Karpin, Isabel --- "The Uncanny Embryos: Legal Limits to the Human and Reproduction Without Women" [2006] SydLawRw 27; (2006) 28(4) Sydney Law Review 599
* Senior Lecturer, Faculty of Law, University of Sydney. Thanks to David Ellison, as always, for patiently rereading this paper in its various stages of development and encouraging it along; Sarah Franklin and Marilyn Strathern who provided vital feedback when these ideas were in their embryonic form; and Karen O’Connell, Roxanne Mykitiuk, the two anonymous reviewers and Myra Cheng who all provided valuable comments on the final draft.
[1] It is important to distinguish manipulation technologies from genetic diagnostic and selection technologies such as visual observation under a microscope and preimplantation genetic diagnosis (hereafter PGD). These screening technologies for assisted reproductive technology (hereafter ART) and in vitro fertilization (hereafter IVF) are not the subject of current Commonwealth regulation in Australia. Technologies such as PGD, are currently used to identify and select embryos with certain traits rather than to alter or manipulate the genetic makeup of those embryos. Sarah Franklin and Celia Robert’s book Born and Made: An Ethnography of Preimplantation Genetic Diagnosis (2006) offers a comprehensive analysis both of the rise of PGD in the United Kingdom and its description as a technology for making so-called ‘designer babies’. Recent research has suggested that a method of single cell embryo biopsy similar to that which is used in PGD may offer a source of stem cells that will not involve destruction of the embryo. See Young Chung, Irina Limanskaya, Sandy Becker, Joel Marh, Shi-Jiang Lu, Julie Johnson, Lorraine Meisner & Robert Lanza ‘Embryonic and Extraembryonic Stem Cell Lines Derived from Single Mouse Blastomeres’ (2006) 439 Nature 216. The current Commonwealth legislation does not regulate single cell biopsy of an embryo for the purposes of assisted reproduction. However, it may regulate the creation of a stem cell line from that biopsy, for research purposes. Furthermore, the single cell removed could theoretically, be grown into a human embryo clone and coextensively a human.
[2] For definitions of each of these forms see s8 PHC Act.
[3] See generally Part Two of the PHC Act.
[4] Lockhart Committee, Legislation Review: Prohibition of Human Cloning Act 2002 and Research Involving Human Embryos Act 2002, Legislation Review Committee Reports (2005)(hereafter Lockhart Review); Somatic Cell Nuclear Transfer (SCNT) and Related Research Amendment Bill 2006 (Cth) (hereafter the Despoja/Webber Bill) and the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006 (Cth) (hereafter the Patterson Bill).
[5] The Senate Standing Committee on Community Affairs, Legislative Responses to recommendations of the Lockhart Review, Senate Committee Report (2006).
[6] Sigmund Freud, ‘The Uncanny’ in The Standard Edition of the Complete Psychological Works
of Sigmund Freud (1953).
[7] Anthony Vidler, The Architectural Uncanny: Essays in the Modern Unhomely (1994) at 6.
[8] By ‘technologically produced embryo’ I am referring to any embryo that is made outside the
womb with the intervention of technology, whether or not they have been manipulated genetically or mixed with cells from non-humans.
[9] Anthony Vidler, above n7 at 3.
[10] Sigmund Freud, above n6 at 8.
[11] Interestingly the Lockhart Review spent some time considering the difference between embryos
that were destined for implantation and embryos that were not. See my discussion of this in section 2(A) below.
[12] Barbara Katz Rothman, The Tentative Pregnancy: Prenatal Diagnosis and the Future of Motherhood (1986) at 114. See also Rosalind Pollack Petchesky, ‘Fetal Images: The Power of Visual Culture in the Politics of Reproduction’ (1987) 13 Feminist Studies 263 and Valerie Hartouni, ‘Containing Women: Reproductive Discourse in the 1980s’ in Andrew Ross & Constance Penley (eds), Technoculture (1991), both of whom have provided valuable insights into the way in which foetal visualising technologies have been used by the religious right and anti-abortion activists to argue the status of the foetus as something not only separate from the gestating woman but as her adversary.
[13] Donna Haraway, Modest_Witness@Second_Millennium.FemaleMan_Meets_OncoMouse™: Feminism and Technoscience (1997) at 179.
