Human Rights Act 1998 Pdf Download

The Human Rights Act (HR Act) 1998 (UK) (Human Rights Act, 1998) came into effect on October 2, 2000. Instead of taking a case to the European Court of Human Rights in Strasbourg, litigants can enforce their rights in the UK. The Act will have an unprecedented effect in virtually all areas of the UK legal systems. In line with those countries who have incorporated the 'Convention' in domestic law, litigation is expected to increase. The extensive body of Convention law, as well as decisions of the domestic courts of other states which have incorporated the Convention, now becomes an integral part of UK jurisprudence. Broadly, the Act applies to public and not private bodies. The relevant bodies which embody reproductive issues and concerns are for example the National Health Service (NHS) and the regulatory bodies such as the Human Fertilisation and Embryology Authority (HFEA) (Human Fertilisation and Embryology Authority Act, 1990) and the Human Genetics Advisory Commission (HGAC). A profound impact on the NHS practice, interpretations of the HFEA Act and its Code of Practice can be envisaged in relation to the Convention rights. Cases involving reproductive issues are already emerging in relation to the HR Act and which include sex selection, the present embryo transfer policy, interpretation of fatherless offspring and the provision of fertility services under the NHS. This review is intended to raise awareness of the HR Act 1998 for persons interested in human reproductive issues and how the HR Act could impact on the current laws and practice. Whilst it is only possible to speculate on what might happen in relation to the HR Act, what is certain is that UK law will radically change to accommodate the requirements of the HR Act 1998.

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Human Reproduction Vol.16, No.4 pp. 785–789, 2001

The Human Rights Act (1998) and its impact on

reproductive issues

G.Bahadur

Royal Free and University College Medical School, London, UK

Address for correspondence: Royal Free and University College Medical School, University College Hospitals Trust, Department of

Obstetrics and Gynaecology, 88–96 Chenies Mews, London, WC1E 6HX, UK. E-mail: g.bahadur@ucl.ac.uk

The Human Rights Act (HR Act) 1998 (UK) (Human Rights Act, 1998) came into effect on October 2, 2000. Instead

of taking a case to the European Court of Human Rights in Strasbourg, litigants can enforce their rights in the

UK. The Act will have an unprecedented effect in virtually all areas of the UK legal systems. In line with those

countries who have incorporated the 'Convention' in domestic law, litigation is expected to increase. The extensive

body of Convention law, as well as decisions of the domestic courts of other states which have incorporated the

Convention, now becomes an integral part of UK jurisprudence. Broadly, the Act applies to public and not private

bodies. The relevant bodies which embody reproductive issues and concerns are for example the National Health

Service (NHS) and the regulatory bodies such as the Human Fertilisation and Embryology Authority (HFEA)

(Human Fertilisation and Embryology Authority Act, 1990) and the Human Genetics Advisory Commission

(HGAC). A profound impact on the NHS practice, interpretations of the HFEA Act and its Code of Practice can

be envisaged in relation to the Convention rights. Cases involving reproductive issues are already emerging in

relation to the HR Act and which include sex selection, the present embryo transfer policy, interpretation of

fatherless offspring and the provision of fertility services under the NHS. This review is intended to raise awareness

of the HR Act 1998 for persons interested in human reproductive issues and how the HR Act could impact on the

current laws and practice. Whilst it is only possible to speculate on what might happen in relation to the HR Act,

what is certain is that UK law will radically change to accommodate the requirements of the HR Act 1998.

Key words: Convention rights/European Court of Human Rights/genetics/Human Rights Act/reproduction

Introduction

the Convention into domestic law, they were required under

Article 1 to 'secure' Convention rights to everyone within

After World War II, Western Europe was the ﬁrst geopolitical

their jurisdiction and, under Article 13, to provide for an

area to establish a regional system of international organizations

'effective remedy' for everyone whose rights are violated.

aimed towards promoting co-operation in various ﬁelds of

Successive governments in the UK resisted incorporation on

modern life. From the outset, human rights were the cornerstone

the basis that the requirements of Articles 1 and 13 were

of the system, and a 'Charter of Human Rights' emerged at

already fully provided for under UK law and procedure.

the Congress of Europe in May 1948 (Gomien et al., 1999).

However, there was growing concern about the extent to which

The key relationship instituted by international human rights

the UK was meeting its obligations under the Convention,

law is that between the state and the individual, and not

with unsuccessful defence in over 50 cases before the ECHR.

between two states or two Governments. This also means

It was against this background that the incorporation of the

that within the realm of international human rights law, the

Convention became part of the Government's policy (White

individual has the status of subject rather than object, unlike

Paper, 1997).

in traditional international law in which states are actors in

The Human Rights Act 1998 (UK) ('the Act') passed on

respect of each other and individuals only enjoy protection as

November 9, 1998, came into effect on October 2, 2000.

objects of a state's solitude.

