Human Fertilisation and Embryology Bill [HL]

moved, as an amendment to the Motion, Amendment No. 3A: "3A: Line 5, at end insert ““including any embryo which has been created in such a way that the animal DNA would not ultimately predominate." The noble Earl said: My Lords, I begin by doing something that the Minister may not necessarily expect of me—expressing my appreciation for government Amendment No. 3. At earlier stages of the Bill, my noble and learned friend Lord Mackay, with his characteristic succinctness, expressed considerable misgivings about the wording in Clause 4(5)(e) which was designed as a catch-all provision, but which seemed to him and to many of us unsatisfactorily vague and inappropriate in terms of the language that it employed. Government Amendment No. 3 is a distinct improvement on the original wording and I thank the Minister for having considered the matter so constructively. My concern is that the government amendment before us, although it is undoubtedly a step forward, may not be quite good enough. Noble Lords may remember that in Committee I pointed out a lack of legal clarity in relation to the interface between this Bill and the Animal (Scientific Procedures) Act 1986. There appeared to be an unsatisfactory grey area in terms of whether human/animal admixed embryos were covered by one piece of legislation or the other. The noble Lord, Lord Darzi, has just put the issue very well, as he did at Third Reading, when he said that the Bill should ensure that the HFEA regulates human-animal embryos at the human end of the spectrum. We should, therefore, try to ensure in the legal definition of a human admixed embryo that any new form of embryo that may be developed containing human and animal DNA, and where the human DNA predominates, is subject to HFEA regulation. The wording in Amendment No. 3 attempts to encapsulate that idea. However, as my noble friend Lord Jenkin of Roding pointed out in Committee, science is not always as simple as we might sometimes like it to be. The difficulty here relates to the way in which hybrid embryos can develop. My noble friend quoted part of Professor Robin Lovell-Badge’s evidence to the Joint Committee. The professor said: "““You may start off with an embryo which is 20 per cent human and end up with something which is 60 per cent human or vice versa””." We need, therefore, to deal satisfactorily with those cases where the human DNA might only comprise a minority proportion of the total DNA at the beginning of the life of the embryo but would end up predominating. I am not clear that the wording of government Amendment No. 3 would cover an embryo of this type. Such an embryo would evade regulation under the Bill, because it would not have predominantly human DNA within the first 14 days and could, therefore, in theory and perfectly legally under the 1986 Act be implanted into an animal, and perhaps be taken to mid-gestation without even requiring a licence for the research project. The additional words that I propose at the end of new paragraph (e) would bring under the ambit of this Bill all embryos deliberately created whereby it could be reasonably predicted that the animal DNA would not ultimately predominate. However, if such an embryo were implanted and, under the 1986 Act, allowed to develop in an animal, and be found subsequently to be predominantly human, all future such embryos would come under the ambit of the HFEA, because the ultimate outcome would be known. My second concern is slightly different. We could imagine a situation, as science moves on, whereby an animal embryo is created with a predominantly or entirely human brain. The DNA of the entire embryo could still be predominantly animal. However, Parliament might wish in the future not to permit the creation of a human-animal embryo of this kind. Rather than leave this and other unforeseeable scenarios to the mercies of the Home Office, it would be preferable to leave the opportunity open to Parliament to take a decision in specific cases that are particularly ethically sensitive. The role of the Home Office would not be interrupted. However, in exceptional cases, should there be objections among the general public or in Parliament to a particularly sensitive type of chimeric creature, such as a non-human primate or large animal with, for example, a largely human brain, the second part of my amendment would provide a regulation-making power to deal with that situation. I am sorry that in the process of improving this part of the Bill the Government decided to jettison the regulation-making power. I very much hope that my concerns on these issues are misplaced and that the Minister will be able to reassure me on them. I beg to move.