DERCKX/HONDIUS longer than 14 days a limit on which for ethical reasons an overall intemational consensus exists it can possibly be concluded that the theory of the progressive protection of dignity has made itself felt in the Embryos Bill According to the Embryos Bill the embryo is a cell or a connected aggregate of ells with the capacity to develop into a human being(Art. I sub c Embryos Bill This definition is connected to the fact that an em bryo, with the current stage of scientific development, can come into existence in various ways and the protection of dignity does not depend on the way in which it has come into being 32 The legislator wanted to include all the ways in which an embryo can come into being within the definition. By also including the cell within this defin ition, the stage immediately following the fusion of the ovum and the sperm cell is also included33 Crucial in this respect is the presence of a potental to grow into a person In our opinion the definition ofan embryo does create confusion now that it does not follow the biological reality. Since, according to the definition, a sex cell is already an embryo in itself, as it is aferall a cell with the capacity to develop into a human being A foetus is an em bryo which is to be found in the human body(Art. I sub d Embryos Bill). The notion of an embryo is more comprehensive: a foetus is also an embryo All the development stages of the embryo up until the actual birth fall within the scope of the definition and thereby also underthe Em bryos Bill 6.2 Cloning The Embryos Bill lays down the bounderies with respect to cloning. There is a difference between reproductive and therapeutic cloning. Reproductive cloning is the making of genetica lly identical individuals. From an intemational point of view there is large-scale agreement as to the unacceptability of this technique. 4The Dutch Explanatory Memorandum, 200001, 27423, no 3, P. 41 32 In the first place by fertilizing an ovum whereby an ovum and a sperm cell are fused toget Ths can take place within the human body in vio, or outside the human body n vtD. Another method s by way ofsplittingone or moreof theembryo s totipotentcelbs( these are cells which have the poss ability ndependenthy to grow int a new embryo) It i also poss ible to create an embryo by making use of cells from an embryonic stem-cell line A combination s then made of cells whch have originated from two different embryos(chimaera). Finally, t s n prnciple also poss ble apply the technque already used n the case of animals: the nucleus of an animal s bodily cell s transplanted nt an animal s female gamete with the original nucleus bengremoved If this would occur then there s the potential to grow nto a person, Explanatory Memorandum, 200001, 27423, The ovum and the sperm cell will fuse tgether if, after thesuccessful penetration of the ovt wall by thespem cell, the cell membranes of the two sex celk fuse. Although immed ately after thE event two independent cell nuclei can in fact be differentiated, t is the case that there s already an embryo in the sense of the Bill, Explanatory Memorandum, 2000/01, 27423, no 3, p. 49. Alongside the Council of Europe(Supplementary Protocol to the Bio-ethics Treaty), intemational organisations such as the World Health Organ sation and UNESCO have made declarations to the effect that the cloning of persons s not admissible as it s contrary t human dignity and s mmoral. There s also a European Commss ion resolution which calls upon Member States to prohibit therapeutic cloning and consumptive embryo research
DERCKX/HONDIUS 6 longer than 14 days a limit on which for ethical reasons an overall international consensus exists31 it can possibly be concluded that the theory of the progressive protection of dignity has made itself felt in the Embryos Bill. According to the Embryos Bill the embryo is a cell or a connected aggregate of cells with the capacity to develop into a human being (Art. 1 sub. c Embryos Bill). This definition is connected to the fact that an embryo, with the current stage of scientific development, can come into existence in various ways and the protection of dignity does not depend on the way in which it has come into being.32 The legislator wanted to include all the ways in which an embryo can come into being within the definition. By also including the cell within this definition, the stage immediately following the fusion of the ovum and the sperm cell is also included.33 Crucial in this respect is the presence of a potential to grow into a person. In our opinion the definition of an embryo does create confusion now that it does not follow the biological reality. Since, according to the definition, a sex cell is already an embryo in itself, as it is afer all a cell with the capacity to develop into a human being. A foetus is an embryo which is to be found in the human body (Art. 1 sub. d Embryos Bill). The notion of an embryo is more comprehensive: a foetus is also an embryo. All the development stages of the embryo up until the actual birth fall within the scope of the definition and thereby also under the Embryos Bill. 6.2 Cloning The Embryos Bill lays down the bounderies with respect to cloning. There is a difference between reproductive and therapeutic cloning. Reproductive cloning is the making of genetically identical individuals. From an international point of view there is large-scale agreement as to the unacceptability of this technique.34 The Dutch 31. Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 41. 32. In the first place by fertilizing an ovum whereby an ovum and a sperm cell are fused together. This can take place within the human body in vivo, or outside the human body in vitro. Another method is by way of splitting one or more of the embryo s totipotent cells (these are cells which have the possibility independently to grow into a new embryo). It is also possible to create an embryo by making use of cells from an embryonic stem-cell line. A combination is then made of cells which have originated from two different embryos (chimaera). Finally, it is in principle also possible to apply the technique already used in the case of animals: the nucleus of an animal s bodily cell is transplanted into an animal s female gamete with the original nucleus being removed. If this would occur then there is the potential to grow into a person, Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 49. 33. The ovum and the sperm cell will fuse together if, after the successful penetration of the ovum wall by the sperm cell, the cell membranes of the two sex cells fuse. Although immediately after this event two independent cell nuclei can in fact be differentiated, it is the case that there is already an embryo in the sense of the Bill, Explanatory Memorandum, 2000/01, 27 423, no. 3, p. 49. 34. Alongside the Council of Europe (Supplementary Protocol to the Bio-ethics Treaty), international organisations such as the World Health Organisation and UNESCO have made declarations to the effect that the cloning of persons is not admissible as it is contrary to human dignity and is immoral. There is also a European Commission resolution which calls upon Member States to prohibit therapeutic cloning and consumptive embryo research