Instead of having to take a case to the ECHR in Strasbourg,

The European Convention on Human Rights (ECHR) was

litigants can enforce their rights in the UK. The Act will have

adopted on November 4, 1950 and came into force on

an unprecedented effect in virtually all areas of the UK legal

September 3, 1953. The UK played a central role in drafting

systems. In line with those countries who have incorporated

the Convention, and was the ﬁrst state to ratify it. Although

the 'Convention' in domestic law, litigations are expected to

increase (Leckie and Pickersgill, 1999). The extensive bodythere was no obligation on contracting states to incorporate

G.Bahadur

of Convention law, as well as decisions of the domestic courts Relevant Convention rights to human reproductive issues

of other states which have incorporated the Convention, will

and practice

become an integral part of UK jurisprudence. Once all domestic

The human reproductive issues and practices encompass:

remedies have been exhausted, it is still open to the aggrieved

choice of family making; adoption; infertility treatment; abor-

party to petition the ECHR. There is no right of appeal from

tion; status of the fetus; sterilization; mental incapacity; con-

the ECHR. There are positive rights and negative rights where

sent; genetic testing; potential discrimination against single,

respectively, there could be substantial gain or not to have

homosexual and transsexual parents; and special environments,

things done.

for example, prisons and the possible use of handcuffs or special

restraints during delivery (Milne, 1999). The Convention rights

which are most relevant to these are Articles 8 and 12, with

The Convention rights incorporated under the Act

potential resort to Articles 6, 2 and 14. Perhaps the main

There are 18 Articles setting out the human rights protected

impetus for Articles 8 and 12 were compulsory sterilizations

by the European Convention. Sixteen of the Convention rights

and abortions. Article 12 is concerned with the right to found

have been incorporated into UK law by the Act and are

a family as opposed to the right to respect for family life once

as follows:

a family has been founded, which is protected by Article 8.

Article 2: Right to life.

The Commission and Court of Human Rights have interpreted

Article 3: Prohibition of torture or inhuman or degrading

Article 12 narrowly in that they have not recognized a right

treatment.

to found a family outside of marriage, but since there is a

Article 4: Prohibition of slavery and forced labour.

broader notion of 'family' they may well ﬁnd protection under

Article 5: Right to liberty and security of person.

Article 8.

Article 6: Right to a fair trial.

Signiﬁcant aspects of UK fertility work come under the

Article 7: No punishment without law.

NHS and also uniquely under regulation within the HFEA Act

Article 8: Right to respect for private and family life.

1990. The present disparities in fertility treatment services in

Article 9: Freedom of thought, conscience and religion.

the NHS mean that free fertility treatment, especially involving

Article 10: Freedom of expression.

IVF/intracytoplasmic sperm injection (ICSI) could be accessed

Article 11: Freedom of assembly and association.

by childless couples, homosexual and lesbian couples, single

Article 12: Right to marry and found a family.

persons, transsexual persons, widows and older women. It is

Article 14: Prohibition of discrimination.

of interest to note however, that while Article 12 relates to the

right to found a family, it does not state what sexual orientation

First protocol:

one has to be to found one. Overall, there will be a much

greater level of scrutiny under Articles 2 (right to life), 8 (right

Article 1: Protection of property.

to respect for family life), 12 and potentially relevant Articles

Article 2: Right to education.

6 (right to a fair trial) and 14 which provides for non-

Article 3: Right to free elections.

discrimination in the enjoyment of these rights.

Presently, 'The Sex Discrimination Act (1975)' (SDA)

Sixth protocol:

already makes it unlawful to discriminate against a woman by

Article 1: Abolition of death penalty.

'refusing or deliberately omitting to provide her with goods

Broadly, the Act applies to public and not private bodies.

or services' S29(1)(a). As fertility treatment is a 'service', this

Public bodies include all government bodies such as the NHS,

is covered by the SDA. Within the SDA, whilst it is unlawful

Human Genetics Advisory Commission (HGAC), Human

to discriminate on the grounds of sex (i.e. gender), this does

Fertilisation and Embryology Authority (HFEA) and the Advis-

not mean that it is unlawful to discriminate on the grounds of

ory Committee on Genetic Testing (ACGT), education authorit-

sexual orientation or marital status, for example, where services

ies, prisons and social security bodies, and extends to public

are refused to individuals who are not in a stable heterosexual

authorities such as local councils. Hybrid 'public–private

relationship. However, Article 14 ('Sex, race, colour, language,

bodies' are likely to create difﬁculties when for example,

religion, political or other opinion, national or social origin,

doctors and health personnel treating an NHS patient are

association with a national minority, property, birth or other

clearly subject to the requirements of the Act, and appear not

status') and Article 12 ('Men and women of marriageable age

subject to the Act when treating the patient in a private sector.

have the right to marry and found a family, according to the

Private clinics undertaking NHS contracts are effectively

national laws governing the exercise of this right') may have

exercising a public function, and therefore come under a public

scope in widening the meaning of discrimination. At present,

body category. The Act creates a new cause of action against

the UK law does not recognize same-sex marriage and,

public authorities. Section 6 makes it unlawful for a public

given the commitments of the European Union to combat

authority to act in a way which is incompatible with a

discrimination on the grounds of sexual orientation, this

Convention right unless it is required to so by legislation

position is likely to change.

which cannot be interpreted compatibly with the convention.

