Family Law and Genetics

AuthorRuth Deech
Date01 September 1998
Published date01 September 1998
Family Law and Genetics
Ruth Deech*
Historically, family law has been constructed around a core of assumptions, for
example, that the husband is the father; that upbringing shapes the destiny of the
children; and that nothing is known about the health and reproductive future of the
couple and their children. At the end of this century, however, given the
pervasiveness of interest in genetics and knowledge about our genetic make-up, we
may be moving to a culture of family law based on genetic evidence and not on
behaviour/responsibility. Every week we are informed by news stories that another
gene has been discovered that controls some aspect of human personality. It is
expected that the entire sequence of the human genome will be mapped by 2005,
identifying 100,000 separate genes.1The impact of the knowledge that this will
bring is already being felt, and not only in family law. It is plain that the insurance
industry is refusing to close its eyes to the genetic knowledge given by tests.
Testing for cystic fibrosis (a debilitating respiratory condition affecting one in
1,000 children) carriers may already be taken ‘over the counter’ for around £100. If
both partners carry the gene, their offspring have a 25 per cent chance of being
born with the disease. The spread of tests and the impact of their results are
unlikely to be rejected. The Human Genetics Advisory Commission’s suggestion
in 1998 of a two-year moratorium on tests to indicate the risks of hereditary disease
or illness was promptly rejected by the insurance industry.2The insurance
industry’s impact on the use and spread of such testing cannot be over-estimated;
one should recall that for many years AIDS testing was avoided, even for the most
neutral of reasons, because it was a fact that the majority of insurers would refuse
to insure a person who had taken a test, regardless of the reason and the outcome.
The insurance industry’s insistence on receiving the results of any genetic tests
taken may well inhibit their use for a while to come.
In the area of family law, genetic knowledge impacts in many ways, of which
only a few can be examined here. For example, an early embryo may be examined
before implantation to discover whether it has certain genetic disorders. This ‘pre-
implantation genetic diagnosis’3(PGD) is carried out as a part of in vitro
fertilisation (IVF) treatment for those who are at risk of passing on a serious
inherited disorder to their children. The egg of the woman and the sperm of the
man are brought together in vitro and if the egg is successfully fertilised and
becomes an embryo, it is examined when it has reached the stage of eight cells.
The Modern Law Review Limited 1998 (MLR 61:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 697
* St Anne’s College, Oxford.
This article is written entirely in a personal capacity and does not reflect the views of the Human
Fertilisation and Embryology Authority (of which the author is Chairman). The author is grateful to Sarah
Deech BSc for scientific advice, and to Mrs Suzanne McCarthy, Chief Executive, HFEA.
1 F. Collins, ‘Sequencing the human genome’ (1997) 32(1) Hosp Pract (Off Ed) 35–43; K. Uddhav et
al, ‘Advances in the human genome project’ (1998) 25(1) Mol Biol Rep 27–43.
2The Implications of Genetic Testing for Insurance (London, December 1997).
3 W. Lissens and K. Sermon, ‘Preimplantation genetic diagnosis: current status and new developments’
(1997) 12(8) Hum Reprod 1756–1761.
One or two cells may be removed at that stage without damage to the entire
embryo. Once tested, the embryo may then be implanted in the would-be mother,
although it should be noted that the chances of fertilisation in IVF and the chances
of the woman becoming pregnant are relatively low, only about 15 per cent.4(This
is known as the ‘take home baby rate’.) Clearly, it is a procedure to be resorted to
only by those who are very anxious indeed about the future health of their embryo
and prepared to risk a much lower chance of becoming pregnant than would occur
naturally, in order to avoid an inheritable disease. The genetically testable
disorders known about at the moment include Lesch-Nyhan Syndrome, Beta-
Thalassaemia, Sickle Cell Anaemia, and Cystic Fibrosis.5It is reported, although
unconfirmed, that there are genetic links in dyslexia, asthma and diabetes. The
same technique of PGD could be used to ensure that the resulting baby, if any, was
of the chosen sex.
Family lawyers are already familiar with the use of DNA testing to prove
paternity.6They will now have to become familiar with the possibilities of
choosing or avoiding the birth of certain children; cloning; and various problems
thrown up by IVF and surrogacy practices, intimately linked with our knowledge
of reproduction and genetics.
Non-family lawyers see the new knowledge as an aspect of the nature versus
nurture debate. To summarise very briefly arguments that have occupied a century
of research and debate, in the twentieth century we have accepted wholeheartedly,
if intermittently, Durkheim’s rule7that human behaviour is socially constructed
and not the result of underlying inevitable biological tendencies, or in other words,
a baby begins life as a tabula rasa — a blank slate. But now there is indisputable
evidence that behaviour is strongly influenced, at the very least, by genetic
inheritance. There are biological explanations not only for diseases — where one
can be 100 per cent sure of inheritance — but also for behavioural and personality
traits. There may be threats to gender equality arising from this, with an increasing
amount of research reporting both human and animal fixed patterns of behaviour
differences between males and females in survival and reproduction. The gender
equality war is beginning to be fought in IVF treatments: very recently, there has
been considerable adverse reaction to the story of a woman aged 60 who gave birth
to a baby through artificial reproduction techniques.8What was striking was that
there would have been no such controversy had a man aged 60 become a father, an
everyday occurrence which could lead to an equally adverse outcome for the child
in terms of health and upbringing. Or are men just being ‘selfish genes’, as
Dawkins would have us believe?9The law has also by and large equated sperm
donation, an easy procedure, with egg donation, which involves an operation and
The interest in this for family lawyers is the new genetic ‘determinism’. Is family
life pointless? Need it only be a question of rudimentary discipline and protection,
if children are wholly genetically pre-determined? If we cannot escape our genetic
predisposition, then do parents merely accept the child that they have given birth to
4 HFEA 6th Annual Report, 1997.
5 R. Kaufmann et al, ‘Preimplantation genetic analysis’ (1992) 37(5) J Reprod Med 428–436.
6 B. Hoggett et al, The Family, Law and Society (London: Butterworths, 4th ed, 1996) 455.
7Education and Sociology (Glencoe: Free Press, 1956); Moral Education (Glencoe: Free Press, 1961);
S. Lukes, Durkheim (London: Allen Lane, 1973).
8Daily Telegraph, 22 January 1998.
9The Selfish Gene (Oxford: Oxford University Press, 1989).
10 Human Fertilisation & Embryology Act 1990, s 12(e).
The Modern Law Review [Vol. 61
698 The Modern Law Review Limited 1998

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