Testing morality

Chris Baker looks at the highly debated legal and moral issues surrounding cloning and euthanasia, and finds that the courts need to set clear guidelines on medical ethics for a currently divided profession

The birth of an allegedly cloned baby and assisted death of an ill man have set legal brains quivering in recent weeks on that topic which has always defined boundaries between law and morality - the beginning and end of human life.

When a religious movement announced on Boxing Day last year that it had successfully cloned a human embryo, most people scoffed.

Most people, that is, apart from US lawyer Bernard Siegel.

He immediately asked that a Florida court appoint a guardian for baby Eve, arguing that cloning is inherently abusive because of genetic problems encountered in mammal cloning.

However, the director of Clonaid - the child's self-acknowledged 'creators' - Brigitte Boisselier, said the baby, allegedly born to US parents, was in Israel.

The judge had to throw out the case.

The Raelians - the alien-worshipping movement that established Clonaid - blame Mr Siegel's attempts to get the child taken into care for their refusal to submit it for DNA testing.

They also claim to have produced another two children in Japan and the Netherlands.

In the UK, cloning is illegal under the Human Reproductive Cloning Act 2001.

The Act was rushed through Parliament after the anti-abortion lobby obtained a High Court ruling (R (Quintavalle) v Secretary of State for Health [2001] 4 All ER 1013) in November of that year that embryos created by cloning were not covered by the Human Fertilisation and Embryology Act 1990.

That Act set up the Human Fertilisation and Embryology Authority (HFEA) which regulates fertility clinics, and which would not hesitate to try and remove the licence of any clinic involved in human cloning.

The Department of Health is appealing against the ruling to the House of Lords.

M4 corridor firm Morgan Cole represents the HFEA.

Partner Graham Miles says: 'The Human Reproductive Cloning Act 2001 says that it's unlawful to place in a woman any embryo that was created by a process other than fertilisation.

But the HFEA would need the consent of the director of public prosecutions (DPP) for any prosecution.' The punishment set out in the legislation is up to ten years' imprisonment.

Even so, the possibility of human cloning does throw up many interesting legal issues - some of which have not yet been tested in the courts.

One partner in the family law department of a City firm, who prefers to remain anonymous, disagrees with Mr Siegel's argument.

'We do already have children who share the same genes because we have identical twins,' she says.

'But doctors are concerned because there could be health problems that get accelerated by not having dual inheritance [not having a distinct genetic make-up].'

As Richard Price, a human rights partner at Sheffield firm Howells, asks: 'If you experiment with human life and something goes wrong, who picks up the pieces?'

Lesley Herbertson, a partner at leading healthcare firm Alexander Harris, says cloning raises the issue of when a person's legal rights come into force.

'If you have a foetus in utero, it doesn't have any rights until it is born,' she explains.

'So whose rights are we talking about and when do they crystallise? Does the individual the embryo has been cloned from have any more rights than the embryo?'

Mr Price sees the issue as a 'minefield and a moral issue'.

He says: 'In the European Convention on Human Rights, there are rights to a private family life but it has to be balanced against the public good.

If you clone a baby or an adult, it's a living being, but where does it figure in society? Who becomes responsible for it? If you can create a life, does it devalue life?'

Mr Price cites the example of embryos cloned from a sick child to further that child's chances of survival.

'It might meet the needs of that individual but it has wider implications for society and it raises issues of ownership.' He is personally not in favour, he admits.

The British Medical Association (BMA) is unequivocal when it comes to cloning human embryos.

'We have got quite a firm policy position on this in that we are opposed to it,' a spokeswoman for its ethics committee explains.

A case that could set the precedent for the legal rights of an embryo will be heard in the High Court in June.

Two women, Natallie Evans and Lorraine Hadley, will be fighting for the right to use their stored embryos for IVF treatment.

Their former partners have withdrawn their consent and the case, the first to deal with the legal status of embryos and the need for the permission of both parties, is expected to last five days.

The complicated litigation will involve representations from the women, their ex-partners, the two clinics where the treatment occurred, the HFEA and the Department of Health.

Muiris Lyons, a partner at Bath and Wiltshire firm Withy King, will represent the two women.

