Rights, Restraints and Pragmatism: The Human Fertilisation and Embryology Act 1990

The Human Fertilisation and Embryology Act 1990 represents a milestone in biomedical regulation. Not only does it finally bring to fruition the long running government discussions about the proper limits of reproductive science, it also provides the first attempt in English law to provide a comprehensive framework for making medical science democratically accountable. Its interest therefore arises both from the solutions it adopts for particular issues and from the model of regulation on which it builds. If the licensing authority which lies at the heart of its provisions proves successful, it is likely to be replicated in the oversight of many controversial areas of medical progress. ' The 1990 Act is also signiElcant as a model for establishing a workable compromise between incompatible ethical positions. The issues underlying the provisions of the Act are not ones on which a consensus exists within our society. This resulted in an unusual Palliamentary history.2 The Bill was introduced into the House of Lords as a Government Bill but was mostly unwhipped and it contained alternative versions of the cl ucial clause dealing with the permissibility or otherwise of research on human embryos. The original text of section 11 provided both an absolute prohibition of embryo research and a provision permitting the licensing of such research together with the proviso that both clauses could not be in force at the same time. Thus, while the Government was clear when it introduced the Bill that legislative provision had to be made, there was less clarity as to the content of that provision. The uncertainty extends back beyond the drafting of the Bill itself. The Committee of Inquiry into Human Fertilisation and Embryology (the Warnock Committee) received representations from the public, deliberated the issues and reported in 1984.3 Yet this was felt to be insufficient consultation and a second document to elicit comment was published in 1986.4 Only after this second consultation did the Government feel able to publish its own proposals in a White Paper.s The primary reason for this reticence was the reluctance to deal with matters of conscience as Government proposals rather than by way of private members' bill. This in turn springs from the problems of identifying a consensus on such matters. In the event, the 1990 Act can be seen as providing an institutional framework in which compromises can be worked out rather than enshrining solutions to the disagreements.