With regards to the use of a fertility service, in a recent

The Act states that the courts and tribunals are themselves

case a prisoner serving a life sentence for murder was not

public authorities, and are therefore subject to their own duty

to comply with the Convention (Leckie and Pickersgill, 1999). allowed to have access to artiﬁcial insemination (AI) facilities

786

The Human Rights Act (1998) and reproductive issues

to inseminate his wife (married in prison) for fear that the testing could attract appeals under the HR Act under Articles

8, 6 and 14.wife would be too old to have a child upon the applicant' s

release. An inevitable consequence of his lawful detention in The existing HFEA Act 1990 and its Code of Practice are

envisaged to undergo interpretative re-evaluation, especiallycustody was that he was unable to co-habit with his wife and

could not enjoy conjugal visits from her, thereby making it where unclear statements arise or where the application remains

iniquitous, and affected individuals may challenge for theirimpossible for his wife to conceive a child by the usual

natural means. An inevitable consequence of his imprisonment rights. The present HFEA Code of Practice implicitly asks

clinics to consider the 'welfare of the child who may be bornrequired the co-operation and assistance of the Secretary of

State to achieve the conception of the child by AI means. The (including the need of that child for a father) and of any other

child who may be affected by the birth'. To most practitioners,Secretary of State refused on the basis that there was no

medical need for AI, and there was concern about the stability this statement has remained unclear, with no signi ﬁcant guid-

ance from the statutory body. The statutory 'need for a mother ' of the applicant' s relationship with his wife. In his Lordship' s

judgment, the right to respect for private and family life by consideration appears not a requirement, but is assumed

'implicit.' When viewed against the background of novelArticle 8 of the European Convention of Human Rights and

Fundamental Freedoms (same in HR Act) was not engaged families such as the recent twin girls born in the USA to a

British resident homosexual male couple, the need for a motheron the facts of the case. He accepted the Secretary of State' s

contention that although Article 8 required the state to respect receives unequal consideration in the HFEA Act. In the latter

case, interesting ethical, legal and practical dilemmas havefamily life where it existed, it did not give any right to create

a family by the conception of a child. It was also agreed that been presented, such as residence permit (Burrell, 2000),

naming of parents on the birth certiﬁcate, and marriage ofthere was no case in which it held that the right under Article

12 to marry and found a family provided a prisoner with a parents. The inability to name parents of the same gender on

the birth certiﬁcate could be viewed from the welfare of childright of access to AI facilities, whether by reference to domestic

law or the Convention. His Lordship' s view was that the perspective and as a continued non-recognition of the couple ' s

existence, thereby attracting appeals under Articles 12 and 14.applicant was not entitled, as of right, to insist upon the co-

operation and assistance being provided to him. Even if the A perceived list of imbalanced situations is: infertile patients

enduring stringent requirement of welfare of child applicationapplicant did have a civil right of access to facilities for

AI, the present restriction on that right was an inevitable when undergoing a licensed treatment, but not in an unlicensed

treatment; egg-shared schemes and the need for two cliniciansconsequence of his imprisonment, because he had lost the

right to freedom of association as a consequence of his to ensure separation of recipient and donor which is not applied

to the usual egg donor and recipient programme; informationimprisonment (Regina versus Secretary of State for the Home

Department). In a separate case involving a private arrangement for donor offspring of their genetic parentage; information for

the donors of genetic offspring born from their donation;of sperm donation and following breakdown in relationship,

the donor could no longer enjoy access to the child as he was the arbitrary application of ten live births per gamete donor in

the UK and the differential treatment that clinics from othernot entitled to respect for family life, under Article 8 (G v

Netherlands, 1993). countries may favourably expect; the transfer and use of frozen

gametes and embryos between EC countries and EC signatories,Fertility treatment covered by the HFEA requires patients

to be provided with clear verbal and written information. especially that semen is regarded as a commodity.

In another situation, the HFEA Act stipulates that a childHowever, much fertility treatment involving AI using husband' s

spermatozoa, ovulation induction, and male and female fertil- conceived posthumously is legally 'fatherless.' Diane Blood,

who won the right to use her dead husband' s spermatozoaity-related surgical procedures do not come under statutory

jurisdiction. In the 1980s, English courts had adopted a taken without written consent, understood the potential of the

HR Act. She and another widow have won their right legallyrestrictive standard, which left it to doctors to decide how

much to tell the patient about risks of treatment. With the HR to recognize the genetic father on the birth certiﬁcate, and an

amendment to the HFEA Act is to be recommended by theAct, judges will have to take account of the right to respect

private and family life, which includes a positive obligation Department of Health advisors, although it is anticipated that

succession or inheritance rights will not follow (Martin, 2000).on state bodies to give information about risks to health.

Alongside this, there appears an interesting recent development. Transsexuals provide interesting dilemmas in relation to the

conception and families. Broadly, it is taken to mean the sexThe UK government is expected to endorse a move allowing

insurers to use the results of genetic tests to identify customers of the person 'at that time', which itself is unclear and can

become a moving goalpost. A sex-change operation is notwith hereditary illness. Although the test is expected to be

restricted to Huntington' s disease (a fatal brain condition), considered a positive right. Even if it were a right, it would

be qualiﬁed by the respondent' s right to determine prioritiesother conditions such as familial adenomatous polyposis,

myotonic dystrophy, Alzheimer' s disease, multiple endocrine in the light of its limited resource.

