Select Committee on Science and Technology Fifth Report

3  The embryo

Status of the embryo

24. At the heart of any review of assisted reproduction legislation is the fundamental question of the status to be accorded to the human embryo. There is a range of positions which can be taken on this. These fall into three principal views:

a)  that the embryo is a human life and therefore is entitled to conferral of full human rights;

b)  that the development of personhood is a gradual process but that the embryo is entitled to some protection; and

c)  that the embryo is no more than a collection of cells, albeit with the potential to develop into a human being.

25. The first of these approaches is often identified with the Catholic Church. It is set out by the Catholic Bishops' Conference of England and Wales and the Linacre Centre for Healthcare Ethics, who wrote in evidence to this Inquiry:

    "If the human embryo is the same individual as the older human being, this has immediate moral implications. There is no such thing as a 'subhuman human': a human being/organism with subhuman moral status. Human status is not something we have to 'earn' by reaching some arbitrary level of functional ability. If fertilisation is, in the normal case, the origin of a new human individual - a life distinct from the parents - that individual will have rights and interests from fertilisation onward in regard to his or her well-being. They have rights and interests of which they are unaware, just as newborn babies do. These rights and interests should not be entirely subordinated to the interests, or perceived interests, or desires or wants, of adult human beings.".[18]

This position dates from 1869 when Pope Pius IX abolished the distinction in between early and late abortions. Previously, St Thomas Aquinas favoured a later ensoulment: at 40 days for the male foetus and 90 days for the female foetus. Advocates of this view are not necessarily associated directly with the Catholic Church. The Rev Dr John Fleming, Consultant to the Society for the Protection of the Unborn Child (SPUC) said his organisation had no theological view of the matter: "Its position is based upon the biological facts, that from the beginning a new human life comes into existence at fertilisation. It takes its position under the universal declaration of human rights, that everyone has a right to be treated as a person.".[19] Such a stance would logically result in the conclusion that IVF should only be undertaken without the destruction of embryos and that embryo research for any purpose should be prohibited.

26. The gradualist approach is favoured, among religious perspectives, by the Church of England and the Jewish faith. Dr Michael Nazir-Ali, the Bishop of Rochester, argued that the gradual emergence of a person was often the approach in Christian tradition until 1869.[20] It draws on distinctions between the unformed and formed foetus in the definition of homicide.[21] Augustine wrote:

    "If what is brought forth is unformed (informe) but at this stage some sort of living, shapeless thing (informiter), then the law of homicide would not apply, for it could not be said that there was a living soul in that body, for it lacks all sense, if it be such as not yet formed (nondum formata) and therefore not yet endowed with its senses".[22]

27. The Office of the Chief Rabbi told us "The embryo is not a person, but must be treated with the respect due to a form of human life".[23] This respect is generally based on the potentiality of that embryo to become human life. Thus, while the gradualist approach accepts that the embryo of the human species is morally significant, it does not afford it the rights that would be conferred on it following live birth. As John Polkinghorne from the University of Cambridge expresses it:

    "The very early embryo is entitled to a deep moral respect because of its potential humanity, so that it is not just a speck of protoplasm that you can do what you like with and then flush it down the sink, but it is not yet fully a human being".[24]

28. The third view, that the embryo is no more than a ball of cells, has not been expressed to us in this inquiry. The Warnock Committee articulated it as follows:

    "A human embryo cannot be thought of as a person, or even a potential person. It is simply a collection of cells which, unless it implants in a human uterine environment, has no potential for development.".[25]

The Warnock report weighed up these three approaches and adopted the gradualist view, recommending that "the embryo of the human species be afforded some protection in law".[26] The report considered that it was inappropriate to endow the embryo of the human species with the full panoply of human rights. However, it was also inappropriate simply to consider it as nothing more than a ball of cells. The approach taken by the Warnock committee has in our view provided a firm foundation for legislation. While it has been argued that there have been many scientific developments and changes in social attitudes, the Warnock Committee's approach to the status of the embryo remains valuable. While this gradualist approach to the status of the embryo may cause difficulties in the drafting of legislation, we believe that it represents the most ethically sound and pragmatic solution and one which permits in vitro fertilisation and embryo research within certain constraints set out in legislation.

