Nuclear cell transfer of statutory language
New Law Journal, Vol 152, April 2002
Rosalind English outlines why scientific progress necessitates a certain flexibility in statutory interpretation
Last November the High Court ruled that an "embryo" created by cell nuclear replacement (CNR) was not protected by existing legislation. The problem was that the 1990 Human Fertilisation and Embryology Act refers to an "embryo" as an organism that has emerged from the fertilisation process (see NLJ November 30, 2001, p 1760). CNR is a process which involves substituting a nucleus of an unfertilised egg with a nucleus extracted from another person; this nucleus can be taken from any cell in the body, and therefore does not involve the process of "fertilisation". Mr Justice Crane did not see how the language of the Act could be interpreted to cover CNR, and the judgment meant that no licence was required for the creation or use of embryos created by this process.
The High Court ruling has now been overturned by the Court of Appeal, who has taken the view that the language of the 1990 Act should be subject to a broader interpretation than that allowed by the High Court. In reaching this decision Lord Phillips observed that Parliament would have intended to cover the CNR process by the Act had the specific process been known of at the time the Act was introduced.
The languid processes of the law are notoriously inadequate in the face of rapid scientific development, and this quick turn-about by the courts is to be welcomed. Medical researchers are delighted that their work can now continue under existing regulatory arrangements. The pro-life lobby on the other hand has expressed alarm that the court could have interpreted the statute in such an "alarming elastic way".
The truth of the matter lies somewhere in between. Of course the Pro-Life Alliance and the High Court are right; the 1990 Act did not cover CNR because of the very simple fact that CNR had not fully developed at the time the Act reached the statute books. This is a classic problem of statutory interpretation, but not one that should be turned into an obstacle in the way of scientific progress. If "embryo" referred exclusively to an organism created by fertilisation in 1990, it is not illogical to decide that it has a wider meaning now. The term could be made to cover CNR in the same way that the 1869 Telegraph Act could be extended to the use of the telephone, invented many years later. Any other approach would create havoc; new laws would have to be drafted, debated and passed through Parliament to cover every new blip on the technological seismograph.
The law of course is flexible, or uncertain, and this comment page has criticised the opportunistic use of purposive interpretation before ("Acorns of wisdom from Oakington" NLJ November 9, 2001), particularly where judges find themselves intermittently at loggerheads with Government offices over controversial social issues like immigration. However, on scientific matters, a certain flexibility in interpretation of existing legal terms is not only necessary but indispensable if the courts are not going to find themselves—usually at the behest of special interest groups—issuing judgments that paralyse licensing negotiations between laboratories and regulators. For such matters, a purposive approach to statutory interpretation such as that adopted by the Court of Appeal is the only approach possible.
Few dispute the need to stop in its tracks any process which might lead to widespread human cloning, either by the biotech industry itself or by rogue outsiders who have found a loophole in the regulatory system. Therapeutic cloning on the other hand, has enormous potential for medicine. Such cloning—which includes procedures such as CNR—produces non-specialised embryonic stem cells (ESCs) that grow into a myriad of specialised tissues. CNR has the advantage over embryonic stem cells produced by normal fertilisation processes because it produces stem cells that are virtual copies of the cells from which the original nucleus has been derived. Therefore the organs that can be developed from these cells are immunologically similar to the donor of the nucleus.
The pro-life lobby is after a wholesale ban on therapeutic cloning. If the discovery of penicillin had been met with the same mixture of superstition and squeamishness, the development of antibiotics would have been stopped in its tracks. Such a process involves after all a surreal and ethically dubious introduction of one form of living organism into another. The shortage of organs has brought about a frenzy of activity along two avenues; stem cell research and xenotransplantaion. The hazards and lurid experimentation associated with the latter makes it all the more necessary that ESC should become the preferred source for organ transplantation. It is to this (and the former) Government's eternal credit that it has not responded to the pro-life lobby's demands and has instead relied upon an open-ended and imaginative piece of legislation to keep the field open for new discoveries.
In any event, this whole furore over embryos and how they are developed and used may be overtaken by the latest developments overseas. Researchers in the US have recently demonstrated the ability to isolate one kind of "adult" stem cell from human bone marrow. These cells—what the scientists call, in their inimitably jaunty language, "multipotent adult progenitor cells"—have the same versatility in developing from an undifferentiated state to specialist cells. If the US findings are confirmed, it may mean that cells from one's own body could one day be transformed into perfectly matched replacement tissues or organs. But this does not mean that the embryonic stem cell research should be set aside. Scientific advances from embryonic stem cell research are and will continue to be necessary to understand how to make greater use of stem cells derived from adult tissue.
As the Government recognised in its report on therapeutic cloning in 2000, we are only now gaining knowledge about how stem cells differentiate, and on how this process might be controlled to produce the particular kinds of tissue needed for treatment. This process is only just beginning. The scientific endeavour in this important and difficult area should not be paralysed by legal wrangling over the meanings of words. At present the creation or use of embryos for research to improve understanding or treatment of non-congenital diseases is not permitted under the 1990 Act. There is, however, scope within the Act for additional research purposes to be added through regulations (rather than new primary legislation). Let us hope that this legislation will be used as a platform for controlled and ethical inquiry, not as a stick with which to beat the pioneers of medical research.