Clause 1 - Certain deceased men to be registered as fathers
Human Fertilisation and Embryology (Deceased Fathers) Bill
10:30 am
Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)
I shall certainly speak strictly to the amendments. What I wanted to ask was whether it would be convenient to the Bill's promoter, other members of the Committee and you, Mr. Sayeed, if I were to deal first with amendments Nos. 7, 10, 13 and 16, which seek to insert identical words in various parts of the Bill and deal with lawfulness of procedure. In the light of any debate on those amendments, I will then return to amendments Nos. 5, 9, 11, 6, 12, 14, 10 and 15, which are linked but, at different stages, provide different options. They are obviously linked to the final group, because they were selected together. I am sure that the selection was correct in that respect.
First, I deal with amendments Nos. 7, 10, 13 and 16 and invite comments on them from the promoter. Each of the amendments seek to add the same words to the new subsections that the Bill will insert in the Human Fertilisation and Embryology Act 1990 after section 28(5).
On first reading the Bill, it struck me that the lack of a requirement to follow lawful procedure is a significant omission. I have already heard comments from the hon. Member for Northampton, South, and we will need a full debate on the question of whom we seek to punish—as he puts it. It is important to state the need for lawful consent to be obtained. We know that in the vast majority of cases of those affected by the Bill, the gametes or embryo have been obtained or removed lawfully. Indeed, generally speaking—although I would be interested to hear of any figures on the matter—the procedures will have been carried out in the United Kingdom in licensed premises, which implies that the storage and subsequent use of gametes and embryos has been lawful. I have no problem with that in terms of my amendments. Therefore, the vast majority of people who may benefit from the Bill by being able to name a father on the birth certificate, should not regard the amendments as a threat to that.
However, in a minority of cases—specifically that of Diane Blood—it has been established in the High Court that the consent to obtain the sperm was not lawful in the understood sense. The Court of Appeal judgment did not tackle that issue, so the ruling stands. I do not believe that there is any doubt about that. The matter must, therefore, be considered carefully.
We are discussing the Bill in the context of a climate in which consent is increasingly significant. In the light of events at Alder Hey hospital and elsewhere, there has been a focus on the need for consent, and for that consent to be appropriate and proper. The Government have led the way by debating the need for a statutory framework for consent instead of relying on case law, which formed the basis of the judgment in the case to which I referred. Practitioners and patients should know exactly where they stand. People should be offered the chance to give full and proper consent before their bodies are interfered with in life. I am surprised and alarmed that legislation is being framed now, post-Alder Hey, without due regard to proper consent, and that such an approach has Government support. I am fearful for the effect that such a signal will send about the Government's intentions, which I generally support, in terms of beefing-up consent law. In that context, the amendments need careful consideration, by the Government and by the hon. Gentleman.
In recent debates, we have also discussed embryology in the context of cloning. The Donaldson report stressed the importance of consent. Indeed, it was one of its recommendations that the consent of the person from whom gametes and embryos are derived is extremely important and the Government's response was fully to endorse that recommendation, and rightly so. In the light of that, it is surprising that a Bill should be promulgated which does not insist on lawful consent from whom the gametes are derived—that is, written consent, as established under the 1990 Act.
Thirdly, there is considerable concern about the prospects for reproductive cloning. The Government have rightly set their face against that and have sought to reassure the public, stating that no matter how desperate people may be, regarding themselves as victims and as having been dealt a bad hand, and seeing reproductive cloning as their only hope for reproduction and relief of their suffering—which is no less suffering for it being emotional and psychological—the law is the law and there should be no concessions. I accept that people see themselves as victims in the light of something that happened earlier over which they as the offspring of that act had no control. As a result, there will be a call for relaxation of the need for a robust law and robust requirements for consents. I urge the hon. Member for Northampton, South and the Minister to think carefully before allowing a Bill to go forward that allows such a signal to be sent out and such a law to be passed.
The hon. Gentleman said that he does not want the children of in vitro fertilisation or artificial insemination—under new subsections (5A) and (5B)—to suffer as a result of an unlawful act over which they had no control. The point of the Bill is to provide remedy for such children who will not, because they will not have been in existence, have had any responsibility for an unlawful, less than adequate or unlicensed practice that may have been carried out in the creation of their life. Nevertheless, that is a dubious basis on which to defend a proposal to allow the practice of obtaining gametes without consent, possibly in unlicensed premises without precautions in respect of the storage and use of the gametes.
It is incumbent on the hon. Member for Northampton, South to defend that view. At present, it is extremely unlikely that the children have the capacity to demand a change in the law. There is not yet a clamour from the children, as victims, to demand a father's name on a birth certificate. We recognise that it is reasonable for mothers to want the name of the father of their child on the birth certificate—in many cases, their husband or partner of long standing who was taken from them in tragic circumstances by an intervening fatal illness or accident. That wish is well understood, but we must understand that it is their wish, not the wish of the children. The argument against the amendments is that the children should not be punished by the insistence that the law is followed to the letter of the 1990 Act and to the custom and practice in case law of the obtaining of sperm.