Ageism is considered a signiﬁcant area for the HR Act asneoplasia, hereditary motor and sensory neuropathy, certain

breast and ovarian cancers may be included. As this amounts life expectancy and quality increases. Traditional views on

ageing and reproduction are increasingly being challenged. Into a public body decision, any loss of rights and freedoms as

a result of a retrospective application of information disclosure the UK, Liz Buttle used donated oocytes and conceived at the

age of 55 years. Most clinics offering IVF treatment have anagainst the quality of informed consent at the time of the

787

G.Bahadur

age-related cut-off criterion. Whilst this is unlikely to affect the child was 'chosen to preserve the life of another '. While

ethical debates face slippery slope prospects, the choice andmost clinics who operate in the private sector, the NHS sector

may face demands for fertility treatment. Increasing numbers power individual parents face increases, as the scope for

interpretation under the HR Act takes on additional dimensions.of male patients with prostate cancers seek to store spermato-

zoa, and the current statutory limit of 10 years for the over- If that was not enough, 'reproductive tourism' is increasingly

becoming a likely option for couples where a treatment might55 years age group, without recourse for extension, may be

seen unnecessarily restrictive and discriminatory, thereby the occur in another country as clinical standards become uniform.

The HR Act declares that public bodies should not interferepotential for appeal under the HR Act under 'Articles 2, 6,

8 and 12'. Similar dilemmas face children where fertility with privacy or family life unless they can justify in terms of

protecting public health or morals, or protecting the rights ofpreservation by gonadal tissue sampling and preservation is

either not routinely offered or is not recognized under the others. It means that the HFEA cannot simply ban anything it

considers ethically unacceptable. Under the HR Act, the HFEAHFEA Act 1990 (Bahadur et al., 2000). When considering the

question of whether to offer gonadal tissue sampling in pre- would have to prove its right to infringe on people' s choice

and articulate quite precisely why it is interfering in terms ofpubertal patients and storage, it should be noted that the

Human Rights Act provides for the individual' s right to found public health or morals. With this in mind, two cases involving

46- and 39-year-old women are likely to challenge the UKa family. Not to offer storage by denying choice at a later

stage in life may thus infringe his/her right. Unique to children' s ban on more than three embryo IVF transfer policy, citing

Articles 6, 8 and 12. A brother and sister will attempt to gaingonadal tissue is that the HFEA Act 1990 does not allow for

substituted consent (Bahadur et al., 2001). When the use of information about their genetic father, and the current law

banning disclosure of information on donors is likely to betesticular tissue is to be considered in later years, difﬁculties

are foreseen with regards to the HFEA Act 1990, as common tested for breaches under Article 8 (Barwick, 2000).

The fate of the liberal UK embryo research policy whichlaw and parental consent would have previously been opera-

tional. Similar parallels are echoed with patients with mental allows the creation of a human embryo solely for a research

purpose faces an interesting phase when compared with otherincapacity in relation to informed consent, and Article 14

relating to discrimination is appropriate. Such considerations European states. Research with embryos is presently limited

to ﬁve categories: promoting advances in the treatment ofmay also apply to the provision of gamete and embryo storage

for HIV and hepatitis B and C patients. Potential adoptees fertility; increasing knowledge about the causes of congenital

disease; increasing knowledge about the causes of miscarriage;who have undergone fertility-damaging cancer treatment also

face discriminatory assessments. developing more effective techniques of contraception; and

developing methods for detecting the presence of gene orA large part of the HFEA work relates to inspecting and

licensing clinics for a variety of procedures, and these may chromosome abnormalities in embryos before implantation.

The third category might not ﬁnd favour among individualnow be opened to scrutiny. The HFEA for example, in deciding

not to grant, revoke, vary or attach conditions to a licence, members of the public, although no projects have appeared to

date in this category (Human Fertilisation and Embryologymay have recourse to the HR Act by the licence holder if

unsatisfactory decisions are not resolved. The level of immunity Authority, 1999), while other categories such as the use of

embryonic stem cells could be usefully added. The secondis likely to be lessened as public bodies are made accountable

for their decisions by the HR Act. category, which is concerned with gain of knowledge of a

disease, rules out corrective genetic modiﬁcations in embryosIssues which have long been settled such as 'sex selection'

for social reasons, embryo transfer policy and embryo and or gametes for clinical use. With the recent application of gene

therapy for a boy affected by a single defective gene of 'severegamete destruction could be rekindled. It is worth noting

that sex selection using sperm separation or prelimplantation combined immunodeﬁciency' (SCID) (Dobson and Leake,

