Legal Regulation of Human Cloning and Embryo Research: The Forthcoming Review

Viewpoint Magazine, No. 4, 2010

U of Melbourne Legal Studies Research Paper No. 518

9 Pages Posted: 11 Jan 2011

See all articles by Loane Skene

Loane Skene

University of Melbourne - Law School

Date Written: January 11, 2011


In 2002, two Acts were passed by the federal parliament to regulate human cloning and embryo research - the Prohibition of Human Cloning Act 2002 (Cth) (‘the Prohibition Act’) and the Research Involving Human Embryos Act 2002 (Cth) (‘the Research Act’).

The Prohibition Act prohibited human cloning and a range of other research activities involving human bodily material and provided substantial penalties for breach of its provisions. It was designed to assuage community concerns about certain types of research by totally banning activities such as human cloning to breed identical people; combining human and animal gametes (sperm and eggs) to breed half-human and half-animal hybrids; allowing a human research embryo to develop longer than 14 days; and the sale of human eggs. All of these provisions are still in the current Act (the Prohibition of Human Cloning for Reproduction Act 2002 (Cth)).

The Research Act allowed certain research on human embryos and human genetic material to be conducted, provided that the researcher obtained a licence from the Embryo Research Licensing Committee of the National Health and Medical Research Council (NHMRC) and complied with strict reporting requirements, subject to conditions set out in the Act. The research also had to be approved and monitored by an institutional ethics committee. To obtain a licence, scientists must justify the use of human embryos and use as few embryos as possible to achieve the aims of their research. Under this Act, the only human embryos that could be used in research were embryos that had been formed in fertility treatment programs but were no longer needed by the couples whose gametes (sperm and eggs) were used to create them and who wanted to donate them for research. Scientists were not permitted to create human embryos specifically for research.

The two Acts aimed for a compromise between scientists wanting to do research on early human embryos and the stem cells derived from them and people who opposed the use of human embryos in research. Scientists would know that they could lawfully undertake particular activities as long as they obeyed ‘the rules’. The number of human embryos that could be used in research was limited by the licensing process and ethical review. And the only embryos that could be used in research were those donated from fertility programs that would otherwise have to be discarded by law after a certain period of storage.

The attempted compromise was not accepted by many opponents of human embryo research, who view human embryos as persons, or potential persons, or at least of special moral significance, whether those embryos are ‘excess’ embryos formed for fertility treatment but no longer needed, or embryos created specifically for research. However, it enabled some human research to be done, both to improve fertility treatment procedures and to derive human embryos for stem cell research.

Keywords: stem cell, human cloning, embryo research

JEL Classification: I19, K13, K39

Suggested Citation

Skene, Loane, Legal Regulation of Human Cloning and Embryo Research: The Forthcoming Review (January 11, 2011). Viewpoint Magazine, No. 4, 2010, U of Melbourne Legal Studies Research Paper No. 518, Available at SSRN:

Loane Skene (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010

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