Human embryo in vitro: a processual entity in legal stasis

Abstract

This doctoral research explores the ways in which UK law engages with embryonic processes, namely under the Human Fertilisation and Embryology Act 1990 (as amended).

The research offers a fuller understanding of these elusive and evolving biological processes, and in particular, how they can, in turn, allow us to understand legal process and legal regulation more deeply. To do so, the thesis employs an anthropological concept - liminality - coined by Arnold van Gennep, which is itself concerned with revealing the dynamics of process. Liminality may be described as being concerned with the spaces in between distinct stages of human experience or with the process of transition between such stages. With this framing of liminality in mind - which is often characterised as a three-stage process of human experience - the research is divided into three parts, broadly reflecting the three parts of van Gennep’s liminal schema: into, through, and out of liminality. It is argued herein that in regulating the embryo – that is, a processual liminal entity in itself - the law is regulating for uncertainty. Tracing the legal governance of the early stages of human life, from its inception to today’s regulatory frameworks, the research diagnoses a ‘legal gap’ between the conceptual basis for regulation, and practical ‘realities’ of the 1990 Act (as amended). In particular, this ‘gap’ is typified by uncertainty surrounding embryos in vitro, and what this thesis diagnoses as ‘legal stasis’.

In order to situate this novel liminal analysis within existing paradigms, however, the thesis first frames embryos in vitro as ‘gothic’, building upon emergent analytical responses to postmodern forms of categorisation. This framing helps to articulate the nature of, and the reasons for, the above-mentioned ‘legal gap.’ This framing is nonetheless incomplete without a liminal lens, as it draws our attention to the dynamics of the processes occurring within this ‘gap’. It is argued that considering the ‘problem’ in this manner enables us to move beyond conceptualisation, towards realisation.

The gothic, and the liminal are thus used to critically assess legal representations of the embryo, and suggests that there are ways in which the law might better embrace the multiplicity of environments through which the embryo in vitro can travel, that is, either towards reproductive or research ends. It is argued that full recognition of these variable, relational liminal states of the embryo is important for the future of artificial reproduction and embryo research, and that this does not currently happen. In order for the law to reflect better the uncertain nature of embryonic processes, and the technologies that create them, the thesis posits a nuanced, contextual reframing of the embryo that captures the multiplicity of embryonic ‘pathways’ available within the 1990 Act (as amended).

The overarching objective of this work is to consider a more coherent and robust intellectual defence of the ways in which we justify different treatments of in vitro embryos. It thus proposes a ‘context-based approach’ that embraces the variable, relational pathways already facilitated by the 1990 Act (as amended) in order to lead the embryo (and itself) into, through and out of liminality.