In a week when headlines have been taken up with the medical, ethical and moral issues arising out of the ability to create “three-person babies” little consideration has been given to the legal implications of such a development, beyond the creation of a law granting permission for such genetic engineering.
Amidst the welter of speculation surrounding the decision, the detail of the Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 bears closer consideration. The debate has focussed on the concern as to where such developments in medical science will lead. Is interference with our DNA a fundamental breach of the laws of creation or an incredible scientific development which will enable families to overcome genetic difficulties and produce children free from distressing and frequently terminal disease.
The complex and detailed regulations arising from the Human Fertilisation and Embryology Act 1990 and its subsequent amendments and the Human Tissue Act 2004 were intended to control and regulate every aspect of the storage and usage of human tissue and in particular gametes (the reproductive cells comprising respectively sperm and egg) and embryos. Despite the heavy regulatory hand, the legislation omitted to deal with issues of ownership, control and entitlement in relation to those products. When, perhaps inevitably, loss and damage was caused to stored sperm samples at a number of hospitals in the UK, the law was found to be lacking and in England the Court of Appeal was called upon to give judgment on this novel issue in the case of Yearworth and Others v North Bristol NHS Trust EWCA Civ 37. In delivering the leading judgment, Lord Judge, the Lord Chief Justice (supported by the then Master of the Rolls, Sir Anthony Clarke and Lord Justice Wilson) concluded that:
“In this jurisdiction developments in medical science now require a re-analysis of the common laws treatment of and approach to the issue of ownership of parts or products of a living human body whether for present purposes (viz. an action in negligence) or otherwise”.
Sadly it may well be the case that the wider implications of the regulations approved by parliament today (3rd February) require the attention of the Civil Courts to resolve as yet unforeseen difficulties which may arise in the course of the procedure relating to the creation of “three-parent babies”. Clause 17 of the Regulations appears to make some attempt at addressing potential issues arising out of parental rights by providing that the person whose mitochondrial DNA has been used to replace the defective DNA in what might otherwise be termed the mother’s egg or indeed the subsequent embryo, shall not be treated as providing gametes for the purposes of creating the embryo. This impliedly, although not explicitly precludes any assertion by the person providing the Mitochondrial DNA from claiming any right or interest in the subsequent egg or embryo. Regulation 18 explicitly extended this to precluding parental rights pursuant to Section 34 of the Human Fertilisation and Embryology Act 2008. Furthermore limits are placed upon a donor’s ability to secure information concerning any child born from the donation and conversely and regulation limits the right of any child to secure information concerning the donor. While this may be a welcome step insofar as it goes, an express provision precluding any proprietary title right or interest in the donated mitochondrial DNA or excluding any claim arising out of the tortious misuse of the same might have firmly closed the door on future claims as yet unspecified.
Having battled through to the Court of Appeal in the Yearworth cases, a battle which continues on behalf of Scottish victims of similar incidents, Chris Thorne, partner at Clarke Willmott comments “I am yet to be convinced that the regulations, as currently approved, will prove sufficient to prevent the possibility of any future claims arising out of this fast developing area of medical science”.
Chris Thorne, Partner at Clarke Willmott acted for the Claimants in the case of Yearworth and Others v North Bristol Health Trust and represents the Pursuers with the assistance of Scottish agents following the Western General Hospital freezer failure.