Rights, Restraints and Pragmatism: The Human Fertilisation and Embryology Act 1990
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb00904.x |
| Date | 01 July 1991 |
| Author | Jonathan Montgomery |
| Published date | 01 July 1991 |
LEGISLATION
Rights, Restraints and Pragmatism:
The Human Fertilisation and Embryology Act
1990
Jonathan Montgomery
*
The Human Fertilisation and Embryology Act
1990
represents a milestone
in
biomedical regulation. Not only does
it
finally bring to fruition the long running
government discussions about the proper limits of reproductive science, it also
provides the first attempt in English law
to
provide
a
comprehensive framework
for making medical science democratically accountable. Its interest therefore arises
both from the solutions it adopts for particular issues and from the model of regulation
on which
it
builds.
If
the licensing authority which lies at the heart of its provisions
proves successful,
it
is likely to be replicated
in
the oversight
of
many controversial
areas of medical progress.1
The
1990
Act is also significant as a model for establishing a workable compromise
between incompatible ethical positions. The issues underlying the provisions of the
Act are not ones on which a consensus exists
within
our society. This resulted in
an unusual Parliamentary history.* The Bill was introduced into the House
of
Lords as a Government
Bill
but was mostly unwhipped and it contained alternative
versions of the crucial clause dealing
with
the permissibility or otherwise of research
on human embryos. The original text of section
11
provided both an absolute
prohibition of embryo research and a provision permitting the licensing of such
research together
with
the proviso that both clauses could not be
in
force at
the
same time.
Thus, while the Government was clear when
it
introduced the
Bill
that legislative
provision had to be made, there was less clarity as to
the
content
of
that provision.
The uncertainty extends back beyond the drafting of the Bill itself. The Committee
of Inquiry into Human Fertilisation and Embryology (the Warnock Committee)
received representations from the public, deliberated the issues and reported
in
1984.7
Yet this was felt to be insufficient consultation and a second document to
elicit comment was published
in
1986.4
Only after this second consultation did the
Government feel able to publish its own proposals in a White Paperas The primary
reason for this reticence was the reluctance to deal
with
matters of conscience as
Government proposals rather than
by
way of private members’
bill.
This
in
turn
springs from the problems of identifying a consensus on such matters.
In
the event,
the
1990
Act can be seen as providing an institutional framework
in
which
compromises can be worked out rather than enshrining solutions to the disagreements.
~~
*Lccturcr
in
LAW,
Southaiiipton Univcrsity
I
Sec,
for
exaniplc, thc IJnrel:ited Live Transplant Regulatory Authority (ULTRA)
sct
up
under thc
Hunian Organ Transplants Act 1989
to
approve particular cases
of
organ transplantation from
live
donors which would othcrwise be forbidden by that Act.
For
a
fullcr
consideration
of
unusual fcatures than is givcn hcrc,
see
thc General Note
to
the Act
in
Cr~rrcvit
[mi!
S/nritrcs
Atrriornred
(J
M
Jacob).
f.tgisIdori
ori
Hrtmnti
fttjicrriliry
Services
mcl
Etrtbryo
Resecrrch
Cni
46
(
1986).
hainti
Ferrilixitioti
atid
Etttliryology:
A
Frmiieivork
for
Legislorim
CIII
259
(
1987).
2
3
Ciiind
9314 (1984).
4
5
524
771i~
Moriiwt
1.m~
Rivip\tp
54:4
July 1991
0026-7961
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