R (Quintavalle) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE BUXTON,The Master of the Rolls,the Master of the Rolls |
| Judgment Date | 14 March 2002 |
| Neutral Citation | [2002] EWCA Civ 29 |
| Date | 14 March 2002 |
| Court | Court of Appeal (Civil Division) |
[2002] EWCA Civ 29
IN THE SUPREME COURT OF JUDICATURE c/2001/2624
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE CRANE)
The Master of the Rolls
(Lord Phillips)
Lord Justice Thorpe
Lord Justice Buxton
MR KENNETH PARKER QC and MR JAMES EADIE (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Appellant/Respondent to Cross Appeal
MR DAVID ANDERSON QC and MR MARTIN CHAMBERLAIN (Instructed by Messrs Brown Cooper, London, WC1A 2DR) appeared on behalf of the Respondent/Appellant to Cross Appeal
LORD PHILLIPS MR:
Introduction
The first stage of reproduction of a human being involves the creation of an embryo. An embryo is a live organism containing a full set of 46 chromosomes that has the potential to develop into a foetus and subsequently into a person. In 1990 the only way in which an embryo had ever been created was by the fertilisation of the female egg by the male sperm. Such fertilisation takes place naturally as a result of sexual union between man and woman. Scientists have, however, developed other methods of fertilising a female egg with a male sperm so as to produce an embryo and can, in particular, achieve this outside the body ('in vitro').
In 1984 a Committee of Inquiry, chaired by Dame Mary Warnock, published a Report on Human Fertilisation and Embryology which dealt, in particular, with the ethical problems raised by scientific intervention in these processes. The Report made a large number of recommendations which included, in particular, that the creation of embryos outside the body, and the use of these, should be regulated by a statutory licensing authority. The Government published a White Paper that proposed the implementation of the Warnock recommendations and, in accordance with this, introduced the Human Fertilisation and Embryology Act 1990 ('the Act').
The Act contains a definition of an embryo, and a number of provisions, which reflect the fact that it was drafted at a time when the only known way of producing an embryo was by fertilisation.
The Warnock Report had identified the fact that it might prove possible to substitute the nucleus of a fertilised egg with the nucleus taken from an adult human, thereby producing an embryo that would develop into a carbon copy clone of that human. Because this would involve making use of an embryo that had been created by fertilisation, such a process would unquestionably be covered by the licensing requirement imposed by the Act. There has been included within the Act a clause which specifically prohibits the licensing of the creation of an embryo in this way.
Since the introduction of the Act, scientists have developed a method of creating an embryo that does not involve fertilisation. It bears a close resemblance to the nucleus substitution that the Warnock Report had identified as a possibility and has the same potential for producing a clone. The difference is that it involves introducing a nucleus taken from an adult human into an egg that has not been fertilised. This method of creating an embryo is known as cell nuclear replacement or 'CNR'. I have described the organism produced by CNR as an 'embryo' because it is now common ground that the nature of that organism so resembles that of an embryo produced by fertilisation that it is appropriate to describe it by the same term. Certainly, it is generally so described by scientists.
The Government, and the scientists advising the Government, believed that creating an embryo by CNR was a process which was covered by the Act. They also believed that, while it would be abhorrent to use this process to produce a clone, it was desirable that the process be licensed for the purpose of certain types of research which were not permitted by provisions scheduled to the Act. These provisions were, however, susceptible to alteration by regulations. Accordingly regulations under the Act were placed before Parliament in January 2001 which expanded the areas of research involving the use of embryos that could be licensed. These regulations were approved by affirmative resolution of each House.
These developments were viewed with dismay by the Pro-Life Alliance, which is opposed both to human cloning and to using human embryos for the purpose of research. They brought proceedings for judicial review, contending that the Act only applied to embryos created by fertilisation, so that embryos created by CNR were not subject to the provisions of the Act. This contention succeeded before Crane J, sitting in the Administrative Court. His decision, given in judgment CO/4095/2000, handed down on 15 November 2001, meant that the licensing Authority had no jurisdiction to license the creation of embryos by CNR. But more fundamentally, his decision meant that no licence was required for the creation or use of embryos created by CNR.
On the face of it, the motivation of the Pro-Life Alliance was not easy to follow. They had caused the baby to be expelled with the bath water. They had established that CNR embryos could be created and used for any purpose without regulation or restriction. As I understand the position, however, the Pro-Life Alliance had assumed that, if their application for judicial review succeeded, the Government would be forced to introduce legislation to deal with the practice of creating embryos by CNR. There would be a full Parliamentary debate on the topic which might well result in the prohibition of the process.
