TY - JOUR
AU1 - Alghrani, Amel
AU2 - Brazier, Margaret
AB - Ruth Deech chaired the Human Fertilisation and Embryology Authority (HFEA) from 1994 to 2002. At times, she must have felt that she was captaining a small and inadequately equipped vessel in stormy seas, buffeted not just by the waves made by rapid and controversial advances in science, but also by the numerous larger and powerful vessels sailing around her. The media, the fertility industry, dissatisfied patients, conflicting pressure groups and even Parliament were very ready to tell the HFEA when it was, in their view, wrong. Criticism should be heeded but for the HFEA, part of the problem has always been that should one critic be heeded, others will redouble their fury. This book written by Baroness Deech jointly with a young philosopher, Anna Smajdor, is thus rightly sub-titled ‘Controversy in the Era of Reproductive Technology’. One of its great strengths is the practical approach to thorny problems evident throughout the work, an approach that mirrors Baroness Deech's management of the HFEA in difficult times. The reader is promised a clear and simple account of the reproductive technologies, the legal and ethical issues raised thereby and how such technologies are and should be regulated. As the title indicates, the authors take us back to the beginning, the birth of the first test tube baby, Louise Brown, and into the future, to speculate how future developments may make us question just what it means to be human. They set themselves an ambitious agenda, especially in addressing an area of bioethics on which so much is written. In providing an elegant and lucid account of how regulation of the reproductive technologies has developed, and reminding us of the controversies of the past, they achieve notable success. The use of case studies is effective and worked to remind the older author of this book review of cases which she had tended to forget. Such cases should not be overlooked. One of the problems with some of the current literature on reproduction, ethics and law is that the authors keep re-inventing the wheel, failing to appreciate that a supposedly ‘new’ problem is in no sense new. The case studies serve another crucial purpose. They remind us that dilemmas in the reproductive technologies are far from abstract academic debates; they are about people who are often facing tragic issues in their lives. Anyone who opposes sex selection has a moral obligation to reflect on just why Alan and Louise Masterton fought so hard to be allowed to use PGD to have another daughter.1 That does not mean that the ‘human story’ should dictate the answer to every ethical dilemma, as Deech and Smajdor so clearly explain (pp. 62–64). What it does mean is that the practical and human implications of the legal and ethical dilemmas addressed in this book should not be overlooked. The ambition of the book is illustrated by even a cursory glance at the contents. Chapters 1 and 2 set the scene. Chapter 3 takes us into ‘Saviour Siblings, Designer Babies, and Sex Selection’. Chapter 8 addresses ‘Embryonic Stem Cells and Therapeutic Cloning’. Chapters in between eschew a focus on a particular technology and seek to unpick themes, so Chapter 4 looks at fertility and feminism, Chapter 5 analyses the role of public debate and the media and Chapter 7 considers deconstructing the family. Within the parameters of each chapter, a huge array of issues is discussed. So, in Chapter 4, artificial gametes and ectogenesis are dealt with in a mere five pages. There is perhaps so much to say about the past that any treatment of future possibilities is necessarily a little brief. Turning to the content of the work, the first chapter opens with a timely reminder of the fears and anxieties prompted by the birth of Louise Brown. The chapter then examines how, after years of delay, Louise's birth led to the birth of the HFEA itself. From the outset, we are given an insight into the difficulties facing the HFEA and how ‘since its inception, the HFEA has by turns been lauded, vilified, emulated and envied, as it has striven to keep abreast of technological advances while attempting to balance the interests of adults, children, embryos and society at large’ (p. 9). In the second chapter, entitled ‘Ethics, Embryos and Infertility’, the authors discuss ‘the relief of infertility as a worthy goal’ and examine the ‘ethics, law and regulation’ in this area. When addressing the ‘complex ethical questions’ that ‘have to be addressed in the context of what is permitted or proscribed by law’ (p. 32), a constant defence of regulation and the role of HFEA permeates the book. This comes as no surprise given Deech's previous role as chair of HFEA. For instance, consider the assertions that ‘many patients welcome the HFEA's role in ensuring safety, even at the cost of some degree of liberty’ (p. 38) and the authors' claim that the regulation in this ‘fraught area’ is justified by the risk of harm that could be caused to others (p. 37). But given the nature of this work, should criticism of the HFEA have been addressed a little more dispassionately? In Chapter 6, the HFEA is described as enforcing ‘the ethics of the nation’ (p.141), yet, as the authors demonstrate elsewhere in the book, one of the major problems for the HFEA is that the ‘nation’ cannot agree on the ethics of reproductive medicine. Chapter 3 addresses morally controversial applications of preimplantation genetic diagnosis (PGD) to create saviour siblings and designer babies. This chapter concludes that ‘it is unlikely that any amendment to the HFEA Act intended to govern the use of PGD would be as subtle and