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6 Med. L. Int'l 1 (2003-2004)

handle is hein.journals/medclint6 and id is 1 raw text is: Medical Law International, 2003, Vol. 6, pp. 1-11 0968-5332/03 $10 © 2003 A B Academic Publishers-Printed in Great Britain OMNIS DEFINITIO PERICULOSA EST: ON THE DEFINITION OF THE TERM EMBRYO IN THE HUMAN FERTILISATION & EMBRYOLOGY ACT 1990 THtRtSE CALLUS School of Law, University of Reading, UK 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 afortiori economic, interests at stake. Key words: Human Fertilisation & Embryology Act 1990, Embryo, cloning, statutory interpretation. Towards the end of 2001 the prospect of human cloning gave rise to a spurt of judicial and parliamentary activity that had not been seen in England since during the 1980s leading up to the passing of the Human Fertilisation & Embryology Act 1990 (the 1990 Act). In November 2001 a judgement of the High Court' ruled that the regulatory framework of the 1990 Act did not apply to organisms, commonly termed embryos, created by the replacement of the nucleus of an oocyte with a nucleus taken from a somatic cell of another person, a process of cloning. The Government appealed against this judgement and acted swiftly to introduce a bill into Parliament aimed at prohibiting the use of this cloning technique for reproductive purposes. Parliament hastily adopted the Human Reproductive Cloning Act in December of the same year.2 Just over one month later, on 18th January 2002, the Court of Appeal upheld

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