Quintavalle, cloning and the Purposive Approach

I was teaching my group the purposive approach today and they wanted more information on the case of R v Secretary of State for Health ex parte Quintavalle than I could provide so I’ve had a read of the House of Lords’ judgment and summarised it below. The case involves the application of cloning techniques to humans and their legality….

The case concerned whether or not licensing the creation of live human embryos by a process called cell nuclear replacement (CNR) is prohibited under the Human Fertilisation and Embryology Act 1990. CNR is a cloning process and does not involve fertilisation; Dolly the sheep was created this way!

The act defines an embryo as “a live human embryo where fertilisation is complete”. CNR as a process was not around when the Act was passed.

The House of Lords considered Lord Wilberforce’s dissenting judgment in Royal College of Nursing v DHSS [1981] where medical developments allowing nurses to carry out part of the abortion process were deemed lawful under the Abortion Act 1967 bearing in mind that the Act was passed, inter alia, to prevent “back street” abortions. Lord Wilberforce was clear that where a new set of facts arose, the Court had to decided if those facts fell within Parliament’s intention. If not, the Court could not choose to fill the gap itself. The Claimants in Quintaville, the Pro-Life Alliance, suggested that this was exactly the error the Court of Appeal, which decided that CNR was not covered by the Act and could therefore not be prohibited, had made.

The House of Lords ruled that Parliament could not have intended to distinguish between embryos created by fertilisation and embryos created by CNR, as at the time the latter technique was not known to be possible. The Court found that the purpose of the Act was to protect live human embryos created outside the human body, and that the relevant section of the Act addressed this, rather than how the embryos were created. The House of Lords decided that this set of facts fell within the type of situations that Parliament intended to deal with when it passed the Act, and that Parliament could not have intended to leave embryos created by CNR outside the scope of the Act.

So, the Act applies. The Court then had to decide whether CNR was prohibited by it. ON a clear reading of section 3(3)(d) they decided it was not as the section referred to replacing an embryo, and CNR involved splitting an embryo, which is a different technique. As Lord Bingham pointed out, if Parliament had intended to outlaw all forms of cloning, they would have said so.

To my mind this decision echoes the approach in Royal College of Nursing v DHSS where subsequent medical and scientific developments are held to be within the scope of Parliament’s intention. Perhaps finding otherwise would require constant legislation. In any event, the case represents a reversal for pro-life campaigners.

A point for AS students to note is that the learned judges referred to extrinsic aids such as the http://www.hfea.gov.uk/docs/Warnock_Report_of_the_Committee_of_Inquiry_into_Human_Fertilisation_and_Embryology_1984.pdf into Human Fertilisation and Embryology and the White Paper that followed it.