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Abstract
The destruction of an embryo must be justified in law. This is to prevent frivolous wastage and to show the respect afforded by the Warnock Report (1984). For example, embryonic destruction during pregnancy is underpinned by the Abortion Act 1967, and embryonic destruction during fertility treatment is regulated by the Human Fertilisation and Embryology Act 1990. However, following the appeal decision in R (Quintavalle) v Human Fertilisation and Embryology Authority (and Secretary of State for Health) [2005] 2 A.C. 561, embryos can now be created for a bone marrow tissue match to a sick sibling under the Human Fertility and Embryology Act 1990 according to the subjective desires of the mother. This opens the door to the first example of embryonic destruction on unique social-eugenic grounds with no clear lawful justification. It is argued that these embryos should be afforded a unique destruction provision under an amended version of section 1(1)(a) of the Abortion Act 1967 in light of their ‘social-eugenic’ nature. This would protect the Human Fertilisation and Embryology Authority from accusations of undercover eugenic practices and reinstate the respect shown towards embryos in law.
Notes on contributor
Lisa Cherkassky is the Senior Lecturer in Law & Criminology, College of Law, Humanities and Social Sciences, University of Derby. She is the member of Association of Law Teachers; Society of Legal Scholars; American Society of Law, Medicine and Ethics and Institute of Medical Ethics. She is the Fellow of the Higher Education Academy and registered at the UK Centre for Legal Education.
Notes
1 There is no statistical evidence to confirm how many healthy embryos have been destroyed following PTT since the appeal judgment in Quintavalle was handed down, but the destruction of embryos for subjective social reasons is a new concept in fertility treatment and looks remarkably like eugenics. For further discussion on this matter, see: Cherkassky, L. ‘The Wrong Harvest: The Law on Saviour Siblings’ (2015) 1 The International Journal of Law, Policy and Family, 1-20.
2 This was revealed by the Health Minister Lord Howe in responding to questions from peers on the levels of waste generated in hospitals and fertility clinics: Hough, A. ‘1.7 Million Human Embryos Created for IVF Thrown Away’, The Telegraph, 31st December 2012.
3 The Warnock Report, Report of the Committee of Enquiry into Human Fertilisation and Embryology, Department of Health and Social Security, July 1984, Her Majesty's Stationary Office, at paragraph 11.17, http://www.hfea.gov.uk/2068.html last accessed 22nd May 2017.
4 Per Lord Hoffmann, at paragraph 19.
5 Per Lord Brown, at paragraph 62.
6 Per Lord Hoffmann, at paragraph 24.
7 At paragraphs 81 and 83.
8 There is a wealth of literature on these subjects: Marquis, D. ‘Abortion and the Beginning and End of Human Life’ (2006) 34 Journal of Law, Medicine and Ethics 16; Little, M.O. ‘Abortion, Intimacy, and the Duty to Gestate’ (1999) 2 Ethical Theory and Moral Practice 295-312; Savulescu, J. ‘Abortion, Embryo Destruction and the Future of Value Argument’ (2002) 28 Journal of Medical Ethics 133-5; Sheldon, S. & Wilkinson, S. ‘Termination of Pregnancy for Reason of Foetal Disability: Are There Grounds for a Special Exception in Law?’ (2001) 9(2) Medical Law Review 85-109, Vehmas, S. ‘Parental Responsibility and the Morality of Selective Abortion’ (2002) 5 Ethical Theory and Moral Practice 463-84; Benagiano, G. Farris, M. Grundziskas, G. ‘Fate of Fertilised Human Oocytes’ Reproductive Biomedicine Online, (2010) Vol.21, 732-41; Sparrow, R. ‘Saviour Embryos? Preimplantation Genetic Diagnosis as a Therapeutic Technology’ (2009) Reproductive Biomedicine Online, Vol.20, 667-74; Benagiano, G. Mori, M. Ford N. ‘Early Embryo Wastage: Ethical Considerations’ (2011) Reproductive Biomedicine Online, Vol.22, 692-700, and Murphy, T.M. ‘Double Effect Reasoning and the Conception of Human Embryos.’ (2013) Journal of Medical Ethics, Vol.39, 530-3, and Cherkassky, L. ‘Selecting a Disabled Embryo can Constitute Grievous Bodily Harm’ (2015) Medico-Legal Journal of Ireland, 21(1).
9 A detailed analysis of abortion law is outside the ambit of this article, but further commentary is widely available: Warren, M.A. ‘On the Moral and Legal Status of Abortion’ (1973) 57(1) The Monist 43; Thomson, J.J. ‘A Defence of Abortion’ (1971) 1 Philosophy and Public Affairs 47; Finnis, J. ‘The Rights and Wrongs of Abortion: A Reply to Judith Thomson’ (1973) 2 Philosophy and Public Affairs 117-45; Marquis, D. ‘Why Abortion is Immoral’ (1989) 86 Journal of Philosophy 183-202; Brown, M.T. ‘The Morality of Abortion and the Deprivation of Futures’ (2000) 26 Journal of Medical Ethics 103-7, and Gillon, R. ‘Is There a “New Ethics of Abortion”?’ (2001) 26 Journal of Medical Ethics 5, Ord. T, ‘The Scourge: Moral Implications of Natural Embryo Loss’, (2008) American Journal of Bioethics, Vol. 8, 12-19; French, F.E. and Bierman, J.E. ‘Probabilities of Foetal Mortality’ (1962) Public Health Reports, Vol.10, 835-7; Murphy, T.F. ‘The Moral Significance of Spontaneous Abortion’ (1985) Vol.11, Journal of Medical Ethics 79-83.
10 A nineteen-year-old girl became pregnant with a man she did not want to marry. She was referred to Dr Smith. He asked her why she wanted an abortion and she explained that she was not in love and that she was frightened of childbirth. Dr Smith asked for £150 and the girl handed the money over a week later for her abortion. Dr Smith did not undertake an internal examination prior to the procedure (which was carried out), did not ask about her medical history, and did not seek a second opinion.
11 At pages 1512 and 1516.
12 At page 694.
13 It was also held to be “common sense” to conclude that a pregnancy would cause great mental anguish in certain circumstances.
14 Boyle, R.J. and Savulescu, J. ‘Ethics of Using Pre-implantation Genetic Diagnosis to Select a Stem Cell Donor for an Existing Person’ (2001) Vol. 323 British Medical Journal 1240, at page 1242. To see further denials that PTT is a frivolous use of embryos, see: Robertson, J.A. ‘Extending Pre-implantation Genetic Diagnosis: The Ethical Debate’ (2003) Vol. 18(3) Human Reproduction 465-471 and Dickens, B.M. ‘Pre-implantation Genetic Diagnosis and Saviour Siblings’ (2005) Vol. 88 International Journal of Gynaecology and Obstetrics 91.
15 For an additional ethical argument that the testing and choosing of embryos is not a “vice” unless it is “connected with a shallow conception of parenting” see: Scott, R. ‘Choosing Between Possible Lives: Legal and Ethical Issues in Pre-implantation Genetic Diagnosis’ (2006) Vol. 26(1) Oxford Journal of Legal Studies 153.