as any other—not necessarily by specific performance in terms of handing over the baby, because that is a very rare means of enforcing a contract, but by an action for damages. If you follow down that route—

  Q884  Paul Farrelly: Professor Mason, you are champing at the bit.

  Professor Mason: This is another bee in my bonnet, but I think that, as we have the situation now, it is the worst of both worlds. We have a positive statement: "No surrogacy arrangements are enforceable." That is just an open invitation to people to break the contract. "What is it there for?" I ask myself. It is such a negative thing to say. I think we really want to be looking at certain things which could not be included in the contract. If we looked at it from that way, then I think it would be very much more appropriate than this business where anybody can break the contract and say, "Ah, the law says I can break my contract. Hooray." That must be wrong.

  Paul Farrelly: It is like gambling debts, unenforceable.

  Q885  Dr Harris: Could I ask Professor Brazier why she thinks there has been no action on her report by the Government.

  Professor Brazier: It could be that the Government carefully considered it and considered it to be philosophically and conceptually wrong.

  Q886  Dr Harris: Have they said that?

  Professor Brazier: No, they have said nothing. I think that there were other issues in this field of bio-ethics that have had a much higher profile since 1998, so it was demoted from premier league to division 3 (or whatever it is called now).

  Q887  Dr Harris: That is regrettable in your view, obviously.

  Professor Brazier: It is regrettable. It would be equally regrettable, I think, now just to pick it up six years later and say, "Let's do something about it," because everything has moved at such a pace.

  Q888  Paul Farrelly: Are the current definitions of gametes and embryos in the act adequate?

  Ms Elliston: Given the challenges there have been to them already, I think it is arguable that there are so many different ways of creating something which can develop into a human being that the definitions are not correct. I think this brings us to one of the central problems, in that, if you say the human embryo has a certain status so it deserves special respect, then you have to decide why it is that it deserves that respect. Is it because of what it is made up of? Is it its DNA composition? Is it its potential to develop into a human being? What do we mean by human being? Suppose it was possible to develop an embryo that had one or two genes inserted from an animal—and, of course, we are not allowed to create animal-human hybrids at the moment, but suppose that was done—would we call that a human being? What status do we give it? Why do we give it that particular status? I think that is going to be very difficult to determine, in terms of actually creating a new definition for embryo.

  Q889  Paul Farrelly: Should we base definitions on the process by which the organisms are formed rather than capability or potential?

  Ms Elliston: Again, I think it goes back to why we think that the embryo is deserving of special respect. If it is because of its composition, then the technique that is used to create it matters not one wit. If it is actually where the genetic material has come from and that kind of issue, then it might well be a relevant issue.

  Professor Mason: I think Parliament ought to have a look at the case decision that an organism produced by cell nuclear replacement is an embryo. I have written on the subject, and I personally think we have to make a distinction here. In fact one of the troubles, one of the problems about IVF in general, about the whole system really, is whether you are looking at a human being or whether you are looking at a laboratory artefact. Certainly, when it comes to cell nuclear replacement, you are looking at a laboratory artefact. It is made in a laboratory; it cannot be made anywhere else. It cannot be made naturally. We have to think of some way else to look at it. An organism produced by propagation must be different from an organism produced by fertilisation.

  Mr Lawford Davies: I think it is worth reviewing the definitions as part of the wider consideration of regulation in this area. If the HFEA is merged with the Human Tissue Authority, as it will be, there will be a range of definitions which will be quite crucial to phrase carefully in legislation relating to human tissue, human material, embryos, gametes, and the processes by which they are created, used and stored. I think it would certainly be very useful to try to establish some clarity about what each of those terms means and in relation to one another as well.

  Q890  Paul Farrelly: Clearly the subject of stem cells is topical, not least because of the American election. Is there a danger that definitions based on capabilities would bring embryonic stem cell cultures within your regulation on the basis that they have the capacity or potential to form an embryo?

  Ms Elliston: It depends on exactly how one defines that, because a stem cell in and of itself is not going to be capable of developing into an embryo unless it is put in certain conditions: it has to have the epigenetics, it has to have the outside materials and the right environment in which to develop further. So I think it is difficult to say that stem cells as such would fall within the definition, but it really depends on how one defines capabilities, whether it is intrinsic capabilities or capabilities in a particular kind of environment.

  Q891  Paul Farrelly: James, you were just referring to the potential benefits from merging legislation. Would it be beneficial to have one act regulating all uses of human tissue, be it stem cells or other parts of the body?