29. Adopting a gradualist approach, we believe, recognises the special status of the embryo of the human species, while at the same time respects the legitimate interests of intending parents and the wider society. It does not, therefore, exclude other considerations such as seeking to provide treatment for the infertile or discovering the causes of infertility or the genesis of serious illness. However, it does require that embryos should not be used without carefully evaluating the reasons and rationales for their use in a specific manner or for a specific purpose. Since this approach does not preclude the creation of human embryos for legitimate purposes or their use in an approved manner, it is worth considering its implications for the ways in which the embryo might be treated.

Uses of embryos


30. Arguably, one of the least controversial uses of the human embryo is implantation with the intention of establishing a pregnancy. Despite some (relatively uncommon) residual concerns about assisted reproduction itself, such services seem to be well tolerated in UK society and their aim - the birth of a child - is widely regarded positively. The question here, therefore, revolves not around the status of the embryo, but rather on the 'rights' or interests of individuals to have assistance in reproducing. This raises directly the question of reproductive liberty. This concept became of increasing importance in the 20th Century, particularly in the early years when a number of states adopted policies designed to intervene in the reproductive choices of individuals, by, for example, instituting policies of non-consensual sterilisation. Such policies are now widely regarded as objectionable.

31. The philosophical view that individuals should have the right to make private choices - such as reproductive decisions - free from the scrutiny of the state can be traced to John Stuart Mill:

Its application to reproduction has been espoused by Professor Emily Jackson from Queen Mary, University of London. She has written that "interfering with a particular individual's decision to conceive a child would usually involve violating their bodily integrity and sexual privacy. We do not sterilise people who have been convicted of violent offences against children because, however gruesome their crime, their person must remain inviolate. […] the freedom to decide for oneself whether or not to reproduce is integral to a person's sense of being the author of their own life plan".[28] Professor John Harris from Manchester University has argued that "There are many arguments from many sides, which purport to give reasons for limiting access to reproductive technologies and to gene based reproductive procedures. There is one reason to reject them all, and that is that they do not point to dangers or harms of sufficient seriousness or sufficient probability or proximity to justify the limitation on human freedom that they require.".[29]

32. This approach emphasises the importance of the individual, specifically the autonomy of the individual and the right to make private choices. It has been challenged by Professor Robin Gill from the University of Kent, who argues that "We live in the "time of the triumph of autonomy in bioethics" in which "the law and ethics of medicine are dominated by one paradigm - the autonomy of the patient". He argues that "conceptions of individual autonomy cannot provide a sufficient and convincing starting point for ethics within medical practice".[30] However, it is worth bearing in mind that legal tradition is that decisions which fall into the private domain are generally regarded as not of interest to the state. Certain exceptions to this maxim do, of course, exist but these generally arise in the sphere of criminal law. Thus, when the service to be provided is the implantation of an embryo with the intention of establishing a pregnancy, and in line with Article 8 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998) reproduction itself would seem to be firmly situated within the private domain. The primary consequence of this is that the right to private and family life espoused in Article 8 can be said to apply to reproductive decisions. Only if one of the possible derogations from that Article can be established (for example where there is a threat to public health or morals) would the terms of this Article be inapplicable.

33. Nonetheless, a number of justifications have been put forward for limiting reproductive freedom in assisted reproduction. The weight given to these issues and the extent to which they are dealt with in other forms of regulation are, we believe, critical in establishing a new framework for regulation. These arguments, which will be dealt with in turn, are as follows:

a)  Protection of the embryo;

b)  The procedures result in the creation of a new life;

c)  The intervention of a third party;

d)  Concerns for the welfare of children who are born using assisted reproduction;

e)  Concerns that, where embryos and gametes are donated, a genetic link should be maintained;

f)  Concerns that it would expose patients to excessive levels of risk;

g)  Concerns that individual reproductive decisions may have wider impacts on society; and

h)  The need to supervise a morally controversial aspect of assisted reproduction.

