Guest Post: Extension of the 14 day rule: potential implications for Irish embryos

Human Rights in Ireland is delighted to welcome this guest post from Ciara Staunton. Ciara is a lecturer in Law at Middlesex University London with research interests in the governance of medical research, particularly new and emerging technologies. She received a BCL and a LLM (Public Law) from the National University of Ireland, Galway after which she worked as a legal researcher at the Law Reform Commission of Ireland. She returned to NUI Galway to complete her PhD for which she was awarded an Irish Research Council scholarship (2010-2013). During this time she was a visiting researcher at the Hastings Centre in New York. Prior to joining Middlesex, she completed her post-doctoral research at Stellenbosch University in South Africa where she also co-ordinated the Advancing Research Ethics in Southern Africa program.

In May of this year, scientists reported in Nature and Nature Cell Biology that it is now possible to grow an embryo in the lab up to 13 days post-fertilisation. It is expected that growing embryos up to and beyond this time will provide insight into human development, giving us a better understanding of the causes of infertility and miscarriage.

Although an exciting development, it raises a host of legal and ethical questions in the UK as 14 days is the current cut off point for research on human embryos. This rule, first proposed in the Warnock Report, is enshrined in the Human Fertilisation and Embryology Act 1990, and has been adopted by many jurisdictions across the globe. Day 14 was proposed as the cut-off point in Warnock as it is after this point that the primitive streak (which eventually gives risk to the central nervous system) begins to develop. This date was also deemed important in the Report as twinning will not occur after this point, thus the individuality of the embryo has been asserted. Although justified on these grounds, in reality it is an arbitrary date reflecting a compromise between the competing moral claims on the embryo and the advancements of science. The embryo does not have any special significance that cannot be attached at an earlier or later point in time: a cut-off point was simply needed and this is the point selected by the Warnock Committee and endorsed by parliament.

This rule has remained unchallenged for almost 30 years, largely due to the pace of innovation in reproductive science. Although the scientists behind the breakthrough are not advocating an extension of the rule for now, they are encouraging debate on the topic. Noting that although the 14 day rule does not necessarily need to remain set forever, Phillip Ball states that ‘changing it needs a social mandate and public confidence, and the scientific case for benefits has not yet been properly made’. Signifying the beginning of such a debate, the Nuffield Council on Bioethics has announced that it will consider the issue, and it was also the subject of the recent Progress Educational Trust (PET) annual conference.

The burgeoning debate in the UK makes one consider the status of our own embryos in Ireland. It has been over 20 years since the publication of the Report of the Commission on Assisted Human Reproduction (CAHR), and 18 years since the Irish Council for Bioethics Report on stem cell research. Both reports endorsed embryo research and recommended a regulatory authority to oversee the research, backed up by legislation, similar to the system in the UK. In 2011 the Supreme Court made in clear in Roche v Roche that the embryo is not protected under Article 40.3.3, but that it may be worthy of ‘respect’, a concept that they considered necessary for the Oireachtas to clarify. Yet since then the embryo has continued to languish in Ireland with no rights or protection.

As a result of our messy constitutional history and the lack of a regulatory framework, there is little or no funding of embryo research, a situation that suits opponents of the debate. Yet since 2002, Ireland has supported the European Commission’s decision to fund embryonic stem cell research under FP6, FP7 and Horizon 2020, both in its formal endorsement of the policy, and indirectly through the contribution of Irish taxes towards embryo research in Europe. Such contradictory practices can only be described as ‘an Irish solution to an Irish problem’. However, as the UK begins to consider a revision to its long-standing rule, it is now time for Ireland to consider our own embryos, and there are three features of the UK debate that are particularly relevant.

First, rather than attempt to answer questions on the moral status of the embryo and when life begins, the Warnock Report confined itself to a consideration of ‘how it is right to treat the human embryo’. The status of the embryo is a philosophical debate influenced by our individual moral, ethical, perhaps religious, but deeply personal beliefs that no government should have a role in dictating. Although it must acknowledge the moral debate on the status of the embryo and there must be room for this discussion, the Irish government must confine itself to a determination of the permissibility of embryo research and the parameters in which it must take place.

Second, a period of debate and discussion is not only advisable, but arguably necessary. Six years elapsed between the publication of the Warnock Report and the passage of the 1990 Act. At the PET Conference, Baroness Warnock noted that the 6 year delay was useful as it gave time for researchers to publicly explain the benefits of the research. However, the period of delay since the publication of the CAHR report is utterly inexcusable and has deprived assisted reproduction and embryo research of a clear and coherent regulatory structure. Considering the developments since the CAHR report, an updated report is likely necessary, and this must be followed by public debate and reflection, with a clear commitment to introduce legislation.

Third, respecting the embryo and embryo research are not mutually exclusive. In a recognition that the embryo is worthy of respect, embryo research is only permitted for increasing understanding of serious diseases and the development process of the embryo, and research cannot be done beyond day 14. Any research conducted outside the parameters of the law is deemed to be a criminal offence, with violators subject to fine, imprisonment and loss of licence. The process set down by the 1990 Act is a strict regime that has stood the test of time.

Although not necessarily advocating the introduction of identical regulations, we should not repeat the debacle of the abortion debate and wait for a scandal to force our hand. As the world considers a revision of the 14 day rule, it is time for Ireland to consider, and legislate for, our embryo research.


Guest Post: Extension of the 14 day rule: potential implications for Irish embryos