1999), technical, patient and legal interest is likely to focusgenetic diagnosis (PGD) is not illegal, but is regarded as

unacceptable practice. This is because PGD is not speci ﬁcally on corrections at the early life stage such as the embryo. It

may be possible for 'pro-life groups' to disrupt the liberalmentioned in the HFEA Act and therefore the limits of its use

could not be deﬁned by statute. The fact that the PGD embryo research policy under Article 2 ('everyone' s right to

life shall be protected by law').procedure has to be carried out on an embryo necessarily

brings the technique within the realm of the HFEA, and hence Ethical objections which have been the springboard to deny

novel treatment procedures are likely to be stretched andthe ethical objection in disallowing this technique for 'social

reasons' and for testing 'late-onset disease' such as breast and challenged using the Convention rights, especially where there

exist inconsistencies or discriminatory application. With thebowel cancers. Currently, one family plans to appeal under

the HR Act for permission to choose a girl, to restore the HR Act, future ethical arguments will have to keep up with

scientiﬁc development. The use of novel treatment procedures 'female dimension' of the family after their only daughter died

in a ﬁre (Riddle, 2000). Selecting embryos to cut our inherited where research has not brought conclusive evidence, such as

the use of round spermatids, early spermatogonia (of whichdisease using PGD has been established in the UK. However,

in a recent case in the USA, a girl afﬂicted with Fanconi' s haploid cells beﬁtting HFEA gamete deﬁnition in pre-pubertal

children can be had), the application of a post-HFEA Act 1990anaemia and her inability to produce her own blood marrow

led to a choice of a male embryo to help supplant stem cells deﬁnition of 'gamete' is potentially troublesome, nuclear or

cytoplasm transfer, PGD in late-onset disease or 'designerin her. This case was widely regarded as being different as

788

The Human Rights Act (1998) and reproductive issues

practice', the use of embryo splitting where perhaps the ﬁnal preventing reports damning manufacturers for the effects of

their drugs on unborn children (Waterhouse et al., 2000). Also

chance of fertility treatment is involved, may be subject to re-

expected to play its part under Articles 8 and 9 of the HR Act

interpretation under the HR Act since the pace of development

is that consideration be given to religious values, and in terms

in reproductive techniques could not be envisaged when the

of reproductive issues polygamous marriage and childbearing

HFEA Act 1990 was drafted. The transfer of an embryo

also raise interesting issues. Although the right to form a

created by cell nuclear substitution ('reproductive cloning')

family may be weak where a family does not already exist,

into a woman' s uterus is a criminal offence in the UK.

an interesting precedent would arise should nulliparous women

However, the present legal position is unclear on whether the

seek fertility treatment to reduce their risk of ovarian cancer.

intention is to prohibit production of another individual who

In summary, it is only possible to speculate what might

is genetically identical or almost identical to another individual.

happen in relation to the HR Act, but what is certain is

For couples lacking germ cells it may become possible in

that UK law has changed radically to accommodate the

future to having a genetically biparental child by creating

requirements of the HR Act 1998. It should be noted that the

haploid cells from somatic diploid cells, and two approaches

HR Act is not intended to override British statute, but it will

involving meiotic reduction and tetraploid eggs respectively

be for the courts to strike a balance. Broadly, it is public

are suggested (Johnson and Kubiak, 2000). As developments

bodies that will be affected for greater accountability. Of

are unforeseen and where meanings are unclear, it is possible

relevance, the HR Act declares that public bodies should not

for infertile couples or individuals to pursue their choice of

interfere with privacy or family life unless they can justify in

conception through the HR Act.

terms of protecting public health or morals, or protecting the

In relation to the complex 'status of the fetus and embryos',

rights of others. As such, cases are beginning to emerge which

which have been intensely debated under different guises of

challenge the accessibility of free NHS fertility treatment, and

law, morality and ethics, has often led to overall little conceptual

the HFEA ' s Code of Practice such as the three embryo transfer

depth. Further complications are added with the array of

policy, donor anonymity, interpretation of birthright status in

laws and approaches in existence: UK, European approaches,

posthumous assisted reproduction and sex selection. Prior to

European Convention on Medicine, HFEA Act 1990 and now

the HR Act, the rights did exist but cases had to be taken to

the HR Act. The central question has always been: When does

Strasbourg' s ECHR, involving lengthy procedures.

life begin, and when does life acquire a 'person' status with

its 'own right'? It might be easier to explore the fetal status

References

ﬁrst. In English law, a fetus does not have any right of its

Bahadur, G., Chatterjee, R. and Ralph, D. (2000a) Testicular tissue

own. It is felt that the human being does not exist as a legal

cryopreservation in boys. Ethical and legal issues. Hum. Reprod., 15,

1416–1420.

person until after birth, and it follows that it cannot be seriously

Bahadur, G., Whelan, J., Ralph, D. and Hindmarsh, P. (2001) Gaining consent

argued that an embryo is a legal person. The embryo however,

to freeze sperm from adolescents with cancer: legal, ethical and practical

is widely given a measure of respect, although this is not

aspects. Hum. Reprod., 16, 188–193

Barwick, S. (2000) Legal test case may identify donors. Daily Telegraph,

absolute. The legal status of the non-classical embryo created

September 12, 2000.

using nuclear substitution and where no fertilization had

Burrell, I. (2000) Twins born to gay couple ﬁght to live in the UK. The

Independent, January 3, 2000. occurred—as in the creation of 'Dolly' the sheep—presents a

Dobson, R. and Leake, J. (1999) British baby is given world' s ﬁrst gene cure.

major new factor in our understanding of the meaning of an

The Sunday Times, December 26, 1999.

embryo. Such an 'embryo' is not deﬁned in the HFEA

G versus Netherlands (1993) 16EHRR CD 38.

