“Talking Embryos: Should Human Embryos be Used in Research?” – Professor Mark Henaghan

Mark Henaghan: When I saw the topic for this wonderful public forum “Talking Embryos” I actually thought that Richard and his group had made a major breakthrough and that I was going to come along and actually hear some embryos talking! I thought of that wonderful song If You Could Talk to the Animals, and, as Marewa said, if you could talk to the embryos we really would have the answers to what many people see as a major ethical dilemma.

What I intend to do is give you the kind of legal framework or background of how the law has dealt with embryos so that you have a context in which to assess whether the law is dealing with them appropriately or not.

For a start, when the embryo is inside the woman the law really has no business, has no say in the matter. It does when it becomes a foetus with the abortion law, but at the embryo stage there is no real law on what happens when it is inside the woman.

But when it is outside the woman things change quite dramatically. We have a legal definition of “embryo” – and I will go through a number of definitions – and I think that this shows that the law has really settled for a middle ground, which is what the law tends to do when there is diverse public opinion. At one end, as you have probably heard, people see the embryo as sacrosanct life and therefore nothing should be done to harm or destroy that life. At the other end people take the position that the embryo is just a bunch of cells and, like any other cells, it is not life in the human sense and therefore people should be able to do with them legitimate matters that may advance science.

In the middle, I think, is the position the law takes that the embryo does deserve some respect from the law – that it shouldn’t be just left as a bunch of cells nor should it be treated perhaps purely as human life. The definition in the Human Assisted Reproduction Technology Act defines “embryo” as follows. It includes, but does not limit, which is a way of Parliament leaving it very open because there have been problems all around the world with defining “embryos”. As Richard said, science discovers new things all the time so you want to make your definition fairly wide because you may not catch everything.

“embryo'' includes a zygote and a cell or a group of cells that has the capacity to develop into an individual; but does not include stem cells derived from an embryo.

So the stem cells that Richard was talking about before are not included within the definition so therefore do not have the same protection within the HART Act as does the embryo, and therefore they fall outside – even though you need an embryo to get those stem cells, the stem cells themselves are separated out.

Interestingly enough, the first Act to come into this area – the English Act – took an even wider definition of “embryo”. It included “egg in the process of fertilisation”, which goes back a step further than us. The Australians actually take an earlier point – and this may be why they are ahead in sport and other things – at the pro nuclei, which is up to 12 hours. So we are a little bit later when we start the definition of “embryo”. So, for the purpose of legal definition, there is a range of definitions about where an embryo starts. At the moment Australia is negotiating to move theirs closer to ours, saying this was too early, that in this early stage it really should not be counted as an embryo, which will give them a wee window of opportunity in that first 25 hours to do research that will not be covered by the legislation with regard to the definition of “embryo”. So it is very important where you define it. If you define it later things can be done that are not covered by the law; if you define it earlier it makes it much harder to do anything unless you have got some legal permission.

There are a number of policy positions – and I just want to go through these reasonably quickly before we get into the meaty stuff – that you can take with regard to using embryos for research.

You can have a total ban on all research – and this is probably a consisting policy, saying that embryos cannot be used for any research, nor can stem cells from them be used at all. Some countries – Austria, Ireland, Italy, Norway, Poland, and the USA - take that view. I was at a wonderful conference last year in Italy – and the Italians are wonderful – and at that stage they had banned all the stuff on IVF. Remember, they were the first ones to have 60-year-old grandmothers having children, then The Vatican got very upset that Italy should be leading the world in this stuff so they said, “We have got to close this down.” So they passed legislation that says there will be no more IVF treatment, and they will ban all these things, and these Italians presented this at a conference. So I said, “It is all over for Italy and IVF”. “Oh, no. We have passed a law, the Pope is happy, everyone is happy. We go on, business as usual.” So maybe they are still doing that research. Of course in the USA, while there is a ban in terms of public funding, in the private sector some states have regulation but there is no general regulation from Congress. So they have the perfect solution for them, which is at a public level no public funding for this stuff, but at private level you can do what you like.

Some countries allow the stem cells to be used, which we do because stem cells fall outside the definition of “embryo”. At the moment we are waiting for ACART to look at how embryos can be used for research. Germany take a fairly strict position – and some people take that back to the days of the Nazi regime - saying they are very concerned about any form of manipulation, seeing it as some form of eugenics.

Other countries move a lot further - Australia allows surplus IVF embryos to be used and embryonic stem cells - Canada, France, Greece, Spain, Switzerland, Denmark, Hungary, and Taiwan. The most liberal countries, I suppose, allow research on surplus IVF embryos, plus creating their own embryos for research, which is cloning embryos – and we will come to that; people just go into shock when they hear the word “cloning”. But those countries allow the creation of embryos for research. The one I have left off there is North Korea, which, of course, had the big fraudulent cloning, which has led other countries to say, “Maybe we should not be going down that track.”

So there is a range of positions that one can take, and a range of positions that countries have taken.

Let us look at the context in which should make our decisions on this sort of matter.

