New Zealand Law Society - Finding the legal boundaries around new technologies

Finding the legal boundaries around new technologies

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The Law Foundation has a good record of backing projects that tease out issues and highlight necessary changes to laws covering the rapidly changing fields of genetics and human reproductive technologies.

Many readers familiar with the Foundation’s work will know about our biggest project to date, the three-year, $2.7 million Human Genome Research Project carried out at Otago University.

After that project was completed, we endowed the New Zealand Law Foundation Centre for Law and Policy in Emerging Technologies at Otago to continue research in these challenging fields.

Outside of this, the Foundation is currently supporting three exciting new projects examining laws around surrogacy, DNA collection and retention, and genetic testing.

Rethinking Surrogacy

Dr Debra Wilson, University of Canterbury

Insufficient legal regulation of surrogacy is forcing judges to “creatively interpret” current law, says Rethinking Surrogacy study leader Dr Debra Wilson.

Dr Wilson’s three-year project is examining the effectiveness of current New Zealand surrogacy law, which has not been reconsidered for 10 years, despite changing social and scientific conditions.

“The unsatisfactory nature of the law has resulted in intended parents simply not taking the steps to have legal recognition of their relationships to their children,” she says. “This lack of legal relationship is likely to create major issues for the child in the long term.”

The Foundation has funded the first, scoping stage of this four-stage project. Dr Wilson says her almost completed first report finds that surrogacy is becoming increasingly popular, and is producing large numbers of problematic cases.

“Judges in Australia, New Zealand and the United Kingdom comment in judgments about needing to apply irreconcilable principles, and end up either ignoring the law or creating new approaches,” she says. “Chief Family Court judges in Australia and the UK have called for urgent reform in the past few months.”

The inadequate law is leading to intended parents not having their relationships to their children legally recognised, which may create issues for the child.

“Because of the lack of regulation, health workers and government agencies are in a difficult position, and are almost making policy up as they go along. There is a sense of nervousness about this – a desire to do the right thing, but not being sure how to go about this, or who to ask,” Dr Wilson says.

Her discussions reinforce the need for a large-scale project that looks at surrogacy regulation as a whole, with input from other experts including academics, lawyers, health workers, and groups involved in the area.

“There is a strong feeling that New Zealand is one of the countries best suited to take the lead on surrogacy law reform. New Zealand first raised international surrogacy as an emerging issue requiring consideration with The Hague Conference, and New Zealand is also generally seen as socially progressive.”

Pre-trial collection and retention of DNA in New Zealand

Dr Nessa Lynch, Victoria University of Wellington, and Dr Liz Campbell, University of Edinburgh

New Zealand’s law around the collection and retention of DNA information gives too much licence to the Police, and there is insufficient oversight of our DNA databank.

These are among the main findings of Nessa Lynch and Victoria Campbell’s soon to be published study of our 20-year-old law governing DNA collection and retention.

The transition from judicial to Police power has removed transparency around compulsory DNA collection from suspects, Dr Lynch says.

“Police used to have to apply for a judicial compulsion – now the Police have the power to take samples and use reasonable force from certain suspects.

“The government in England and Wales is rolling back established powers – they have decided that their collection and retention powers are out of proportion to the public interest.

“We recommend that our government carry out a review to determine whether the line has been drawn too broadly in terms of Police power,” she says.

New Zealand’s DNA databank contains around 150,000 profiles from about 3.5% of the population, stored at the Institute of Environmental Science and Research (ESR) – but there is no independent oversight of this databank, Dr Lynch says.

“Do they destroy samples when they are supposed to, and store them as they are supposed to?

“Other jurisdictions have independent committees that oversee this. There’s a huge amount of private information stored there, and there are legislative rules, but we don’t know whether they are being complied with – we just have to trust them.”

The study is the first ever critical analysis of New Zealand’s DNA collection and retention law. The authors hope that it will contribute to public and professional debate, and to a Justice Ministry review of the law, which was proposed in 2011 but has yet to take place.

Pre-implantation genetic testing

Dr Jeanne Snelling, University of Otago

Genetic testing is one of the fastest-evolving fields of modern medical science – and it poses some of the most complex ethical and legal challenges.

It is now possible to test human embryos for a range of traits other than abnormalities, and the prospect of “designer babies” is not far away.

Jeanne Snelling’s study is analysing the legal, ethical and social issues around human pre-implantation genetic testing. She says whole genome analysis (WGA) is already being used to identify genetic contributors to complex diseases like cancer and neuro-psychiatric disorders.

“There’s been a significant leap in the science – it’s a leap that few people anticipated 25 years ago when the technology began,” she says.

“It is by no means an over-statement to say that this type of testing, if incorporated into reproductive genetic medicine, promises to change the nature of conception. It would involve a conceptual shift from the current approach of choosing an embryo most likely to result in a successful pregnancy, to choosing the ‘best’ embryo based on a much wider set of criteria.”

The emerging technology raises complicated legal and ethical issues that have had little expert consideration to date, she says. They include the question of informed consent, and the right of the unborn child to preserve their own genetic autonomy – that is, the right not to know their own genetic information.

Dr Snelling and Dr Nikki Kerruish, senior lecturer at the Bioethics Centre, are the principal researchers on the project, with expert advisor input from Otago’s Dean of Law Professor Mark Henaghan, clinical geneticist Professor Stephen Robertson and Bioethics Centre Director Professor John McMillan.

The research project is supported by the Advisory Committee on Assisted Reproductive Technology (ACART), an independent statutory expert body appointed by the Minister of Health.

The research team aims to report its findings in early 2016. Dr Snelling says the team’s work to date confirms that “now is a good time to be looking at these issues.”

Contact the Law Foundation if you are interested in more information on any of these studies, or visit our website to explore the wide range of research projects we are funding.

Lynda Hagen is the Executive Director of the New Zealand Law Foundation.

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