Act (1990).

Gomien, D., Harris, D. and Zwaak, L. (1999) Law and Practice of the

European Convention on Human Rights and the European Social Chapter .

Issues relating to the acceptability and scope of abortion

Council of Europe Publishing. ISBN 92-871-2995-X.

rights have long been contentious in both domestic and

Human Fertilisation and Embryology Authority Act (1990) HMSO, London.

ISBN 0-10-543790-0.

international law. Abortion cases often form a test ground for

Human Fertilisation and Embryology Authority (1998) Code of Practice.

the fetus, but the legal concerns also contain moral, political,

Fourth edn, Paxton House, 30 Artillery Lane, London, E1 7LS, UK.

religious and health-related elements. In the area of abortion,

Human Fertilisation and Embryology Authority (1999) Annual Report and

Accounts. The Stationery Ofﬁce, P.O. Box 276, London, SW8 5DT, UK.

different opinions exist as to whether the authorization of

ISBN 0-11-322290-4.

abortion strikes a fair balance between the legitimate interests

Human Rights Act (1998) Chapter 42. The Stationery Ofﬁce, London. ISBN

of the woman in question and the legitimate need to protect

0-10-544298-4.

Johnson, M.H. and Kubiak, J.Z. (2000) Legal confusion over 'cloning' risks

the fetus. In all abortion cases to date, the Commission has

throwing baby out with bathwater. Nature, 407, 559.

avoided making any pronouncements on the deﬁnition of 'life'

Leckie, D. and Pickersgill, X. (1999) The 1998 Human Rights Act Explained.

in the abortion context, or on the extent to which an unborn

The Stationery Ofﬁce, London, UK. ISBN 0-11-702684-0.

Martin, N. (2000) Babies born from 'frozen sperm' win birthright. Daily

child may claim protection under Article 2 of the European

Telegraph, August 26, 2000.

Convention on Human Rights. In placing the mother before

Milne, C. (1999) The Human Rights Act 1998. J. Med. Def. Un., 15, 18.

the fetus, it is possible to invoke Article 2 and the use of

Regina versus Secretary of State for the Home Department. Ex parte Mellor,

Queens Bench Division, September 2000.

Article 8 could justiﬁably be used 'for the protection of others'.

Riddle, M. (2000) Anyone for ethical tennis? The Observer , October 8, 2000.

A safeguard has been written into the HR Act designed to

Waterhouse, R., Millar, P. and Gadher, D. (2000) How the Euro will change

make it harder to obtain a gagging order prior to publication.

your life. The Sunday Times, August 6, 2000.

Article 10, protecting freedom of expression, will guarantee

White Paper (1997) Rights Brought Home: The Human Rights Bill. October

1997, Cm 3782.

more rights for the media. In 1979, the 'European Commission

of Human Rights' came to the rescue of The Sunday Times Received on October 23, 2000; accepted on December 11, 2000

789

... In English law, a child born from posthumous insemination or to a lesbian or single woman using donated sperm does not have a legally recognizable father on the birth certificate. As a result of Mrs Blood's representation and potential resort to the Human Rights Act (HRAct, 1998) (Bahadur, 2001), it seems that a Parliamentary Bill which allows the naming of the father in PAR may follow. In the UK, the 1990 HFEAct does not prohibit posthumous storage and use of spermatozoa, but it does require the man's prior written consent for sperm storage. ...

... A reluctance to perform PAR is widespread, and two-thirds of UK clinics share a culture that seems to be the legacy of the Warnock Committee which, in setting the recommendations of the HFEA, actively discouraged posthumous reproduction. This type of blanket ban by a clinic on PAR may be contrary to the HRAct 1998 (Bahadur, 2001), and may possibly lead to further legal complications for those clinics adopting such an entirely negative policy. ...

... On balance, it is necessary to ask whether posthumous reproduction would promote-or interfere with-important human aims. In the UK and also to some extent Europe, future ethical debates raise fears about increasing the choice and power that individual patients possess, as the scope for interpretation under the HRAct takes on additional dimensions (Bahadur, 2001). The HRAct declares that public bodies should not interfere with privacy or family life unless they can justify it in terms of protecting public health or morals, or protecting the rights of others. ...

Gulam Bahadur

The complex moral, ethical and legal concerns that have arisen as a result of posthumous assisted reproduction (PAR) are examined in this report. Difficult questions such as what constitutes informed consent, and whether it is ethical to retrieve spermatozoa from patients who are in a coma, are considered. Legal issues, such as whether gametes can be considered as property and the need to clarify the legal definition of paternity in cases of children born in such circumstances, are also discussed, while other points regarding the advisability of PAR, respecting the wishes of the deceased donor and the need to protect the interests of the unborn child, are outlined. The motives of the gestating women, viewing their desire for PAR perhaps as part of the grieving process, and the effects on the children concerned are examined; it is concluded that there appears to be no adverse effect, but this finding might be premature. The report also asserts the need for responsible accounting on the part of fertility clinics, and calls for fairness, transparency and patience to help the bereaved reach an unbiased yet informed decision. This may be achieved by offering ample time for informed and support counselling. Finally, consideration should be expressed for the welfare of unborn child, in a balanced, pragmatic and sensible manner.

