Synthetic embryos: in the shifting sands of Law

The Guardian published a piece of news on Wednesday that, if confirmed (and it is convenient to be somewhat skeptical about it), will have a profound impact on biomedicine: a group of researchers from the University of Cambridge and the California Institute of Technology (Caltech) have managed to create synthetic human embryos from reprogrammed embryonic cells.

This could provide us with great advantages both to advance our knowledge of the early stages of human development, and to improve in vitro fertilization techniques, or to create organoids more efficiently, to name a few examples.

However, this innovation is not exempt from ethical and legal problems, which cannot be adequately addressed because, to begin with, it is not at all clear whether these new entities should truly be considered human embryos.

This is of essential importance, because only by determining this aspect will we know what can and cannot be done with them, at least with regard to their use for research, which is what now seems feasible (its use for reproductive purposes would be, for the moment, clearly prohibited, whatever they were). And it is that the restrictions are much higher when we talk about embryos than when it comes to structures that are not, even if they seem so.

Without going any further, in our country the first point of article 33 of Law 14/2007 on Biomedical Research establishes a strict prohibition of generating human embryos for research purposes, but its second point explicitly states that “the use of any technique for obtaining human stem cells for therapeutic or research purposes, which does not involve the creation of a pre-embryo or an embryo exclusively for this purpose, under the terms defined in this Law, including the activation of oocytes by nuclear transfer”. The difference in the legal regime of the entities that are and those that are not considered embryos is, therefore, enormous.

Let us return, in short, to the question: are synthetic embryos authentic embryos? Hard to say, really. In Spain it is almost certain that they would not be classified as such right now, because the aforementioned Law 14/2007 only considers the result of fertilization as an embryo.

This point of view, however, differs from that expressed by the Court of Justice of the European Union, which, in the framework of case C364/13, established that what determines that an unfertilized human ovum can be classified as an embryo is the fact of having the intrinsic capacity to become a human being.

If we extrapolate this definition to synthetic embryos, the conclusion seems obvious: if they are capable of developing into a person, they will be embryos.. And if not, no.

The problem -and therein lies the crux of the matter- is that this could only be known if we tried implanting them in a woman's uterus, which is precisely what current regulations prohibit. With which, ultimately, we have no choice but to recognize that, at least in ethical and legal terms, we are walking on quicksand. And it does not seem that it will be easy to get out of them in the short term.

*Íñigo de Miguel Beriain, bioethicist and researcher at Ikerbasque UPV/EHU.