ABSTRACT
Similarly to the preceding chapter, this chapter considers the grievance that might arise where a careless failure to properly test an embryo leads to the birth of a child, whose birth the parents sought to avoid. However, here the focus is on the claims that parents might bring. The potential claims on behalf of the parents are considered within the context of saviour sibling treatment because this enables the discussion of a range of potential parental grievances. The Human Fertilisation and Embryology Authority (the Authority) issued its first licence to create a saviour sibling in 2001. Despite some strong objections,1 the Authority has since relaxed the eligibility criteria, increasing the number of people who could access such treatment. The permission to create saviour siblings has now been given statutory authority by virtue of the 2008 amendment to the 1990 Human Fertilisation and Embryology Act.2 In the face of a rising demand for treatment, it may only be a matter of time before an attempt to create a saviour child goes wrong, generating new grievances that might be articulated as novel legal claims. There are two reasons why an intended saviour might not be able to fulfil the saviour role. First, the saviour herself might have the faulty gene which caused the existing child’s condition. Second, although she does not possess the faulty gene, the saviour might not be a tissue match for her sibling. A multitude of tort actions could (in principle) be brought by the
1 The Human Genetics Commission consultation paper, Choosing the Future: Genetics and Reproductive Decision Making, (2004) paragraph 3.17, notes that the use of preimplantation genetic diagnosis (to any end) is not uncontroversial. Those who take a pro-choice approach support the procedure on the basis that it facilitates the right to reproductive freedom. See, for example, the judgment of the House of Lords in Quintavalle’s challenge of the Human Fertilisation and Embryology Authority’s decision to give the go-ahead for the Hashmis: Quintavalle v Human Fertilisation and Embryology Authority [2005] 2 AC 56, Lord Hoffmann, 570.
