On 5 June 2002, the following submission was made to the exposure draft of the Human Cloning and Research Involving Embryos Bill 2002.
Legislation is an imperfect vehicle for responding to the rapid changes in scientific procedures and techniques and to less rapid changes in public opinion. Legislation is said to have advantages in that it is a clear statement of public values and expectations. It is systematic, gives powers of enforcement, and is consultative in promoting debate in the community and in parliament. Legislation need not be inflexible if provision is made for monitoring and review, but it is hard to change. It can provide national standards if there is a uniform approach by the States, as is the case for legislation regarding organ and tissue transplantation.
In the case of legislation regarding assisted reproductive technologies and research on human embryos, there is no consistency in Australian law. In the State of Victoria, legislation is based on the criminal model; it is a criminal offence to undertake any research on a human embryo. In South Australia and in Western Australia, legislation seeks to regulate assisted reproductive technologies with a statutory system of licensing of those who carry out the procedures. Legislation in these three States overrules the NHMRC Ethical guidelines in assisted reproductive technologies, which regulate research and clinical practice in other Australian States.
It is difficult to legislate effectively in an area of rapidly developing technologies. This is apparent from examination of the laws in Victoria, South Australia and Western Australia. In Victoria, said to have the most stringent legislation in the world regarding human embryo research, it is legal to undertake research on human ES cell lines, whereas in Western Australia, it is not. In South Australia, creation of genetically identical embryos by embryo splitting is banned, but reproductive cloning to produce a human fetus by somatic cell nuclear transfer would not be illegal.
It is appropriate to use legislation to set limits on certain research practices, such as prohibiting the cloning of human fetuses, but not to regulate the details of research practice. Human ES cell research should be subject to regulation under the law in such a way as to take account of the rapid development of new technologies and the changing applications of those technologies.
The Australian Academy of Science proposes that the powers of the NHMRC Licensing Committee should be widened. Specifically, the Academy recommends that Section 32(1) should be changed from:
'A person may apply to the NHMRC Licensing Committee for a licence authorising use of ART embryos, being use that would otherwise be an offence under section 23.'
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'A person may apply to the NHMRC Licensing Committee for a licence authorising use of ART embryos, being use that would otherwise be an offence under the Act.'
Professor John White
Spokesperson on Human Cloning and Stem Cell Research
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