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House of Lords approves ‘three-person IVF’

Debate considers legality of mitochondrial donation regulations

The House of Lords has approved the Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015. The regulations will come into force on the 29th October 2015.

The Human Fertilisation and Embryology Authority will now develop a licensing framework through which applications can be considered from clinicians wanting to offer the two techniques set out in the regulations.

The regulations set out how the HFEA must issue a specific licence to carry out mitochondrial donation treatment beyond any existing permission a clinic has to conduct IVF or other treatment. In considering applications, the regulations require the HFEA to assess the existing staff expertise, skill and experience at the clinic, as well as its equipment and general environment.

Each application will be decided on a case by case basis and in accordance with the latest scientific advice. An HFEA committee will determine whether individual patients and families have a particular risk of an abnormality in their mitochondrial DNA; and whether there is a significant risk that a child born with that abnormality will have, or will develop, a serious physical or mental disability, a serious illness or another serious medical condition.

In the course of the House of Lords debate Lord Deben proposed an amendment which would have blocked the regulations. Much of the debate related to the legal position. Lord Deben said:

"I believe that we should obey the law and it is quite clear that there is considerable disagreement—I put it simply like that—about whether this action is legal under European law."

Baroness Scotland of Asthal, the former Attorney General, agreed that there were concerns about the legality of the regulations. She said:

"Everybody agrees that we have to get this right and having worked so hard and so long, and knowing of the pain that many have already spoken about, what a cruel thing it would be to do this and then say that the legal basis upon which it was founded was flawed. The noble and learned Lord, Lord Hope, is right that if in the final analysis the arguments we articulate and which go through the Select Committee are not sufficiently sound, the only way in which the sagacity and value of these legal principles can be tested would be in a court."

However, Lord Mackay of Clashfern, the former Lord Chancellor, noted:

"The only place it can be settled is in a court of law, either the domestic courts of the United Kingdom or, if necessary, the Court of Justice of the European Union in Luxembourg. In a sense, if that is a real point, the sooner the regulations are passed the better so that they can be tested."

The amendment was defeated by a majority of 232 and the regulations approved.

Hansard records the debate here.

For an article, written by Professor Nils Hoppe and Katy Rensten of Coram Chambers,  analysing the issues raised in the House of Commons debate, including the legal arguments, please click here.