Some people would argue, and quite legitimately, that, if you take the fundamental moral position that it is human life, none of these things will make any difference. But at the moment we do allow embryos to be created and stored for 10 years for artificial reproduction, and then destroyed. So we are allowing that right at this very moment. The HART Act does allow that. We allow a foetus to be destroyed in certain situations under the Abortion, Sterilisation, and Contraception Act, and also the Crimes Act 1961. PGD is allowed in certain situations for serious impairment, which involves the choice of certain embryos over others, and therefore destruction of other embryos. That is an established procedure under the HART Act.

So, at the moment, rightly or wrongly, depending on your view of whether you see embryos as fundamental human life or whether you see them somewhere in between, we do allow a certain amount of use of embryos for other purposes, and we do allow destruction of embryos for what we see as a greater purpose – in PGD to try to get a child that will not have a serious genetic disorder, and in IVF for couples who would not otherwise be able to have children. So we already allow that. Some people say that we should turn the clock back and knock those things back.

The big issue is who should make these decisions. I think Marewa addressed that very beautifully in her talk. Should it just be the cell donors themselves and the scientist and the doctor? And you heard Richard – I would trust him with my own child! a wonderfully passionate scientist who wants to advance knowledge – I would like to give him some of my cells – I am sure he would do wonderful things. Maybe not my brain cells, but other cells. You would do wonderful things with them, Richard. Why shouldn’t I be able to trust Richard with my cells? They are my cells, after all. That is a big issue in terms of freedom of using your own body in the way you want to use it. People have fought for thousands of years to get the freedoms in our society. If it is your cell why should you not be able to use it yourself? We do have a history of regulation of use of human tissue, and we are at the moment revising the Human Tissue Act, but not all human tissue is covered under that Act. How wide should we go in determining what people can do with their own human tissue? We let people stick things into themselves and do all sorts of things. Why should we be so concerned about how they use their human tissue, if they want to use it for some good purpose? People use their human tissue for all sorts of purposes. There is a case I teach students in first year about people in the UK who spend their weekends rubbing sandpaper over various parts of themselves, and the British judges found this very difficult to deal with. Again, at the end of the day, whose body is it? So that is a big issue that goes right through the common law history. I know that is a diversion – and don’t all rush out and buy sandpaper after this talk! That was only the beginning, though. It followed up with stinging nettles – but I won’t go any further than that.

In the end people tend to take a view of this of benefits versus harms – but not if you take the fundamental position. If you take the fundamental position, which is probably the most consistent one, then there will be no benefits because the harm in harming human life would be greater than any benefit. But a lot of people in this situation say, “While there will be harm to the embryo, that harm – if the embryo is not counted as a full human life – has to be weighed up against the benefits”, as we saw the benefits that Richard’s paper talked about that there can be with regenerating brain cells, and improving and curing people’s health.

One of the objects of the HART Act is to secure the benefits of research, but in doing that the Act must take into account the protection and promotion of the health, safety, dignity, and rights of all individuals. Of course that is the $24,000, $64,000 (depending on your era) question. Some people would say that as soon as you interfere with the embryo you are interfering with human dignity and human life, so at that point they would not go ahead with it.

Also required to be taken into account are the needs, values, and beliefs of Maori, but, as we heard from Marewa, and rightly so, there isn’t one needs, values, and beliefs of Maori. You cannot just encapsulate it in a section. Why should each iwi not be able to make its own decisions? Why should there be one decision that is forced on all iwi, according to that particular provision?

Different ethical, cultural, and spiritual perspectives. One could say that, given there are all these different views – and there would be in this audience – why then do we not let individuals make their choice? What it comes down to now is ACART. You would have heard Professor Sylvia Rumball speaking. I feel strange in this context because I have always been against decisions being made by committee, and I am now on ACART. I feel a bit of a fraud, really. To be honest, what do I know or not know that you do not know about your own cells that I should be making that decision? I think we feel safer if there is a committee. New Zealand loves committees. We are a country of committees – and they all sit in Wellington! There must be something in the water up here! But, at the end of the day, we feel safer if we get a range of perspectives – and it will be only a range of perspectives – and prejudices, and personal views. They are human beings sitting in the room; we don’t go in there and the Holy Ghost takes over and we walk on water – it would be nice if we could (I would be able to walk home rather than fly!). I think politicians, rightly or wrongly, don’t want to be necessarily drawing it. ACART is required, as Sylvia will have told you, to consult widely, so we are getting that consultation process, but that will depend very much on who comes forward. It is impossible to consult with everyone. And what if, when we do consult, we get a wide range of views, which I am sure we will? We won’t get consensus on these sorts of things. Do we pick the majority view? Do we pick the one we like? How do we make that decision? It is great in theory, but in practice it does come down to this small group of people who will meet, and, as best we can, according to our consciences, make decisions about when and where embryos should be used for research. But you need to think carefully. Should that be a matter for a committee? Should it be a matter for a Government, or should it be a matter for the individual to decide, given we have got so many different views? One would say that the only way the Government should be involved – and maybe someone else – is if there is some great harm that may happen and therefore we need to protect all of us against that. Who should have the burden of proof on where that great harm comes from? Should that be on those who are alleging the harm or should it be on those who want to go ahead to prove that there is no harm? At the moment there is an assumption that there may be some harm, even though there is no actual proof of that harm, so therefore we are proceeding in that way. I suppose we are proceeding in that way because we are trying to be fair to all the viewpoints, but, in the end, like it or not one or other of the viewpoints will be predominant. We have got to make a decision. We cannot please everyone in this context.

