Leading Article: Frozen embryos: the race for a new ethical code

What should we do with the 3,300 frozen embryos due to perish on 1 August? The law says that these spare embryos, created for couples undergoing IVF treatment, should be destroyed after five years unless the couple want them preserved for a further five years. David Alton, the "pro-life" MP, predictably takes a different view: he wants these "orphans" to be put up for adoption.

It depends whether we see them as human beings, or as property, say the philosophers. Most of us, however, don't regard frozen embryos as either one or the other. We would be alarmed at the notion that parents were free to sell or exchange their embryos in a free market. But we are even more unwilling to accord these embryos the same rights as an infant, and to accept the same obligation to protect them until a vacant womb can be found.

Frozen embryos are a new and strange phenomenon, made possible by rapid advances in medical science. It isn't surprising then that they don't fit neatly into our existing moral categories. Nor is it an area where the state can easily pronounce. Working out the appropriate ethical response to new and complex circumstances can't be done quickly by ethics committees, or by MPs arguing at Westminster. Instead, thousands of couples need to make their own moral decisions as they confront the dilemmas afresh. Out on the frontier of medical ethics, we muddle through, following our instincts, making mistakes we regret, and finally, gradually building a consensus.

But as we feel our way, the legal framework is extremely important. In the case of the frozen embryos, as with IVF for ageing mothers and countless other fertility dilemmas, most of the decisions should be made in agreement between the individual parents and doctors involved. But the state can't opt out altogether. For a start, patients need to be sure that the rules they agreed to will be strictly abided by and enforced. Professionals may well want guidance about what the community as a whole will accept.

So when it comes to these particular frozen embryos we should follow the rules. When couples consented to IVF treatment five years ago, they knew that additional embryos would be created and frozen. They were assured that those embryos would not be taken for medical research, or given to another couple, without their consent. And they were told that unless they indicated otherwise, the embryos would be destroyed this year.

Ideally each couple should now decide the future of those embryos. Some will want them preserved for longer, if they are spreading a family, or saving for another round of IVF treatment. But 900 couples cannot be traced. Perhaps the HFEA should make more effort to track them down and force them to make the decision themselves. But should they fail to do so, the procedures are clear; as the producers expect, the embryos should be destroyed.

The pro-life lobby believes that the rules are immoral. However, it would be far more unethical to change the rules now. Imagine if we took David Alton's advice. Couples could suddenly find that against their wishes someone else was bearing and bringing up the brother or sister of their own children. That wasn't something they were warned about when they first agreed to fertility treatment. Nor is it something they should be forced to deal with and adjust to now.

David Alton and his pro-life supporters are actually trying to return the debate to first principles again; human life starts at conception and is sacred. Therefore unwanted day-old embryos are orphans. However, most people disagree with Alton's first principles, believing instead that there are no strict absolutes, only judgements to be made and balances to be achieved. No one will stand in the way of parents who agree with Alton (and the Vatican) braving the heartache of trying to bear every frozen embryo to term. Heartache, it undoubtedly will be, as very few implantations of frozen embryos are successful.

But the absolutists cannot impose their views on other families who disagree. What dies with the embryo is not a child, but a couple's potential for children. We should not be distracted by old debates when new ethical dilemmas over fertility are demanding our attention all the time. One such example is the HFEA's announcement this week (lost amidst the fuss about orphans) that they planned to phase out payments to women who donate eggs. The HFEA are concerned that financial inducement is a bad reason for giving eggs, and risks undermining both respect for human life, and genuine free choice. Donation, they say, should be a gift.

The same approach applies to spare embryos; these could in principle be donated to infertile couples, but they cannot be sold to them. Our anxieties about the effects of an unregulated free market in fertility go to the heart of our reasons for legislating at all - rather than just allowing everyone to do exactly as they wish.

But here we are still feeling our way. Unless the taxpayer has a sudden change of heart and agrees to the extra cash for free fertility treatment for everyone, there will always be money involved. And some people will struggle to afford the treatment they so desperately want. Allowing couples to sell their extra embryos in order to pay for their own treatment may not be so immoral after all. Many people may prefer to have five children - two of whom are brought up by strangers - than to have no children at all.

We don't know the answers, we probably all have different answers. But we reach better conclusions if we move forward slowly, rather than allowing ourselves to be nannied by legislators or cowed by the absolutism of Alton and his ilk.