19th March 2010
Protecting Human Embryos in Clinics and Laboratories
The High Court Judgment in R v. R
Part 5: The Commission on Assisted Human Reproduction ‘produced no biological or scientific evidence to prove that implantation was the start of life’, Dr James Clinch, Consultant Obstetrician and Gynaecologist
At the end of his judgment, Mr Justice McGovern’s concluding position will be that human embryos in vitro are not protected as ‘unborn’ under Article 40.3.3. I am trying to follow his reasoning to see how he constructs the argument that allows him to arrive at that conclusion. Reading through the judgment right through, what happens is that he brings up a succession of topics, reflects on each one and moves discontinuously around among them.
The phrase ‘an unborn child’ in Section 58 of the Civil Liability Act, 1961
Mr Justice McGovern’s first set of reflections is on the use of the phrase ‘an unborn child’ in Section 58 of the Civil Liability Act, 1961 which states,
'For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive.'
Mr Justice McGovern makes up an example of what this might mean - a child in the womb of a mother in a car accident sustains injuries through someone’s negligence is entitled to have proceedings brought on their behalf if they are born alive to recover damages for the injuries. He then comments, ‘It would seem on the face of it, that “unborn” in Section 58 of the Civil Liability Act, 1961 refers to a child in the womb.’
But there is an hiatus in reasoning here. The Section he quotes does not mention the word ‘womb’. He picks an example that refers to the womb and then says the word ‘unborn’ in the section ‘seems on the face of it’ to refer to a child in the womb. This is a non sequitur. His conclusion does not follow necessarily from the example he selected. Another example would widen out the range of meanings that the unborn child could have under the Section. For example, if a mother was pregnant with an embryo in her fallopian tube and an x-ray technician carelessly exposed her to radiation that harmed the embryo, then it would seem that the child, if born alive, would also be entitled to have proceedings brought on their behalf to recover damages for the injuries.
Indeed, Mr Justice McGovern in his very next sentence goes on to imagine a situation that widens out the range of application of the Section to include human embryos in vitro - an embryo could sustain injuries while in an IVF clinic through the negligence of a technician.
The obvious conclusion from this example is that since, today, it is common practice and common knowledge that human embryos are generated in clinics and laboratories and are dealt with, and at the mercy of, the personnel in these facilities, situations could arise in which the embryos would suffer injuries at the hands of these technicians or other operatives.
But having himself envisaged a situation where the phrase ‘unborn’ would refer to a human embryo in a clinic or laboratory, Mr Justice McGovern nonetheless holds back from moving to the relevant conclusion that human embryos in vitro would seem to qualify as ‘unborn children’ under Section 58 of the Civil Liability Act, 1961.
Of course, as he himself says, he is not considering a case about alleged harm to the three frozen embryos under this statute so he says, rightly that it is not for him to decide such issues in the judgment he is making.
But why then bring it up in the first place? I think it was because the phrase ‘an unborn child’ in the statute is obviously pertinent and he wanted to explore the logic of that statute and its possible relevance to the issue in R v. R.
More importantly, why does he not follow the logic of his own example and take it as the key instance for R v. R of the doctrine of prevailing ideas he has already adverted to, and conclude that the advance of science and technology in the area of IVF has brought about a situation in which unborn human lives outside their mother are capable of being harmed through human negligence?
Whyever, Mr Justice McGovern concludes, contrary to his own second imagined example, that ‘the word “unborn” as set out in the Civil Liability Act, 1961 does not offer much assistance to my determination of the issues in this case.’
If there is doubt, shouldn’t one come down on the side of life?
With no paragraph break, Mr Justice McGovern switches to a second set of reflections prompted by remarks given in testimony by Consultant Obstetrician and Gynaecologist, Dr James Clinch:
'The Commission on Assisted Human Reproduction actually made a statement about life starting, but it produced no biological or scientific evidence to prove that implantation was the start of life. So while there is any doubt whatsoever, you come down on the side of life and since the embryo has all the genetic material it needs to turn into a human being, you would instinctively come down on the side of life.' (Transcript Day 6, Answer 31).
He appears at first to be weighing up an argument put forward by the mother’s legal team that ‘where there is uncertainty the Courts must favour life in interpreting the word “unborn”.’ But in fact, there is no discussion in his judgment of the principle that if a certain action might involve harm to a human life, this uncertainty or doubt is itself an ethical reason for withholding that action, nor does he discuss legal transpositions of that principle.
The uncertainty referred to is the uncertainty about when human life begins caused by differences among the experts called in the case by all sides.
The mother’s legal team argued that the three frozen embryos were living human beings whose right to life should be protected as ‘unborn’ under Article 40.3.3.
The father’s legal team and that of the Attorney General argued against this position, claiming either that the new living human individual only became one of ‘the unborn’ upon implantation in the mother, or that this happened at some other point, or that it was a question which it is impossible to answer satisfactorily.
The mother’s legal team countered this argument in two steps.
Firstly they pointed to the fact that ‘there is at least significant and weighty evidence that the frozen embryos at issue in this case could be human life’.
They then argued that for this very reason, because there was at least significant and weighty evidence, in other words, even where the evidence was not overwhelming and entirely compelling, even where there is doubt because other experts hold different positions about when human life begins, even then the Court should give the benefit of the doubt to the living human embryos who, on this argument, only ‘might be’ living human beings, and rule that such embryos are Constitutionally protected.
This is a fairly elementary principle in ethics – if a hunter hears a rustle in the bush and thinks it might be a bear but also that it might be another hunter, he is morally obliged not to shoot into the bush.
