In his recent commentary, Dr John Appleby argues that the legislation governing embryo research should be reviewed (see BioNews 1152). The 14-day rule has been a feature not just of UK law since the passage of the HFE Act, but has also served as the basis for regulation in many other countries. Thus, any amendment will be significant not just for embryo research in the UK, but around the globe. Appleby's call for review echoes the International Society for Stem Cell Research's updated guidelines, issued in 2021 (see BioNews 1097).
According to Appleby, we need new legislation that 'better reflects the changing landscape and needs of medicine, science and society'. It is not clear what the changed landscape and needs of society are in this context. Scientific possibilities have indeed changed in significant ways – as noted in the ISSCR's updated guidance. But what are these specifically societal needs and landscapes that have undergone such profound alteration?
It may be that values previously held by the public have become obsolete. Obsolete values enacted in legislation may be harmful or unjust to those affected by them. For example, laws criminalising homosexuality caused suffering for individuals who were picked out and sanctioned by that legislation. Where values have become obsolete and citizens are penalised on the basis of these values, we have good reasons to think that the landscape and needs of society have changed in ways that require a re-evaluation of existing legislation.
In the context of embryo research, however, it's not clear that this latter concern applies. There is no group of individuals who are wronged by the existence of the 14-day rule in the way that gay people were wronged by the existence of homophobic legislation. Of course, scientists are disadvantaged by constraints on their research, but this is true of any legislation that restricts scientific freedom. Moreover, legislative constraints on scientific freedom are a very different sort of thing from the injustices suffered by gay people whose sexual activities were criminalised.
Given this, I suggest that even if the values on which the law governing embryo research are based were obsolete, there would not be a strong justice-based obligation to change the law. Nevertheless, let us consider whether the moral concerns that influenced the initial legislation are indeed obsolete. If we take an empirical approach, we could simply establish whether there are fewer opponents of embryo research now than there were previously.
Appleby presents no data of this type. Rather, he simply makes the assertion that society has changed, and moves on to discuss a number of other concerns. In particular, he emphasises the ways in which scientific knowledge has moved on, and the new areas of potential exploration that have opened up recently. Most significantly, scientists have recently found ways to keep human embryos alive for 13 days (see BioNews 850) without losing their structure. At the time the 14-day rule was embedded in the legislation, this was not possible, nor did scientists at the time think it was likely to become so.
Thus, while Appleby gives us no evidence for a change in society, he provides a very persuasive account of how science has changed in ways that provide a clear incentive for extending the 14-day rule. But does this really translate into a mandate for legislative change? Who would benefit from such a change?
It is illuminating to look back at the history of legislation here. In February 1985, the Unborn Children (Protection) Bill received was debated in the UK Parliament. The Bill would have prohibited all research on embryos. The parliamentary vote was 238 to 66 in favour of the Bill. Following this, scientists began a campaign to persuade politicians and members of the public that embryo research was not just acceptable, but necessary. Journals such as Nature published articles in which scientists engaged with the moral debate.
Scientists could not simply assume that their research was justified. They needed to play a role in convincing a sceptical public about the need for embryo research if they wished to carry out such work without being subject to criminal proceedings. As Michael Mulkay puts it in his book The Embryo Research Debate, published in 1997, it became clear that 'research has to be justified to the satisfaction of the lay community and its parliamentary representatives.' Since the opponents of embryo research had employed an emotive, religiously-infused mode of argument, the pro-science, pro-embryo research lobby made use of the weapons which remained: adherence to facts, statistics, etc coupled with an aggressively utilitarian approach. Today one can see the longer-term fallout from this marshalling of scientists and 'pro-science' politicians against the pro-life lobby. That is, an increasingly polarised domain.
The arguments Appleby employs are largely fact-based: we are told that people need to be educated; that they hold misguided views about what is true of embryos, that they need to be informed about the benefits that will accrue from embryo research. These are all the same tactics that were employed in order – finally - to defeat the Unborn Children (Protection) Bill. The public was told then that embryonic stem cell research would have untold benefits; that embryos were a mere collection of cells. A new term was deployed – the 'pre-embryo'. Its purpose was to distance the perception of the embryo as 'one of us' – an entity whose smooth and inexorable biological development would, if unhindered, result in a human baby. Instead, the pre-embryo was something separate, properly belonging to science.
According to Appleby, we have undergone such profound transformations in society that we need further changes to the legislation. But for those who remember the embryo debates of the past, there is something a little weary, a little stale, about the re-emergence of these arguments. Have we not heard them before? Perhaps some things have changed over the past few decades, but the ideology and rhetoric around the imperative for embryo research – seemingly – have not. There is no evidence that society has changed. What is clear is that scientists now see a prospect of keeping embryos in vitro for longer than 14 days with the development of improving ex utero systems, and now seek to exploit these new avenues (aided by philosophers such as Appleby) by changing the law. A cynic might conclude that legislation is driven primarily by the interests of the scientists in question, rather than by values per se.