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCHLAW legislator also considers reproductive cloning to be in conflict with human dignity, although it does wish to leave room for non-reproductive(therapeutic) cloning techniques. With the aid of these techniques(for example, cell transplantation)cells and tissue can be developed which will be of great value for transplantation purposes By means of the interpretative declaration to the Supplementary Protocol on Cloning the Netherlands wished to leave this possibility open. The Embryo Act therefore contains a prohibition on both types of cloning, although the ban on therapeutic cloning will expire after5 years(Art. 24 sub a Embryos Bill). Thereafter, therapeutic cloning will become possible, although subject to strict conditions.35 6.3 Controloverembryos Persons of full age who are legally competent can offer so-called residue embryos 6 for the benefit of a lim ited list of purposes: the pregnancy of another(donation), the ultivation of embryonic cells for those purposes referred to in the bill, and for carrying out medical research(Art. 8 para. I Embryos Bill). This should take phce in writ ing and there should be no payment involved( the non-commercial principle ). If there should be a difference of opinion among those involved (the couple on behalf of whom the embryos have been created)then this procedure will not take place(Art 8 para. 2 Embryos Bill). The donor will have no control over the possible subsequent destination for research purposes, considering the fact that these persons are aware beforehand that this situation can arise and that they could have relinquished this possibility if they had not been in agreement. 37 6.4 Scientific research using in-vitro embryos Embryos Bill regulates scientific research using embryos in vitro as well as in a differentiation should be made between scientific research using residue embryos and embryos especally created for scientific research. The Bio-ethics Treaty determines in its Art. 18 para. I that where the lw allows research on embryos in vitro, it shall ensure adequate protection of the embryo. Scientific research is therefore allowed and the legislator thereby has a broad freedom as regards policy as it has not been exactly determined which fomm of protection should research: the creation of human embryos forresearch purposes is prohibited, ffic e offered. Art. 18 para. 2 forbids the special cultivation of embryos for scientific The Dutch legislator considers that by taking respect for human lif departure, it should in principle be cautious as to the use of embryos for scientific The creation of embryos for the purpose of cultivating embryonic cells will be lmited to situations where transplants can only take place if such cells are cultivated for thi purpose, Art. 9 para. I Embryos Bill These are theembryos whichremain afterIVF treat 37 Parl Docs. 11, 200001, 27423, no 3, P. 53. According Braake it s unjust that the donor These provis ons have given rise t d scuss ons in a ofMember States as t whether or ot thereshould be restrictions attached, Te Braake, 2001, p 52
THE RIGHTS OF THE EMBRYO AND THE FOETUS UNDER DUTCH LAW 7 legislator also considers reproductive cloning to be in conflict with human dignity, although it does wish to leave room for non-reproductive (therapeutic) cloning techniques. With the aid of these techniques (for example, cell transplantation) cells and tissue can be developed which will be of great value for transplantation purposes. By means of the interpretative declaration to the Supplementary Protocol on Cloning the Netherlands wished to leave this possibility open. The Embryo Act therefore contains a prohibition on both types of cloning, although the ban on therapeutic cloning will expire after 5 years (Art. 24 sub. a Embryos Bill). Thereafter, therapeutic cloning will become possible, although subject to strict conditions.35 6.3 Control over embryos Persons of full age who are legally competent can offer so-called residue embryos36 for the benefit of a limited list of purposes: the pregnancy of another (donation), the cultivation of embryonic cells for those purposes referred to in the Bill, and for carrying out medical research (Art. 8 para. 1 Embryos Bill). This should take place in writing and there should be no payment involved (the non-commercial principle). If there should be a difference of opinion among those involved (the couple on behalf of whom the embryos have been created) then this procedure will not take place (Art. 8 para. 2 Embryos Bill). The donor will have no control over the possible subsequent destination for research purposes, considering the fact that these persons are aware beforehand that this situation can arise and that they could have relinquished this possibility if they had not been in agreement.37 6.4 Scientific research using in-vitro embryos The Embryos Bill regulates scientific research using embryos in vitro as well as in vivo. A differentiation should be made between scientific research using residue embryos and embryos especially created for scientific research. The Bio-ethics Treaty determines in its Art. 18 para. 1 that where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo . Scientific research is therefore allowed and the legislator thereby has a broad freedom as regards policy as it has not been exactly determined which form of protection should be offered. Art. 18 para. 2 forbids the special cultivation of embryos for scientific research: the creation of human embryos for research purposes is prohibited . 38 The Dutch legislator considers that by taking respect for human life as a point of departure, it should in principle be cautious as to the use of embryos for scientific 35. The creation of embryos for the purpose of cultivating embryonic cells will be limited to situations where transplants can only take place if such cells are cultivated for this purpose, Art. 9 para. 1 Embryos Bill. 36. These are the embryos which remain after IVF treatment has taken place. 37. Parl. Docs. II, 2000/01, 27 423, no. 3, p. 53. According to Te Braake it is unjust that the donor has no say in the matter, 2001, p. 34. 38. These provisions have given rise to discussions in a number of Member States as to whether or not there should be restrictions attached, Te Braake, 2001, p. 52