Ladies and Gentlemen:
In the days of anarchy, it was freedom to.
The author Margaret Atwood is writing in her
book, The Handmaid’s Tale. She writes:
There is more than one kind of freedom. Freedom to and freedom from.
In the days of anarchy, it was freedom to. Now you are being given freedom from.
Atwood, a Canadian, is writing of the fictional north American Republic of Gilead.
In her book, written in 1986 and set in what then was the near-future, nuclear war
has wreaked havoc with sperm counts. Don’t follow the biology too closely, but
there’s wide-spread male sterility, and there’s a premium on female fertility to
compensate. Political upheaval has occurred, and there’s a totalitarian regime in
place, a conservative regime of a sort of neo-Old Testament kind. The controllers
of society share a revulsion against artificial reproductive technology as being
contrary to God’s will. Instead, young, extremely fertile women are recruited to
be surrogate mothers for the elders; but they’re impregnated by conventional sexual
intercourse (you could call it ‘coitus classic’) … coitus delivered by patriarchs …
The heroine of the book, if you can call the luckless young woman a heroine, is
reflecting on her past life. Before the upheaval she was free to pick her mate; she
was free to have sex; she was free to get pregnant; she was free to have a baby;
and she was free to keep it.
Now sex is forbidden - except for sex with a patriarch, sex supervised by the state -
now that sex is forbidden she has freedoms from. This is how the state sells it. She’s
fortunate because she’s free from having to pick her mate. She is free from having
to make difficult choices.
The English newspaper The Economist gives a similar example of the difference between
a freedom to and a freedom from. At Schiphol airport, in Amsterdam, prices in all the
airport stores are apparently set by the Schiphol Airport Authority. There’s no price
competition. This is in the interests of consumers, the Authority explains. We fix
prices so that consumers will know they don’t have to compare them. Shoppers are free
from having to shop around.
It does not require me to explain to citizens of the United States that a libertarian
society maximizes freedoms to – freedom to get the best price, freedom to have sex,
freedom to get pregnant, freedom to seek reproductive technology – … that a
libertarian society keeps the freedoms from to a minimum, a freedom from truly
harmful consequences, as in freedom from hunger, freedom from war, freedom from
disease, freedom from being randomly assaulted on the streets, and, yes, freedom
from being too crassly swindled.
Most thinking people accept regulation: drug and device testing for safety; truth in
labeling; truth in advertising; liability for professional negligence; the need for
proper consent. These are not issues in any of our countries. Liberty requires these
regulatory constraints: they are not issues special or novel to reproductive
technology and nor is reproductive technology immune from these regulations.
The question, today and tomorrow, is deciding what aspects of reproductive technology
U.S. citizens should be free to enjoy the benefits of, and free to run the personal
risks of when they have choices, and what dangers … what real dangers … what
"evidence-based" dangers … what dangers are truly dangerous enough that U.S.
citizens should be free from risking them.
My invitation is to use an Australian paradigm to illustrate these particular freedoms
and how they’ve worked. The subjects I’ll be touching on are three, each of which is
today unresolved in the U.S.: embryo research; third party reproduction; and cloning.
Like the U.S., Australia is a federation of states … states among which there’s
substantial independence in some matters of social policy. And we do have a state,
the state of Victoria which, like Atwood’s Republic, back in 1984 took a proscriptive
approach to reproductive technology, attempting to keep its citizens free from the
ravages of this new-fangled, value-threatening in vitro fertilization technology ….
And on the other hand we have the state of New South Wales, which took a minimal
legislative approach, on paper at least leaving its citizens free to make their
reproductive technology choices and, in principle, free to make their mistakes.
So one lesson will come from figuring out which state’s citizens are best off now,
more than a decade later.
Before I contrast the Victorian and New South Wales legislative approaches, let me
point out that there’s no society that regards getting pregnant and having children to
be a wholly personal matter … we have no society that takes the total view that
"they’re your children to do with what you will". On the contrary. We have laws
and conventions on who can marry whom; we have laws against incest; we enforce
parental responsibility; we have requirements for child maintenance; we have the
crime of child neglect. Infanticide (once upon a time a legitimate family planning
device) … infanticide is now always a crime; we limit feticide and abortion; some
societies still limit contraception.