  Mr Lawford Davies: I did not mean to imply that I thought it was beneficial that they be merged. I actually have the opposite view. I think it was a moment of reckless abandonment to suggest that the HFEA and the Human Tissue Authority should be joined together. I think they are fundamentally different organisations. The point I really want to make is that if they are to be joined, then in that legislation it would be very useful to think very carefully about what the different definitions meant. I do think, though, that it is important to have a more holistic approach to regulation of the use of human material per se. Whether that is done by the same body, and which of those bodies is the competent authority under the directive, is another matter. I think at the moment there is a danger in looking at IVF as a very limited focused area of medicine and cutting it off from other practice.

  Q892  Dr Iddon: Does the fact that the HFE Act applies to the whole of the United Kingdom but family law is devolved cause lawyers any problems?

  Mr Lawford Davies: Not in my experience.

  Professor Brazier: Not as far as I know.

  Ms Elliston: Because of the way the act is worded at the moment, it reserves matters of family law where the child is actually born to the individual jurisdiction, so that does not actually cause a problem. I think there is more likely to be a problem with the Human Tissue Act and the proposed revision of the HFEA, because human tissue, as such, falls within the remit of the Scottish Parliament, whereas gametes, embryos and such like fall within the remit of the Westminster Parliament, and there is at least the potential for there to be some disagreement if Scotland, which is not following most of the Human Tissue Bill's provisions as it stands, chooses to legislate in a rather different manner. Obviously there are certain things that would be common to all jurisdictions because of the EU Cell and Tissue Directive, but there are other matters of policy that might be regarded as differently to be legislated between the two parliaments.

  Professor Mason: It is just a good argument for keeping the two authorities separate, is it not?

  Professor Brazier: I would entirely concur. I think it would be disastrous to merge the two authorities.

  Q893  Bob Spink: It I could turn to donor anonymity. There are nearly 40,000 donor-conceived people in the country at the moment. Do you think the removal of anonymity for future donors would give grounds for existing donor-conceived people to make a claim for financial support from their donor, even though the Government intend that the genetic parent will have no financial or legal responsibility for that child?

  Professor Brazier: I think it is highly unlikely that a retrospective claim for financial support would succeed. I would be less certain, because it is not an area in which I have worked recently, about whether a claim for access to the identity of a donor, who would of course have been promised confidentiality prior to 2004, would succeed. I think the Rose case, of which James knows probably more, suggested there might be a right to a certain degree of information but that the balance of rights was would mean that if you had been promised anonymity at the stage at which you donated it would be unlikely that a court, even on a human rights application, would provide access to the actual identity of your genetic father.

  Q894  Bob Spink: The original adoption legislation was not to be retrospective but then they re-legislated on that. Do you think there is a chance, even though they are promising it will not be retrospective, that they might go back on that?

  Professor Mason: Ms Elliston: One would hope not, surely

  Q895  Bob Spink: They have done it before.

  Professor Mason: They would have no reason for doing it again.

  Ms Elliston: If you did that, it would be equally open to challenges of a breach of rights with respect to private and family life on behalf of the donors who had donated under the legislation as it then stood. If that were to happen, I think that would be at least open to challenge on that.

  Q896  Bob Spink: Is there not a balance? On the other hand, the child has a right to some sort of welfare. The child did not ask to come into the world, and if the child's welfare or identity is inhibited from not knowing that, from not being able to trace that, is that not a major factor? Also, of course, we have the UN convention on the rights of the child which covers this.

  Mr Lawford Davies: That is a very different point to the issue of financial assistance. I am not suggestion you were implying this but it would be wrong to suggest that children born through donor conception are in any way suffering as a result of that and that their welfare is affected adversely through that. To the contrary, the evidence suggests that that is certainly not the case. There are issues about what information they give and whether they know that they are donor conceived. The Rose case that Professor Brazier has mentioned certainly did consider what identifying and non-identifying information might be allowable, but those interests of the child would be balanced against the interests of the donor. In that case, the court did not have to do that balancing act, because it did not go to that stage, but I am sure it would be balanced very carefully.

  Q897  Geraldine Smith: How much flexibility does the HFEA have in interpreting its remit? Do you perhaps think it has gone too far at times? Do you think it has exceeded its authority?

  Professor Mason: That is: "How long is a piece of string?" is it not? Every now and again one feels, "Yes, it has," but presumably Parliament can always come back if it thinks it has gone too far. That seems to me to be the long-stop situation. Admittedly, it is reactive rather than proactive, but, given the fact that if the HFEA did make a decision which was clearly against parliamentary will, they could always come back and say they did.

