01 February 2016
Dr Horsey is a Senior Lecturer at Kent Law School and Adviser to the Progress Educational Trust (PET); Dr Avery is Director of the Birmingham Women's Fertility Centre and a Trustee at PETAppeared in BioNews 837
Both of us have spent a large part of our working life in ways determined by what was said in the 1984 Report of the Committee of Inquiry into Human Fertilisation and Embryology, more commonly known as 'the Warnock Report' (not to be confused with an earlier report on special educational needs). The Committee, chaired by the then Dame Mary Warnock DBE, an English philosopher with expertise in ethics and morality and former headmistress of the Oxford High School for Girls - and now also a Patron of the Progress Educational Trust (PET) - was tasked with examining the 'ethical implications of new developments' in the field of reproductive medicine and embryology (1). It was established in 1982 at the request of the UK Government, in the wake of the birth of the first IVF baby, Louise Brown, in 1978. News of the birth had 'opened up new horizons in the alleviation of infertility and in the science of embryology', but at the same time caused anxiety that 'events were moving too fast for their implications to be assimilated' (2).
The Warnock Committee was given the following terms of reference:
To consider recent and potential developments in medicine and science related to human fertilisation and embryology; to consider what policies and safeguards should be applied, including consideration of the social, ethical and legal implications of these developments; and to make recommendations.
The wording of these terms of reference is crucial to how our two very different work lives have played out since. As an academic lawyer, one of us has long been concerned with the general social and ethical considerations made by the Committee and how that shaped the policies that underpin the law on assisted conception generally, as well as more specifically to the practice of surrogacy, which the Warnock Committee was particularly concerned about. As a clinical embryologist, the other of us has spent days adhering to the terms of the law and the safeguards that the 1990 Human Fertilisation and Embryology Act put in place – not only those safeguards that protect embryos, but those that protect society's collective understanding of the sanctity of life, as well as embryologists' ability to do what they do without censure.
Of particular importance here is the absolute credibility than can be said to have been given to embryology as both a research science and a practice to ensure the bringing about of healthy children via IVF and related technologies by the 14-day rule (3). That rule is a product of the careful considerations of the Warnock Committee and the carefully crafted Report written by (now) Lady Warnock. The same is true of the laws this country has on surrogacy (4) – not that these haven't been the subject of criticism (5, 6), but which also stem from the (comparatively more conservative) recommendations of the Warnock Report.
So it was with great excitement and a little trepidation that the two of us accepted an invitation, with Sarah Norcross, Director of PET, to have coffee and a chat with Mary Warnock in her home last November. We had no real brief – it wasn't a formal interview, we just looked forward to a tour through her life and her thoughts on what she had done for the world of assisted reproduction and its related research (7).
What we learned from Mary Warnock
Introducing herself for the record, Lady Warnock said that she had interesting memories of the time of the Committee, describing it as a 'completely new education' but something she was 'very very glad' to have done. We asked her first whether she might have looked at anything differently with the benefit of hindsight – a question which she said was 'difficult' and then cleverly deflected, telling us that the two best and most essential things the Committee did were 'to set up the HFEA (Human Fertilisation and Embryology Authority), which was the first recommendation' and 'the 14-day rule that no embryo might be kept alive in a laboratory for more than 14 days. I think that has been really the most important thing about the report ... I really feel quite proud of that'. It's hard to disagree – the 14-day rule sets a limit that society is happy with but within that limit we can – and we have – learned so much. As Department of Health minister Jane Ellison MP said in more recent debates on mitochondrial-donation techniques, 'There is no slippery slope and it's a principle that has held, stood the test of time.'
We had a long chat about embryo research, the 14-day rule, and the ethics of embryo research – in particular with reference to the human-cloning debate and the use of embryonic stem cells to produce gametes, raising all kinds of ethical issues and tricky questions about consent, the mitochondria debates and the limits of the slippery-slope type of argument. It certainly seems that none of the sparks of interest or pragmatism have left Lady Warnock, now in her 90s and only last year retired from the House of Lords.
We then moved on from research to talk about fertility treatments more specifically. We considered ongoing perceptions for some of a stigma associated with infertility, improvements in IVF success rates, whether donors should be recorded on birth certificates, the problem of secrecy in families, the move from anonymous to non-anonymous donation and issues about consent (and removal of consent). We then got on to surrogacy, Lady Warnock saying, 'I do feel rather ashamed of the stance that I took about surrogacy … I'm sure we could have done better.' To us, this is clearly an issue of how hindsight can help change perceptions of an issue. At the time of the report, as Lady Warnock went on to discuss with us, there was a level of public concern about the operation of what were thought to be unscrupulous US surrogacy agencies operating on British soil. Meeting some of the agents and hearing their positions – particularly when she considered how unable she herself would be to hand a baby she had carried to someone else – made her (and the majority of the committee) averse to surrogacy as a whole.
This clearly shows in the report and led to laws which, though some are now over 30 years old, need updating in the light of later changes – not only in understandings but also in social acceptance of different family forms (8-10). As our discussion went on, however, we turned to cross-border surrogacy and this evidently still raises some concern in Lady Warnock's eyes. She would rather see people entering surrogacy arrangements without commercial concerns and would rather have an ethical and legal framework in the UK which encouraged those undertaking surrogacy to do so in this country.
One final, general aspect of the history of Lady Warnock's work we discussed was the fact that the minister who created the Committee of Inquiry had appointed a philosopher and not a scientist to chair it. We all agreed that this was a good decision, as the concern in the day was that scientists would simply put their recommendations together. Instead, what we ended up with was a really well-balanced report. Read from either the scientific or the legal perspective, comfort can be drawn from the fact that the report was balanced between science, ethics and the impact of both on the law (and even on future developments). Lady Warnock commented on a cliché common at the time that she 'particularly loathed' – that the pace of science was outstripping morality. Looking back it is probably this that made the report – and the legislation that followed it – so important. It showed a real consideration of all of the relevant factors and, though some people might not agree with some aspects of what the law allows (or doesn't allow), a carefully constructed consensus position was reached.
Much of the safeguards put in place following the Warnock Report recommendations – like the 14-day rule – still stand up to scrutiny while allowing research to progress, leading to better treatments and understanding of not only fertility issues, but of genetic health and disease. So, we thank Lady Warnock for her careful chairing of the committee on these matters and her carefully crafted report – oh, and for the coffee and the interesting chat and trawl through the memory banks too!