... 14 15 This can be done by persuading Parliament through professional or patient representation to enlarge the regulatory remit of the HFEA, to help enhance patients interest, and in achieving consistent policies. Furthermore, it should be borne in mind that the UK legal landscape has changed significantly with the Human Rights Act 1998, 16 favouring patients determination and sensibly engaging this Act may become a useful option. ...

David Strauss

Editor,—The recent study by Hutton, Colver, and Mackie1 is in some respects a useful addition to our knowledge of survival in cerebral palsy. Unfortunately there are substantial problems with the paper; we note three of them below. 1. In figure 1A it appears that in the most seriously affected group, who had a Lifestyle Assessment Score (LAS) ⩾70%, there is 100% survival to age 9 . This scarcely seems plausible when, as the graph indicates, 20% of these survivors die in the next 9 years. The explanation is that the most severely disabled children, with LAS 70% or more, have to survive to age 5 to be assessed by LAS. Thus the severely disabled children who die before 5 have no LAS, and are excluded (actually, it appears from the graph that some children are evaluated even later than age 5). The resulting bias could have serious consequences. For example, in a lawsuit involving a neurologically devastated 2 year old child a plaintiff may cite Hutton et al to argue for 100% survival over the next seven years. 2. Hutton et al 's results show …

Pin Lean Lau

This final chapter delves into the dynamics of basic constitutional human rights in the selected jurisdictions by studying the key approaches taken by each of the jurisdictions in generally dealing with human rights matters. In examining the potential regulation of future pre-implantation genetic interventions in the jurisdictions (which should take into account human rights components such as the right to life, the right to privacy (autonomy) and the right to equality and non-discrimination), the chapter introduces the concept of 'entry points of regulatory approaches'. These entry points of regulation are symbolic of concerns regarding various branches of biomedical technologies. In the chapter, I identify two spectrums of these entry points: firstly, the practical, positivistic and private law aspects; and secondly, the philosophical human rights aspects. I posit that these classifications point to the main prevailing and concerning issues that would prompt a state to regulate those technologies. Using these entry points of regulation as lenses of comparisons allows us to navigate the role of fundamental rights in the selected jurisdictions by determining how these jurisdictions prioritize the human rights components that would be relevant in pre-implantation genetic interventions.

Gulam Bahadur

This paper discusses the moral and ethical issues raised by the use of stem cells in research into regenerative medicine. It outlines the scientific background of stem cell research and potential applications of therapies, considering the respective advantages and disadvantages of embryonic and adult stem cells. This paper acknowledges the public unease about the treatment of the embryos which provide the source of embryonic stem cells, as a commodification of entities with the potential for life. It considers how the essential ethical value of respect for human beings could be put into practice in this field by means of obtaining informed and effective consent from those donating embryos. It looks at the legal status of stem cells and the issues raised by the creation of embryos for research. It considers the moral and legal status of the embryo under regulations currently governing reproductive medicine. It suggests that the concept of property might clarify the legal status of donated tissue. It discusses the health and safety issues with regard to the well-being of patients and donors. It outlines the current controversy around stem cell research in the US and lately in Korea where there has been global impact on research issues and practice. It argues that scientists must understand and address public concerns about the use of embryos in the interests of continuing research in the field.

Mark Hamilton

Advances in assisted reproduction techniques have afforded women at the end of conventional reproductive life, and beyond, the chance to contemplate fertility treatment. This raises difficult ethical issues, relevant to human rights legislation, including rights of access to limited healthcare resources and the rights of gamete donors, and challenges previous assumptions about the assessment of welfare of potential children, exposing conflict between person-centred and community-based ethics.

Gulam Bahadur

Introduction: New technologies in the field of reproductive medicine have given rise to new possibilities for the application of this technology. These possibilities have in turn led to new ethical and policy dilemmas. This paper discusses the complex moral, ethical and legal concerns that posthumous assisted reproduction (PAR) gives rise to: questions such as what constitutes informed consent, and whether it is ethical to retrieve spermatozoa from patients who are in a coma. It considers legal issues, such as whether gametes can be considered as property and the need to clarify the legal definition of paternity in cases of children born in such circumstances. It outlines the various considerations that need to be taken into account in deciding on the advisability of PAR, including respect for the wishes of the deceased donor and the imperative need to protect the interests of the unborn child. It examines the motives of gestating women, and discusses the effects on the children born by means of this process. Methods: The paper makes use of legal studies of cases of posthumous reproduction, and draws on the experiences of fertility clinics to consider the motives of gestating women and mistakes that can be made in fertility treatments. It refers to philosophical discussions of the ethical considerations involved, and considers the legal and regulatory framework around assisted reproduction in the UK and in other countries. Conclusions: The paper helps to raise the awareness of policy makers and clinicians in the field of assisted reproduction of the complex legal, ethical and moral issues that PAR involves. It urges policy makers to evaluate the issues at stake, particularly regarding the need for consent and for the children concerned to have a legally recognisable father and inheritance rights, and to formulate a suitable legislative response. It argues that caution should be exercised in encouraging PAR, and market forces should not influence decisions on the practice. It asserts the need for responsible accounting on the part of fertility clinics, calling on them to help the bereaved to reach an unbiased but informed decision on PAR. Finally, the welfare of unborn children must be taken into account by both clinicians and policy makers.

