Should the State legislate for embryonic stem cell research?



The current legal vacuum has led to a dangerous paralysis and must be filled by the carefully regulated use of IVF embryos, wrties Dolores Dooley.

SOCIETAL ATTITUDES to the question of fertility practice and embryonic research vary greatly. Some people are fundamentally opposed to any research involving pre-implanted human life, while others take the view that research on human embryos offers a legitimate opportunity to garner new scientific and medical knowledge and provide therapeutic remedies for diseases that cause immense human suffering. The Irish Council for Bioethics is of the view that the moral value of IVF embryos not used for reproductive purposes needs to be balanced against the welfare of patients. Thus, the council supports the carefully regulated use of IVF embryos that are otherwise destined to be destroyed, for the purposes of embryonic stem cell research aimed at alleviating human suffering.

In a recently published report, the Irish Council for Bioethics called for the provision of a comprehensive and cohesive regulatory system and, in particular, the establishment of a State-funded regulatory authority to govern stem cell research and its applications. This echoes the 2005 report published by the Commission on Assisted Human Reproduction, which by a majority recommended that couples be allowed to donate embryos, produced but not used during IVF (known as supernumerary IVF embryos) for research purposes and that a regulatory body should be established to oversee IVF and embryo research in Ireland.

Ireland does not have a legislative basis for the practise of IVF and, therefore, has no legislation pertaining to the use of embryos (supernumerary or otherwise) for research. Following a referendum in 1983, the Constitution was amended and Article 40.3.3 acknowledged the right to life of the unborn. However, no legislation followed this amendment either to define "unborn" or, with the expansion of fertility services, to clarify whether "unborn" included supernumerary embryos from the IVF process.

In 2006, clarification came in the form of a High Court judgment that three frozen IVF embryos were not "unborn", as defined under the Constitution. This case has been appealed to the Supreme Court. Justice McGovern, in his High Court ruling, remarked that rather than being a matter for the judiciary, the decision on whether the word "unborn" should include IVF embryos should be made by the Oireachtas or by the people in a referendum.

Due to a continuing lack of any regulatory authority governing stem cell research, Ireland is in a legal vacuum concerning the disposition of those embryos from IVF not used for a couple's reproductive ends. This legal vacuum has significant consequences for fertility clinics in Ireland, for couples using IVF and for citizens of the State who assume that all IVF practice and embryonic research is regulated and carefully monitored.

Grave uncertainty continues in relation to what is appropriate use of non-implanted embryos in fertility clinics and what options for consent or refusal are available to couples when it comes to the disposition of their supernumerary embryos. Hence, we live with a paralysis in regulated decision-making in relation to the fate of supernumerary embryos. Without a properly constituted regulatory authority, all is permitted.

Furthermore, there is currently no legal impediment on the importation or use of embryonic stem cell lines by scientists. Embryonic stem cell lines derive from pre-implanted embryos and in that process, the embryos are destroyed. If Ireland, on the one hand, prohibits stem cell research or refuses to regulate for it, then should the State benefit from the use of embryonic stem cell lines or future therapies derived from such research in other jurisdictions? Ireland may, once again, have to confront the dilemma of whether use of any future therapies derived from embryonic stem cell research constitutes a moral "free ride" on behalf of its citizens.

In response to the current legal quagmire, the Irish Council for Bioethics is calling for the Oireachtas to establish an independent regulatory authority. This authority could be tasked with clarifying ambiguities in the meaning of the term "unborn" and legislating for the registration, licensing and inspection of persons and premises working with human embryos. Such an authority could ensure clear processes of consent by couples and quality standards based on international best practice.

Failure by successive governments to provide a regulatory authority for fertility practice and research does not ensure that good practice will prevail; on the contrary, to do nothing allows for preventable harm to befall individuals using fertility services.

Whether or not Irish society accepts the council's conclusion that the embryo has significant moral value rather than full moral status, it is imperative that an end be brought to the legal vacuum. A failure to do so not only undermines the moral value of the human embryo but undermines people working in the field of infertility treatment, and the thousands of couples availing of IVF.

Dr Dolores Dooley is a philosopher and chairwoman of the Irish Council for Bioethics

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