Academic journal article Journal of Law and Health

Quintavalle: The Quandary in Bioethics

Academic journal article Journal of Law and Health

Quintavalle: The Quandary in Bioethics

Article excerpt

I. INTRODUCTION                            164 II. THE NEED FOR A SAVIOUR SIBLING         165 III. MR & MRS HASHMI AND THE HIGH COURT    167 IV. QUINTAVALLE IN THE COURT OF APPEAL     170 V. QUINTAVALLEIN THE HOUSE OF LORDS        179 VI. THE LEGAL LANDSCAPE AFTER QUINTAVALLE  186 VII. CONCLUSION                            188 

I. INTRODUCTION

The case of R. (Quintavalle) v. Human Fertilisation Embryology authority (and Secretary of State for Health) [2005] 2 A.C. 561 (1) ("Quintavalle") presents a handful of legal problems. The provisions of the Human Fertilisation and Embryology Act 1990 (as amended, the "1990 Act") (2) were interpreted very widely to allow a mother to select embryos for implantation according to her tissue-match preferences. This right is now enshrined into law:

Human Fertilisation and Embryology Act 2008

Schedule 2: Activities that may be licenced under the 1990 Act.

Paragraph 1ZA(1): A licence... cannot authorise the testing of an embryo, except for one or more of the following purposes:

(d) in a case where a person ("the sibling") who is the child of the persons whose gametes are used to bring about the creation of the embryo (or of either of those persons) suffers from a serious medical condition which could be treated by umbilical cord blood stem cells, bone marrow or other tissue of any resulting child, establishing whether the tissue of any resulting child would be compatible with that of the sibling. (3)

The biggest legal query to arise from the case is the inevitable harvest of babies, toddlers and very young children for their bone marrow. This non-therapeutic procedure has never been authorised by the courts and the welfare test under section 1(3) of the Children Act 1989 would no doubt require some form of physical or psychological benefit to the donor child (which is not easy to prove in a baby or a toddler). (4) There is an additional ethical problem in that embryos can now be created specifically for the purposes of harvest. There is nothing new in conceiving children to meet the desires of their parents (e.g. to take over the family business, to keep the older sibling company, etc.) but the screening technology was not designed to create embryos specifically for participation in non-therapeutic medical procedures after birth. In addition, the 1990 Act was composed strictly in light of its controversial nature but its wide interpretation by the lords surprised many, and what of the embryos that do not provide a tissue match? There is an embryo wastage issue that was not addressed by the lords despite embryos enjoying a good deal of protection in law. (5)

This article unpacks the judicial story behind Quintavalle to reveal how the strict provisions of the Human Fertilisation and Embryology Act 1990 - namely 'suitable condition' under schedule 2 paragraph 1(1)(a) and 'treatment services' and 'assisting' under section 2(1) - were widely misinterpreted to introduce the social selection of embryos into law. (6) The legal loopholes created by the judgment (embryo wastage, welfare, eugenics and the legality of child harvest in particular) are also identified. It will be concluded that screening for a tissue match is social selection despite arguments to the contrary and that parents are not yet entitled in law to harvest a very young child for bone marrow, making the creation of a saviour sibling under the 1990 Act as a result of Quintavalle ultimately futile.

II. THE NEED FOR ASAVIOUR SIBLING

The judgment in Quintavalle came about as a result of the swift technological developments in fertility treatment. Preimplantation Genetic Diagnosis (PGD) was developing during the eighties to screen embryos created for genetic diseases. (7) The early embryo is biopsied (i.e. one or two cells are removed) and examined for the presence of x-linked genetic diseases. The first live birth occurred in 1990. (8) The breakthrough was heralded as an end to the stressful combination of fertility treatment and abortion due to defective embryos. …

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