In the United States, a country many outsiders regard as one of the freer societies in
the world … in the United States you have all these rules and more. And far from being
free here to pursue reproductive technology research, you have in place, still, a
comprehensive ban on federally funded pre-embryo experimentation: there’s an
indefinite suspension here [FAST] on funding the kind of research infertile couples
have the same expectation of that any suffering patient expects of the medical
research establishment. You pay a harsh penalty if federal money finds its way into
a human embryo study. So we’re not here today to work out if the U.S. should limit
reproductive technology through regulatory oversight. It already does.
Yet in other ways the U.S. is extraordinarily laisser faire. I draw attention to the
essentially unfettered commerce that takes place here in human sperm and human eggs.
Genetic future is sold on the Internet for a credit card number: this in a country
where there are forces, forces wary of the unknown, forces that want a permanent ban
on gene therapy that affects the germ line. What kind of biological fundamentalism is
this, which could ban whatever uncertainty there might be in reconstructing a single
faulty gene destined for a new individual yet permit an incalculable number of
children to be conceived … conceived from anonymously sold sperm or eggs … children
conceived who have fully half their genes from a person they will never know, half
their genes from a person they can never meet?
We have a disconnect here. The question of course is not if there should be regulatory
oversight in the U.S. but rather what oversight might be best.
1984 long ago became famous as a fictional beacon for the notion of state control. It
was in 1984 too that the Government of the state of Victoria enacted its Medical
Procedures (Infertility) Bill.
Australia today has a system of hierarchical control over the reproductive
technologies. In 1982 - well before I was actively involved in IVF research myself,
a year or two prior to George Orwell’s showdown date of 1984 - in 1982 I was a member
of the Australian Government’s Medical Research Ethics Committee. Our job was to
rewrite national guidelines for the ethical conduct of medical research. The National
Health and Medical Research Council - our equivalent to your NIH – the NHMRC had
taken the view that IVF technology was novel enough to warrant the tag of research,
and the research guidelines we formulated became a de facto standard for ethical
practice in reproductive medicine - a standard, studies have shown, has for one
reason and another been widely adhered to in Australia.
The Guidelines are federal. The various states are free to legislate tighter control,
and a number of states have done so, as you’ll see in the case of Victoria. The states
are not free to loosen control; they can only tighten it, like a ratchet. As well,
local communities – hospital-based communities or individual institutions – can
tighten control further through their institutional review boards or ethics
committees. Catholic hospital reproductive medicine programs, for example, might
permit gamete intrafallopian transfer but not in vitro fertilization. Institutions
can tighten control but they can’t loosen it. It’s a ratchet.
The NHMRC Guidelines themselves are not that tough, but nor are they trivial. They
form the ethical backbone of a voluntary but universal system that accredits
reproductive medicine programs in Australia known as R-TAC, that Sandra Dill will be
First: A register has to be kept of all treatment attempts – suitable for collation
by a national body.
The national body that collates IVF statistics in Australia has been the National
Perinatal Statistics Unit, a federally funded body set up to record birth defects
Second: The technology is to be for the treatment of infertility within "accepted
Third party donors can be a part of this relationship, provided that there’s no
element of commerce. Commerce in human tissues is illegal in Australia under
federal law. Whether homosexual couples or single mothers are to qualify as
"accepted family relationships" was left for society to work out for itself …
and this is a debate that’s really only now getting underway. Likewise, debate
is hot in Australia right now over what constitutes the narrow condition of
infertility, compared with the wider, social condition of childlessness.
Third: Gestational surrogacy – this is a third party form of reproduction where a
woman gets pregnant for another woman then later hands over the baby … gestational
surrogacy was in 1982 put on the backburner as "not yet capable of resolution".
Surrogacy’s not illegal in Australia federally and has since been sanctioned by
a national committee that’s the descendant of the MREC we were then.
