07 February 2006
lawyer, Bevan BrittanAppeared in BioNews 344
The HGC recommends that '...the Human Fertilisation and Embryology Authority [HFEA] should explore ways in which clinics in the UK can be prevented from preparing or otherwise colluding with individuals intent on seeking treatments which are permissible abroad, but prohibited within the UK'. The report only offers one example of a service permissible abroad but 'prohibited' in the UK, namely social sex selection. In fact, unlike reproductive cloning, social sex selection is not prohibited in the UK: the Human Fertilisation and Embryology Act is silent on the subject and the view of the House of Lords in Quintavalle v HFEA was that this silence indicates '...that Parliament intended to leave the matter to the Authority to decide' Lord Hoffman). The HFEA has adopted a policy not to license social sex selection for the time being, much in the same way that it exercised its discretion to refuse licences for PGD with tissue typing until 2004.
This is not only a semantic observation on the curious language adopted by the HGC. The HFEA's regulatory remit is limited to those clinics which perform licensed procedures in the UK: it does not regulate all aspects of assisted conception and it does not regulate treatment which takes place abroad (though it may restrict import and export of embryos and gametes). To extend the remit of the HFEA to enable them to regulate and obtain information about unlicensed treatment occurring outside the UK would be a dramatic extension of their powers at a time when many advocate their role becoming more focused if not diminished.
More fundamentally, the HGC appear to ignore the fact that patients will not need to rely upon the assistance of UK clinics in order to find treatment abroad. Unless the HFEA adopt the approach of certain foreign governments and seek to persuade internet search engines to censor sites advertising services which are not available in the UK, patients will collude with whoever they find. However, preventing UK clinics from any involvement in this process would also prevent them offering advice, counselling, preparatory treatment and follow-up.
Very little is known about the extent of cross-border flow for reproductive care. The European Commission is in the early stages of reviewing the provision of PGD in each EU member state with a view to assessing the extent of cross-border flow and the level of follow-up of such patients. This will inform policy making and provide a useful insight which might allow an informed discussion to take place about how best to address this phenomenon in the best interests of patients and their children. In contrast, preventative legislation of the kind adopted in Italy and Germany (which criminalise referral abroad for treatments prohibited at home, including PGD for any reason) will only serve to create a new range of problems.