The House of Commons voted for a small but significant change in the law when it expressed its approval for the legalisation of mitochondrial transfer. Iain Brassington, Senior Lecturer, in the School of Law at The University of Manchester explores the issues the debate hinged on and whether the right decision was made.
Mitochondrial illnesses arise from mutations in the mitochondria of cells – mutations that stop the cells working as they should. The illnesses can be devastating, leading to premature death and significantly reduced quality of life. The technique – in a nutshell – would allow for the nucleus from an affected woman’s egg to be matched with “healthy” mitochondria, thereby preventing the illnesses ever developing.
Artificial reproductive technologies are licensed by the Human Fertilisation and Embryology Authority (HFEA), under the auspices of the Human Fertilisation and Embryology Act. As a general rule, that Act forbids any genetic manipulation of humans: for a technique to be lawful, only “permitted” embryos may be implanted in a woman. And up until today, the only “permitted” embryos were those that had not been altered genetically, and were not created from eggs and sperm that had been altered genetically. That would have meant that the HFEA could not license mitochondrial transfer as part of a reproductive strategy.
Today’s vote changes that: a small amendment makes provision for embryos that have undergone the technique to be implanted in a woman.
And this seems to have happened very quickly: it was only in 2012 that the public consultation process about allowing mitochondrial transfer technologies to be used on humans was underway; and now – if you’ll allow the pun – the first child to have benefited from them could be conceivable in the next few months. In reality, things will be slower – just because the HFEA can license the techniques, it doesn’t follow that it will. But the door is open. Some are predicting that we could see the first children to have been born after mitochondrial transfer within a couple of years.
Morally speaking, there seems to be good reason to approve of Parliament’s move. As I just pointed out, mitochondrial transfer offers the chance to avoid a number of chronic health problems with high mortality and morbidity. It seems reasonable to say that, if we can avoid unnecessary suffering, it would be admirable to do so; mitochondrial transfer offers us a way to make that suffering avoidable. Whether it amounts to a duty is a slightly different question – and I’ll come back to that in a moment. However, we should note that there were arguments against changing the law. I think that they come in five basic varieties, but none is compelling.
The first is based on a concern about novelty. This is a very new procedure: there is no guarantee of its safety. Given that we’re talking about human lives, this ought to give us pause, the argument goes. And, to be fair, it’s hard to deny that this concern should be taken seriously – and safety is one of the things that the HFEA would have to have considered when licensing procedures. But I don’t think that the risk is enough to mean that we shouldn’t make use of the technology at all. After all, any reproduction is a risky business, so there’s nothing unique about mtDNA transfer on that front. If we think that risk is a reason not to act, we should ban procreative sex – and I take that as absurd. Moreover, asking whether a technology is risky isn’t the right question: we can assume that it is. The correct question is whether the risk is worth taking. If there is a chance that your child will inherit a distressing illness anyway, it might very well be. Finally, any treatment is experimental the first time it’s used. “We don’t know what effect it’ll have on humans” is an argument against any innovation whatsoever. There are times when taking a risk is permissible, and times when it might even be desirable – and legalisation would make it easier to take what might be a desirable risk.
The second is that this technology puts us onto a slippery slope towards designer children. But this slope may not be so slippery after all. Even if these are in some sense “designer” children, admitting that this instance of design is permissible doesn’t imply that all design is permissible. We can worry about other alterations if and when they become possible. And we could go further: the argument presupposes that designer children would be unequivocally a terrible thing. That might not be the case: for proponents of mtDNA transfer, using this technology is paradigmatically a good thing, and they’ll happily admit that they’re designing children. “Designer baby” is not a phrase that will faze them.
Third, there’s a worry that this technology will distract from meeting the needs of people with mitochondrial illness, and possibly indicates a lack of respect for them as well. While it would certainly be a mistake to divert all our attention to the new technology, though, it’s not clear why anyone would think that that was a looming possibility anyway. On top of that, looking at ways to prevent illness in future no more need harm the interests of those who manifest it now or manifest it in future than looking at ways to make driving safer would make us less disposed to give due care to those in road accidents.
Fourth, there’s a worry that we’re changing human nature in some way: after all, this is a radical departure from normal parenthood, and will be passed down the generations. But, we might wonder, so what? If it’s a change for the better, why not embrace it? In any case: the “new” mitochondrial DNA would be from humans, and amounts to a very small part of a person’s genome; and, of course, any change will not make it past any sons anyway, since mtDNA is matrilineal. So any change in human nature is, in the grand scheme of things, small, and will likely be diluted out in a very few generations.
Finally, there’s a concern for mothers who are at risk of passing on mitochondrial illnesses: might the procedure mean that there’s a tacit pressure on them to reproduce in a way that they would prefer not to? This is a significant concern, I think – but it’s not a concern about altering the legalisation, since it’s possible for something to be legal and available without generating pressure of any sort. Whether mothers-to-be have a duty to use the technology is a question for another time; but it’s not implied by legalisation.
Does this mean that Parliament had a duty to make the change? Though it has a moral reason to, and little reason not to, it’s not clear that this amounts to an obligation. Suppose Parliament had not allowed the procedure: would anyone actually be made any worse off? I don’t think they would. For sure, someone born with mitochondrial illness might be worse off than they otherwise could have been – but that applies to all of us anyway. The point would stand, though, that we do not generally think that people are wronged by not being as well off as they counterfactually might have been; and since people with mitochondrial disease do have lives worth living, I don’t think that they’d be able to claim to have been wronged by not having had the procedure. And that does deflate the idea that Parliament had a duty to alter the legislation.
Further, an obligation would ride on the higher-order claim that individuals have a right to offspring from their own gametes, and offspring of a particular sort. Neither of those claims is a given. A woman concerned about passing on a mitochondrial illness could adopt and still be a mother in the moral sense. If not passing on mitochondrial diseases is that big a concern for her – noting that it might not be – there are other ways to avoid doing so. Again, that takes away some of the urgency.
None of this, though, is to deny that it is good that the law is changing. Being good is not the same as being obligatory – but it might well be enough.
An earlier version of this post appeared on BioNews.
