Regina v. Secretary of State for Health (Respondent) ex parte Quintavalle (on behalf of Prof-Life Alliance) (Appellant)

A statute should be read as a whole, in its historical setting, to give effect to Parliament’s purpose within the permissible bounds of interpretation. New technology may fall within existing legislation where it belongs to the same genus as the facts for which Parliament legislated or where the statute’s clear purpose requires that reading.

Under the Human Fertilisation and Embryology Act 1990, a live human embryo is defined by what it is, rather than by the process which created it. An embryo created by cell nuclear replacement is therefore within the Act’s regulatory scheme. Section 3(3)(d), however, prohibits replacing the nucleus of a cell of an existing embryo. It does not prohibit inserting a nucleus into an enucleated, unfertilised egg before an embryo exists.

The appellant sought judicial review of the regulatory treatment of live human embryos created by cell nuclear replacement, a cloning technique which does not involve fertilisation. The issues were whether such embryos fell within the Human Fertilisation and Embryology Act 1990 and, if they did, whether section 3(3)(d) prohibited their creation.

Crane J held that the embryos fell outside the Act but that section 3(3)(d) did not prohibit their creation: [2001] EWHC Admin 918; [2001] 4 All ER 1013. The Court of Appeal reversed the first ruling and agreed on the second: [2002] EWCA Civ 29; [2002] QB 628. The appellant appealed on both questions.

1. Appeal dismissed unanimously, with costs. Lord Bingham delivered the leading speech. Lord Hoffmann agreed with it; Lord Steyn dismissed the appeal for Lord Bingham’s and Lord Hoffmann’s reasons as well as his own; Lord Scott agreed fully with Lord Bingham and Lord Steyn; and Lord Millett reached the same conclusions in separate reasons.

2. Per Lord Bingham, statutory interpretation requires the court to ascertain and give effect to Parliament’s meaning. The disputed words must be read in the context of the statute as a whole and against the historical circumstances which prompted it. The court may apply legislation to an unforeseen development where the development is within the same genus of facts as the expressed legislative policy or where a clear statutory purpose can be fulfilled only by doing so. It must not speculate about what Parliament would have enacted or fill a legislative gap: paras 7–10, 15. Lord Steyn and Lord Hoffmann applied the same approach. Lord Millett likewise treated Parliament’s intention as derived from the statutory text read as a whole and in context: paras 21–26, 32–39.

3. Per Lord Bingham, the Human Fertilisation and Embryology Act 1990 established comprehensive protection and strict control for live human embryos created outside the body. Parliament’s purpose concerned embryos, rather than the method by which they were created. The words “where fertilisation is complete” in section 1(1)(a) identify the stage at which a fertilisation-created organism is treated as an embryo; they do not confine the definition to embryos created by fertilisation. A cell-nuclear-replacement embryo is very similar to a fertilisation-created embryo, falls within the same genus, and cannot rationally be excluded from the regulatory scheme: paras 13–17.

4. Lord Millett explained that the essential section 1(1)(a) characteristics are that the embryo is live and human. The concluding words concern development and apply only where fertilisation occurs. The discrepancies in applying provisions drafted around fertilisation were not structurally significant and did not defeat the comprehensive statutory purpose: paras 44–49; per Lord Bingham, para 16.

5. Per Lord Bingham, section 3(3)(d) prohibits replacing the nucleus of a cell of an embryo. In cell nuclear replacement no embryo exists until the donor nucleus has been inserted into the enucleated egg. The provision targets nuclear substitution in an existing embryo and does not prohibit this technique: para 18. Lords Steyn, Hoffmann and Millett agreed: paras 28, 35–36, 50–53.

1. House of Lords: The appeal was dismissed unanimously, with costs. The Court of Appeal’s decision was affirmed: [2003] UKHL 13.
2. Court of Appeal: The court reversed the ruling that cell-nuclear-replacement embryos fell outside the Human Fertilisation and Embryology Act 1990, but agreed that section 3(3)(d) did not prohibit their creation: [2002] EWCA Civ 29; [2002] QB 628.
3. High Court: Crane J held that the creation of such embryos fell outside the Act and was not prohibited by section 3(3)(d): [2001] EWHC Admin 918; [2001] 4 All ER 1013.