APPENDIX 70
Memorandum from Professor J K Mason, University
of Edinburgh
RANDOM OBSERVATIONS
ON THE
1990 ACT
There are three aspects of the 1990 Act that
I would pick out as meriting special consideration.
The place of the Code of Practice
The Code of Practice always raises concern in
my classes, particular emphasis being laid on Part 3—dealing
with the welfare of the child and the assessment of those seeking
treatment.
An argument can be raised—based on the
fact that we do not undertake any assessment of those who intend
to reproduce naturally—that any regulation of assisted reproduction
represents discrimination against the disabled. I do not, in fact
subscribe to this; some regulation—particularly of gamete
donors—is clearly necessary.
Nevertheless, it seems to me that regulation
should be uniform. As things stand, assessment designed, primarily,
to protect any resulting children is left to the treatment centre
(para 3.1); regulation by way of a Code of Practice is, essentially,
advisory rather than directive and is certainly open to interpretation.
This is bound to lead to inequality and, as a consequence, to
"shopping around", a situation that is compounded by
the fact that the majority of treatments are given via the private
sector—thus, even such unifying influence as might be imposed
through the NHS is lacking.
I suggest that the great majority of persons
would find this unsatisfactory and, while I think that the subject
is worthy of a paper to itself, one might start looking at it
from three basic viewpoints:
(a) That the clinic's power to reject applicants
for treatment should be restricted to purely medical, including
medico-economic, reasons—eg the physical ability of the
woman to carry children and age.
(b) That the very arbitrary "selection
process" as regards social suitability of patients should
be reconsidered on ethical grounds and should, in general, be
confined to steps designed to protect the childless woman—eg
to counselling and understanding.
(c) That such part of Part 4 as concerns
the medical screening of donors and is, essentially, a matter
of protection of the public, should be incorporated within the
Act and, therefore, clearly divorced from the discretion of the
clinic.
Surrogate motherhood
It seems to me that surrogate motherhood is
just as much a treatment of particular forms of childlessness
as is, say, ovum donation or standard IVF. Two consequences follow
from this. First, surrogate motherhood should, ideally, only be
available as medical treatment and, second, that it should be
subject to a form of regulation that is comparable to the regulation
of any other treatment of childlessness.
The situation is further complicated by the
fact that there are two forms of surrogacy—partial, or standard,
surrogacy which is currently unregulated and full surrogacy, or
"womb leasing", which is regulated—not per
se, but because it involves the production of an embryo outside
the body. It is illogical that two techniques, both of which have
the same intended end of neonatal transfer, should be treated
differently—particularly when, first, the medical indications
for the unregulated partial surrogacy are very much les common
than are those for full surrogacy and, second, the genetic end-result
of the former is far less satisfactory than is that of the latter.
The case for uniformity seems overwhelming.
Without having researched the matter thoroughly,
it seems to me that there are two options to explore:
(a) To accept that the regulation of partial
surrogacy is, in practice, impossible. The logical conclusion
is, then, to release, as a specific exception, full surrogacy
from the licensing strictures of the 1990 Act and to regard it
as a medical treatment subject only to the ethico-legal constraints
of good medical practice and to the total prohibitions now embodied
in section 3 of the 1990 Act.
(b) To control partial surrogacy by what
seems to be the only practical method—that is, to restrict
parental orders to those treatments carried out in licensed clinics.
This option, of course, involves disabling children who are conceived
and born outside such regulation. It would have to be resolved
by Parliamentary decision as to whether this was or was not an
acceptable price to pay for restructuring an area of medical law
which is particularly unsatisfactory.
THE CNR "EMBRYO"
It is, in my opinion, inappropriate that the
truly massive ethical decision as to what constitutes an embryo
should be left to a pragmatic decision by the Courts—albeit
by the House of Lords. The definition of the organism resulting
from somatic cell nuclear replacement, rather than its legal control,
is a fundamental task which, for want of anything better, must
be undertaken by Parliament.
CNR is a wholly unnatural technique and it is,
in my view, morally—and, indeed, semantically—wrong
to assume that the CNR "embryo" and the natural embryo
are comparable in every way. The former is a laboratory artefact
and, whatever, the end result of the technique, it must be regarded
as such.
It is, of course, an unavoidable fact that a
CNR produced embryo that proceeded to maturity would be indistinguishable
from its natural counterpart. For this reason, the Human Reproductive
Cloning Act 2001 must be regarded as essential legislation and,
in my view, every effort should be made to extend its status to
that of an instrument of the United Nations. Something more is,
however, needed and it seems to me that, in the present state
of the debate, this can only be effected by way of restrictive
legislation. The difficulty of the task is compounded by the corresponding
difficulty of finding a suitable name for the CNR "embryo";
I admit to being at a loss although I very much favour using the
concept of propagation. I, therefore, suggest that any new Act
should include a section along the lines:
"A maturing human zygote that is the product
of a propagative technique shall not be regarded as a human embryo
for any purpose except as prescribed by regulation"
and regulations would then set limits on its
use, survival and disposal.
Again, I admit to not having given sufficient
time to elaborating this proposal. Even so, it does seem to have
positive as well as negative benefits. The former derive from
the fundamental objection to the "use" of human embryos—a
matter which was a main consideration of the Warnock Committee.
The concept of an affront to the "dignity" of the human
embryo is largely dissipated if one clearly distinguishes the
unnatural from the natural embryo and regards the former as a
creation of the laboratory, comparable to that of a cell culture.
The major ethical objection to the use of embryos as a source
of therapeutic stem cells is, thereby, eliminated—and this,
it is contended, is based on justifiable moral grounds rather
than sophistry.
October 2004
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