CHAPTER 7: THE INTERNATIONAL DIMENSION
7.1 Stem cell research and cloning are not purely domestic issues.
Scientific research and its commercial exploitation operate on
a global basis: both are sensitive to differences in the regulatory
environment.
7.2 Some aspects of stem cell research and cloning
are covered by international instruments and other declarations;
and some commentators take the view that there should be a greater
degree of international regulation in this field. The issues that
we have been considering have arisen in similar form in other
countries and in formulating our views we have sought to take
account of their experience.
International instruments:
the concept of human dignity
7.3 Most of the relevant provisions of international instruments
in this field are concerned with reproductive cloning rather than
research on human embryos.[47]
However, Article 18 of the Council of Europe Convention on Human
Rights and Biomedicine states categorically that "the creation
of human embryos for research purposes is prohibited". The
United Kingdom has not signed this Convention.
7.4 The European Parliament has also taken a close
interest in the subject. On 7 September 2000 it passed a resolution
on human cloning in reaction to the new Regulations brought forward
by the British Government.[48]
The resolution emphasised the need to respect human dignity and
human life, called on the United Kingdom Government to review
its position on human embryo cloning and repeated calls for each
Member State to enact binding legislation prohibiting all research
into human cloning and to provide for criminal penalties. The
Parliament subsequently set up a Temporary Committee on Human
Genetics and Other New Technologies of Modern Medicine; we were
able to meet some of its members when they visited the United
Kingdom. The Temporary Committee reported on 8 November 2001.[49]
The report itself recommended a cautious approach to stem cell
research and raised a number of questions. It recognised that
decisions would probably—and rightly—continue to be
taken at Member State level, whereas the EU would decide where
and how it should direct its research and funding priorities.
The draft resolution proposed for adoption by the Parliament,
however, was in uncompromising terms, calling in effect for a
ban on all research on human embryos and embryonic stem cells.
7.5 When the report was debated on 29 November 2001,
the Parliament voted by 316 to 37 (with 47 abstentions) to reject
the final motion for a resolution after amendments in favour of
"therapeutic cloning" were earlier approved.
7.6 In instruments such as the European Convention,
as in much modern bioethical thinking, the starting point for
regulation is taken to be the principle of respect for human dignity.
A secular principle of respect for human dignity goes back to
the Enlightenment and is closely linked to the development of
claims about human rights. On one view human dignity is seen as
synonymous with human worth and is said to form the basis of human
rights. On another view it is specifically associated with particular
human rights, such as those concerned with the basic conditions
for working people. More recently the concept of human dignity
has been invoked by those opposed to certain biomedical developments,
notably cloning.
7.7 The concept of human dignity raises interesting
philosophical issues, but has proved hard to analyse.[50]
We have not been able to derive much practical guidance from recent
claims about human dignity as to what should and should not be
permitted in the field of research on human embryos. One reason
for this is that most people can agree that persons should be
treated as having dignity and not be used as mere means; but mere
reiteration of this point with respect to early embryos begs the
question of whether they count as persons, which we discussed
in Chapter 4.
National differences
7.8 The differences in attitudes to stem cell research between
different countries and in its regulation are striking. As many
of our witnesses testified, these differences largely reflect
differences in cultural and religious traditions. We have sought
to inform ourselves about international developments, but legal
and regulatory regimes are changing so rapidly in many countries
that we have not attempted to produce a comprehensive account
of the situation in other countries.
7.9 In the countries of the European Union, a variety
of regulatory regimes for research on early embryos are currently
in operation, though in this regard too the scene is rapidly changing.
Reproductive cloning is either illegal or in practice prohibited
everywhere. In several countries there is currently no legislation
governing stem cell research. Sweden and the Netherlands (along
with the United Kingdom) are generally regarded as having the
most "liberal" rules. In December 2001, the Swedish
Research Council issued guidelines endorsing the use of CNR (but
not of the creation of embryos by IVF for research) subject to
certain conditions, including legislation to prohibit placing
such embryos in a woman. In the Netherlands the Parliament passed
a law in October 2001 allowing research on surplus embryos; and
allowing CNR after a moratorium of five years. At the other end
of the scale, embryo research is banned in Ireland and in Germany.
However, in Germany the Bundestag decided on 30 January
2002 (by a free vote of 339 to 265) to call for legislation permitting
the import for research of stem cell lines which were established
before 2 January 2002. In most other countries research using
surplus embryos is permitted. Where there are rules they limit
permissible research to early embryos up to 14 (in the Netherlands
15) days. A considerable variety of governmental or quasi-governmental
agencies have been created to oversee and in some cases license
such research.
7.10 The United Kingdom goes further than most countries
in permitting the creation of embryos for research and the use
of CNR. But it is worth noting that, as many overseas commentators
acknowledge, the United Kingdom's position has been reached only
after a period of lengthy debate going back over fifteen years
and a system of effective regulation that has been in place for
over ten years and has been widely admired and used as a model
in other countries. The debates currently taking place in other
European countries seem to indicate, broadly speaking, movement
away from a total prohibition on embryonic stem cell research.
7.11 The situation in the United States has attracted
a great deal of attention, partly because some of the ground-breaking
work in ES cell research has been undertaken there and partly
because of the publicity that attended President Bush's decision
in August 2001 to permit federal funding of research on human
embryonic stem cells, but only if they were derived from stem
cell lines established before 9 August 2001. The rationale of
this decision was that there should be no federal support for
research involving the destruction of human embryos but that,
if the embryo had already been destroyed, the status it previously
enjoyed no longer attached to the stem cells extracted from it.