( But this is one area where most states have ratcheted down, enacting state
legislation to make it a crime for medical practitioners to take part in
surrogacy arrangements. )
Fourth: Research involving sperm, eggs and fertilized eggs (biologically they’re
‘pre-embryos’ but we loosely call it embryo research) … I quote from the
Guideline…[ SLOW ] "research has been and remains inseparable from the development
of safe and effective in vitro fertilization and embryo transfer technology",
and … "as part of this research other important scientific information concerning
human reproductive biology may emerge" (and, by implication, is to be encouraged).
Oh boy! That libertarian freedom to conduct embryo research really put the cat
among the conservative state pigeons! Moral fundamentalists are as busy in
Australia as they are in the U.S., and a lot of energy was expended in a lot
of states to get the ratchet down onto embryo research and to ban it. I’ll
come back to it.
Fifth: Property in sperm and eggs (and the embryos that resulted) … ownership …
was vested in their providers, basically in perpetuity. Ascendancy was given, if
you like, to the owners of the genetic potential sperm, eggs and embryos represent. No independent life was envisaged federally for a fertilized egg without a uterus.
Sixth: Storage – cryostorage, low temperature freezing of fertilized eggs - was, in
1982, thought to be capable still of causing biological hazard (since dispelled)
as well as a possible social hazard (which is not today as hot a topic as it has
been). A time limit for embryo storage was thought then to be important. This was
set at about 10 years and to be "not beyond the time of conventional reproductive
need or competence of the female donor".
( I think it’s fair to say that this ethical imperative is susceptible to
ongoing review. )
Seventh: Cloning to intentionally produce multiple genetically identical offspring
was and is unacceptable.
Lastly: People employed in public institutions who conscientiously object to
reproductive technology on moral grounds could opt out of them without jeopardy
to their jobs.
The guidelines remained unchanged for 14 years, a time during which in Australia
in vitro technology became accepted into routine – and reimbursable – medical
practice. In 1996 they were refined in detail, with added prohibitions on using
gametes from cadavers or from fetuses.
In 1996 there was also one new and striking provision: that third party donors of
sperm or eggs should only be accepted as donors if they are prepared one day to be
made known to their offspring.
In my state, New South Wales, these guidelines have been deemed to be enough, at
least inside the ordinary bounds of medical practice set by statute and regulation,
and by the torts of injury and consent.
In New South Wales we can – and do:
- use sperm from men who are dead if they provided sperm before they died, if
this is what they would have wanted, and if this is what their partner still
- carry out gestational surrogacy where the surrogate mother helps for altruistic
reasons and not for commercial reasons
- and we help achieve pregnancies for women in a variety of relationships
Back in 1984, the state of Victoria took a different approach. The Medical
Procedures (Infertility) Bill was drafted under the direction of the then chairman
of the Victorian Law Reform Commission, Professor Louis Waller, who today heads the
Victorian Infertility Treatment Authority, which is funded by charging reproductive
medicine clinics in Victoria a licensing fee.
The legislation in 1984 recognized the inevitability of this new reproductive
technology, but, implicitly and explicitly, it set out to contain it – to contain it
morally, and to contain it practically.
defined life as starting with fertilization (so putting out into the cold those
thoughtful protestants and humanists who had a different, but arguably equally
moral, perspective on the sanctity of early human life; it isolated anglican
moral theorists who would confer a step-wise (but still rapid) increase …
who would confer a step-wise need for increasing protection through the stages
of implantation, embryonic plate formation, neural differentiation, and so on)
mandated a two year wait for commencement of in vitro fertilization
treatment unless both fallopian tubes were demonstrably blocked
(so it contravened Section 2 of the 1975 World Medical Association Declaration
of Helsinki, which, condensed down slightly, states that "in the treatment
of the sick person, the doctor must be free to use a new diagnostic and
therapeutic measure, if in his or her judgement it offers hope of re-establishing
health or alleviating suffering …( and infertile patients do suffer )….