34. The Chair of the HFEA, Suzi Leather, stated to us that she thought it was the special status of the embryo that justified regulation However, it is important to draw a distinction between legislation and regulation and it is not clear that protection of the special status of the embryo requires oversight beyond that set out in legislation. It is interesting to note that in the Warnock report, the idea of protecting the embryo in law arose from the discussion of embryo research rather than assisted reproduction. Professor Peter Braude from Guy's Hospital and a former member of the HFEA felt that it was the creation of a new life that justified intervention. He told us that "I do not think there is another area of medical practice that is like assisted conception. There is no other area I know other than drugs in pregnancy where, in satisfying the client […] who come along to you and say, "We desperately want some children", to solve that problem is a child".[31]

35. The argument that the intervention of a third party takes reproduction out of the private and into the public domain may be based on two premises. First, that the involvement of a third party (the doctor or clinic) imposes additional professional constraints. For example, Professor Alastair Campbell from Bristol University states that it is justified to intervene in otherwise private choices because issues of professional responsibility arise: "In these cases reproduction ceases to be a purely private matter between partners and is appropriately a concern of the state, as well as of the profession". This was the view expressed by the Minister in giving evidence to us.[32] However, the two issues can be separated. Certainly, clinicians are subject to professional constraints imposed by their own professional bodies, and very rarely, the state, but this is true in all medical practice and does not in itself justify the intervention of the state. Second, it might be argued that the mere fact of third party involvement is enough to render the behaviour in question public rather than private. However, third party involvement in reproduction is also present when doctors operate to reverse a vasectomy operation or unblock fallopian tubes, both of which are intended to achieve the same outcome as assisted reproduction; that is, the birth of a child. Although assisted reproduction is closely regulated, neither of these operations is subject to the same constraints, arguably leading to inconsistency, and discrimination against certain groups or individuals based on the cause of their infertility rather than on any other ethical basis . The Human Rights Act may also be relevant here. If Article 8 is engaged by questions of reproductive liberty, then the Article 14 prohibition on discrimination may also be engaged.

36. Interventions on the grounds of welfare can be usefully divided into medical and psychosocial. The safety of assisted reproduction has been a matter of conjecture, since even the earliest children born using IVF are still only young adults. Professor Alastair Campbell argues that when the state and the professions are involved in parenting decisions "there is an obligation to avoid harm wherever possible. […] Refusing to select parents could result in complicity in clear harms to children […] The only ethical issue is what criteria should be employed". The issue is one of degree since few people argue that reproductive freedom should be unrestricted. As Professor Julian Savulescu from Oxford University put it to us, "we should consider the vulnerable and consider the children by balancing the risks and benefits" but whereas Professor Harris asks (in the context of a child conceived using foetal ovarian tissue) "Will this knowledge be so terrible that it would be better that no such children had ever been or were ever born?", Professor Campbell maintains that this view is mistaken because "By preventing a pregnancy through regulation, no child is harmed".

37. Professor Peter Braude from Guy's Hospital, London and a former member of the HFEA, pointed out the effect that the absence of a regulator had had in the US, where in 66 per cent of cycles, there were more than three embryos replaced, in 32 per cent, there were more than four embryos replaced and, in 11 per cent, there were more than five embryos replaced. This subjects pregnant women and children to risks resulting from multiple pregnancies (see paragraph 268). An issue with this approach is that it could be applied to other - unregulated -- forms of infertility treatment such as ovarian stimulation, which also carries with it a high risk of multiple pregnancy, and various surgical procedures. However, there are few calls to bring this within the regulation of assisted reproduction.

