Omnis definitio periculosa est: on the Definition of the Term “Embryo” in the Human Fertilisation & Embryology Act 1990

Abstract

In adopting a purposive interpretation of the definition of the term “embryo” in the Human Fertilisation & Embryology Act 1990, the Court of Appeal judgement in R (on the application of B. Quintavalle on behalf of Pro-Life Alliance) v. Secretary of State for Health effectively stifled democratic debate on the development of therapeutic cloning techniques. Instead of being evidence of the flexibility of the statute to adapt to the rapid evolution of scientific techniques, the judgment bears witness to a certain dependence of the law on scientific criteria and moreover, raises the question of legitimate judicial function. Indeed, judges should not be seen to be deciding questions of social choice that should ultimately be decided through the democratic process. Although the purposive approach may be objectively justified, it is suggested that the appeal judges erred in their appreciation of the very purpose of the 1990 Act. It is argued that the Parliamentary debates in 1990 illustrate that the purpose of the 1990 Act does not go beyond the area of procreation and embryo research in this context. Consequently, it is claimed that no economy should have been made on a full democratic debate. By preventing such a debate, the Court of Appeal appears to admit that the law has become servile to the scientific, political and a fortiori economic, interests at stake.