The Baroness O’Cathain and Christian Broadcasting Council | Wed 27 June 07 at 4pm, Committee Room No 4a, House of Lords

‘What is it to be human?’
Draft Human Tissue and Embryos Bill

Rebecca Bensted
Lawyers Christian Fellowship

Provisions of the draft Bill represent a challenge at the deepest level to God’s creation order and design
- threaten man’s distinctiveness as the only creatures made in the image of God
- seek to redefine the nuclear family
- open the door to reproductive cloning
- will open up the issue of abortion with an agenda to liberalise the laws further

Part 1

Part 1 is concerned with the creation of a new regulatory body (“RATE”) which will take over the Human Fertilisation and Embryology Authority’s role in regulating assisted reproduction services.
- will subsume HFEA into a much larger body which will also oversee activities relating to whole body donation and the taking, storage and use of human organs and tissues, as well as the regulation of the quality and safety of the collection, storage etc of blood and blood components.
What are the implications of this?
Enormous regulatory body
Lack of accountability – even greater problems are likely to be seen with keeping this body accountable and preventing it from moving outside its statutory remit than we have seen with the HFEA.
Same conflict of interest will arise as we now see with the HFEA. Same close ties to the industry.
These ethical decisions should, instead, be made by a separate and fully independent committee.

Part 2

Opens the door to reproductive cloning by repealing the Human Reproductive Cloning Act of 2001 (which banned it).
Starts with an alteration of the definition of the “embryo” to make way for a new  “inter-species” of animal/human hybrid and also to include within the definition embryos created in ways other than by fertilisation – this will allow for embryos created by “cloning” techniques (clause 14).
Regulation-making power to allow the Secretary of State to further change this definition and the definitions of eggs/ sperm or gametes if it appears to him:
“to be necessary or desirable in the light of developments in science or medicine” (clause 14(5)
Very dangerous because it will allow for further changes without recourse to Parliament. It will allow the scientists to “lead the law”.
Bill bans the placing in a woman of artificial gametes/ genetically modified ones/ cloned ones  BUT there is a regulation-making power which will exempt embryos cloned to prevent serious mitochondrial disease (clause 16).
- techonology  currently not there – opening the door to other exemptions – opening the door to the cloning of humans.
Clause 17 – Brings the creation of so-called “inter-species embryos” under the regulation of the 1990 Act.  This new species will blur the distinction between animals and humans. Unclear what the moral and legal status of these organisms will be, and whether or not they will be treated as human.
Government have said that as a result of the Science and Technology Committee Report that they propose that legislation should specifically provide for certain types of “inter-species embryos” to be created for research purposes – hybrids and chimeras (defined at clause 17(2) – either by changes to the draft clause in the Bill or through regulations.
Government’s original recommendation in the white paper was that the creation of these inter-species embryos should be banned. This original recommendation was made as a result of overwhelming opposition to such research expressed by the public during the wide consultation on the future of the Human Fertilisation and Embryology Act 1990 that was carried out during 2005.  However the Science and Technology Committee was persuaded that they “are needed” for research purposes.

Clause 18 – Embryo testing
Includes provision for “tissue typing” where a sibling suffers from a life-threatening disease and could be treated by umbilical cord blood stem cells. No rules or safeguards for future treatment of the “saviour sibling”. How are they to be protected from future invasive interventions?
Clause 21
Proposes to remove the requirement of the need of a child born as a result of assisted reproduction “for a father” (and associated guidelines) – sending the clear message that they are entirely dispensable and not needed by children.
The 1990 Act provides that “A woman should not be provided with treatment services unless account has been taken of the welfare of [the] child (including the need of that child for a father), and of any other child who may be affected by the birth.” The regulator is required to provide guidance about the meaning of these provisions.
The guidance they have provided has been seriously eroded since 1990. By November 2005 the burden of proof in the guidelines had shifted to “a presumption to provide treatment, unless there is evidence that any child born to an individual or couple, or any existing child of their family, would face a risk of serious harm”.
Figures published on the HFEA website recently demonstrated that treatment is now regularly being provided to lesbian and single women under these guidelines. This has been made possible because the definition of “Treatment services” under sn2 1990 Act was wide-ranging (“medical, surgical or obstetric services provided to the public or a section of the public for the purpose of assisting women to carry children”) and was not limited to situations where there was a “clinical need” for infertility treatment.
The needs of the children being brought into the world by techniques in assisted reproduction, which one would expect to be considered paramount as in every other area of the law governing children, are not being adequately taken into account. In my view they are not being given the weight the 1990 Act required. This has all happened without recourse to Parliament. The current proposals will make the situation worse.

Part 3

Seeks to fundamentally redefine society’s understanding of the family.

1. Of 336 responses on this specific question, 277 were opposed. House of Commons Science and Technology Committee: Government proposals for the regulation of hybrid and chimera embryos. 2007 HC 272-1. Para 41.

Seeks to treat civil partners and other single-sex couples in the same way as heterosexual ones by enabling them to legally become procreative units. This is despite the fact that the government has always maintained that civil partnership is not gay marriage, but rather a civil vehicle to enable single-sex couples to pursue their chosen life-style in line with their sexual orientation.
Explicitly provides for “two mother” families (clauses 48 - 52). Children with a “mother” and “a second parent” who is also a woman on the birth certificate. In these circumstances “no man is to be treated as the father of [the child]” (clause 51(1). It is possible for neither woman to be genetically related to the child (if donor gametes are used).
Implicitly also seems to provide for “two father” families. However there is a concerning lack of transparency in the Bill about this issue. Clause 60 extends the categories of couples who can apply for parental orders (fast track adoption) where a child has been conceived using the genetic material of one of the couple and carried by a surrogate mother. These orders were only available to married couples under the 1990 Act. The Bill would allow married couples, civil partners and other “persons who are living as partners in an enduring family relationship, and are not within prohibited degrees of relationship to each other (clause 60(2)(c)” to apply under the new provisions. It seem that two men who conceived a child using the sperm of one of them and a surrogate mother will be able to take advantage of these provisions to achieve fast track adoption, thus creating “two father families”.

Part 4

Part 4 – miscellaneous provisions
The provisions of clause 66 will facilitate the entering into of surrogacy arrangements by allowing not-for-profit bodies to receive payment both for initiating negotiations with a view to the making of a surrogacy arrangement and for enabling interested parties to meet one another. It will also allow them to advertise in order to bring parties together with a view to forming surrogacy arrangements.
Onus will be on these children to apply to the authority at the age of 18 to seek to ascertain their biological origins. Replacing the family as an essentially biological unit with a socio-legal construct.
This legislative structure enables the rights of the adults concerned to entirely overwhelm those of the children who will be brought into the world as a result of assisted reproduction. All taking place in the context of guidelines that indicate “a presumption that treatment will be provided to those who seek it”.
Abortion
The Science and Technology Committee will be debating abortion law over the summer as part of the legislative changes proposed by the HTE Bill. There is a strong agenda for abortion on demand up to 12 weeks gestation, and for a move away from licensed clinics providing abortion services and towards greater availability of the pill to induce abortion.

Rebecca Bensted
Lawyers’ Christian Fellowship
25 June 2007

Click here for Response to the Call for Evidence from the Joint Committee on the Draft Human Tissues and Embryos Bill