and it completely failed to anticipate the clinical movement of the field into
low sperm count and mixed-cause infertility, which as it has turned out, are no
less in need of reproductive technology and in fact do better outcome-wise than
lumped-together fallopian tube problems.
sought to make compulsory a second medical opinion on the advisability of
in vitro technology, by punishing a doctor - with penalties that could include
imprisonment - if he or she were both the doctor who recommended in vitro
technology and then also the doctor who carried it out
(this introduced the nonsense that the smart patient who was intent on seeing
the best doctor for in vitro fertilization should first seek out the second
best one to get the OK for the treatment)
I need hardly point out that this provision in the Act was and is breached daily;
that it’s only ever been observed accidentally; and that not a single instance has
even been discussed with a prosecuting attorney.
and The Bill
made marriage compulsory before a couple could gain access to reproductive
(and this has duly led to a successful suit against a state-law abiding in
vitro program Melbourne being successfully sued for unlawful discrimination
under federal antidiscrimination law)
The scientific research into in vitro fertilization in Victoria that had put
Australia into a position of prominence, became unstuck. A statutory committee was
established under the legislation to foster debate in the community on the new
technologies and to protect Victorians from the effects of uncontrollable embryo
research. It accomplished neither.
Far from promoting debate in the community it hijacked it. Quintessentially well
balanced in its composition, the Victorian committee represented the two main
protagonist groups – the fundamentalists and the moral gradualists. They reached
decisions on nothing. And research stopped.
What then happened is a story that deserves a detailed re-telling, because it
touches right at the heart of what’s important in the regulation of research using
human fertilized eggs – "embryo research", as it’s popularly known.
By 1989 the new technique of sperm injection into eggs had led to a pregnancy in
Singapore – and in Victoria Alan Trounson was hot to trot with this revolutionary
new technique for treating seriously low sperm counts.
But Trounson, working in Victoria, first wanted to be sure that having a scientist
place a sperm into the immediate environment of the egg was not going to cause gross
genetic problems. After all, Nature was being deprived here of yet another barrier
that might be screening out bad sperm. Trounson (and his colleague Ismail Kola)
had developed a way of looking at the chromosome count of fertilized eggs. Before
copying the Singapore clinicians, who had just pressed on regardless of clinical
unknowns and produced a baby, Trounson wanted to do what he could to establish that
sperm injection was safe with an in vitro research study of genetic consequences
before moving to clinical practice. The problem was, you could only look at the
fertilized egg’s chromosomes by destroying the fertilized egg – exactly the kind
of research that in the U.S. today is still under the cloud of an indefinite freeze
on federal funding. Ladies and Gentlemen, this is embryo research. This, if you
want to verbalize it plainly … this is what the moral critics of IVF mean when they
say "non-therapeutic, destructive embryo experimentation". This is what NIH is banned
from funding and this, in Victoria, was and is illegal.
But it’s not contrary to our NHMRC guidelines and there’s no prohibitory legislation
in New South Wales. The NHMRC guidelines recognize that this is exactly the kind of
research that had permitted the development of IVF in the first place; this is exactly
the kind of research that’s essential to advance the field responsibly.
Step 1 for us at Sydney IVF was to secure institutional review board approval.
They agreed we could recruit up to 20 couples who’d been unsuccessful with IVF
because of low sperm count-fertilization failure. I had 16 couples who volunteered
to have an IVF cycle in which eggs would be fertilized by microinjection of sperm,
but all fertilized eggs would be examined to see if the chromosomes were normal or
abnormal. As controls, we examined unused fertilized eggs from other people. We
also compared the chromosome abnormality rate with that reported for normally
fertilized eggs (which is quite high).
The rest is history. In a two week effort that saw the entire Victorian research
team 600 miles north and bunked at Sydney IVF, we showed the chromosome abnormality
rate was actually lower for microinjected eggs than for conventionally in vitro
fertilized eggs; we also showed that microinjection IVF and ordinary IVF both had
lower rates of abnormalities than eggs fertilized naturally.
IRB approval for clinical sperm injection soon followed, and the world’s second and
third sperm microinjection babies came from among these 16 couples.