38. Concerns about welfare are particularly acute when they relate to the use of donated gametes and embryos. If anything these have intensified since the Warnock Report, which took the view that this would take place in any case and that it was therefore important that it took place in a regulated environment, was published. It concluded that "An AID child is a very much wanted child: a couple may have had to endure many years of waiting and will consequently cherish the child".[33]

39. The importance of maintaining a genetic link where embryos and gametes are donated has proved to be a matter of debate, with no clear consensus emerging as to the weight to be given to genetic linkage, although the recent regulations permitting future children to gain identifying information about gamete donors do seem to emphasise biological over social status.

40. In law there are considered to be levels of risk, for example where someone is being exposed to unnecessary danger, at which it is reasonable for the state to intervene, even if the individual has consented to be exposed to that risk. In terms of assisted reproduction, it could be argued that the drugs used stimulate egg production and the risks associated with multiple pregnancy are such that they justify state regulation. While these risks are real and significant, however, they do not obviously fall beyond the level of risk which people are legally permitted to assume. For example, a valid consent to surgery such as heart transplantation (which carries a significant risk of harm) or to involvement in non-therapeutic research projects, is regarded in law as valid so long as it has been taken by a competent individual. The state will only go so far to protect people from themselves, and will intervene only when the risk is deemed unacceptably high or grave. The risks of assisted reproduction, if explained to and understood by, the individual concerned seem to us to sit firmly within those which can be consented to in law.

41. Concerns that individual reproductive decisions may have wider impacts on society are commonly expressed in relation to embryo selection. For example, it may be argued that permitting selection of embryos on the basis of their sex would lead to demographic disaster or the reinforcement of sexist attitudes, both of which would be harmful to the wider society.

42. The demand to regulate morally controversial techniques goes beyond possible harms to individuals or even society. The concern here is more that the use of the treatment offends human dignity rather than any harms that might result from it. This approach argues that any action or technology that involves comprising human dignity must be rejected. Both the Warnock report and the 1989 Polkinghorne report on the research use of foetuses and foetal material accorded some status to the human embryo and had something akin to 'dignity' in mind. This notion that we should not treat the embryo of the human species casually is surely one with which most - if not all - would agree.

43. Witnesses expressing this concern have included the Scottish Council on Human Bioethics, which argues that "an acknowledgement of human identity and personhood with, as a consequence, the protection of human dignity should be the underlying basis on which to draft new legislation.".[34] Human Genetics Alert argues that "The insistence by some commentators on 'reproductive liberty' has become the key ideological element in the construction of a free market consumerist model for reproduction, rather than any attempt to free women from patriarchal control over their bodies.".[35] Some faith groups have adopted a similar stance. The Catholic Bishops of England and Wales states that "Increasingly, children are seen as the object of 'consumer choices', rather than as new human beings to be accepted unconditionally." The Christian Medical Fellowship supports the use of science and technology to prevent, treat and relieve the suffering of infertility but believes that "this should be guided by sound ethical principles based on a profound respect for all human life as made in the image of God".[36] However, even conceding this point does not inevitably provide a strong argument against assisted reproduction. The concept of dignity is difficult to define and would be extremely difficult to fashion into a foundation for legislation. It is also worth noting that human rights conventions considering dignity have in general avoided references to the human embryo. An exception to this is the Council of Europe's Convention on Biomedicine, to which the UK is not a signatory. In any event, in this section we are concerned with the fate of the embryo created for implantation; it is hard to argue that an embryo's dignity is in any sense negatively affected by being born. .

44. An alternative perspective to the balance between reproductive freedom and state intervention is provided by utilitarian ethics. Here the emphasis is on measuring the benefits over burdens of particular activities. This approach was rejected by the Warnock Committee. It said "Moral questions, such as those with which we have been concerned, are, by definition, questions that involve not only a calculation of consequences, but also strong sentiments with regard to the nature of the proposed activities themselves."[37] Thus, for the Warnock Committee, even if evidence were available which could establish that the benefits (for example to the infertile) of unregulated access to assisted reproduction, there were underpinning moral or ethical considerations which also had to be considered, at least in some circumstances. However, the Warnock Committee did not view assisted reproduction in itself as a threshold that should not be crossed over. Thus, it would appear that both libertarian and utilitarian ethics would support the view that, in terms of the embryo intended for implantation, since the creation of the pregnancy is inherently to be regarded as a good thing, the state has no right to intervene in the choices of people to procreate unless evidence of harm can be shown.