As you would expect, Dr Clinch sees the issue through the lens of his professional ethics as a medical practitioner, an obstetrician and gynaecologist. Primum non nocere is the first principle of medical ethics, First, don’t harm. In a situation where there is a doubt as to whether a human life is present or not, his acquired ethical sensitivity is to come down on the side of life.
Mr Justice McGovern’s response is different. He has already cited with approval the general legal principle that where experts differ, it is not appropriate for judges to come down on one side or the other.
But as we shall see, now, step by step, he is going to do just that. He is going to come down on the side of those who say human life should only begin to be protected under Article 40.3.3 from implantation onwards until birth.
This becomes clear when we follow how he responds to the Dr Clinch’s remarks. Dr Clinch made two points, firstly, that the Commission on Assisted Human Reproduction failed to offer any scientific or biological evidence for their claim that human life begins at implantation, and secondly, that where there is doubt or uncertainty, then the appropriate ethical principle that should guide one in such a situation is to give the human life that might be there the benefit of the doubt by making no intervention that might harm that life, or legally, by prohibiting any intervention that might destroy it.
Dr Clinch’s claim about the lack of evidence should have been met by recourse to his previously enunciated principle that where experts differ it is not for judges to come down on one or other side. But what happens is that in the end he does come down on one side.
And indeed, this is what seems to command his attention in Dr Clinch’s remarks, the fact that the Commission on Assisted Human Reproduction has come down on the side of the view that human life starts at implantation. He attached significant weight to the Commission on Assisted Human Reproduction's opinion.
Only someone who was politically naive could be unaware that the Commission on Assisted Human Reproduction was a creature more of politics than of science, and that its conclusions reflected a wishlist of interest groups rather than a dispassionate scientific opinion. Deferring to its conclusions as if they represented indisputable scientific fact looks like political naivety or choreography.
The Commission on Assisted Human Reproduction is a government-appointed body. The government picked the members of the Commission. The government selected them in such a way that an overwhelming majority of the members of the Commission were in favour of allowing embryo destruction. The members of the Commission recommended 24/1 that human embryos should be allowed to be destroyed with legal impunity.
This coincided with the interests of the IVF, embryo research and pharmaceutical testing industries. Work involving the deliberate destruction of human embryos could proceed apace without having to worry about legal challenges.
That is how things work in the world of realpolitik, the politics of power beyond principle. If you want a certain result you make sure that the membership of the committee set up to make recommendations on that result is overwhelmingly in favour of that result.
That is also how realpolitik works in the formation of government bodies – those with the power behind the scenes to bring about decisions, ensure that the membership of bodies is stacked so that they make the decisions that are wanted.
But Consultant Obstetrician and Gynaecologist, Dr James Clinch, said, ‘The Commission on Assisted Human Reproduction actually made a statement about life starting, but it produced no biological or scientific evidence to prove that implantation was the start of life.'
Why did Mr Justice McGovern not join the dots? Earlier in the same paragraph he himself has envisaged a situation in which human embryos in vitro could be harmed by human negligence. Why does he balk at disagreeing with the Commission on Assisted Human Reproduction?
What holds him back from accepting what Dr Clinch said and concluding that since the Commission on Assisted Human Reproduction produced no scientific evidence that human life begins at implantation, their view is, at least, open to the suspicion that it is determined by their vested interest, that it serves their vested interest, that it is not a scientific view at all but an rationalization?
Why does he not have the confidence of his own example and draw the conclusion that is in line with the doctrine of prevailing ideas he previously accepted?
Why does he not conclude that, since modern science and technology have made it a frequent occurrence that human lives are started and maintained indefinitely in clinics and laboratories, it is now time to clarify that these living human embryos evidently and plainly are unborn human lives whose right to life should be and has to be acknowledged and protected as ‘the unborn’ under Article 40.3.3?
It is clearly in the interest of the IVF, embryo experimentation and pharmaceutical testing industries that human embryos be allowed to be manipulated, interfered with, experimented upon, taken apart so that elements wanted for research may be removed even though this brings about the death of their death, and deliberately destroyed without the individuals and companies doing these things incurring any legal penalty.
The nonsensical claim that human life begins at implantation serves that agenda.
The recommendation that human embryos prior to implantation should not be covered as 'unborn' under Article 40.3.3 serves the same agenda.
And, as the passage from Dr Clinch, which he selected for consideration, makes clear, the Commission on Assisted Human Reproduction ‘produced no biological or scientific evidence to prove that implantation is the start of life.’
But Mr Justice McGovern does not go against the view set out by the Commission on Assisted Human Reproduction that human life begins at implantation.
Further, as already noted, Mr Justice McGovern has previously laid down the principle that where scientific experts differ, then judges should not seek to decide the issue by coming down on one side or the other. Why does he now start to abandon that principle? Why does he begin to do what he himself has earlier said judges should not do, namely, side with those who make the claim that the life of a human embryo begins at implantation, and against those who say that living human embryos in clinics and laboratories are living human beings?
Whatever the thought process, having quoted Dr Clinch’s principle that where there is any doubt whatsoever, one should come down on the side of life, Mr Justice McGovern remains unmoved rationally by this principle and passes on with not a single word of comment on it.
Instead immediately after the Dr Clinch quote he has seven lines which make two points, ‘most people agree that embryos in vitro are deserving of special respect’ and ‘their very creation raises serious moral and ethical issues which in themselves impose restraints on what may or may not be done with them’.
These two points are the subject of next week’s Weekly Post.
Next Week
‘most people agree that embryos in vitro are deserving of special respect’
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