Never mind the law on cloning

This week's BioNews reports on the defeat, in the House of Lords, of a challenge to the UK's law on human cloning. The ProLife Alliance , which launched the challenge, sought to prevent research on cloned embryos from taking place in the UK by demonstrating that the wording of the Human Fertilisation and Embryology Act 1990 does not provide for cloned embryos and therefore does not regulate their creation or use in research. If the organisation's claim had been accepted, a new act of parliament would have been required to bring the creation of cloned embryos under statutory regulation, as normally created embryos have been since 1990. The ProLife Alliance, as you might imagine, is rather upset by its defeat. Reading its legal argument, you can understand why it might at least be confused by the law Lords' judgement. The challenge (officially known as a judicial review) was based upon two paragraphs in the legislation. The first, in section 3(3)(d), says that 'A license cannot authorise replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo or subsequent development of an embryo.' This paragraph was designed to outlaw human cloning, but the cloning technique which was subsequently developed uses eggs as the recipient cells rather than embryos. And so, the prohibition, strictly speaking, does not cover cloning.

The second paragraph, in section 1(1), says that the definition of an embryo under the act is 'a live human embryo where fertilisation is complete'. This definition, the ProLife Alliance argued, does not cover cloned embryos because they have not undergone fertilisation. So, strictly speaking, cloned embryos are not regulated by the Act and can, therefore, be created and used in research with no statutory oversight whatsoever.

A strict interpretation of section 3(3)(d) (that 'Dolly style' cloning is not prohibited because it uses eggs instead of embryos) is already in operation and forms the basis of the HFEA's intention to permit the creation of cloned embryos for research. But, the ProLife Alliance contended, why don't we use an equally strict interpretation of the definition of an embryo, thereby accepting that the law does not cover cloned embryos? The law Lords decided to use a strict reading of the prohibition of cloning, whilst using a looser, more purposive interpretation of the definition of an embryo. On the face of it, this approach does seem to be contradictory.

However, if we take a step back from the legal detail, we can understand what Parliament's were intentions in relation to human cloning. True, it did not seek to sanction the birth of cloned babies - indeed, it sought to prohibit it. But a desire to prevent the birth of cloned babies is not the same as a desire to prevent the creation of cloned embryos for research. A cursory look at the purpose of the legislation suggests that the reverse is true. The Act allows not only permits the use of donated embryos for research, but also the creation of embryos specifically for research purposes. Add to that the regulations passed in 2000/2001, which gave significant parliamentary backing to embryo stem cell research for treating serious diseases, and it's reasonable to assume that Parliament would have supported the creation of cloned embryos for research.

The ProLife Alliance has accused the law Lords of being political, rather than legal, in its decision-making. But that accusation sticks just as well to the alliance itself. It was motivated not by lofty legal principles, but by the political desire to stop an area of research to which it morally objects. However, most people do think that such research is justified, an attitude that was reflected in the House of Lords' judgement.