Below is a short article in which ALDU considered some of the then recently created Human Fertilisation and Embryology 1990, an Act which had been introduced into Parliament by Lord Mackay of Clashfern, in the House of Lords. Some of the absurdities contained in the Act are referred to but how innocent this all seems today. The Act has been considerably amended since then by, in particular, the Human Fertilisation and Embryology Act 2008. The 2008 Act introduced all sorts of new horrors for the denizens of the "fertility" business to carry out, clearing out of their way the pettifogging legal irritations that they had come across in the 20+ years since they were first let loose. One can compare the relative simplicity of the 1990 and the 2008 Acts and see how incomprehensible the latter is. The drafters of the amending 2008 Act knew exactly what they were allowing, having been fully briefed by the industry. Had the MPs who voted for the 2008 Act any idea what they were voting for, one wonders?
As an example of the determination of the modernisers we note that the 1990 Act contained definitions of the words "mother" and "father"which ran to a total of 4 sections in the Act (ss. 27 - 30); the ALDU article points out scathingly that the definition of "father" is several hundred words long. These same definitions in the 2008 Act comprise a magnificent 24 sections (ss. 35 - 58). Whatever the reasons, and who can believe that the reasons are beneficial; this is madness. Today we know more than we wish to know about how Parliament is willing to redefine words to suit its purpose but this is nothing is new.
Let modern commentators struggle to understand the complexities of the current law. Below are comments made at the time of the original Act.
Association of Lawyers for the Defence of the Unborn
News and Comment
Winter 1990/91
Number 48
The Human Fertilisation and Embryology Act 1990 - Some Extracts and Comments
The Human Fertilisation and Embryology Bill, introduced into the House of Lords by the Lord Chancellor Lord Mackay of Clashfern on 22nd November 1989, received the Royal Assent on 1st November 1990 and has now become the 'Human Fertilisation and Embryology Act 1990'. Here are some of its main provisions.
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| Lord Mackay of Clashfern |
Section 1 defines the embryo as "a live human embryo where fertilisation is complete . . . and, for this purpose, fertilisation is not complete until the appearance of a two cell zygote."
Comment: Whatever its shortcomings, this definition does recognise the humanity of the embryo, and also the fact that it is alive. It may be worth remembering this whenever we encounter the argument that the embryo in its primitive stages (for example, before the 15th day of life), is neither human nor alive, but something other or less. Parliament has recognised that what will be done to embryos under this Act is something that will be done to living human beings.
Section 3 prohibits a number of things, including the creation, the keeping or the using of an embryo except in pursuance of a licence, and also the keeping or the using of an embryo after the appearance of its "primitive streak" which Parliament says is to be taken to "have appeared not later than 14 days after the "gametes" (i.e., the female egg and the male sperm) have been mixed, not counting any period of storage.
Comment: This section makes it mandatory to destroy or to discard any live human embryos that have survived until the end of their 14th day of life (not counting any period of storage).
Section 5 brings into existence a "Human Fertilisation and Embryology Authority".
Comment: In bringing such a body corporate into existence, Parliament succumbed to the key recommendation of the Warnock Committee. This Association opposes the whole concept of such a body, seeing that it exists to license the very thing to which we are unyieldingly opposed. We refer our members to our article entitled 'The Licensing of In-Vitro Fertilisation' which we published on page 2 of our Autumn 1985 Newsletter and which we reproduce below. Furthermore, we share the misgiving and concern of Lord Justice Woolf about whether the legislation proposed by the Warnock Committee and now enacted in this Human Fertilisation and Embryology Act 1990 could ever be enforceable.
Section 9 ordains that the Licensing Authority shall maintain a "licence committee", and this "licence committee" is to include at least one person who is not authorised to carry on or participate in any activity under the authority of a licence.
Comment: It seems to follow that the Act envisages that all but one of the "licence committee" may themselves be practitioners in the very arts and activities which the committee licenses.
Section 11 defines the scope of the licences to be granted. This includes :-
a) activities in the course of providing what the Act calls "treatment services" ;b) storage of gametes and of living human beings ;c) activities for purposes of research.
Section 14 decrees among other things that no gametes or embryos shall be kept in storage for longer than the "statutory storage period", and that, if they are still being stored at the end of the period, they "shall be allowed to perish". The "statutory storage period" for embryos is limited to five years, but regulations may provide for an extension or a reduction of this period.
Section 27 explains the meaning of the words "mother". The woman who is carrying, or has carried, a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.
Comment: This section confers the status of "child" upon the entity carried by the mother as a result of the placing in her of an embryo. It also excludes the child's "genetic" mother from being treated as the child's mother for any purpose at law, if she is not also the "carrying" mother.
Section 28 explains, in several hundred words, the meaning of the word "father".
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| A picture paints a thousand words |
Section 37 amends the law of abortion, by substituting for paragraphs (a) and (b) of section 1(1) of the Abortion Act 1967 (grounds for medical termination of pregnancy) the following : -
- that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family ; or
- that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman ; or
- that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated ; or
- that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped."
Comment: The sad fact is that this section 37 owes its existence to the determination of some in the pro-life movement to graft on to the Act what they saw as an improvement upon the existing state of the law. We refer to their attempt to lower to 18 weeks the then "time-limit" which consisted in the achievement of the capability of being born alive (which had fallen to well below the 28th week in modern times, and in many instances to below the 25th or even the 24th week, and was still falling). The pro-abortion lobby, it must be supposed, can hardly have believed their luck at this pro-life initiative which so seriously misjudged the temper of Parliament. In a series of amendments they outmanoeuvred the pro-lifers, first by the substituting of the word "twenty-fourth" for the word "eighteenth" in paragraph (a), and then by a series of not dissimilar amendments at paragraphs (b), (c) and (d).
Under section 37(l)(b), (c) and (d), abortions will now be permitted up to birth in the circumstances specified, and even under section 37(1)(a) the time-limit, far from being lowered, has in fact been raised. The disabled can now be aborted right up to term. But even if a child is perfectly healthy, and his or her mother is perfectly healthy too, abortion right up to term will be permitted by this Act if the medical opinion is that a killing is necessary to prevent (for example) grave permanent injury to the mother's mental health. What sort of cases will this permission include ? Will any cases at all, in practice, be excluded? To what extent, if any, will such medical opinion be investigated? It is impossible, yet, to say ; but some idea may be gleaned from the perfectly correct advice on the new state of the law given by the Department of Health in a letter dated 26th November 1990 and addressed to all doctors in England and to many other categories of health worker. This circular letter states that this new Act will amend the Abortion Act 1967 in this respect amongst others, viz., that it allows account to be taken of the pregnant woman's actual or reasonable foreseeable environment in cases of killing under this new "ground". The state of the law is thus more hostile to the unborn than ever before. Whether this increased hostility will actually bring about more deaths we do not care to predict. We have always doubted that a reduction of the time-limits would in fact save lives ; will a raising of them necessarily lose them?
Section 44 amends section 1 of Congenital Disabilities (Civil Liability) Act 1976 by extending it to cover infertility treatments, and it enables a child born disabled to bring an action in respect of a disability resulting from an act or omission in the course of selection, or the keeping or use outside the body of the embryo or of gametes used to bring about the creation of the embryo.
Comment: Doctors or scientists who select human beings under these procedures will do so fully aware that their acts or omissions in the process of selection may lay them open to actions in negligence at the suit of any child born disabled as a result of such acts or omissions. They will be urged (if urging be needed) to "de-select" (i.e., kill) imperfect, or possibly imperfect, specimens; and if their employers do not urge them, their insurers surely will.
