Abstract

The advances that have been made in the area of genetic technology over the past several years have caused a reflection into the grounds for emerging policy decisions that have emerged as a result of these stunning scientific breakthroughs. Inevitably, controversies have emerged as a result of these rapidly developing genetic discoveries. Recent British judicial decisions in this area have appeared to avoid directly dealing with the accompanying ethical issues. Instead they have appeared to take an ad hoc approach, by looking to statutory authority in aid of the outcome perceived as being the most favorable. This paper tries to outline the problems associated with this and argues instead, on behalf of what has been termed as Dworkinian principalism. The discoveries in genetics and reproductive health have been at the centre of an apparently insatiable quest for knowledge both in terms of scientific importance as well as the realm of popular interest. However, these same scientific breakthroughs have forced legislators, judges, academics as well as those on the edge of medical research to consider a foundational ethics setting out normative perimeters into such areas. The issues carried by the new genetics are significant since they imply a redefining of ethical perimeters. Moreover, events do not have a habit of waiting for a general consensus to be reached about a possible ethical foundation for genetic research or treatment. These issues are forcing courts to deal with them as they develop from these same technological advances. Remarkable discoveries which took place in 2004 and 2005 in South Korean laboratories involved in the first instance, the creation of stem cell lines made from cloned human embryos, and then more recently, the creation of “patient specific” embryonic stem cell lines. As such, these achievements represent a major breakthrough in the field. Furthermore, these scientific advances and the issues that surround them are set not merely against a framework of local or national jurisdiction but within a global one, in which individuals increasingly will seek medical treatment or therapy in whatever location best suits their own perceived needs. The same South Korean research center’s advances in cloning a dog have even given rise to some speculation about the future cloning of pets. Yet these advances and the application of such technology have also come with significant controversy. The final decision in 2005 by the House of Lords in the case of Zain Hashmihighlights such a conflict resulting from recent medical advances. The decision obviates an urgent need for the interpretation of formal rules concerning a rapidly advancing area of scientific development. It is not in doubt that laws and regulatory guidelines have already been refined as a result of the rapid developments in biotechnology. However the underlying principles upon which such legislation is ultimately to be based, matter greatly. Certainly the task of doing so is not an easy one. In the words of Lord Phillips, writing in the Court of Appeal, “No one can doubt the difficulty of legislating against a background of fast-moving medical and scientific development. It is not often that Parliament has to frame legislation apt to apply to developments at the advanced edge of science.” It is important then, that there be an extensive and rational discussion from diverse backgrounds and all regions of the world regarding the full implications of these emerging technologies. This paper attempts to contribute to this discussion at a time in which there is great excitement surrounding the prospect of enhancing the quality of human life, as well as a growing level of anxiety surrounding the human implications of science. I will try then, to focus on the ethical and legal considerations which have arisen as a result of certain related biomedical discoveries, including embryonic stem cell research, and specifically, human leukocyte antigen testing (commonly referred to as “tissue typing”). In this context, I will also consider the wider issues that these technologies imply in terms of both consequentialist and deontological approaches to justice in terms of recent decisions in the British courts