adaptable as the discretionary approach developed by the HFEA over a number of years, with the assistance of public consultation’ (p. 75). The authors skate over the many criticisms of the HFEA's role in policy formation in the context of PGD and HLA tissue typing from (inter alia) the House of Commons Science and Technology Committee2 who regarded the HFEA's development of policy as ‘highly unsatisfactory’, and from academic commentators,3 one of who stated the HFEA's ‘conditions were arbitrary and ethically muddled, and that overall the regulation of tissue typing in the UK lacks coherence and consistency’.4 In Chapter 4, ‘Fertility is a Feminist Issue’, the authors contend that although the development of artificial reproductive technologies could be regarded as a step to equality in men and women's reproductive endeavours, ‘this supposed equality has some devastating consequences’ (p. 78). The case of Evans v. Amicus Healthcare Ltd5 (concerning a dispute over the fate of stored embryos) is cited to illustrate how ‘the equal weight given to men and women in disputes over in vitro embryos may be regarded as far from beneficial to the women concerned’ (p. 78). However, to cite this case in support of such an assertion is slightly misleading, since Evans is not centrally a question about ‘equal interests in reproduction’, but rather turned upon the consent forms signed by the couple prior to embarking on IVF. These forms expressly stipulated that both gamete progenitors consented only to the use of their gametes for the purpose of ‘treatment together’. Since the couple were no longer together, there was no effective consent, and had the situation been reversed so that it was the male partner seeking use of the stored embryos (with a new partner or surrogate), he too would have been barred under the consent given, even if it was his last chance at genetic fatherhood. In this chapter, the authors rightly allude to the fact that reproductive technologies, which remove the reproductive process from the mother's body, raise the interesting question whether, absent a woman's bodily integrity being invoked, we ‘should regard women as having a greater interest in reproduction than men?’ (p. 80). The reader, however, is left without a satisfactory answer to this question, which becomes ever more pertinent when discussing more radical future advances such as artificial gametes and artificial wombs. Chapter 5, ‘Private Lives and Public Policy’, tells the emotive story of Diane Blood who had asked doctors to retrieve some of her comatose husband's sperm so that she would be able to have his children even after his death, and why the HFEA later refused her access to the stored sperm. Diane Blood emerged victorious and managed to have her husband's gametes exported.6 She successfully conceived two sons following fertility treatment in a Belgian clinic. Despite this, the chapter concludes with a reminder that the stance adopted by HFEA was correct and that a later review of the law concluded that ‘the law was correct to insist on written consent’ if gametes are to be used after death (p. 126). Chapter 6 looks at the human rights legislation, and whether this grounds ‘a right to reproduce’. The reproductive rights of prisoners and the recent case of Kirk Dickson7 are discussed, for the authors believe it ‘highlights the difficulty of establishing exactly what a right to reproduce might entail’ (p. 131). The ‘extreme view’ that there should be a right to reproductive choice espoused by commentators such as John Harris, John Robertson and Mary Anne Warren8 that could ‘form the basis of a strong argument for deregulation’ is dealt with dismissively, with the authors claiming ‘for many people this seems too extreme’ (p. 135). The Human Rights Act 1998 is regarded as having ‘fostered an overweening concern with individual rights and liberties in a legislative environment that was previously carefully balanced so as to attain a fair weighting between public health requirements and the desires of the individual’ (p. 150). Chapter 7 provides an interesting examination of how reproductive technologies force a reappraisal of what constitutes a ‘family’. The authors examine the controversial ‘welfare of the child clause’ found in section 13(5) of the HFE Act and make the generalised, and somewhat unsubstantiated, assertion that ‘although political and moral attitudes towards marriage and family life may have changed in many respects, the idea that children should be raised by two – preferably married-heterosexual adults still seems to hold sway’ (p.135). The difficulties that ensue from the ‘technological possibility of separating gestational, genetic and social motherhood’ are also considered (p.160). Finally, Chapter 8 looks at embryonic stem cells and therapeutic cloning, and details the difficulties in regulating embryonic stem cell research. Embryonic stem cells, fetal stem cells and adult cells are discussed, followed by the ethical concerns and legal challenges that such researches have generated. The conservative voice emerges once more towards the end of the chapter, reminding us that ‘a certain proportion of the population feels strongly that this research is wrong’ and that ‘perhaps the best that we can hope for is that in the UK our regulatory system is coherent and flexible to public opinion, and that we do not oversell the purported benefits of stem cell therapies’ (p. 213). Although the difficulties in covering the sheer mass of complex information pertaining to unrelenting advances in reproductive science should not be overestimated, the greatest difficulty for the authors stems from the fact