Pig-cell ban 'unconstitutional'

By SIMON COLLINS

A proposed legal ban on transplanting animal cells into people is unconstitutional, says a top constitutional lawyer.

Mai Chen, a legal partner of former Labour Prime Minister Sir Geoffrey Palmer, said yesterday that the proposed ban would override an appeal launched by Auckland research company Diatranz against what she believed was an "unlawful" decision by the Ministry of Health.

"We have commenced an appeal. What has happened is that the ministry is admitting that they were wrong, that they did act unlawfully, and as a consequence that they are going to change the law," she said.

"That, in anybody's book, is clearly unconstitutional."

Last year the ministry rejected Diatranz's application to transplant insulin-producing pig cells into 12 New Zealand diabetics because of a risk that pig viruses could spread from the 12 patients into the general human population.

The Director-General of Health, Dr Karen Poutasi, said she had adopted "the precautionary principle, which requires that the ministry give the balance of doubt to protecting the community, should there be uncertainty about the evidence of risk or benefit".

But Ms Chen said there wasno mention of the "precautionary principle" in the MedicinesAct, under which Dr Poutasi made her decision.

Ms Chen lodged Diatranz's appeal to the Medicines Review Committee on July 31 last year.

But she said the appeal would be redundant if Parliament passed the proposed ban on animal/human transplants, contained in last-minute amendments to the Hazardous Substances and New Organisms Act tabled in the House on December 19. The amendments specifically cover cases which are already under way.

She said Diatranz would make a submission urging Parliament not to make the change retrospective.

"One thing the Government must do is comply with the rule of law. They can't change the goalposts when people have already started the game."

Parliament's finance and expenditure committee started to consider the amendments yesterday in a closed-door meeting with officials.

The clerk, Julian Kersey, said the committee would decide where to hold hearings after submissions closed on Friday. The committee is due to report to Parliament by March 19.

Environment Minister Marian Hobbs yesterday appointed former Governor-General Sir Paul Reeves as a special adviser to assist in establishing a Bioethics Council, a body recommended by the Royal Commission on Genetic Modification to consider issues such as the ethics of animal/human transplants.

Sir Paul will meet officials in Wellington tomorrow.

He expects that draft terms of reference for the new council will be ready for the cabinet to consider in April.

nzherald.co.nz/health