Stem cell research has the potential to bring important advances in our understanding and treatment of crippling diseases such as Parkinson’s, diabetes, stroke and heart disease. It has also attracted significant investment in a number of countries in Europe, notably the UK and Germany, which have established themselves as global market leaders in stem cell therapy and technology. The amount allocated to stem cell research under previous EU programmes has formed a relatively small portion of the overall budget but played a vital role in facilitating collaborations amongst EU researchers which would not have been possible through national funding alone. Yet, the funding of embryonic stem cell research in Europe now lies in the balance.
On Monday 30th of January I attended a conference organized by the European Academy of Law in Brussels on the latest developments on EU Accession to the ECHR. The meeting offered some illuminating insights into the contrasting perspectives of senior officials and judges from the CJEU and ECrtHR as well as members of the informal working group (CDDH-UE) charged with the drafting of the accession agreement. The final version of the draft legal instrument issued by the joint working group was released on 19th July 2011 for consideration and approval by EU and CoE institutions as well as Member States.
My overwhelming impression was that the process, particularly on the EU side, is unlikely to live up to the ‘rapid’ pace prescribed by Article 6 (2)(1) of the Lisbon Treaty. According to Luca de Matteis, from the General Secretariat of the Council of the European Union, questions still open in relation to the draft accession instruments include the scope of EU’s accession and submission to ECtHR’s jurisdiction of violations deriving from EU’s Common foreign and security policy acts, “cases and conditions for unclenching the co-respondent mechanism” and voting arrangements for supervision of execution of judgments against the EU.
The EU Court’s ban on embryonic stem cell patents and products derived therein continues to be the focus of attention and comments in scientific journals and newspapers, and will no doubt do so for a long time to come in the light of the unexpected and far-reaching scope of the ban. National patent offices in Europe and the European Patent Office have yet to analyze the implications of a judgment which requires the application of a uniform, judicially constructed definition of the human embryo across Europe, contrary to the existing diversity of legal definitions (see Asa Hellstadius, ‘A Comparative Analysis of the Implementation of the Directive’s Morality Clause’, in Plomer & Torremans, Embryonic Stem Cell Patents: European Law and Ethics, OUP, 2009) and the submissions of member States to the court.
Opponents of hESC research see the judgment as a ‘milestone’ and vindication of the rights of the embryo. But as legal definitions in this area have singularly been outstripped by the pace of scientific advance (see R v. SoS for Health ex parte Quintavalle), the Court’s ruling is likely to invite future challenges and fuel the chronic legal uncertainty which has attended the interpretation of the scope of moral exclusions in the Directive. It is also possible that the ban may have unintended consequences and catch the work of scientists who have re-directed their research efforts to adult stem cells (including induced pluripotent cells or iPS cells) in the face of the persistent and powerful opposition of religious lobbies (see recent advances published in Nature only last month).