• Children and the doctrine of substituted judgement.

      Cherkassky, Lisa; University of Derby; The University of Derby, UK (Sage, 2014-12-01)
      The common law in the United Kingdom dictates that children facing medical treatment should be treated in accordance with their best interests. The Children Act 1989 also demands that the welfare of the child is paramount. However, in light of the creation of saviour siblings after the case of Quintavalle, it is disputed that the donor child is treated in accordance with his/her best interests when undergoing a non-therapeutic procedure for the benefit of another. The Human Tissue Authority (HTA) can, for example, validate a bone marrow harvest on a child created specifically for harvest without the consent of the High Court. The doctrine of substituted judgement was developed in the United States to substitute a previously competent adult decision, but it is proposed that parents of saviour siblings are reviving it in a modified form to install a speculative psychological benefit into the saviour child to satisfy the criteria for a harvest in common law. As a result, there is a glaring discrepancy between the objective jurisdiction of the courts and the validation of non-therapeutic harvesting procedures upon children by the HTA, opening the door to potential legal action.
    • A gift or a waste? Quintavalle, surplus embryos and the Abortion Act 1967.

      Cherkassky, Lisa; University of Derby (Taylor and Francis, 2017-07-06)
      The destruction of an embryo must be justified in law. This is to prevent frivolous wastage and to show the respect afforded by the Warnock Report (1984). For example, embryonic destruction during pregnancy is underpinned by the Abortion Act 1967, and embryonic destruction during fertility treatment is regulated by the Human Fertilisation and Embryology Act 1990. However, following the appeal decision in R (Quintavalle) v Human Fertilisation and Embryology Authority (and Secretary of State for Health) [2005] 2 A.C. 561, embryos can now be created for a bone marrow tissue match to a sick sibling under the Human Fertility and Embryology Act 1990 according to the subjective desires of the mother. This opens the door to the first example of embryonic destruction on unique social-eugenic grounds with no clear lawful justification. It is argued that these embryos should be afforded a unique destruction provision under an amended version of section 1(1)(a) of the Abortion Act 1967 in light of their ‘social-eugenic’ nature. This would protect the Human Fertilisation and Embryology Authority from accusations of undercover eugenic practices and reinstate the respect shown towards embryos in law.
    • Gillick, bone marrow and teenagers

      Cherkassky, Lisa; University of Derby (2015)
      The Human Tissue Authority can authorise a bone marrow harvest on a child of any age if a person with parental responsibility consents to the procedure. Older children have the legal capacity to consent to medical procedures under Gillick, but it is unclear if Gillick can be applied to non-therapeutic medical procedures. The relevant donation guidelines state that the High Court shall be consulted in the event of a disagreement, but what is in the best interests of the teenage donor under s.1 of the Children Act 1989? There are no legal authorities on child bone marrow harvests in the United Kingdom. This article considers the best interests of the older saviour sibling and questions whether, for the purposes of welfare, the speculative benefits could outweigh the physical burdens.
    • The human tissue authority and saviour siblings

      Cherkassky, Lisa; University of Derby (2015-06-23)
    • Human tissue authority new draft code: Supporting child donors or supporting parents?

      Cherkassky, Lisa; University of Derby (The UK Law and Society Association, 2017-10-29)
      The Human Tissue Authority has very recently posted seven new Codes of Practice to update its guidance on human tissue legislation. Code G - Donation of Allogeneic Bone Marrow and Peripheral Blood Stem Cells for Transplantation - aims to improve the regulation of offences, referrals, and the interview process for children donating bone marrow. Code G comes under criticism in this article for not properly taking into account the welfare of very young saviour siblings. It introduces minor changes to consent procedures but disappointingly, parents of saviour siblings can still enjoy significant discretion to consent to a potentially harmful trespass upon their child without a welfare test or court approval. This article suggests that a stronger emphasis should be placed upon the objective provisions of the welfare test under section 1(3) of the Children Act 1989 and its adjoining common law before a decision to harvest a very young child for bone marrow is made. This would better protect the “saviour sibling” from unnecessary physical and psychiatric harm.
    • Quintavalle: The quandry in bioethics

      Cherkassky, Lisa; University of Derby (Cleveland State University, 2016-12-31)
      The case of R. (Quintavalle) v. Human Fertilisation Embryology Authority (and Secretary of State for Health) presents a handful of legal problems. The biggest legal query to arise from the case is the inevitable harvest of babies, toddlers and very young children for their bone marrow. This article unpacks the judicial story behind Quintavalle to reveal how the strict provisions of the Human Fertilisation and Embryology Act 1990 - namely ‘suitable condition’ under schedule 2 paragraph 1(1)(a) and ‘treatment services’ and ‘assisting’ under section 2(1) - were widely misinterpreted to introduce the social selection of embryos into law. The legal loopholes created by the judgment (embryo wastage, welfare, eugenics and the legality of child harvest in particular) are also identified. It will be concluded that screening for a tissue match is social selection despite arguments to the contrary and that parents are not yet entitled in law to harvest a very young child for bone marrow, making the creation of a saviour sibling under the 1990 Act as a result of Quintavalle ultimately futile.
    • The wrong harvest: The law on saviour siblings

      Cherkassky, Lisa; University of Derby (Oxford University Press, 2015-02-11)
      The momentous case of Quintavalle supported the creation of saviour siblings in English law. The House of Lords confirmed that embryos can be selected for social purposes according to the desires of the mother. This article discusses the implications of that decision for the welfare of saviour siblings and argues that harvesting of young saviour siblings is difficult to justify under the current fragmentary law.