Clearly, therefore, we have a duty duly to consider the mother's wishes. I do not deny that, but it is much more difficult to say that the mother is an entirely unconnected party in every case with what might be unlawful removal of sperm or gametes or unlawful practices in relation to the storage and use of gametes and embryos. Admittedly, other people will be involved, such as medical practitioners, and the hon. Gentleman feels that it is exclusively those practitioners, rather than the people requesting the treatment, who should be punished for unlawful behaviour in relation to the storage and use of gametes, or assault or negligence in relation to the removal of gametes from people who have not properly consented to such intervention on their autonomy and bodily integrity.
I question that. In the case of Diane Blood, the request for removal of sperm stemmed from her. The medical practitioner took the sperm feeling that advice that the appropriateness of such an act, which was urgent at the time, could be obtained later, but that act was later deemed to have been unlawful. That was challenged in the High Court, which endorsed the view of the Human Fertilisation and Embryology Authority that such a move was unlawful in terms of consent.
The argument that my amendment would punish innocent parties and that the sanction should apply only to those who perform the assault is therefore inadequate. I have advanced an argument in favour of the amendments in terms of the context and of the signals sent out and the need for the Government to be consistent. I have also started to deal with the argument, which I believe the hon. Gentleman will advance, that it is unfair to victimise someone for unlawful behaviour by someone else.
The reason that we have legislation and common law on the matter is that the House, and, in the case of the issue of gaining appropriate consent, the courts, felt it to be required. In those circumstances—I believe that there is broad consensus in the House, although hon. Members have their own views about what is appropriate—it is wrong to frame laws that do not insist, in the case of such an important matter, that that is so.
The HFEA is in the firing line in such matters. I asked it its view about the absence of a lawfulness provision in the Bill and have just been handed—this is as new to me as to the Committee—a response from Ruth Deech, chair of the HFEA. In a letter of 25 April, she says:
``Thank you for your inquiry about the issue of lawfulness in the Bill to make provision about the circumstances in which a man is to be treated in law as the father of a child resulting from fertility treatment after his death. The HFEA is enjoined by statute to uphold and enforce the lawful administration of fertility treatment, the storage of gametes and the truthful recording of treatment and its outcome. Now that the ambit of embryo research is to be extended, and reproductive cloning expressly prohibited, it is more important than ever that we continue to uphold those principles. An enactment that would give validation to the result of unlawful acts would tend to undermine our efforts in this field.''
I should be surprised if the House felt comfortable proceeding with a Bill in that form, without an amendment such as mine—I do not claim that mine is the last word on the matter—in the face of opposition from the person and authority that the Government have given responsibility for tackling the issue. I cannot emphasise enough that the authority under whose ambit the matter will fall seems to be opposed to that lack of provision in the Bill.
What discussions have been held with the HFEA on the drafting of the Bill? When the hon. Gentleman approached me about supporting the Bill, I raised my concern about the Blood case and although my sympathy for the person involved, and it is reasonable to ask what consultation has taken place.
The Government asked Professor Shelia McLean to conduct a review of the matter, and they said in a press release that they generally endorse the views of Professor McLean's report. On 3 December 1998, in a written answer, the then Minister for Public Health said:
``We welcome Professor McLean's Report which, following a thorough and comprehensive review of the complex issues involved, has delivered sensible and well argued recommendations. These include:
`in terms of the common law provisions relating to the removal of human gametes the report recommends that the current requirement for formal consent following adequate disclosure of information, should remain'''.
A separate point states:
``the courts should be asked to determine whether the removal of gametes is lawful where there is any doubt about such removal in cases where consent cannot be given in the usual way;
the requirement in the Human Fertilisation and Embryology Act 1990 for consent to certain treatment provided under the Act (such as in-vitro fertilisation and donor insemination) to be given in writing should remain, and be extended to all treatment provided under the Act''.
Further recommendations from the report that are included in the written answer, and which are relevant to the debate, are:
``that the 1990 Act should be amended to remove from the Human Fertilisation and Embryology Authority any discretion to permit the export of human gametes that have been removed unlawfully.
recommendations about the status of children born after the death of the gamete provider and the need for gamete providers to take account of succession rights of such children when storing gametes.''—[Official Report, 3 December 1998; Vol. 321, c. 257.]
The report could not have been clearer in backing the HFEA's position in court about the importance of lawful consent and, in cases in which consent has been deemed to be unlawful, worries about the ability to go further and export gametes that have been unlawfully obtained.
The legal expert whom the Government asked to examine the matter, and whose recommendations they have supported, was clear that consent—and therefore lawful removal of the gametes—is critical. If such consent is not obtained, and the gametes are not obtained lawfully, subsequent actions, such as the export of gametes, should not be allowed in any circumstances. There should be no discretion. From that it follows that, if the question had been asked about whether we should legislate to provide for fathers' names on birth certificates in circumstances in which there is no evidence that lawful consent had been obtained from the person whose gametes have been used and that he had consented to paternity, I believe that report would said that such consent must be obtained before that path is gone down.