There have been guidelines drawn up by the Ministry of Health – and I think they were going to update them today – on embryonic stem cells (they are not counted as embryos). Here is what they say:

• In all cases it should be approval by an ethics committee.
• They should be created for fertility treatment – so they are against the idea of creating them / cloning them – look at what has happened in Australia recently.
• The consent of the donor should be freely given – of course it should; it is their cells, so that is fundamental.
• Research should help to increase knowledge – we have heard that, Richard, that that is what people want to do.
• There should be some explanation as to why other types of research would not be better. That, I suppose, is to reconcile the view that some people do not want this research by saying that, if there is another better way of doing it, try not to use the embryo. That is a bit of a cop-out because you are going to use it in some cases, so then why should its use be prevented in other cases?
• There should be peer review to make sure the science is accurate.
• Storage and disposal rules.
• There should be a public registrar so that every member of the public knows what is going on.

These are only guidelines. They have not necessarily been adopted. It may come to ACART. The guidelines on use of embryos as well as stem cells should be consistent, one would have thought, so obviously ACART will look at those as a starting-point. You might want to think about them in question-time.

Australia has had a bit of a flair-up on this recently. A QC called Lockhart produced a report with a number of people, and it said they should allow therapeutic cloning - which they called a “cellular extension of the subject” - because they thought this would be important for matching development of specific cellular therapies and the known genotype for disease modelling would make it a better model for doing this. Our Act does not actually prohibit therapeutic cloning for research purposes. It does for reproductive purposes, but it is not banned for research purposes. We could go down this track. When this report first came out there was a reaction in Australia - so it shows they are still awake over there – and there were a number of objections. Many people saw it as the slippery slope to reproductive cloning. How many times I have heard “slippery slope” in this area I do not really know. Everything in life is a slippery slope – the motorcar, when it first was invented, was a slippery slope. IVF, when they first discovered it, they were going to make a criminal offence. We now accept that children born under IVF are slightly taller than other children – do not know why that occurs.

Things can always be used for good or bad. The way they dealt with it in this report was that obviously it could be used for reproductive cloning, but their idea was that, as long as it is regulated so that it can be used only for research purposes, that will stop reproductive cloning from happening. Some people might not accept that and say that people are going to try reproductive cloning and if they can they will move down that track. It is wrong to create and destroy: their argument was that there is a potential for research; others saw it as a potential for life. They came out with the view, “We already allow the creation and destruction of embryos for artificial reproductive technologies.” Those who believe in the fundamental life point of view say that that is wrong anyway. Now we have moved that way can we turn back the clock, because if we allow it for one it does seem inconsistent not to allow it for the other: if we allow it for fertility purposes, should we not allow it for research purposes. That is the argument. The biggest concern they had, in fact, was the exploitation of egg donors, because some of their cloning requires an egg donor - as with what happened in South Korea where there was pressure on people in the research team to donate their own eggs for all sorts of purposes. In all these things it should be freely given – going back to that consent. The dignity of the individual is very important. So they were worried about that.

The Howard Government had seen what had happened in America and was very worried, so their response was to get a report. That report said, “Well all this stuff talks about potential research”, but it is all potential. We are always looking for new ideas versus actual science. If science could tell us for sure what the outcomes were they would not need to embark on the process. But that was the thing that was put up. And also Professor Wang in Korea as a major concern - and he was someone who was fraudulent. It was not just the technology; he was fraudulent in lying about the result. It would not have mattered if he was testing rats running up a pole. If he lies about his results, he lies about his results. So that was the concern in Australia, and it is going to come to a conscience vote. But the politics swung right against using therapeutic cloning. I think the word “cloning” really concerns people.

From my point of view it comes down to two ways of looking at nature. One way is to say, “Let us be humble before nature. Nature has its own course. Let’s never interfere with nature.” That is probably the position of the Pope – and I was brought up a Catholic myself so I can understand this position. The Pope said recently that “any cloning, therapeutic or research cloning, is worse than the weapons of mass destruction”. And Bush would probably tell him he is right on that. In fact the biggest issue in the American election, as I understand it, wasn’t his weapons of mass destruction mistake but it was stem cell research. I think 73% of people in America voted on that moral issue. So the Pope was right: stem cell research and cloning is more powerful than weapons of mass destruction. We should never interfere with nature is one view and it is a consistent view.

The other view is that we should be humble about nature. We should be humble that we can adapt and advance our knowledge, we can do the things that Richard talked so passionately about about nature – that we are part of nature, we have been given God-given talents - and that is still a theological viewpoint – and we should use those talents and be humble about how we can advance our own understanding of nature and use it to its fullest to make life, as Richard said, as rich and as good as it can be for all of us.

Those are the two different viewpoints where you may start in this debate on whether we should use embryos for research.

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