APPENDIX 68
Memorandum from Professor Margot Brazier,
University of Manchester
I should first acknowledge that I have done
little work in the field of reproductive medicine and the law
over the past three years or so. The principal points which I
would wish to make are as follows.[300]
1. The plethora of medical developments
in both fertility treatment and embryology mean that a fundamental
review of the 1990 Act is timely. The limited nature of the debate
on the original Human Fertilisation and Embryology Bill in 1990
meant that some of the basic questions relating to the regulation
of fertility treatments were never fully addressed. An emphasis
on the legitimacy, or otherwise, of research on embryos distorted
debate on the bill as a whole.
2. My personal religious and ethical values
led me in 1990 to be opposed to procedures which result in the
unwarranted destruction of embryos. The moral nature of the embryo
is essentially unprovable. No one can claim more than that the
fertilised egg/embryo may have a moral value and most of us who
make such claims do so from a theological perspective. Thus if
the rights of a person whom we all acknowledge to be endowed with
moral and legal status conflict with the claims of the embryo,
in a secular state the rights of the former must prevail. Nor
does according moral status to the embryo necessarily rule out
beneficial uses of the embryo. The focus on research in 1990 obscured
the fact that IVF necessarily results in the destruction of embryos.
If the "goods" of IVF justify embryo destruction it
is difficult to see how research to benefit human health more
widely can never do so.
3. The compromise of "respect"
for embryos embodied in the 1990 Act helped to create a philosophical
limbo which (in my view) hampered the HFEA in engaging with the
tough moral and legal questions that arose between 1990 and 2004.
The absence from the HFEA of members representing a degree of
opposition or at least scepticism about that compromise paradoxically
impeded constructive debate.
4. Compromise had however the advantage
that the UK was able to legislate when many of our EU neighbours
were involved in bitter controversy. The HFEA were able to ensure
that in the early days of fertility treatment patients/clients
seeking treatment in the UK were safeguarded against shoddy and
unsafe practices prevalent elsewhere. Lack of regulation in some
jurisdictions exposed patients and their future offspring to harm.
Rigid regulation in some other states fuelled procreative tourism.
5. No system of regulation can eliminate or
effectively control procreative tourism. One basic question needs
to be addressed. The provisions of the HFEA concerning parental
status are important in securing the welfare of the child once
born. Amendment to the HFEA should make provision for status rules
concerning the recognition of the status of children born after
fertility treatment outside the UK.
6. Fertility treatments which involve the
creation of embryos in vitro and/or storage of gametes
do require a discrete system of regulation for the following reasons:
(a) Such procedures result in the creation
of a child who but for third party intervention would not be born.
That intervention imposes moral responsibilities akin to, though
not identical, to the responsibilities of the putative parent(s).
(b) Fertility treatment involves patients/clients
who may well be especially vulnerable. The adverse psychological
effects of infertility are often invoked to support a case for
wider availability of treatment or to confer legitimacy on an
advance in treatment. Those same effects create a vulnerability
to exploitation.
(c) Fertility treatment is a highly lucrative
business. Patients/clients are willing to mortgage the homes,
forfeit their life savings and borrow thousands of pounds. Just
as financial services such as pensions and life insurance need
specialist regulation so does the fertility industry.
7. It follows from what I have said at 6(a)
that I consider that legislation should continue to require that
fertility clinics address the welfare of any child to be born.
Section 13(5) needs amendment. Welfare should not be used as covert
rationing. The key test should perhaps be that used in relation
to children once born. The clinic must be satisfied that the child
will not be exposed to any likely or significant harm.
8. The proposal to merge the HFEA with the
proposed Human Tissue Authority to form a single Regulatory Authority
for Fertility and Human Tissue (RAFT) seems to me to be profoundly
misguided. RAFT will either have to be so large that it cannot
function effectively or any expertise in its diverse subject matter
will be so dilute as to be useless. Lay representation will become
tokenism. The subject matter which the proposed partners in RAFT
will address is entirely different. There is little commonality
in either the scientific or the ethical questions an Authority
will need to engage with. If rationalisation is desired why not
consider merging the HFEA and the HGC?
October 2004
300 M Brazier "Embryos' Rights: Abortion and
Research" in MDA Freeman (ed) Medicine, Ethics and
Law (Stevens,1988); M Brazier "Regulating the Reproduction
Business" (1999) 8 Medical Law Review 166, M. Brazier
"Liberty, Responsibility, Maternity" (1999) 52
Current Legal Problems 359. Back
| 