In the event, the Government's reaction to Crane J's judgment was to introduce a single clause bill making it unlawful to place in a woman a human embryo which had been created otherwise than by fertilisation. This became the Human Reproductive Cloning Act 2001. Apart from this, the Government has not sought to impose any restriction on the creation of embryos by CNR or the use that can be made of these. The Secretary of State has, however, appealed against Crane J's judgment with the object of demonstrating that creation of embryos by CNR is, after all, subject to the regulatory regime imposed by the Act. The Pro-Life Alliance has sought to uphold Crane J's judgment. Whether the Act applies to embryos created by CNR is the principal issue raised by this appeal.
There is a subsidiary issue raised by Pro-Life Alliance as an alternative case. I have referred to the fact that a clause of the Act prohibits the licensing of nucleus substitution within a fertilised embryo. The Pro-Life Alliance contends that, if the Act applies to embryos created by CNR in an unfertilised egg, the clause in question falls to be construed so as to extend this prohibition to the licensing of the creation of embryos by CNR. Crane J indicated that he would not have accepted this submission and it is challenged by the Secretary of State.
The relevant science
It is not possible to understand the relevant statutory provisions without a more detailed description of the science to which they relate than the simplified account that I have given. Crane J included in his judgment an admirable synthesis of the expert evidence presented to him which I shall gratefully adopt.
"In the ovary the egg is a diploid germ (or reproductive) cell. It is described as 'diploid' because its nucleus contains a full set of 46 chromosomes. By the process of meiotic division the nucleus divides into two parts. Only one of these, a pronucleus containing only 23 chromosomes (described as 'haploid), plays any further part in the process. Fertilisation begins when the male germ cell, the sperm, whose pronucleus contains 23 chromosomes, meets the haploid female germ cell and is a continuous process taking up to 24 hours. As part of the process the male and female pronuclei fuse to form one nucleus with a full complement of 46 chromosomes, a process known as syngamy. The one-cell structure that exists following syngamy is the zygote. After several hours the cell divides to create a two-cell zygote. At this stage it is generally referred to as an embryo. At about 15 days after fertilisation a heaping-up of cells occurs which is described as the 'primitive streak'.
Fertilisation may of course take place in the normal way or in vitro.
CNR is a process by which the nucleus, which is diploid, from one cell is transplanted into an unfertilised egg, from which the nucleus has been removed. The replacement nucleus is derived from either an embryonic or a foetal or an adult cell. The cell is then treated to encourage it to grow and divide, forming first a two-cell structure and then developing in a similar way to an ordinary embryo.
CNR is a form of cloning. Clones are organisms that are genetically identical to each other. When CNR is used, if the embryo develops into a live individual, that individual is genetically identical to the nucleus transplanted into the egg. There are other methods of cloning, for example, embryo splitting, which may occur naturally or be encouraged. Identical twins are the result of embryo splitting.
The famous Dolly the sheep was produced by CNR. Live young have since been produced by CNR in some other mammals. It has not yet been attempted in humans.
CNR of the kind under consideration does not involve fertilisation."
The possible implications for human health of CNR are dramatic. I quote from a Report of the Human Genetics Advisory Commission and the Human Fertilisation and Embryology Authority...
To continue reading
Request your trial
-
R Neil Coughlan v The Minister for the Cabinet Office
...mischief at which it was aimed, in its historical context, which interpretation is a question of law for the court. In R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, Lord Bingham (with whom Lords Steyn, Hoffmann and Scott agreed) explained at paragraph 8: “The basic task o......
-
R (Smeaton (on Behalf of The Society for The Protection of Unborn Children)) v Secretary of State for Health
...HL. Queen-Empress v Ademma (1886) ILR 9 Mad 369, Madras App CC. R (on the application of Quintavalle) v Secretary of State for Health[2002] EWCA Civ 29, [2002] 2 FCR 140, [2002] 2 All ER 625, [2002] 2 WLR R v Bourne [1939] 1 KB 687, [1938] 3 All ER 615, CCC. R v Bradlaugh (1878) 3 QBD 607, ......
-
R (oao “Monica”) v Director of Public Prosecutions
... ... Even before those bodies report, I can state that sexual relationships between undercover police officers and members ... directly to the sexual act and where the deception puts the sexual health of the complainant at risk; and those which strike at the heart of the ... 35 and Lord Nicholls at p.45, R (Quintavelle) v Secretary of State for Health [2003] 2 AC 687 at [9]. But there is no warrant, in ... ...
-
R v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance)
...Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Millett Lord Scott of Foscote HOUSE OF LORDS Session 2002-03 on appeal from: [2002] EWCA Civ 29 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE LORD BINGHAM OF CORNHILL My Lords, 1 The issues in this appeal are whether live hu......
-
Donate a definition.
...10 Health L. Rev. 14. (19.) R (on the application of Quintavalle on behalf of Pro-Life Alliance) v. Secretary of State for Health, [2002] E.W.C.A. Civ. 29. (20.) Ibid., especially at paras. 37-38, (21.) See T. Caulfield, supra note 17; contrast F. Baylis & J. Downie, supra note 11. Matt......