Final Report (all chapters)

Neither the RIHEA nor its explanatory memorandum shed any light on which criteria were
behind this choice of experts. Most of the choices may be regarded as both obvious and
necessary. Appointing an ART expert, a legal expert, an expert in research ethics, a scientist, an
embryologist, and representatives of consumers and patients groups seem rather straightforward
choices. On the other hand, taken together, these choices produce a committee that is unique in
its structure. Unlike the HFEA, the ERLC is a committee of experts with no pretension of
including and/or consulting with the general public. Public views are not excluded from this
committee, but are limited to those societal groups most directly affected by research in this area
– i.e., to representatives of infertility patients and advocates of disabled persons. Individuals who
do not represent the medical profession or the research community and who are likely to
represent the views of the public are a clear minority. Depending on how the slots are filled, they
range between two and three out of nine members. Given the often rather self-interested nature
of organized groups, and the generally sympathetic approach displayed by the bioethics
profession toward the research community, this number could conceivably shrink to zero.
The technocratic approach taken by the Australian legislation in establishing the
composition of the ERLC can partly be explained by the committee’s charge. The ERLC is
responsible exclusively for approving research protocols on human embryos, not for untangling
difficult ethical dilemmas created by new reproductive technologies. In this sense, the
committee’s scope is relatively narrow and may not require extensive public input as required,
for example, for the promulgation of new ethical guidelines by the RTAC or the Human
Research Ethics Committee (HREC), which is similar to an institutional review board.
The Australian appointment process ensures that only broadly acceptable candidates will be
appointed. The appointment process is not governed by rigid administrative rules, nor are
appointments simply the result of an arbitrary choice made by the responsible minister. The
RIHEA assigns the minister the responsibility for making the actual appointments, but viable
candidates can be suggested only by a predefined list of organized interest groups and by the
states (Paragraph 16(3)(a)). In addition, the minister must “consult, and have regard to the views
expressed by, the States on the proposed appointment.” 37 How exactly this clause is being
interpreted in practice is not entirely clear, but it appears that the purpose of this consultation
process is to ensure that the appointed candidate is supported by all relevant political
constituencies. In other words, the states must not only be consulted, but should also be
represented. Sub-clause 16(5) requires that the committee chair only be appointed with a
majority of states agreeing, while sub-clause 16(6) instructs the minister as to the “desirability of
ensuring that the Committee as a whole comprises members from different States.” The
combination of formal and informal appointment rules seems to be designed to produce
consensus candidates. This approach can be relatively slow, but it guarantees that most
constituencies will regard the committee as a whole as a credible and trustworthy institution of
government.
37
See Paragraph 16(3)(b).
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