  Q898  Geraldine Smith: Should there perhaps be some sort of bio-ethics committee to take over some of the ethical policy-making decisions?

  Professor Mason: You are looking at me and I thought I had already said that I am a maverick on this.

  Q899  Geraldine Smith: I would ask all of you.

  Ms Elliston: It partly depends what the purpose of a bio-ethics committee actually is. If it is to set policy, then that is one particular route that could be gone down. If it is merely to act as an advisory body, that is another one. Even if you are talking about issuing advice, does it give advice on general policy areas or are you expecting it to make decisions on a case-by-case basis? Suppose we had a case like the Whittaker case, would a national bio-ethics committee be the one which actually made the decision there or would they have been asked to issue general guidance on policy? I think there are very many different models of a bio-ethics committee and a bio-ethics commission that we could actually follow and each of them would have different implications.

  Mr Lawford Davies: I think policy is something that the HFEA does pretty well. I think it is the implementation of that policy and the regulation of the clinics that they do not do so well. Of course the HFEA as an authority is quite free to ignore the recommendations of its ethics committee and policy advisors, which it has done, certainly in relation to saviour siblings.

  Professor Brazier: I used to be very much in favour of a national bio-ethics commission. I think my doubts now are that I would want to see some substantial research into how such committees and commissions operate in other jurisdictions where they have been set up because I think there are a number of holes in which they can fall. They can simply be talking shops; they can be hugely expensive bureaucracies; or they can become extremely politicised, not necessarily on party political lines but on, if you like, pro-life/anti life, pro-medicine/anti-medicine lines. I would think it is something the Government should continue to consider, though I know Lord Warner's review ruled it out for the moment, but they should do so, I think, on the basis of very careful scrutiny of the kinds of models that have been operating abroad and to see if such a comprehensive commission actually does the job better than our rather more patchwork network does here. The crucial relationship to my mind, which I am sure you will be looking at, is the relationship between the HFEA and the Human Genetics Commission. If one is thinking about a merger and a rationalisation, they seem much more natural partners than the Human Fertilisation and Embryology Authority and the proposed Human Tissue Authority.

  Q900  Dr Harris: When I was asking about the welfare of the child, we did not have a chance to establish the views of the other people on the panel. Professor Brazier gave the view that she thought you could reword 13(5) in an inverse way to require there to be specific evidence, presumably requiring intervention or inquiry. I was conscious of the fact that James, for example, may have had something he wanted to add to that general discussion, or Sarah.

  Ms Elliston: I am certainly more attracted by the proposition that to say there has to be some significant risk of harm demonstrated than the proof that the welfare of the child requires treatment to be given. I think that is a more attractive way of wording it, but I think it still comes down to how that is going to be interpreted in practice. What risks are we talking about? Again, I appreciate that not everybody likes the comparison between non-existence and existence in terms of the welfare of the child, but perhaps the idea of avoidable and unavoidable defects which John Robertson uses is a more usable type of analogy in this particular case. How does one decide, even in this particular case, whether a significant risk is going to be established. What risks are they? Do we have a list of disabilities, for example, which one would say would put a child at significant risk, in which case one would not provide treatment? Who decides upon that? Even in those kind of terms the legislation does not actually deal with the problem unless you are going to be very prohibitive in the list, very strict in the list that you put up, otherwise it is always going to be devolved down to some lower level of decision-making body than Parliament.

  Mr Lawford Davies: I think one of the problems with section 13(5) as it is, is that it has borrowed a family law concept of welfare, which is always applied to existing children who can be assessed and visited and taken into care if necessary and applied it to children who do not yet exist, so you are asking doctors and scientists and nurses to assess what might happen if a procedure which is very likely not to succeed actually succeeds. It would certainly make it easier for doctors, who are in a very undesirable position at the moment, having to consider the parental ability of patients, if there was a very clear requirement just to look around risk of serious harm—although, personally, I do still have difficulty with even that because it is so intangible and so difficult to predict what might happen in relation to a child that does not exist.

  Dr Turner: We have not only run out of time but we have run out of a quorum, so we have to finish now anyway. Thank you very much for your contributions to our inquiry this morning. It is quite clear, inevitable, I suppose, having lawyers in front of us, that you get a big hung up on definitions from time to time, but that is the nature of the world. Thank you very much for your contributions. They have been very helpful.





 
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