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