We have been witnessing heated debates about the Embryo Protection Act. Medical technologies, such as in-vitro fertilization (IVF) and statutes that regulate them raise as many questions as they answer. While one must applaud the fact that this technology has made it possible for couples to have children when otherwise they could not, yet questions about human dignity and health persist.
The rights of one necessarily imply an obligation on another, and vice versa. The problem here is that while on one hand the law is protecting the foetus, yet on the other it is placing the foetus at par with an adult hence, the onus of protecting the foetus is higher on the legislator.
Maybe not all mothers feel the same joy to be pregnant but the obligation of caring for the unborn is still very real. This obligation raises several dilemmas. We may have scenarios where pregnancy is viewed as debilitating a woman’s future thereby leading to abortion. As regards surrogate mothers, mixed feelings may emerge.
The idea seems to be that whatever brings a person “transitory happiness or economic sustenance is a right course of action” justifies a particular course of action. This attitude is rather shaky portraying itself as an apparently moral and just treatment of the weak and needy - the unborn - when in fact it is not.
Prohibiting a woman from aborting seems to emphasise the value of the embryo’s life above that of the mother. However, restricting abortion does not imply that the embryo is more valuable than the mother. Rather, it recognises that the embryo’s right not to be killed is more fundamental than a woman’s right not to be pregnant.
Questioning which right is more fundamental is deceptive. If the IVF Act defines “embryo” as “a biological human being”, then abortion is automatically outlawed. This would not afford embryos more rights, but would simply gain them an added fundamental right, the right to life. Without being tautological, without this right no one can live.
This is not a hierarchical issue but rather it is a question of who has more to lose. If the embryo’s life is not important, then why should courts bother, and even award compensation, in preconception torts? If one can discard an embryo, because the embryo “has no rights as it is a mere commodity”, then why should an applicant (mother or parents) claim damages in their respect? Is the “unborn child/embryo” or “infant child” (born after having suffered damage in utero) a complainant in a wrongful life suit, also harmed by being born?
Prospective parents are morally obliged to consider the kind of lives their offspring are likely to have, and to refrain fromhaving children, if the child’s life willbe sufficiently appalling. But how bad is bad, and at what stage should genetic correction occur?
Certain legislation may indirectly support eugenics and cloning. Rule 29(1) of the European Patent Convention (EPC) establishes that cloning, use of human embryos for R&D and the modificationof human germ-line genetic identity, are not permissible.
Maybe not all mothers feel the same joy to be pregnant but the obligation of caring for the unborn is still very real
However, EU case law seems to be moving in another direction. In WARF/Thomson case (G 2/06), the Enlarged Board of Appeal deemed that under the EPC, the destruction of human embryos was inconceivable. Yet, the board continued to say that this decision was not to be associated with issues surrounding human stem cell patentability.
This was echoed in several cases such as C-34/10 Brüstle v Greenpeace eV (2012) All E.R. (EC) 809 (ECJ (Grand Chamber) and in Case C-363/13 International Stem Cell Corporation v Comptroller General of Patents (2014) CJEU. However, while the former dealt with fertilised human ova which could develop into embryos, the latter dealt with human ova which were activated via parthenogenesis.
The court decided that Article 6(2)c of Directive 98/44/EC does not include parthenogenesis as long as the cells involved cannot develop on their own, or be modified, to become human embryos.
It is being argued that during parthenogenesis there may be the possibility that the ‘embryo’ develops into ‘human embryos’ (parthenotes through embryogenesis) unless geneticists manipulate the embryo’s lifespan (as is customary done). This view has attracted heated debate because some believe that an embryo is qualified only if there is ova activation by sperm. However, if one had to accept this view, one may also accept cloning (via somatic nuclear cell transfer), because no fertilisation is required.
Governments should not encourage eugenics and cloning. Authorities (e.g., EPO and courts) responsible for granting certain rights (patents), should not serve as indirect instruments to promote such behaviour. The germ-line should be adjusted if it is for the benefit of the embryo since gametes are not yet an embryo, and hence, life has not yet commenced. Therefore, there is no violation of law as long as any germ-line modification is not performed to discriminate, or to create eugenics.
Conversely, who would have access to such techniques? Would these be available to everyone free of charge, or will they be against payment thereby creating discrimination on the basis of wealth?
Therefore, it is more equitable that germ-line therapy be available to everyone free of charge.
The State should limit these numbers and set hefty fines for those who break the law. However, the State should also consider that the number of embryos may vary according to the age and condition of the mother to be (as the Act stands).
The reasons for this stand are: if embryos are discarded, then life is destroyed; if the embryos are implanted, then taxpayers end up paying for raising children that result from multiple births, if the parents can’t afford it.
Italy and England are advocating this principle. The justification advocated by fertility doctors that such laws would hurt a woman’s chance of getting pregnant, does not hold water. This is because one may opt for oocyte cryopreservation even in special cases where more than three embryos are needed.
Judgments about the value of life are inescapably subjective. They vary and are contingent to the individual’s experience, character and approach. This view should not dissuade anyone who wants children from having them. If gene therapy is carried out for the best interest of the unborn, then it is not a question of eugenics, but rather a form of treatment.
Anna M. Portelli worked as a pharmacist in human and veterinary medicine and is a lawyer specialised in intellectual property and technology.