[14] Typically, an embryo is distinguished from the foetus, both in law and science, by time. An embryo becomes a foetus after eight weeks of development. The definition of ‘human embryo’ as it appears in the PHC Act and the RIHE Act is, according to the Lockhart Review, a very broad definition, which ‘reflects the common understanding of ‘embryo’ as the developing organism from fertilisation until about eight weeks of development (after which it is a foetus)’: Lockhart Review, above n4 at 94. See also Derek Morgan & Robert Lee, Blackstone’s Guide to the Human Fertilisation and Embryology Act 1990: Abortion and Embryo Research — The New Law (1991) at x–xi; for a similar definition in the UK context.
[15] Marie Fox, ‘Pre-Persons, Commodities or Cyborgs: The Legal Construction and Representation of the Embryo’ (2000) 8 Health Care Analysis 171 at 172.
[16] Deirdre Condit, ‘Fetal Personhood: Political Identity Under Construction’ in Patricia Boling (ed), Expecting Trouble: Surrogacy, Fetal Abuse & New Reproductive Technologies at 32, quoted in id at 174 (footnotes omitted).
[17] Lockhart Review, above n4 at xv. This was only one part of their recommendations. They did also suggested that different embryonic forms such as those formed by Somatic Cell Nuclear Transfer (SCNT) should be given different value. See above n11 and my discussion below.
[18] See above n2 and n3.
[19] PHC Act s16.
[20] PHC Act s10.
[21] PHC Act s8; RIHE Act s7.
[22] Lockhart Review, above n4 at 174. Both the Patterson Bill and Despoja/Webber bill adopt this revised definition.
[23] Lockhart Review, above n4 at xv.
[24] Dorothy Nelkin & Susan Lindee, The DNA Mystique: The Gene as Cultural Icon (1995) 41–42.
[25] Christine Hauskeller, ‘Genes, Genomes and Identity. Projections on Matter’ (2004) 23 New Genetics and Society at 296.
[26] Hauskeller, id at 297.
[27] David Le Breton, ‘Genetic Fundamentalism or the Cult of the Gene’ (2004) 10 Body and Society at 16.
[28] Sarah Franklin, ‘Making Representations: The Parliamentary Debate on the Human Fertilisation and Embryology Act’ in Jeanette Edwards, Sarah Franklin, Eric Hirsch & Frances Price (eds), Technologies of Procreation: Kinship in the Age of Assisted Conception (2nd ed, 1999) at 133.
[29] Id at 134.
[30] Id at 150.
[31] Ibid.
[32] Lockhart Review, above n4 at 171. See also the Lockhart Committee’s reference to the National Health and Medical Research Council (NHMRC) Discussion Paper ‘Human Embryo — A Biological Definition’ (December 2005). The Committee suggested ‘that potential for implantation and future development to a live birth could provide a useful criteria for considering whether such an entity should be included in the definition of a human embryo or not.’ However that potential was noted to be determined by the appearance of the primitive streak: Lockhart Review, above n4 at 173.
[33] Marilyn Strathern, Kinship, Law and the Unexpected: Relatives Are Always A Surprise (2005)
at 8.
[34] 5 Cal 4th 84 (1993). 35 Strathern also considers the later case of In Re Marriage of Bazzanca 61 Cal App 4th 1410 (1998), above, n33 at 52–58.
[36] Marilyn Strathern above, n33 at 57.
[37] My earlier discussion of Johnson v Calvert is a case in point. See also Status of Children Act 1974 (Tas); Status of Children Act 1996 (NSW); Family Relationships Act 1975 (SA); Artificial Conception Act 1985 (WA); Artificial Conception Act 1985 (Qld); Parentage Act 2004 (ACT). The Victorian Law Reform Commission is conducting an inquiry on this question: Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption: Position Paper Two, Parentage (2005). Note that three Australian jurisdictions WA, NT & ACT, now grant parental status to a mother’s female partner: see Jenni Millbank, ‘Regulation of Gay and Lesbian Families in Australian Law — Part Two: Children’ (2006) 34 Federal Law Review 205.
[38] Here I am using ‘nature’ to refer to that which is not explicitly technologised since, arguably, the ‘natural’ itself is only ever understood within the cultural context and is therefore always already a construct.
[39] Donna Haraway, Simians Cyborgs and Women: The Reinvention of Nature (1991) at 151–153. The third distinction requires further elaboration. Haraway describes this as follows: ‘The third distinction is a subset of the second: the boundary between physical and non-physical is very imprecise for us …. Our best machines are made of sunshine; they are all light and clean because they are nothing but signals, electromagnetic waves, a section of a spectrum, and these machines are eminently portable, mobile — a matter of immense human pain in Detroit and Singapore. People are nowhere near so fluid, being both material and opaque. Cyborgs are ether, quintessence’.
[40] Franklin above n28 at 131.
