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The Human Fertilisation and Embryology Act 2008: a missed opportunity?

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  • Competing interests None.

  • Provenance and Peer review Commissioned; not externally peer reviewed.

  • i The Offences Against the Person Act 1861 and the Abortion Act 1967 were drafted in the context of pregnancy in a woman and as such do not cover the fetus gestating in an ectogenic incubator.

  • ii Under the HFE Act (as amended), in vitro derived gametes are allowed for research but not treatment.

  • iii Assisting a man to become pregnant does not fall within the specified activities for which a licence can be granted when “bringing about the creation of embryos in vitro”. HFE Act 1990, Schedule 2 lists the activities for which licences may be granted and provides: s1 (1) A licence under this paragraph may authorise any of the following in the course of providing treatment services: (a) bringing about the creation of embryos in vitro; (b) keeping embryos; (c) using gametes; (d) practices designed to secure that embryos are in a suitable condition to be placed in a woman or to determine whether embryos are suitable for that purpose; (e) placing any embryo in a woman; (f) mixing sperm with the egg of a hamster, or other animal specified in directions, for the purpose of testing the fertility or normality of the sperm, but only when anything which forms is destroyed when the test is complete and, in any event, not later than the two cell stage; and (g) such other practices as may be specified in, or determined in accordance with, regulations. The HFE Act 2008, Schedule 2, para 2 amends paragraph 1 of Schedule 2 to the 1990 Act to enable treatment licences to be granted for the use of embryos for training persons in embryo biopsy, embryo storage and other embryological techniques, but only when the HFEA is satisfied that such use is necessary for that purpose.

  • iv The HFE Act 1990, s3(3) prohibits the use of embryos beyond the primitive streak. Section 3(4) states: “For the purposes of subsection (3)(a) above, the primitive streak is to be taken to have appeared in an embryo not later than the end of the period of 14 days beginning with the day when the gametes are mixed, not counting any time during which the embryo is stored.” The HFE Act 2008 retains this prohibition.