The Politics of Muddling Through: Categorising Embryos

In a 1988 paper, Margaret Brazier stated: ‘[t]he trouble with the embryo is that… we cannot resolve [its] disputed nature’. Brazier has spent almost 30 years puzzling over, amongst other things, the nature of embryos and ‘muddled’ social and regulatory responses to them in the United Kingdom (UK). Here, we draw on her work to address law’s muddled position on embryos. Wisely, Brazier suggests that we need to ‘move beyond the scientific disciplines of medicine, law and philosophy and into more human social sciences particularly social anthropology’. We heed this suggestion by drawing on scholarship which understands embryos as ‘socially, culturally and politically’ constructed entities. We add that embryos are also legally constructed. Human Fertilisation and Embryology legislation has characterised embryos in various ways, and we suggest that these statutes form part of the general process by which we make sense of our world by sorting things into categories. As Minnow notes, we need to attend to this sorting process because ‘when we identify one thing as like the others, we are not merely classifying the world; we are investing particular classifications with consequences and positioning ourselves in relation to those meanings’. Taking up Brazier’s analysis of the relationship between embryology and abortion law, which is part of law’s sorting process, we examine the permitted/non-permitted dichotomy, to argue that distinctions are now drawn between different in vitro embryos, with the legal distinction between ‘permitted’ and ‘unpermitted’ categories mapping onto distinctions between ‘reproductive’ and ‘research’ embryos. In turn this reflects boundaries drawn between the human embryo, which can be used for reproductive purposes, and the human/animal hybrid embryo, which cannot.