Warnock: the legal minefield

THE WARNOCK REPORT
Simon Lee, Lecturer in Laws at King's College, London, discusses the legislative issues raised by the Warnock Report
THE GOVERNMEN I is seeking public reaction to the Warnock Report until the end of this year. Then it will prepare legislation for Parliament to consider in the 1985-6 session.
This autumn will see a Parliamentary debate on the Report and perhaps a Private Member's Bill to implement the proposed ban on surrogate agencies. But the other recommendations give rise to many legal problems and there will certainly have to be changes before a coherent statute could be drafted.
One difficulty is inconsistency. For instance, the Committee recommends legislation to ensure no right of ownership in an embryo. Yet the next sentence accords the relevant couple and cometimes the storage authority rights to the use and disposal of the" embryo. Now what exactly is ownership if not the rights of use and disposal? A statute cannot fudge the issue in this way. A second problem is the Commitee's tendency to compromise. Parliament will feel free to reconsider lines drawn by pragmatism such as the 14 day limit for experimentation on embryos. Three members dissented, favouring a total ban, and four dissented in opposition to research on embryos deliberately created for such purposes. Even the majority of nine admit that "once the process has begun, there is no particular part of the developmental process that is more important than another" (emphasis added). Parliament is unlikely to increase the limit beyond 14 days, given that marry members of the Committee would prefer a more restrictive law. It may, however, compromise again, splitting the majority and minority views at say the time when implantation begins (around five days). Or a free vote in the Commons may well see support for the powerful arguments of the dissident trio who want a total ban.
The Report is on surer ground when pointing out the implications of its proposals for family law, criminal law and the law of inheritance and succession. To give one example, it is currently an offence for a couple to sign a birth certificate naming the husband as the father if in fact the sperm was from a donor. Moreover, the donor could be liable for maintenance payments and could seek access to the child.
Warnock proposes that the husband be treated in law as the father and that the donor has no legal parental rights or duties. One consequence is that the child will never know the identity of the genetic father.
The final underlying problem of the Report is that the Committee has no clear idea of the relationship between the criminal law and morality. It says that those who object to sperm, egg or embryo donation should not impose their morality on those who disagree. Such practices will, it claims, happen anyway. Yet the majority wishes to outlaw surrogate agencies when the same arguments could be raised.
Actually the Warnock approach to surrogacy is the better view. Sometimes society is justified in taking a stand on morality. Interestingly enough, if a Private Member's Bill does pave the way by banning surrogacy, those who criticise these other practices will have a powerful precedent for enforcing morality when the main Bill comes along. In sum, the Warnock Report is far from being a blueprint for iegisiative action. Opponents of particular recommendations have every reason for optimism as Parliament ponders its response.