[41] The review of PHC Act and the RIHE Act by the Lockhart Committee demonstrates this process, as does the Bill presented to Parliament by Senators Stott Despoja/ Ruth Webber and Kay Patterson above n4.
[42] David Ellison, ‘Shelley’s Frankenstein: Monster or Maker’ (2005) (unpublished).
[43] Ibid.
[44] Ibid.
[45] Margrit Shildrick, ‘Transgressing the Law with Foucault and Derrida: Some Reflections on Anomalous Embodiment’ (2005) 47 Critical Quarterly 30 at 42 (footnotes omitted).
[46] John Caputo, More Radical Hermeneutics: On Not Knowing Who We Are (2000) at 150, quoted in id at 42 (footnotes omitted).
[47] Toy Biz, Inc v United States 248 FSupp 2d 1234 (Ct Int’l Trade, 2003).
[48] Joe Button, Plot Summary for X-Men (2000): <http://www.imdb.com/title/tt0120903/ plotsummary> (21 March 2006).
[49] Toy Biz, Inc v US, above n47 at 1249.
[50] Steven Wu Blog: <http://www.scwu.com/news/viewnews.cgi?search> (last visited 21 March 2006 but no longer available). ‘Gods Little Ones’ Webpage: <http://www.homestead.com/ godslittleones/index.html> (21 March 2006).
[51] <http://www.homestead.com/godslittleones/index.html> (21 March 2006).
[52] Erik Baard, ‘Supertots and Frankenkids, ‘On the Rights of Those Not Yet Designed’ Village Voice (23–29 April 2003): <http://www.villagevoice.com/issues/0317/baard.php> (29 March 2005).
[53] Jason Barritt, Carol Brenner, Henry Malter & Jacques Cohen, ‘Mitochondria in Human Offspring Derived from Ooplasmic Transplantation: Brief Communication’ (2001) 16 Human Reproduction at 513–6. See also ‘Embryo with Two Mothers Approved’: <http:// news.bbc.co.uk/1/hi/health/4225564.stm> .
[54] The other issue that this raises is the ad hoc nature of national legislative provisions. These gamete mixes are not illegal everywhere. How then does a national legal system deal with beings that result from techniques allowed in other countries but prohibited here. For a good discussion of the issue of globalization in this context see Therese Murphy, ‘Gametes, Law and Modern Preoccupations’ (2000) 8 Health Care Analysis at 155.
[55] Here we might recall the Oxford Ancestors project operating out of Oxford University and the MatriLineTM test, a genetic mapping exercise carried out by Brian Sykes which offers women the opportunity of using ‘the proven power of mitochondrial DNA to probe into the deep past linking them ‘one of the seven clan mothers from which all Europeans are descended: Ursula, Tara, Helena, Katrine, Velda, Xenia or Jasmine’: <http://www.oxfordancestors.com/the-team.html> (1 November 2006). For a lengthy discussion of this project see Isabel Karpin & Karen O’Connell, ‘Intimate Strangers: Law, Genetics, Globalisation and the “Human Family” ’ (2002) 17 Australian Feminist Law Journal at 63.
[56] David Whitehouse, ‘Can One Baby Have Two Genetic Mothers? Babies Born in Experiments Have Genes From 3 Parents’ BBC News Online (4 May 2001): <http://www.skfriends.com/can-baby-be-from-2-mothers.htm> (21 March 2006).
[57] Rob Eisner, ‘Scientist Say Stop Three-Parent Babies’ ABCNEWS.Com (19 May 2001): <http:/ /www.skfriends.com/can-baby-be-from-2-mothers.htm> (21 March 2006).
[58] Lockhart Committee, Legislation Review: Prohibition of Human Cloning Act 2002 and Research Involving Human Embryos Act 2002, Issues Paper: Outline of Existing Legislation and Issues for Public Consultation (August 2005) at 14. Note that this statement is not supported by any evidence presented in the paper itself.
[59] Lockhart Review, above n4 at 164.
[60] Id at 168.
[61] Ibid.
[62] Altruistic surrogacy is prohibited in Queensland under the Surrogate Parenthood Act 1988 (Qld). In Tasmania surrogacy contracts of any sort are illegal but altruistic surrogacy itself is not: Surrogacy Contracts Act 1993 (Tas). In South Australia, all surrogacy contracts are illegal and void under Part IIB of the Family Relationships Act 1975. In the ACT the Parentage Act (2004) facilitates altruistic surrogacy. In Victoria the Infertility Treatment Act 1995 is silent on altruistic surrogacy and in New South Wales, Western Australian and the Northern Territory there is no regulation and clinics rely on the NHMRC ethical guidelines, which caution against surrogacy without significant counselling and require consideration of it only as a last resort: NHMRC, Ethical Guidelines of the Use of Assisted Reproductive Technology in Clinical Practice and Research (2004). Egg donation on the other hand is legal in all States subject to strict regulatory controls.
