Court approves cloning challenge

Cell nuclear transfer creates organisms without sperm

The Court of Appeal has allowed a UK Government challenge to a High Court decision that wrecked legislation designed to regulate cloning.

Government lawyers went before the Appeal Court on Wednesday to argue that the creation of embryos using the technique that made the sheep clone Dolly could be controlled under the 1990 Human Fertilisation and Embryology Act.

Allowing the appeal, the Master of the Rolls Lord Phillips, sitting with two other judges, said: "I hold that an organism which is CNR (cloning) falls within the definition of the Human Fertilisation and Embryology Act."

The court has interpreted the law in an alarmingly elastic way

Society for the Protection of the Unborn Child

BBC science correspondent Fergus Walsh says the ruling means researchers who want to conduct cloning research will be able to do so. They will need a licence from the Human Fertilisation and Embryology Authority to carry out the work.

The Royal Society welcomed the ruling. The president of the influential body for UK scientists, Lord May of Oxford, said: "The Royal Society believes that the UK now has the right legislative framework to permit legitimate uses of cloning technology in research while outlawing any attempts to carry out human reproductive cloning."

In November, Mr Justice Crane had ruled against the government after anti-abortion campaigners highlighted the act's definition of an embryo as the union of an egg cell and a sperm cell - the Dolly technique, cell nuclear transfer (CNR), does not use sperm to create an embryo.

The Pro-Life Alliance said this meant all cloning experiments in the UK could not be properly licensed and that the legislation covering all embryology research should be reviewed.

Health Secretary Alan Milburn immediately introduced the Human Reproductive Cloning Bill - rushed through Parliament in December - to outlaw the placing of any embryo in a woman's womb that was not created by a fertilisation process.

Out of date

He also then took the case to the Court of Appeal.

During the day-long hearing, Mr Milburn's representative, Kenneth Parker QC, asked the court that an organism created by CNR should be classified as an embryo.

The lawyer told Lord Phillips, Lord Justice Thorpe and Lord Justice Buxton that such an organism did fall within the meaning of the 1990 Act even if it was not the product of fertilisation.

"CNR creates an organism which is exactly the same as an embryo," he told the judges.

The Pro-Life Alliance wants wholesale revision of embryology law.

It agues that science has changed so much since 1990 that the government is duty-bound to re-open the debate on the merits and ethics of fertility and cloning research and should seek to write fresh legislation.

'Unacceptable'

A spokesman for the Society for the Protection of the Unborn Child (Spuc) said extending the definition of an embryo in the Act was a matter for Parliament, not for the courts.

"The court has interpreted the law in an alarmingly elastic way so as to allow destructive research on human beings created through cloning," he said.

"Such shifting of the goalposts is unacceptable."

The UK's controls on cloning were designed to place barriers in the way of anyone wanting to produce a child copy of a human being.

They were altered in 2001 to allow a more limited form of cloning for therapeutic purposes only, but still restrict research on human embryos to a short period after creation - and then only after a licence has been issued to certify the project is legitimate.