Christopher A. Pynes

In vitro fertilisation (IVF) is a fertility treatment, sometimes referred to more generically as an assisted reproductive technology (ART), designed to help couples who cannot get pregnant in the normal manner, establish a pregnancy. IVF treatment requires the creation of multiple pre-embryos for implantation into the patient's uterus. The development of IVF techniques has prompted the use of several regulatory models, such as free market approaches, industry self-regulation, laissez-faire legislation and prohibitive licensing systems. Each regulatory model has strengths and weaknesses in dealing with different types of moral concerns within the IVF debate, including reproductive autonomy, safety and dignity of the unborn, the creation and destruction of waste embryos, surrogacy and ownership issues. With varying models of regulation and conflicting moral views on the matter, international harmonisation of IVF regulations is unlikely.

Gulam Bahadur
R Chatterjee
D. Ralph

Sperm preservation prior to chemotherapy and radiotherapy is common practice in adult males. Spermatozoa are usually retrieved from an ejaculated sample although there are occasions when testicular tissue is used as the source. These techniques of sperm preservation present minimal ethical objections as the patients give their informed consent. Sperm preservation in children presents practical and ethical dilemmas in that the children cannot always give their informed consent, there are no regulatory guidelines and there is no guarantee that spermatogenesis is occurring. With the rapid advances in reproductive technology and the possible future use of immature germ cells by in-vitro maturation or transplantation, the demand for immature testicular tissue preservation is likely to increase. More information for the parents and oncologists with regard to this subject is needed to allow informed decisions to be made on behalf of the children. These issues are discussed using two cases of children having testicular tissue preservation.

Sperm banking for early adolescent cancer patients requires delicate, sensitive handling and, in the UK, consideration is required of statutory elements. No information at present exists about how adolescents with cancer are normally treated or counselled for sperm banking. Here we highlight the type of issues in relation to fertility preservation faced by clinicians and those faced by adolescents at a sperm storage laboratory. We explore the very real difficulties of bringing together these medical fields of assisted reproduction, oncology and the various pieces of legislation and focus specifically on gaining consent. Attention is paid to counselling and communication to help the patient reach an effective and informed decision to store spermatozoa. The role of parents in contributing towards communication and support, together with the legal constraints in decision making, is acknowledged. How absolute and fully `informed' consent should be will always remain a contentious issue amongst the various specialists and disciplines. In relation to sperm storage, as a minimum the patients should understand the process that they are undertaking so that it is undertaken freely and without pressure. The practical approach to gaining consent that we are using seems a logical and practical method to help early adolescent patients to store spermatozoa.

Gulam Bahadur

The Human Rights Act Regina versus Secretary of State for the Home Department Ex parte Mellor, Queens Bench Division Anyone for ethical tennis? The Observer How the Euro will change your life Rights Brought Home: The Human Rights Bill

C Milne
R Waterhouse
P Millar
D Gadher

Milne, C. (1999) The Human Rights Act 1998. J. Med. Def. Un., 15, 18. Regina versus Secretary of State for the Home Department. Ex parte Mellor, Queens Bench Division, September 2000. Riddle, M. (2000) Anyone for ethical tennis? The Observer, October 8, 2000. Waterhouse, R., Millar, P. and Gadher, D. (2000) How the Euro will change your life. The Sunday Times, August 6, 2000. White Paper (1997) Rights Brought Home: The Human Rights Bill. October 1997, Cm 3782. Received on October 23, 2000; accepted on December 11, 2000 789

British baby is given world's first gene cure

R Dobson
J Leake

Dobson, R. and Leake, J. (1999) British baby is given world's first gene cure. The Sunday Times, December 26, 1999

Babies born from 'frozen sperm' win birthright

N Martin

Martin, N. (2000) Babies born from 'frozen sperm' win birthright. Daily Telegraph, August 26, 2000

Law and Practice of the European Convention on Human Rights and the European Social Chapter

D Gomien
D Harris
L Zwaak

Gomien, D., Harris, D. and Zwaak, L. (1999) Law and Practice of the European Convention on Human Rights and the European Social Chapter. Council of Europe Publishing. ISBN 92-871-2995-X

The Human Rights Act 1998

C Milne

Convention on Human Rights. In placing the mother before Milne, C. (1999) The Human Rights Act 1998. J. Med. Def. Un., 15, 18. the fetus, it is possible to invoke Article 2 and the use of Regina versus Secretary of State for the Home Department. Ex parte Mellor, Queens Bench Division, September 2000.

How the Euro will change make it harder to obtain a gagging order prior to publication. your life. The Sunday Times

R Millar
P Gadher

A safeguard has been written into the HR Act designed to Waterhouse, R., Millar, P. and Gadher, D. (2000) How the Euro will change make it harder to obtain a gagging order prior to publication. your life. The Sunday Times, August 6, 2000.

Source: https://www.researchgate.net/publication/12055699_The_Human_Rights_Act_1998_and_its_impact_on_reproductive_issues

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