[63] A small sample of press accounts include: Carl Zimmer, ‘Silent Struggle: A New Theory of Pregnancy’ New York Times (14 March 2006): <http://www.nytimes.com/2006/03/14/health/ 14preg.html?ex=1159848000 & en=ba80af652e3711c8 & ei=5070> (1 October 2006); Julie Robotham, ‘Memo to Mum: Your Children Are What You Eat’ Sydney Morning Herald (13 March 2006). Danielle Teutsch, ‘Overweight Mothers Putting Babies at Risk’ Sydney Morning Herald (8 February 2006).
[64] Kath O’Donnell, ‘Legal Conceptions: Regulating Gametes and Gamete Donation’ (2000) 8 Health Care Analysis at 140.
[65] See for instance the Australian Medical Association’s Report Fetal Welfare and the Law (1995) written by John Seymour citing several feminist accounts of the relationship between a woman and her foetus including my own: Isabel Karpin, ‘Legislating the Female Body: Reproductive Technology and the Reconstructed Woman’ (1992) 3 Columbia Journal of Gender and the Law 325.
[66] Fox, above n15 at 172.
[67] Irma Van der Ploeg ‘“Only Angels Can Do Without Skin”: On Reproductive Technology’s Hybrids and the Politics of Body Boundaries’ (2004) 10 Body and Society at 162 (emphasis in original).
individual women are seen walking in and out of waiting and treatment rooms, climbing on and off gynaecological chairs, letting themselves be monitored, medicated, anesthetized and operated on. From the equal partial perspective of medical technoscience presented in its literature, these practices constitute events in which hardly anything seems to happen to women.[68]
[68] Id at 177.
[69] Id at 176.
[70] Id at 177.
[71] See ss8, 16, 19, 21 and 22 of the PHC Act.
[72] Van der Ploeg, above n72 at 176.
[73] Lockhart Review, above n4 at 167 where it was suggested that it would be able to test their quality by fertilization of hamster eggs.
[74] Ibid. Note the Patterson Bill would allow limited research using hamster eggs. See my discussion at page 3 of this article.
[75] Sarah Franklin, ‘Biologization Revisited: Kinship Theory in the Context of the New Biologies’ in Sarah Franklin & Susan McKinnon (eds), Relative Values: Reconfiguring Kinship Studies (2001).
[76] Lockhart Review, above n4 at 161.
[77] In Van der Ploeg’s analysis the woman has not just been replaced by the foetus but also by the conceptual apparatus of ‘the couple’: above n67. Since it is clear that some account needs to be taken of the role that men must also play in the determining who we may call kin, it might have been useful to talk of the not-yet pregnant pregnant couple. However, I have not chosen to take this route because the only certainty at this technological moment is that women will be the ones gestating and developing the embryo. Indeed, part of what I have been trying to challenge is the primacy of the heterosexual dyad as the dominant reproductive model.
[78] See Murphy, above n54 for a discussion of the failure to discuss the differences between male and female gametes and their production at 163.
[79] Isabel Karpin & Roxanne Mykitiuk, ‘Regulating Inheritable Genetic Modification, or Policing the Fertile Scientific Imagination? A Feminist Legal Response’ in John Rasko, Gabrielle O’Sullivan & Rachel Ankeny (eds), The Ethics of Inheritable Genetic Modification: A Dividing Line (2006) (footnote omitted). In the Patterson Bill the role of women as necessary to gestate such an embryo is made more explicit but the question of her repoductive choice is not addressed. In the Bill it is proposed to include s20(3) in the PHC Act which states ‘A person commits an offence if the person intentionally places an embryo in the body of a woman knowing that, or reckless as to whether, the embryo is a prohibited embryo’. The penalty is imprisonment for ten years. However, the woman’s acquiescence or willed desire for that ‘placing’ or implantation is left unnoticed. Here we might want to consider the difference it would make to the construction of the legislation if these relationships are not negated but instead foregrounded.
[80] It should be noted that ‘developed’ is not defined in the legislation except that in working out the length of the period of development of a human embryo, any period when the development of the embryo is suspended is to be disregarded: s8 PHC Act.
[81] Fox, above n15 at 182.