BMJ 2002;324:190 ( 26 January )
Clare Dyer, legal correspondent, BMJ
A High Court ruling that threatened to wreck UK government controls over cloning for research was overturned by the court of appeal last week.
Three appeal court judges, headed by the master of the rolls, Lord Phillips, reversed a ruling last November by Mr Justice Crane that the Human Fertilisation and Embryology Act 1990 did not cover embryos created by cloning, but only those created by fertilisation.
Cloning was still in the future when the act was passed and the statute defines an embryo as "a live human embryo where fertilisation is complete." But the judges said that following the Human Rights Act 1998, it was now possible to "strain" the language of a statute to achieve parliament’s purpose if this was necessary.
An embryo produced by cell nuclear replacement - the process used to produce Dolly the sheep - was of the same genus as one produced by fertilisation, said Lord Phillips. Had parliament anticipated the production of embryos by this method, it would have wanted the act to regulate it.
Last year the government brought in regulations under the act to regulate research on embryos, which requires a licence from the Human Fertilisation and Embryology Authority. But Mr Justice Crane’s ruling last November that the act did not cover clones left research on cloned embryos unregulated. In the wake of his ruling, the government rushed through legislation banning the use of cloning to produce a baby. Last week’s appeal court judgement means that research on cloned embryos with the aim of growing human tissue for transplant is once again tightly regulated in line with the government’s intention.
Leaving the field unregulated, as the High Court ruling did, meant that until legislation banning human cloning came into force next month, the field would have been open to create a human clone in Britain. That was a "startling and alarming" result, said Lord Justice Phillips.
The challenge to the act was brought to the high court by the anti-cloning and anti-abortion pressure group Pro-Life Alliance. The group’s aim was to provoke a new debate by exposing the apparent loophole, but it had "caused the baby to be expelled with the bathwater," the master of the rolls said, prompting an appeal by the government.
The case is estimated to have cost Pro-Life Alliance £100,000 ($140 000; €160 000). The appeal court refused the group permission to appeal to the House of Lords, but it could still petition the law lords themselves for a hearing.