Medical Law International

In March 2005 the House of Commons Science and Technology Committee (STC) published its report ‘Human Reproductive Technologies and the Law’ which examined existing regulation of Assisted Reproductive Techniques (ARTs) and made recommendations for reform, with the aim of ‘reconnect[ing] the [Human Fertilisation and Embryology] Act with modem science’.1 In August 2005, the Department of Health (DH) commenced its own review of the 1990 Act, stating that ‘the legislation that applies to assisted reproduction treatment and procedures in the UK needs to be fit for the 21 st Century’.2 Surrogacy is one form of assisted reproduction that is regulated (at least partially) under the 1990 Act. Indeed, in their recommendations for review of the 1990 Act, both the STC and the DH agree that surrogacy should be revisited. It is important, however, that this review should be more than a mere afterthought and it is with this in mind that this article examines current regulation with a view to proposing recommendations for future regulation.3

The regulation of modern genetic research challenges the basic structures of Western legal systems, requiring new approaches and novel legal instruments. This article analyses the legislation adopted in Finland concerning biobanks, gene therapy, preimplantation genetic diagnosis, human cloning, embryo research and genetically modified organisms. An empirical survey of gene-related Finnish patents is also presented. In Finland, genetic research is regulated at four somewhat different but complementary levels. Parliamentary legislation, administrative control, professional self-regulation and public opinion operate together in the atmosphere of permissive technology-optimism. Of these, administrative control and professional self-control appear to be most important. Parliamentary legislation only provides rough guidelines and public discussion is rare and mildly toned. Whatever the mechanism for controlling genetic research, however, the reasons for such control can be derived from the protection of some basic right or freedom.

The implications of recognizing property in our own excised body parts are vast and far reaching, involving ethical, legal and practical issues that cut across many aspects of modem social intercourse and legal regulation. Arguments both for and against such recognition are well rehearsed; enough has been written to fill a small library, or at least a large bookshelf. A significant portion of the work considers the role and impact of such recognition on human dignity. Indeed, given the special status accorded the human body, it is impossible to avoid human dignity and its interaction with the various choices presented by the adoption of a property model. However, reference to this general ethical value is of little assistance. Here, the ethical foundation of a property model is considered within the context of medical ethical four principles, namely autonomy, beneficence, non-maleficence and justice. If such a model promotes these principles, it can be ethically defended. The primary implication of recognizing property in our own excised body parts — the emergence of transactions relating to such parts as between originators and third parties — is assessed against these principles and found to be ethically defensible. In the course of that assessment, many of the derivative implications of adopting such a system (procurement, risk, allocation) are discussed. The necessary alterations to or limitations of the more purely property law principles are also briefly considered, namely issues of title, transfer, valuation and quality. The paper concludes that a property model is ethically supported and legally manageable, and, despite the near impossibility of seeing it come to fruition, it may be the only way to truly engage potential “donors” and recognize in them the same value and rights currently enjoyed by other actors in the body part industry.