Regulating Assisted Reproductive Technologies: New Horizons
Published by Cambridge University Press
ISBN-10: 1107160561, ISBN-13: 978-1107160569
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In 'Regulating Assisted Reproductive Technologies: New Horizons', Dr Amel Alghrani, a reader in law at the University of Liverpool, explores the future regulation of new reproductive technologies, specifically ectogenesis – gestating a fetus outside of a human body in an artificial womb and uterus transplants.
In examining issues such as consent, the treatment of in vitro embryos and parentage, Dr Alghrani finds that the current UK legislation does not provide a sufficient regulatory framework to cope with the advance of these technologies.
The UK has been widely recognised as a leader in the regulation of reproductive technologies, with the creation of the Human Fertilisation and Embryology Act 1990 (the HFE Act) and the accompanying regulatory body, the Human Fertilisation and Embryology Authority (HFEA). While the HFE Act was amended in 2008, Dr Alghrani argues that this was a missed opportunity to reform regulation in the reproductive sector and as a result the legislation still heavily relies on the Warnock report, published in 1984.
Dr Alghrani's consideration of court judgments in IVF cases illustrates that the law is slipping behind the science. In the case of Evans v Amicus, a woman was denied her last opportunity to gestate a genetically-related child and in ARB v Hammersmith, a man was left uncompensated for the deceptive misuse of his gametes. Neither of these outcomes appear satisfactory and Dr Alghrani uses them to highlight the need for Parliament to consider new regulatory models to resolve such disputes.
Dr Alghrani states that the UK courts relied upon policies relating to in vivo conception and pregnancy and in doing so, failed to take an opportunity to outline the status of an in vitro embryo. These cases suggest that either the courts were not prepared to step on parliamentary toes, or, in juggling the current issues of frozen embryos, have not had the opportunity to look up and scan the horizon.
The failure of the courts to think ahead, particularly in relation to new forms of gestation, is not surprising as current legislation certainly does not leave room for alternatives. The Abortion Act 1967 for example clearly refers to a pregnant woman and a 24-week limit that results from fetal viability.
In the case of an ectogenic fetus neither of these features would be applicable and, as Dr Alghrani appropriately argues, wide reform of this legislation would be necessary. Additionally, in support of the special status accorded to the embryo by the Warnock Committee in 1984, the HFE Act 1990 (as amended) prohibits research on embryos beyond 14 days and therefore research into ectogenesis is restricted.
Dr Alghrani reasons, however, that the special status of the embryo is in fact upheld by ectogenesis, as it may provide an opportunity for the embryo to develop as opposed to being destroyed. The existing legislation, with a review of the 14-day rule, may therefore support ectogenesis if interpreted in this way.
The reform of legislation as a result of new reproductive technologies is not merely restricted to regulation. As Dr Alghrani writes, when discussing the development of uterus transplants, such technologies also bring into question current concepts of parentage and its link to gender.
Uterus transplants, as well as providing a further reproductive choice for cis-gendered women, present new possibilities of pregnancy and gestation for the transgender community and cis-gendered men, according to some researchers. As a result, terms such as mother and father, currently connected to biological gender, are, as recently expressed by Sir James Munby, thrown back into the melting pot (BioNews 979).
Regulation of this activity also will cause legislative mayhem as both the HFE Act (as amended) and the Human Tissue Act 2004 will be engaged. Dr Alghrani is hopeful that the two can work together for cis-gendered women, but complexities may prove difficult when applied to transgender women and cis-gendered men.
In 1984, the prospect of ectogenesis and the transfer of a functioning uterus from a live or dead donor were not necessarily on the horizon as they are now. However, with continuing research to save the lives of premature babies and suggestions that the 14-day research restriction on embryos should be extended, there is no doubt that the two elements of research will eventually join together to result in ectogenesis.
Additionally, ectogenesis was briefly considered in the Warnock report and the amendments made in 2008 were due to a recognition of how rapidly science was advancing in this area. Therefore, it can no longer be said that consideration of these technologies is premature and there is little justification for leaving the legislation untouched for much longer.
With her book, Dr Alghrani has extended academic debate by exploring practical applications of UK law. In doing so, she has made clear that the UK is not currently equipped to handle what it is on the horizon. There are also many other implications not given as much attention in the book (no doubt due to time and space restrictions), such as the impact of these technologies on surrogacy. Will it become obsolete with new routes of gestation available? This leads to further questions of cost and access.
As outlined above, ectogenesis is likely to result from other research aims but it cannot be ignored as a mere side effect of other research. Importantly, empirical research is needed to assess the public perception and demand for such technology.
What is clear from Dr Alghrani's book is that ectogenesis and uterus transplants will disseminate concepts of reproduction and family, perhaps in ways we cannot yet envisage. As Dr Alghrani and many others have argued, now is the time for preparation and in so doing we must be willing to fully challenge the status quo in order to find what still holds strong over the horizon.
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