President Bush's announcement referred to some 60 such stem cell
lines throughout the world (none of them generated in the United
Kingdom).[51]
This decision reflected the fact that the main control that the
federal government exercises on human embryo research is through
its funding of research. There is no federal control of privately
funded research, which is generally subject to State rather than
federal regulation. This has led to significant variations between
the States. In some States research on human embryonic stem cells
is prohibited altogether, in others there is no regulation and
therefore little control on what takes place in private research
facilities.
7.12 A Bill to prohibit all forms of cloning which
has the support of President Bush was passed by the House of Representatives
in July 2001 but has not as yet been scheduled for debate in the
Senate.
7.13 In Australia, the House of Representatives Standing
Committee on Legal and Constitutional Affairs recently completed
a two-year long inquiry into a national approach to regulations
for stem cell research and cloning. Its report, recommended, among
other things, a ban on the creation of embryos (by IVF) solely
for research purposes; allowing the extraction of stem cells from
spare IVF embryos; a ban on reproductive cloning; and a three
year moratorium on the use of CNR.[52]
The scope for international
regulation
7.14 Apart from the Council of Europe Convention on Human Rights
and Biomedicine, which specifically prohibits human reproductive
cloning and the creation of human embryos for research, most of
the international instruments have been in fairly broad declaratory
terms. We have considered whether there is scope for a greater
measure of international regulation in this area. Some witnesses
argued that there was a need for such regulation because of the
ease with which research and treatment facilities can be transferred
to countries with more favourable regulatory regimes, thus encouraging
what is sometimes termed "reproductive tourism". On
the other hand, a number of scientific witnesses argued strongly
that reputable scientists do not look for a research environment
with minimum regulation but want an effective regulatory regime
which sets out clearly what is and what is not permitted, so that
they know where they stand both scientifically and ethically;
and that is why the regulatory environment in the United Kingdom
is attractive to researchers.
7.15 In our view, any attempt at detailed regulation
at international level, even if theoretically desirable, would
inevitably founder on the wide differences in policy and practice
which we have described above. A number of witnesses put it to
us that the United Kingdom should be advocating the principles
of the 1990 Act and the regulatory regime operated by the HFEA
as the basis of international regulation. But that too, it seems
to us, would probably be impractical.
An international ban
on reproductive cloning?
7.16 It has been suggested that at the very least there should
be an international ban on human reproductive cloning, and the
Government have indicated that they would support one.[53]
Others, notably the Royal Society, have called for a moratorium
rather than an outright ban.
7.17 Securing international agreement is never easy,
whatever the field of activity, and there would no doubt be formidable
practical difficulties in negotiating a ban (or moratorium) even
on such an apparently straightforward issue, on which there is
known to be widespread agreement.
7.18 Nevertheless, despite the difficulties, we believe
that there would be advantage in seeking to secure international
agreement on prohibiting reproductive cloning. It would send a
powerful signal of international opposition to the practice; it
would put moral pressure on countries not to permit facilities
in their jurisdictions to be used for this purpose; and it would
afford further reassurance to the public that there was protection
against the use of CNR for research purposes becoming a slippery
slope to reproductive cloning.
7.19 We have not examined in detail what would be
the most appropriate international body to negotiate such an agreement,
but it should be a world-wide rather than a regional body, which
points to the United Nations. The enforcement of an agreement,
which might take the form of a Convention, would be the responsibility
of the States party to it.
7.20 We have also considered whether action might
be taken internationally through professional medical bodies by
exerting pressure on scientists and medical practitioners not
to attempt reproductive cloning of humans. Such bodies exercise
considerable control and influence over their members and it is
desirable that they should make their position clear, even if
this is unlikely to deter the most determined maverick doctors.
However, we do not see professional codes as a substitute for
a formal prohibition.
7.21 As mentioned above, the Royal Society has suggested
a moratorium rather than an outright ban. The rationale for a
moratorium is that it would allow time for all the issues to be
explored in detail so that if the scientific objections were overcome,
a fresh look could be taken at the acceptability of the practice.
We understand the thinking behind this proposal but in our view
a moratorium would weaken the moral and presentational effect
of an outright prohibition, because it would suggest that there
was uncertainty about the ethical objections to reproductive cloning.
In addition, the time taken to negotiate a moratorium would be
likely to be disproportionate to its length. An alternative might
be for any prohibition to have a review procedure built in to
it. That would not suffer from the disadvantages of a moratorium
to the same extent but would still be weaker than an outright
ban.
CONCLUSION
7.22 The Committee recommends that the Government should take
an active part in any move to negotiate an international ban on
human reproductive cloning.
47 The UNESCO Universal Declaration on the Human Genome
And Human Rights states that "practices which are contrary
to human dignity, such as reproductive cloning of human beings,
shall not be permitted"; Article 1 of the Additional Protocol
to the Council of Europe Convention on Human Rights and Biomedicine
provides that "any intervention seeking to create a human
being genetically identical to another human being whether living
or dead is prohibited"; and Article 3 (2) of the Charter
of Fundamental Rights of the European Union states that the prohibition
of the reproductive cloning of human beings must be respected.
There is no directly relevant provision in the European Convention
on Human Rights. Some have argued that restrictions on reproductive
technology could violate the right to respect for private and
family life contained in Article 8 (1) but no one has yet sought
to test this proposition. Back
48
B5-0710. Back
49
PE 300.127. Back
50
Professor John Harris has described it, more unequivocally, as
"comprehensively vague" (John Harris, Clones, Genes
and Immortality (Oxford: OUP, 1998) p.31.) Back
51
There has been some dispute about the accuracy of this figure
as many have not been documented in detail. Back
52
Human cloning: scientific, ethical and regulatory aspects of human
cloning and stem cell research, Canberra, August 2001. Back
53
Lord Hunt of Kings Heath in the debate on the Human Reproductive
Cloning Bill, 26 November 2001, Col 58. Back
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