'This case will have the net result of clarifying what the legal status of an embryo is,' he says.

'It should establish a significant precedent.'

But he reckons the court case will not be the end of the matter.

'With the greatest respect to the High Court judge, this is so important to all the parties concerned it will not end there,' Mr Lyons says.

'I suspect it will go to the Court of Appeal and from there to the House of Lords and finally the European courts.

We have a long way to go.'

At Morgan Cole, Mr Miles is not so sure of the case's groundbreaking status.

'The case has more to do with the rights of the male and female parties,' he says.

'The issues will be the requirements of human rights legislation and whether the need for written consent from both parties affects one party's rights under articles 8 and 12 [the rights to respect for family life and to marry respectively] of the convention.'

Meanwhile, at the other end of the human drama, the right of individuals to take their own lives has also been in the headlines recently.

Once again, the BMA's ethics committee has a 'firm' policy position.

'It is a person's right to go abroad but it's not legal here and we don't think it should be,' its spokeswoman asserts.

Last month, 74-year-old Reginald Crew, who had motor neurone disease, made his final journey to a small flat in Zurich, Switzerland, to be helped to end his own life.

He was assisted in this by the charity Dignitas, set up in 1998 by Swiss lawyer Ludwig Minelli, to help people 'live and die with dignity'.

Mr Crew was inspired by the case of fellow motor neurone disease sufferer Diane Pretty, who lost her attempt to persuade the European Court of Human Rights to allow her husband to help end her own life last year.

Deborah Annetts, a solicitor and director of the Voluntary Euthanasia Society (VES), says public support for assisted suicide has remained solid at around 80% since the Pretty case, but the 'opinion formers' in the UK are also starting to come round to the idea.

'People such as doctors, MPs and people in the legal profession are starting to see that the issue is dignity and not standards of care,' she says.

Merseyside police are carrying out an investigation into Mr Crew's death, including his wife's role in helping him to travel, and will submit a factual account of it to the Crown Prosecution service, so that the legal implications can be considered more fully.

A horrified Ms Annetts has written to the DPP demanding a review of the law, and that it publish guidelines as to when it would seek a prosecution in such cases.

'Following the Diane Pretty case, three Law Lords said the DPP could issue guidelines - it was made clear that he could do this and he has not,' she says.

'We are continuing to write to the DPP as we don't think this is satisfactory.

You cannot just prosecute on a whim - there has to be clarity in the law.'

The VES also has some MPs on its side who are set to raise the issue in Parliament, Ms Annetts adds.

But she declines to name them.

However, other lawyers are sceptical that any prosecution will follow Mr Crew's assisted suicide.

Another partner at a City medical law specialist firm, who also wishes to remain anonymous, says: 'Are the police bringing a prosecution against the firm that carried it out? And if so, would the Swiss agree to extradition?'

But Mr Price is adamant.

'Assisted suicide is simply murder by another name...

Human rights laws have to be in black and white - you cannot allow grey areas to slip in or you lose that certainty.'

Most lawyers would agree on one aspect of medical ethics - science is moving faster than the legal system.

The courts may not be able to take the white heat of technological advancement at the moment, but getting out of the kitchen is not an option.

'Science is always throwing up new ethical issues that will no doubt be tested legally,' Ms Herbertson explains.

'But at the moment some very difficult questions have been raised that need to be answered.'

Mr Price adds: 'The problem is that the law and legal system reacts to changes - we cannot predict what may happen.

And that's right - it's good to be prepared but if you legislate for what may happen you often screw it up totally.'

Ms Herbertson has been invited to give a talk to the Royal College of Surgeons on the legal issues raised by advances in medical science next month.

The advice she will be giving them will be music to many healthcare lawyers' ears: 'I shall be drawing doctors' attention to the fact that the best plan of action is to seek legal advice as soon as possible - get it tested in the courts.

Then no one can say the doctor has gone out on a limb.

The court has to speak for everyone - a doctor may think he is acting in the patient's best interests but the patient cannot always speak for himself.'

And with recent reports that soldiers, worried about the looming conflict in the Middle East, are beginning to store sperm for their partners in case they go to war and do not return, medical ethics cases are unlikely to go away.

Chris Baker is a freelance journalist