45. Of course, IVF generally involves the creation of a number of embryos, not all of which will be implanted. For some, this is the essentially problematic aspect of assisted reproduction. Indeed, for some this is the principal reason for opposing all assisted reproduction. For others who would not go quite this far, nonetheless the fate of 'surplus', 'spare' or unselected embryos demands close regulation. On the other hand, given that a choice of embryos exists, some have argued that it is either morally neutral to select one over another, or even that there may be a positive duty on intending parents to select the embryo which has the best chance of a 'happy' life.

46. We accept that a society that is both multi-faith and largely secular, there is never going to be consensus on the level of protection accorded to the embryo or the role of the state in reproductive decision-making. There are no demonstrably "right" answers to the complex ethical, moral and political equations involved. We respect the views of all sides on these issues. We recognise the difficulty of achieving consensus between protagonists in opposing camps in this debate, for example the pro-life groups and those advocating an entirely libertarian approach to either assisted reproduction or research use of the embryo. We believe, however, that to be effective this Committee's conclusions should seek consensus, as far as it is possible to achieve. Given the rate of scientific change and the ethical dilemmas involved, we conclude, therefore, that we should adopt an approach consistent with the gradualist approach, of which the Warnock Committee is one important example. This does not mean that we will shy from criticism of regulation to date, where we believe it warranted. But it does mean that we accept that assisted reproduction and research involving the embryo of the human species both remain legitimate interests of the state. Reproductive and research freedoms must be balanced against the interests of society but alleged harms to society, too, should be based on evidence.

47. Many of the decisions about what to regulate or to legislate about depend on the approach taken with regard to the balance of harm and benefit or potential harm and potential benefit. It has become fashionable to specify that authorities (whether that be Governments, agencies, industry, watchdogs etc) should take a "precautionary approach" or adopt the "precautionary principle". This means different things to different pressure groups, and to different sides of the argument. In respect of medical advances it has never meant "proceed only where there is evidence of no harm". If it did many of the advances would never be made. In medical research practice it means proceeding through carefully regulated and tightly overseen research stages, requiring -among other things - vigilance and peer review. In clinical practice it means proceed cautiously and in a manner amenable to ethical oversight and clinical audit while there is no evidence of sufficiently serious harm or potential harm to outweigh benefit or potential benefit, while being vigilant in looking for unintended and otherwise adverse outcomes. We do not see why the area human reproductive technologies should do anything other than proceed under a precautionary principle currently prevalent in scientific, research and clinical practise. This means - as specified in paragraph 46 above - that alleged harms to society or to patients need to be demonstrated before forward progress is unduly impeded.


48. If embryos are to be used for the purposes of alleviating infertility, there remains the question of what can or should be done with those considered spare or unsuitable for implantation. There are a number of options: they can be destroyed, donated to another individual, stored for later use, or donated for research. This has been a major stumbling block for some individuals and groups, and has had a major impact on the recent Italian legislation, which does not prohibit IVF but demands that only three embryos are fertilised and that all must be implanted in the woman. This law attempts to eliminate the destruction of spare embryos, and donation, storage (except for certain circumstances) and research are forbidden. It could be argued that there is nothing "respectful" about the destruction of an embryo and that this therefore gives it no special status at all, not even that derived from a gradualist approach. The Church of England has addressed this issue in the following way:

It could, of course, be said that what nature does and what man does are not equivalent, Unlike man, nature cannot be said to have intention. Thus, it might be argued, even if nature creates more embryos than survive to live birth, this is no justification for man to do the same. However, it must be borne in mind also that in IVF the intention is not create embryos to be spare, although it would be seen as a good thing to have a reasonable number from which to select the most viable for implantation. Once created, then, the question is the extent to which the embryo's status can or should outweigh the potential benefits to be derived from its existence, or the extent to which its existence outweighs the choice of those who do not seek to implant every embryo which has been created and/or stored. At the simplest level, it can be argued that the competition here is between the interests that we have in respecting the human embryo (which is not a legal person) and the rights of born individuals to have their reproductive choices respected. While we agree that this decision is not an easy one, we nonetheless believe that the balance must lie with the rights of those already in existence but subject to appropriate ethical oversight and regulation. The outcome of any other conclusion would be that every embryo created would have to be implanted, thus potentially forcing individuals to have more children than they wish or repeated cycles of unsuccessful IVF, as in Italy. Such a direct invasion of their reproductive rights is hard to justify. Thus, inevitably, some embryos will perish, unless we can find a way of creating only as many embryos as it is anticipated will be implanted. Even then, however, some embryos will not be selected for implantation because, for example, they carry genetic conditions incompatible with life, or with a life of quality. Again, this is a controversial aspect of assisted reproduction, which we consider in paragraphs 109-146.


49. The view that the embryo acquires human rights at conception would preclude any research being undertaken on it. We have concluded that the embryo should be accorded special status in common with the Warnock Committee. For research this means that the respect given to the embryo needs to be considered in the context of the benefits that might accrue from the research. The Warnock Committee suggested that research on embryos should not be permitted if the purposes could be achieved in any other permissible way or for "frivolous" reasons. This is reflected in the HFE Act in the list of purposes for which research on embryos can be conducted. The Warnock report did not specify what those purposes should be, other than the committee expected it be mainly for the alleviation of infertility and the prevention of hereditary disease. Broadly speaking, this continues to represent the legal position on embryonic research, although additional provisions have recently been added. These will be considered in more depth in paragraphs 331-342.

50. As we have seen, IVF procedures often produce spare embryos. These may either be surplus or of insufficient quality. While the Warnock committee was unanimous on the use of embryos in appropriate and ethical research, four of the 16 members felt that there was a "clear moral distinction" between the use of spare embryos and the creation of embryos specifically for research.[39] These views were based on the following arguments:

a)  That the creation of an embryo for research was inconsistent with the idea that it should be afforded special status.

b)  That, unless prohibited, it would lead to the use of embryos for routine and less valid research.

The majority of the Warnock Committee felt that the medical benefits from the creation of embryos were such that it was justified in certain circumstances. We also subscribe to this view. We believe that the research on human embryos can be undertaken without compromising their special status but that this research should have proper ethical oversight as set out in Chapter 8 and 9. We further conclude that, where necessary, embryos can be created specifically for research purposes.

18   Ev 318 Back

19   Q 712 Back

20   Q 697 Back

21   Embryo Research: Some Christian Perspectives, A report from the Mission and Public Affairs Council, Church of England Back

22   Quaestionum in Hept I II n 80 Back

23   Ev 373 Back

24   JC Polkinghorne, The person, the soul, and genetic engineering, Journal of Medical Ethics, 2004;30:593-597 Back

25   para 11.5 Back

26   para 11.17 Back

27   JS Mill, 'Utilitarianism & On Liberty'(ed. M. Warnock), 1962, Fontana Press Back

28   Emily Jackson, Fertility treatment: abolish the 'welfare principle', Spiked Online, 11 June 2003 Back

29   John Harris, Reproductive Liberty, Disease and Disability, unpublished article, 2004 Back

30   Robin Gill and Gordon Stirrat, Journal of Medical Ethics, in press Back

31   Q 616 Back

32   Q 1308 Back

33   Department of Health, Report of the Committee of Enquiry into Human Fertilisation and Embryology (The Warnock Report), July 1984 Back

34   Ev 247 Back

35   Ev 288 Back

36   Ev 217 Back

37   para 4 Back

38   EmbryoResearch:SomeChristianPerspectives:AreportfromtheMissionandPublicAffairsCouncil Back

39   page94 Back

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