Designer Babies and the Law: A Legal Analysis of Human Germline Editing in Light of the UK’s Human Rights Obligations

Abstract

In light of the UK’s progressive embrace of new biotechnologies, and the recent scientific breakthrough of CRISPR/Cas-9 (a gene-editing technology), this paper investigates whether the UK could legalise the genetic editing of human embryos (intended for implantation and birth) in the near future, given its international human rights obligations. In particular, this paper examines the bans against human genome editing that are found in the Council of Europe’s Oviedo Convention and UNESCO’s Universal Declaration on the Human Genome and Human Rights. These bans reflect an existing European consensus against editing inheritable human genes (human germline editing). Therefore, this paper determines that the bans can be incorporated into the UK’s European Convention on Human Rights (ECHR) obligations, to bind the UK. Nevertheless, this paper suggests that once gene-editing technologies are perfected, European attitudes may shift to embrace human germline editing. However, distinctions would have to be made between germline editing for (i) the treatment of physical suffering; (ii) the enhancement of healthy individuals; and (iii) discrimination against disabled groups. Whilst the latter two uses of the technology are dangerously eugenic, therapeutic gene-editing within carefully-defined limits is ethically justifiable, and is likely to be permitted by ECHR law in the near future. Hence, this paper predicts that the UK can and will legalise germline therapy in the near future. In doing so, Article 2 of the ECHR (the right to life) will require the UK to determine what constitutes an acceptable level of risk before legalising the therapy, whilst Article 8 (the right to private and family life) would support the therapy’s legalisation, albeit for a narrow and carefully-decided list of genetic conditions.