Laboriously, the Victorian Government amended its Act to define life as starting 24
hours later – a compromise maybe to allow some research.
But inside a few years the same sorry story repeated itself. In 1993 research on
fertilized egg genetic status was proposed for the new sperm injection procedure
called "ICSI" – intracytoplasmic sperm injection, in which the single sperm is
actually injected into the heart of the egg itself. This time Trounson wanted to
see if fertilized eggs would divide without genetic errors. Again the Victorian
standing committee said "No". This time the Victorian embryologists just said
"To hell with it!" and, like the Belgians, the British, the Americans, the Italians
and everyone else, just went ahead anyhow and did it clinically. So much for
morality and the ethical, research-based practice of medicine.
Remember I said that the Victorian Government wanted to contain IVF practically as
well as morally.
Well ……. as it’s turned out, on a population basis ….
…. Victoria has the highest IVF usage rate in Australia, and there’s not the slightest
evidence that Victorians enjoy any particular practical ethical safeguard that
New South Welshmen do not. As I mentioned, citizens of New South Wales are also
free to get pregnant before they formally marry; a woman in New South Wales is
free to be inseminated with her dead husband’s sperm if that’s the way she wants
to complete her family; she’s free to donate an egg to a friend or a sister; and
she’s free as a surrogate to carry a baby for someone else if that’s what she wants
and if an ethics committee determines that everyone will most probably be better
off; and I’m free, with IRB approval, to look at the mitochondrial DNA of fertilized
eggs and see how it correlates with the ability to form a pre-embryo.
Victorians are free from making these difficult choices, but they’re not free from
paying an extra charge per IVF treatment cycle to cover their clinic’s licensing fee,
to keep their Infertility Treatment Authority properly funded.
The different approach taken by Victoria and by New South Wales has many lessons.
The important lesson for us today, I believe, is not that a zero legislative approach
is necessarily best. There’s a role for legislation in some circumstances and
I’ll get to it shortly.
The important point is that cautious experiment is no less important to the advance
of consequential ethics than it is to advances in medical practice and scientific
knowledge. There’s value in a heterogeneous approach during fledgling days in any
field. Far from insisting on a uniform regulatory approach too early, there’s
been value in variety. The disparate experience of Victoria and New South Wales
is important in its very disparity. If their approach had not been different,
there would not have been lessons to learn.
We need differences to highlight mistakes. The mistakes need to be observable
endpoints. We need to use these endpoints as evidence. And so we ought to base our
codes of practice –as guidelines, regulations or laws … we ought to base our
administrative best practice, or ethical best practice, on evidence … the evidence
that comes from controlled trials, controlled social trials. Such evidence was
lacking in 1984 when the Victorian Government tried to anticipate the future and set
its code of practice into the concrete of legislation. Such evidence is not lacking
But too often, still, evidence – evidence of actual harm done, or evidence that
harm is not done - is being ignored, sacrificed to moral prejudice. Not the proper,
legitimate moral imperative of a total human conviction, such as the moral
imperative "thou shall not kill", but the moral prejudice voiced in otherwise
plural societies by the few who are loud or powerful or quick, so that in many
countries today ethics or morals-based decisions affecting individuals’ reproductive
behavior are being taken by - have been hijacked by - small groups of people close
to government and then given government imprimatur on the excuse of, at best,
Regulations and laws in many European countries today are being based not on a search
for harm done or harm not done - evidence that in one form or another is now plentiful
for reproductive technology outcomes - … rather, European and perhaps Canadian
regulations and laws are, like in the Australian state of Victoria, … regulations
and laws are still being based on faith and moral intuition when such faith and moral
opinion falls well short of a universal morality. It’s true that one does not need
evidence, for example, to justify the universal moral imperative "thou shall not
kill"; the reason is that it’s an article of faith, of intuition, that’s held by
virtually everyone in society.
