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The review of the HFE Act: ethical expertise or moral cowardice?

6 November 2007
By Dr Anna Smajdor
Medical Ethicist and co-author, with Ruth Deech, of 'From IVF to Immortality: Controversy in the Era of Reproductive Technology' (OUP 2007)
Appeared in BioNews 432
The development of reproductive technologies has continued apace since the birth of Louise Brown, the first IVF baby, in 1978. The regulatory framework is constantly assailed by new possibilities which may not have been envisaged by those who drew up the original legislation in this area. Do the moral arguments and assumptions made by legislators stand up to evaluative criticism? How does/should the law change to reflect changes in technology, as well as changes in public understanding and/or cultural or social shifts?

Since the passing of the UK's Human Fertilisation and Embryology (HFE) 1990 Act, controversies surrounding the ethics of reproductive technologies have continued to arise. In view of this, and in recognition of the fact that technology and public opinion have changed since the passing of the original Act, the government announced a review of the Act in 2004. Despite this, the Warnock Report, upon which the HFE Act was largely based, is still regarded by many as a supremely intelligent, pragmatic and ethical approach to legislation and regulation in this area.

But the role of ethics in relation to the review of the HFE Act has become less clear in recent years. For example, the Report on the Draft Human Tissue and Embryos (HTE) Bill published by a joint committee in August 2007 lamented the lack of explicit ethical principles and guidelines on which they could base their deliberations. This report called for a specialist parliamentary ethics committee to be set up. Indeed, some suggested that a nationwide Bioethics committee should be set up to tackle these questions - a call echoed by Phil Willis MP, speaking at Progress Educational Trust's annual conference last week.

The interesting point here is that while previous parliamentary committees may have regarded themselves as competent to debate, discuss and ultimately make decisions based partly on moral reasoning, the joint committee did not. Perhaps this was partly due to time constraints, but might it have been partly because it is increasingly the case that to express overt moral views has become risky? Mary Warnock claims that 'in recognising that there should be limits, people are bearing witness to the existence of a moral ideal of society' (1). Perhaps one of the problems that has arisen since she published her report is that we are no longer sure of what this moral ideal should be. Even to assert that there should be such an ideal seems to jar against some of our newly developed sensitivities to cultural and moral diversity.

Those who deliberated on the Report on the Draft HTE Bill  seemed to hope that ethical questions could be viewed as someone else's responsibility (2).  But if politicians become squeamish about engaging in ethical deliberation, who should assume this responsibility? One obvious answer is: ethical experts, trained and versed in analysing and weighing philosophical and ethical argument. Yet surely political life is imbued with ethical values and convictions. Every decision taken by parliament has ethical consequences, and is based at some level on ethical assumptions. Should we really think of the specific issues related to reproductive technologies and embryo research as requiring a different level of ethical expertise from questions about how much money to spend on hospitals, or whether to go to war...? (3).

One of the difficulties when looking at the debates in this area since 1984 is that the ethical questions so often seem to revolve around the status of the embryo. Positions have already in many cases been adopted, and are unlikely to be relinquished. Debate has become both polarised and stultified. Where ethical issues related to fertility treatments appear in the same context as discussions of embryo research, they often seem to be subsumed into debates over the status of the embryo.

An example of this can be seen in the Joint Committee's assertion that the Warnock Report set out a clear ethical framework. There are indeed some implicit ethical assumptions in the report, but they are not explicitly laid out as an ethical framework per se. What the joint committee seems to regard as 'ethical principles' is actually the Warnock Report's approach to the status of the embryo, as well as its assertion about the importance of the welfare of the child. These assertions do not constitute an ethical framework, although they do represent the conclusions of ethical deliberation.

The difference seems to be that the Warnock Committee was willing to make bold ethical assertions, rather than that these assertions were rigorously argued and proven. This being the case, it is less clear that this is something our own parliamentary committees should be unable to do, unless they simply do not relish the task. The plan to create a parliamentary ethics committee is one way around this problem. But will such a committee itself have the courage to make ethical pronouncements? The answer remains to be seen. Meanwhile it is questionable whether the reluctance of parliamentarians to engage in moral debate on these issues indicates a degree of moral cowardice, or whether the field has become so complex that it really requires 'ethical expertise'?

1) Warnock, M., A Question of Life, (Blackwell, Oxford, 1985), p2
|  21 March 2019
2) See the joint committee's report on the Draft HTE Bill, p18.
|  21 March 2019
3) This point was made to me by Sarah Franklin, LSE.
|  21 March 2019
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