03 October 2011
ByAppeared in BioNews 627
Human Embryo Research: Law, Ethics and Public Policy
Organised by the Anscombe Bioethics Centre
Corpus Christi College, Merton Street, Oxford OX1 4JF, UK
Thursday 8 September 2011
On 8 September 2011 the Anscombe Bioethics Centre (a Roman Catholic organisation named after the philosopher Elizabeth Anscombe) organised the conference 'Human Embryo Research: Law, Ethics and Public Policy'. This was topical, in a month when it was announced that Europe's first clinical trials using human embryonic stem cells to treat Stargardt's macular degeneration (an incurable disease causing blindness in youth) would take place in the UK.
Broadly speaking, there are three positions in respect of human embryo research: an absolute prohibition, ascribing the highest moral value of personhood to embryos; a gradualist compromise, ascribing some intermediary special value to embryos; and no prohibition, with the embryo akin to human tissue with no special moral value. Variations in different countries' policies depend largely on the way these perspectives clash.
The morning speakers at the conference presented the different conservative legal rationales that form the basis of laws governing embryo research in France, Germany, Ireland and Italy. France, Germany and Italy all placed an initial ban on the 'instrumentalisation' of embryos for research purposes, and have all since reviewed and slightly relaxed this ban. Ireland, by contrast, amended its constitution to expressly ascribe legal rights to the 'unborn', but then relied upon judicial interpretation to determine its policy.
In considering the constitutionality of embryo destruction in Roche vs Roche, the Irish Supreme Court shifted its focus onto implantation as the necessary step to determine an embryo's viability. It held that only when a willing mother has an embryo implanted in her womb is an embryo an 'unborn child' with legal rights, effectively placing in vitro embryos as an anomalous class of embryos outside the law. William Binchley, Regius Professor of Laws at Trinity College Dublin, disagreed with the Irish Supreme Court's conclusions. He criticised the court for not fulfilling its role in philosophical jurisprudence, and leaving several key 'areas of uncertainties in its wake', including if embryos are therefore equivalent to personal property.
On BioNews, I recently criticised the Catholic objection to human embryonic stem cell research as misplaced, when it should be directed at fertility treatments. Even if research is prevented, embryos will still be destroyed when discarded by the fertility clinics, because they are unwanted for the potential reproductive purposes for which they were created. Why ban embryology when the embryos will still be destroyed? The controversy in Germany, Italy and France focused on whether using unwanted IVF embryos in research is a justified exception.
Laura Palazzani, Professor of Philosophy of Law at Lumsa University in Rome, described a rather surprising tension in the Italian constitution which protects both human dignity (Article 3) and the freedom of research (Article 2). Italian jurisprudence, according to Professor Palazzani, tends to distinguish the protection of the embryo for scientific purposes from the protection of the embryo for reproductive purposes, but is unresolved when the two collide.
The French policy, like its fashion, is elegant: 'the fruit of human conception cannot be reduced to materials'. Jean-René Binet, Professor of Private Law at the University of Franche-Comté, described heated parliamentary debates in 2004 and 2008 when deciding whether to modify this principle in light of human embryonic stem cell research. The debate in France concerned whether 'the fruit of human conception' can be considered differently in different situations.
Christian Hillgruber, Professor in Public Law at the Rheinische Friedrich-Wilhelms University in Bonn, uncompromisingly adopts a one-pronged moral rights interpretation that human dignity is inviolable and inalienable as a German constitutional right without exception: 'These embryos are…human beings whose life may never be taken merely because it will end soon anyway and could be put to good use beforehand'.
The afternoon sessions tackled the challenge of defining dignity and translating this concept into public policy. Michael Hauskeller, Associate Professor of Sociology and Philosophy at the University of Exeter, led a fascinating discussion of the conventional meaning of dignity and of Immanuel Kant's argument that dignity depends on autonomy – a quality that embryos lack. He concluded that it is unclear whether embryos have dignity, because it is not a factual question.
The Anscombe Bioethics Centre's Director, Professor David Albert Jones, gave a presentation that was the highlight of the conference, in which he described an endemic lack of transparency in UK policy and regulation concerning embryo research. He mounted a sophisticated argument that UK policy assumes the pretence of a gradualist approach, using 'special status' moral language to describe the embryo, in order to disguise the fact that it is utilitarian in practice and ascribes little or no special status to the embryo.
Professor Jones argued that a gradualist approach is 'radically ambiguous', without concrete criteria to enforce: 'How much respect should be shown at what stage?' He accused UK policy of sidestepping the moral status of the embryo, and instead focusing on how to appease those who object to embryo research or assisted conception. Consequently, UK policy is instrumentalist in its use of moral language and its treatment of embryos, in order to manage public concern.
While gradualism may be unclear, I wondered how Professor Jones would suggest we legislate for a dignity approach, given that we had spent a day hearing how ambiguous that concept is. I also disagreed with his assertion that embryos are not protected in the UK, and I support the legal compromise that prohibits embryo research after 14 days. It is worth noting that an embryo that is 15 or more days old is fully protected from research under English law. This cannot reflect there being no moral status ascribed to the embryo.
The definition of a gradualist approach is affording 'some' status. Nebulous this may be, but the 14-day rule – arbitrary or not – was created to anchor it. The fact that embryo research up to 14 days is heavily regulated, using licensing and quality standards as precautionary red tape, should not be disregarded and surely does not result from 'no status' utilitarian law. What Professor Jones appears to object to is a permissive gradualist approach rather than a restrictive gradualist approach. This is an ideological conflict, not a public deception.
Similarly, when Professor Jones criticised the Human Fertilisation and Embryology Authority for only ever having refused one research licence, he failed to consider that a miniscule number of such licences are applied for, and they are submitted by skilled specialists who have learned what criteria must be met in order to receive approval. As a lawyer, I am familiar with the regulatory hurdles these researchers must clear for licensing, and I know that these studies are not conducted with the ease which Dr Jones seems to imagine.
Despite my disagreements with Professor Jones, I did think that he raised some valid criticisms of underrepresentation and patronising attitudes in policy formulation. Catholic perspectives on the human embryo may be infamously uncompromising, but the intelligent and thought-provoking presentations at this conference allayed my concerns of bias, and demonstrated how taking account of the Catholic view can enrich and inform public debate and policy.