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The decision to extend embryo testing to give families Photograph of Muiris Lyonsthe right to select tissue-match for a seriously ill sibling was made without consultation, leaving the fertility watchdog open to judicial review. Muiris Lyons, a partner at Alexander Harris, discusses his concerns about the process with Stephen Ward...

The Government's fertility watchdog body has decided to extend the rules on embryo testing to give families a child who could be a tissue match for a seriously ill brother or sister. Muiris Lyons, a partner at Alexander Harris, who is acting in another case for a mother fighting to use her frozen embryos although her partner has now withdrawn consent, says the decision is the right one on the facts, but the way it was made leaves the Human Fertilisation and Embryology Authority open to judicial review. One pressure group has already threatened a legal challenge.

Lyons says: "The HFEA is a public body and they based their change of policy on unpublished research. If they had had an open consultation for three months then a review would not have caused an enormous delay."

The Authority's decision last week relaxes strict regulations it laid down in 2001 governing the use of a technique of "pre-implantation genetic diagnosis" which allows doctors to screen embryos for their tissue type. Three years ago, its use was limited to checking embryos for inherited disease which would bring serious harm to the person born after the implantation of that embryo.

Doctors were forbidden to test only for the tissue type to find a suitable donor for an ill sibling, because this carried a theoretical risk of harm to the embryo while bring it no direct benefit. The policy had been attacked as inconsistent, because one family had been allowed to test for tissue type for a donor for their sick child on the basis that the test had a dual purpose of screening the embryo to exclude the possibility of the same illness.

The Authority changed its policy last week because of an unpublished study of more than 300 children born after the test which found no evidence of any harm after the screening test.

Lyons believes the latest decision does not take IVF further down what critics have called a slippery slope towards babies chosen for trivial reasons. He says the Authority has made clear that the procedure can only be allowed as a last resort, and only on the recommendation of the entire clinical team plus the approval of an independent doctor. Each case will be heard on its merits.

He says the fear is that if the authority can make one incremental change without consultation, they may make others in future which extend the ambit of the testing further. But even then there will be limits. He says: "The opponents are talking about how it wont be long before they are screening for good looks and all the rest of it. I don't think we'll ever reach that stage in the regulated system in the NHS." Resources already stop couples in some NHS trusts receiving IVF at all.

But to avoid decisions being left to the Authority and the courts he says he would like to see the Human Fertilisation and Embryology Act reviewed by Parliament every five years. "It was passed in 1990, but it dates from the late 1980s, so it is 15 year old legislation. No one envisaged at the time it was drawn up how far technology would have moved on."

Author Stephen Ward (26/07/04)
Taken from Lexis Nexis' Law Zone - Daily Updater.

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