New three-parent baby law ‘is flawed and open to challenge’, says senior lawyer

http://www.independent.co.uk/news/science/new-threeparent-baby-law-is-flawed-and-open-to-challenge-says-senior-lawyer-9978363.html

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The Government’s attempt to legalise so-called “three parent” babies is open to challenge by judicial review because of serious flaws in the proposed legislation, a senior lawyer has warned.

Legislation to allow mitochondrial donation is either unnecessary or invalid under the Human Fertilisation and Embryology Act, according to international law expert Lord Brennan QC.

The written opinion, which has been passed to parliamentary authorities, says there are “significant doubts” about the legality of proposed regulations being introduced by the Department of Health.

Lord Brennan states: “If the regulations are approved in their current form, they may be open to challenge by way of judicial review.”

The Government has introduced new regulations to allow mitochondrial donation – where genetic material of two women’s eggs is merged with a man’s sperm, to ensure women with mitochondrial defects do not pass on mutations to their children – because it was thought that the controversial IVF technique was specifically banned under the Human Fertilisation and Embryology Act 2008.

The Act defines a “permitted” egg or embryo as one whose “nuclear or mitochondrial DNA has not been altered”, where “altered” is defined as the introduction of any sequence of nuclear or mitochondrial DNA into cells of the embryo.

However, recent ministerial statements have said mitochondrial donation does not involve altering mitochondrial DNA. These statements have been used to emphasise the Government’s stance that mitochondrial donation will not lead to the genetic modification of human eggs, embryos or babies.

“The proposed mitochondrial donation techniques only allow for unaltered nuclear DNA to be transferred to an egg or embryo that has unaltered healthy mitochondria,” the Government said last year. “The key consideration is that these techniques only replace, rather than alter, a small number of unhealthy genes.”

Lord Brennan argues that the statements undermine the rationale for the new regulations on the grounds that they would be unnecessary if mitochondrial donation does not alter genetic material.

He adds: “The Department of Health’s ministers have now told Parliament on several occasions that they do not consider mitochondrial donation to alter the DNA of either an egg or embryo.

“The problem with this suggestion is that, if it is correct, there would be no need for the regulations at all, because mitochondrial donation would be allowed under the Act itself. Thus either these regulations are ultra vires [invalid] or they are unnecessary.”

The new regulations have already been rubber-stamped by Parliament’s Joint Committee on Statutory Instruments. The Department of Health has promised a debate and vote in both Houses of Parliament.

A Department of Health spokesperson said: “Mitochondrial donation will give women who carry severe mitochondrial disease the opportunity to have children without passing on devastating genetic disorders.

"An independent parliamentary committee has considered the regulations and did not raise any issues for Parliament's attention. The regulations will be considered further as they go through Parliament.”