But the commandment, "Thou shall not be an egg donor for thy friend", is an entirely
different matter. Surely there are circumstances where no harm is done by it. Surely
there are circumstances when everyone will be better off: the infertile woman,
who’s not entirely disenfranchised from a genetic legacy; the husband, who’s a
father just the same; the child, with an aunt who’s literally part of the family;
a child with three parents instead of just two. Is this question – Should you be
an egg donor for your friend? …. is this a moral question we should vote on? Should
an opinion poll determine collective regulatory action? An opinion poll that tests
faith and intuition rather than direct experience? Aren’t we turning the clock back
to use an opinion poll or a vote to determine what a couple might and might not do
to reproduce in an open society? Isn’t this the same as determining best medical
practice by polling today’s doctors on what they think is best practice? If
evidence-based medicine is the yardstick for Canada’s reproductive technology
application why isn’t evidence-based ethics the yardstick for social policy? Where’s
the evidence that says it should be compulsory in Canada and in the United Kingdom
for sperm and egg donors to be anonymous?
It’s utterly curious! Here we have a national ethics committee in one Anglo-Saxon
country decreeing that an ethical matter must be dealt with one way. And we have a
national ethics committee in another Anglo-Saxon country decreeing exactly the
opposite. And they’re both convinced not only that they’re right, but that their
judgement should now be beyond more debate and that there’s to be only one way of
doing it. Full stop.
I can’t make a better case for evidence-based ethics. We ought to look for evidence
of harm done – and we ought to look for evidence that harm is not done - before in a
plural democracy we set regulations and legislation in stone.
And this, then, is the case for not regulating and for not legislating too early.
You need experience to take an evidence-based approach, and our different experience
in New South Wales is what’s enabled us to reveal the mistaken legislative approach
adopted by our neighboring state of Victoria.
But I am not making a case for a laisser faire approach; I’m not making a case for a
free-for-all, for zero regulation. Certainly I’m not making a case for the current
situation in the U.S. today …. a situation that I’ve said is an odd mixture of
open commerce in eggs and sperm hand-in-hand with a morals-based federal freeze on
IVF research funding … an odd mixture of an open market in anonymous gene bucket-loads
and a possible ban on altering a single gene in the germ line.
In my talk so far, I’ve dwelled rather substantially on the question of third party
reproduction, the donation – or the selling - of sperm, of eggs, of embryos perhaps,
and of gestational capacity in the form of surrogacy.
In the words of the philosopher Karl Popper, an open society – a truly libertarian
society - is a society that allows or enables the greatest number of individuals to
reach their fullest potential. Margaret Atwood might say: A society that creates the
greatest number of freedoms to and the fewest number of freedoms from.
In this respect there’s important evidence coming from donor sperm programs in
Australia. Evidence of harm done.
Like elsewhere in the world, sperm banks in Australia sprang up in the 1970s to help
couples form families when the husband was sterile. Well, nothing succeeded like
success and there’s been evidence in abundance that the donor insemination program
on the whole has been successful. I won’t go into the outcome measures in detail,
but for a start it’s evident that couples who were treated this way have a
significantly lower risk of divorce compared with couples who rejected donor
insemination as an option, and heaps lower than couples who have no trouble with
fertility at all.
But the gold is in the details. Evidence is emerging that the families that did – and
do – do best …. the families that do best as coherent, stabile, resilient families,
are those who explained to their children, the children who resulted from donor
insemination … the families who have done best are those who explained to their
children at the first opportunity how an outsider, a donor, "helped mommy and daddy".
The evidence of harm done by keeping donor sperm a secret has been slow to arrive.
But it’s now compelling and it’s substantial. The older a child is when they learn of
their missing genetic father – and compounded considerably if they find out by
accident - the worse it is. The more that their parents have been keeping it a
secret, the greater the loss of trust, and the more indelible the effect on the
child, ... on the adolescent, … on the adult.
We have here that classic dichotomy between risk and hazard. The risk of the child
finding out by accident might be small (although in this age of genetic information
it can only rise) … the risk of the child finding out by accident might be small,
but the hazard, the penalty you pay if that small risk is realized, is now on all
evidence a devastation. A collection of experiences from donor sperm offspring to
whom this has happened has recently been published in Australia and it’s the most
moving book you can read in the field of experiencing infertility.