that in trying to cover technology ranging ‘From IVF to Immortality’ they cast their net so widely. As they acknowledge, ‘IVF was just the start of a long procession of technological developments’ and ‘public concern over IVF has waned’ (at p. 10). Consequently, when discussing advances such as IVF and PGD within just over 200 pages, there is little original to be added to the wealth of academic literature already available on the subject; and when discussing the more novel and controversial technologies looming on the horizon such as artificial gametes and artificial wombs, the authors can do no more than merely touch on the questions, leaving the reader feeling slightly disappointed. The ambitious promise at the beginning to consider ‘radical developments in IVF (in vitro fertilisation) and embryology over the last two decades’ and ‘the impact of these developments on concepts of parenthood and the family’ (p. 1) or how they would be governed under the UK's legal and regulatory framework was always going to be a promise nigh on impossible to fulfil in full. What does the reader gain from this book? First, for those less familiar with this field of medical law and bioethics, there is a lively and challenging introduction to the problems presented (and often distorted in the media). Students in sixth forms, law, philosophy and medical students would all benefit from engaging with the panorama set before them by Deech and Smajdor. Secondly, throughout the book, the reader is forced to confront the sheer complexity of the practical reality of regulating advances in reproductive medicine. Baroness Deech's experience permeates the book. The reader will note her reminder of the need for effective regulation to be supported by adequate resources (pp. 3–4). Just how hard her task as Chair was on occasion can be seen especially in Chapter 5, in the account of the Diane Blood litigation and the media storm that ensued. It is also significant to see just how far some commentators were happy to go in demonising the HFEA (p. 124, note 8). At every point in the book, the academic reader is reminded of the broad remit of the HFEA, of the everyday jobs of regulation that never make the headlines unless they go spectacularly wrong. Does the book offer startling new insights about the ethics of reproductive medicine? Probably not. Does a distinct slant on reproductive medicine law and ethics emerge from the book? Again, the answer is probably not. At some points, we wondered how far the authors themselves shared a common view on such matters as surrogacy or lone parents. The discussion of surrogacy is instructive. As is the case elsewhere in the book, the tone is predominantly one of social conservatism, of concern about the possible impact on the surrogate and the child. So, for example, we are asked what kind of mother would give up her child (p. 162). And two pages later, the authors urge the adoption of the precautionary principle in the context of surrogacy. Yet, in this section, as throughout the book, there then seems to be an attempt to draw back a little from such conservatism and give greater weight to reproductive liberty. Guessing which author wrote which sentence could become a popular party game. We have criticised this book for failing at some points to do justice to the critics of the HFEA. We end our review wondering whether perhaps the existing debate would benefit from a further and somewhat different work, a work which openly and rigorously seeks to defend the HFEA, and focuses more exclusively on the challenging task of regulating an area of scientific complexity and moral controversy. Such a book would be a useful addition both to debates about the Human Fertilisation and Embryology Act 1990 as it is currently being amended, and to the troubled questions about the role of regulators seeking to accommodate moral controversy in medicine. 1 See the memorandum submitted by the Mastertons to the Select Committee on Science and Technology, Written Evidence, Appendix 49, in 2004. Available at http://www.publications.parliament.uk/pa/cm200304/cmselect/cmsctech/599/599swe10.htm. 2 Science and Technology Committee, Human Reproductive Technologies and the Law, Fifth Report of Session 2004-5, (TSO, 24 March 2005), at para 251. Note the committee was heavily divided, five of the eleven members recording their disagreement with the report. 3 See S. Sheldon and S. Wilkinson, ‘Hashmi and Whitaker: An Unjustifiable and Misguided Distinction?’ (2004) 12 Med. L. Rev. 137; C. Gavaghan, ‘Designer Donors? Tissue Typing and the Regulation of Pre-implantation Genetic Diagnosis’ [2004] 3 Web JCLI and J. Tizzard, Saviour Siblings: a Child to Save a Child (Cardiff Centre for Ethics, Law and Society), accessible at http://www.ccels.cardiff.ac.uk/issue/tizzard/html. 4 Gavaghan, 2004: 28. 5 [2003] EWHC 2161. 6 R v. HFEA, ex p Blood [1997] 2 All ER 687, CA. 7 Dickson v. UK [2007] 3 F.C.R. 877. See M. Eijkholt, ‘The Right to Procreate is not Aborted’ (2008) 16(2) Med. L.R., 284–293. 8 J. Harris ‘“Goodbye Dolly?” The Ethics of Human Cloning’ (1997) 23 J. Med. Ethics 353–60. M.A. Warren, ‘Sex Selection: Individual Choice or Cultural Coercian?’ in P. Singer and H. Kuhse (eds), Bioethics: An Anthology (Blackwell 1999). © The Author [2008]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org
TI - From IVF to Immortality: Controversy in the Era of Reproductive Technology
JF - Medical Law Review
DO - 10.1093/medlaw/fwn020
DA - 2008-10-01
UR - https://www.deepdyve.com/lp/oxford-university-press/from-ivf-to-immortality-controversy-in-the-era-of-reproductive-8R0u8d0qSg
SP - 469
EP - 474
VL - 16
IS - 3
DP - DeepDyve
ER -