Donor insemination was bred in an age, the 1970s, when nurture had it over nature in
schools of sociology. It was meant not to make a difference who your genetic father
was. Nurture and the social father was everything. Commentators were even drawn
to noting how much sons could look like their social fathers! But the children
have grown up in a society that has about-faced completely. Your genes are now
everything. Your DNA is to blame for your social behavior, your personality and
Yet donor sperm banks remain overwhelmingly anonymous and, in the U.S., donors
of eggs are generally equally so. And we have several societies seeking to make
this anonymity compulsory. In my opinion this is not a matter of mere controversy.
This is a matter of considerable folly. This is creating children who are free from
knowing their genetic origins. This is not liberty, which surely means the freedom
to know where you came from, the freedom to have two, three parents, whatever.
If I feel restraint in forcing your attention – your potential regulatory attention –
to this issue, this issue of genetically anonymous childhood …. if I feel restraint
it’s my point that it’s evidence – evidence-based ethics and not some special
intuition that should lie behind regulation in this area, and it’s evidence of
harm done through anonymous reproduction that should carry the day rather than
any clumsy prophecy of doom based on personal intuition. I’m glad that, in Australia
at least, that evidence is beginning to surface, so we can act on it.
To finish, I want to say that there will be areas in which our field – the field of
assisted reproductive technology – … there will be areas where the field moves too
fast to be sure that evidence can be gathered rapidly enough to direct the field
And a good example today is cloning. Most thinking people recognize that the lab
techniques that will soon enable cloning have too much promise for betterment of the
human condition than for them to be banned outright – embryonic stem cell research is
what I’m thinking of. Yet there’s a special unease about human cloning - about the
replication of a person. Except for the lucky few who have moral certitude unaffected
by experience, we simply do not know when a judicious clone might be a compassionate
thing and when it could be a recipe for human suffering on a colossal scale.
Meanwhile, quite apart from a legitimate fear of yet unknown harm, there’s a real
and very practical danger in not putting a freeze on human cloning. And that danger
The field of human reproductive technology, as you know, is a very competitive
commercial business. Fame is an important part of commercial success. The competition
and need for fame is such that there’s a disproportionate advantage for a third-rate
A.R.T. program to risk all in being the first to achieve a human clone: through
the notoriety, they have nothing to lose and everything to gain. But if cloning is
to happen, this is not where it should be done. If it is to be done, it’s in the
best programs, not the worst programs, where it should be.
So it’s this – stopping this badly placed incentive – it’s making sure you don’t
reward the third-raters - but rather, in due course, making sure that the research
is done responsibly - that’s the reason for slowing the field down with a statutory
moratorium on (in this instance) cloning.
If the Victorian Government, worried in 1984 that its embryologists were out of
control, had passed the legislation they did but had had the foresight to pin a 5-year
sunset clause to it, they would have had the best of two worlds. They would have
slowed the advance of reproductive technology enough to take the heat out of it,
to enable the community to catch up with developments, yet they would not have
crippled medical practice in an expensive way that has permanently stopped research
there and has not demonstrably helped a single Victorian.
So I conclude by saying that there is a place for pre-emptive legislation in ensuring
a libertarian approach to reproductive technology. The still abstract reason for the
legislation needs to be a substantial one – a possible harm that’s plausibly real
enough and plausibly serious enough, and with a real risk that it will be cowboys
instead of the nation’s best that will be leaping into it - that "breathing space"
needs to be created. Remember that in recent history A.R.T. developments once scary
to some people - scary things such as IVF itself, sperm microinjection, embryo
flushing, sex pre-selection, gestational surrogacy - experience in these other things
have either lessened their feared impact or anyhow seen the techniques drop out of
clinical practice. So pre-emptive legislation, with a real breathing-space-role to
play, ought to be accompanied by a sunset clause, a time clause, limiting the effect
of the legislation to say 5 years or 10 years, during which evidence can be gathered
that will eventually provide an outcomes-base – an evidence-base – to those
regulations and legislation that are to endure.