Clause 3
Human Fertilisation and Embryology Bill [Lords]
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
Before we broke for lunch, I was responding to the hon. Member for Oxford, West and Abingdon on the subject of artificial gametes. I was explaining to the Committee that there is currently research into in vitro maturation and in vitro growth of gametes, and this involves taking immature eggs or sperm and maturing them in vitro. This could allow eggs to be matured from ovarian tissue and sperm from testicular tissue without the need for the tissue to be transplanted back into someone. It could also be used to treat certain types of infertility where there the development of the eggs or sperm is blocked.
The current definitions do allow gametes matured in vitro to be considered permitted. The Bill also allows research into the development of artificial gametes, including the ultimate test as to whether an artificial gamete is considered functional fertilisation. If an artificially derived sperm can fertilise an egg, or an artificially derived egg can be fertilised, the sperm or the egg could be described as functional. However, the hon. Gentleman, in quoting various references, including quite a lot of the debate in another place, did not do justice to the challenge that researchers face. A lot more research and reassurance would be required on the functionality of such gametes before it would be appropriate to use them in treatment.
The Government’s position is that, if research into artificial gametes demonstrates that they might effectively be used in treatment, this should of course be considered. However, our current view is that there is too little research into how these cells might be derived, and into the safety of such techniques, to be able to make an informed judgment about their use. The application of this technology would be highly significant. It would mean a baby being born having been created from cells other than eggs and sperm, and it is my view that it would not be appropriate to allow such a significant development without proper consultation and parliamentary scrutiny.
The hon. Gentleman touched on that himself when he quoted the British Medical Association. I disagree with the view of the BMA in that I think we need more than regulations—even affirmative ones—in order to discuss the matter. It is something that will significantly change the way people have children, and it is entirely appropriate that proper consideration is given to any decision about allowing it. The hon. Gentleman also touched on who, under the regulations, would be allowed such treatment, and whether the regulations could prescribe those who would be allowed access to this treatment if it turned out, in x years’ time, to be successful. Given all the complexities with regard to DNA and its development, and this particular route of research, could any regulations restrict those who would be entitled to apply for it?
First, any regulating power would need to be considered in the light of the need for the Government’s action to be compatible with the European convention on human rights. If the technology could be made available to same-sex couples and heterosexual couples—and there is a continual series of “if”s in these sentences—there would need to be a strong, objective justification for treating same-sex couples differently. I have to say to the hon. Gentleman, regardless of whom he has spoken to in his extensive discussions on this matter, that I am not aware of any such strong justification for the writing of a power to prevent access by some.
Of course, the point about discrimination is crucial. The use of this technology for heterosexual couples only would be difficult to justify objectively, but there are wider questions. This is fundamentally different. It raises different ethical issues to those raised on mitochondrial donation. The Government are not saying “no” to this ever happening in the future. We are saying that, at the point at which this research is, further work needs to be done, further consideration of the ethical and scientific reasons for pursuing it—
Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West and Abingdon, Liberal Democrat)
Will the right hon. Lady give way?
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
The hon. Gentleman spoke for half an hour. If he will allow me to conclude my points, I will be happy for him to come back in.
It also seems to me that when this House considers the science, particularly in this area, we need to be able to satisfy ourselves where that science may take us, what issues will be raised and whether or not we feel able to come to decisions on this subject. His hon. Friend the Member for Southport talked about a blank cheque. I entirely reject that notion. Research is at an early stage, and we are not clear where it is taking us. We have not had a full debate about what is possible or discussion of the ethical issues involved. The Government are not saying no to the idea, but we are saying that further consideration needs to be given and proper consultation carried out. Now is not the time, and a regulating power is not the way forward.
That is why, when the hon. Member for Oxford, West and Abingdon and others raised it before, the Government declined to take the route that they suggested. It is not the right way to proceed with legislation to say afterwards that we will answer all the questions once we have given a regulating power that we may or may not switch on. In the previous discussions, we clearly flagged up what the regulations would need to address—for instance, for mitochondrial donation, and those debates are already going on. It is on that basis that I would decline such an amendment to the Bill if it were before us—it is not. I hope that the clause will stand part of the Bill.
Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West and Abingdon, Liberal Democrat)
It is not clear to me whether the Minister is giving way. If she does not give way, her remarks become just an exposition. The whole point of a ministerial response to a debate is to allow interventions if the Minister is sure of her ground, as I am sure the right hon. Lady is. I do not know why she would not wish to take interventions. If she does not, it gives her the right to stay seated and not respond to specific questions after she has set out her position. So I am asking whether she is willing to respond again—
Dawn Primaroloindicated dissent.
Roger Gale (North Thanet, Conservative)
Order. The right hon. Lady has made her position plain. She has stated her case and she has sat down. It is entirely open to the hon. Gentleman to come back, as the right hon. Lady indicated.
Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West and Abingdon, Liberal Democrat)
I am coming back, but I was wondering whether I would be wasting my breath in a sense in asking her to respond to particular points, as is usual in a Committee stage debate, or whether she is just intending to stay seated. I would like to know that so that I can bear it in mind when I choose what points to make. Either I am making concluding points, or I am asking further questions.
Roger Gale (North Thanet, Conservative)
Order. I suggest, respectfully, that the hon. Gentleman puts it to the test.
Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West and Abingdon, Liberal Democrat)
I think that is wise advice. Let us see if the Minister is prepared to answer a couple of questions. I am grateful to her for setting out what she did, and I would like to deal with two key points that she raised. First, on discrimination. she argued that strong, objective justification would be needed to treat same-sex couples differently from heterosexual couples. This is an interesting question, because we are talking about whether an individual will be able to access specific treatment. An infertile male who is being treated with a woman may currently receive treatment from an in vitro fertilisation clinic in the form, for example, of donor sperm—they do not receive donor eggs. Where a woman is infertile, the problem is dealt with by means of donor eggs, not donor sperm. That could be an individual woman seeking treatment on her own, where no couple is involved.
One could therefore argue that the test is whether the person is being treated in a reasonable way and whether they are receiving treatment. My understanding of the Human Rights Act 1998 is that it does not give people the right to receive a specific treatment, as long as they are not unreasonably, disproportionately discriminated against in accessing treatment or services. My first question, therefore, is whether the Government have legal advice stating that there is an issue of discrimination against same-sex couples. Secondly, can they see no objective justification for legitimising the distinction that I have described by setting it out in regulations that a man must be treated with sperm from stem cells and that a woman must be treated with eggs from stem cells? I have taken informal advice from human rights lawyers, and they believe that there is an objective justification for such a provision, even if it involves different treatment that might be considered indirectly discriminatory. Same-sex couples can be treated with donor sperm and eggs. We are talking about treating infertile individuals to give them their only chance to have children with the same genetic relationship that one would expect with a father.
On my second question, the Minister said that the proposals would raise different ethical issues, and I listened carefully to what she said in identifying them. She said that the proposals would significantly change the way in which people have children and that we would be creating children through cells other than eggs or sperm. However, I do not think that we would be doing that, because we would still have to create an embryo “by...fertilisation”, to use the words in the clause. The fertilisation would have to be done by a germ cell, even if it had been derived from a somatic cell. The words in the clause—I am keen to stick to them—specify that very clearly. It cannot be said that the regulations would allow anything other than an embryo to be created by fertilisation. The Minister herself referred to the fact that gametes are widely defined for these purposes as germline cells at any stage of maturation. They are not necessarily sperm or eggs—they are certainly not necessarily sperm. Immature spermatagonal cells count as gametes in this respect. If they are grown or matured in vitro, they would not necessarily be sperm. The Bill therefore already provides for embryos to be created by fertilisation using cells that are not sperm—we should be clear about that. Given that necessary protection in the Bill, it is not right to say that embryos will be created by cells other than eggs or sperm, except to the extent that is already permitted for immature gametes for the purposes that the Minister has set out.
The proposals would not significantly change the way in which people have children. If the Government thought that the issue was ripe for consultation in 2005—indeed, it was put out for consultation—it should be ripe for discussion in the House now. It cannot be considered premature, a priori, to debate the issue in the House of Lords and the House of Commons. In 2005, the Government were of the view that a regulation-making power was legitimate; that is the position that they started from in their consultation paper. I am concerned that they have decided against allowing a regulation-making power without having very good reasons, albeit that they have pragmatic concerns. Their position is not clear to me. It does not look as though the Minister is responding to the two points that I am making.
In a consensus statement dated 11 April 2008, the Hinxton group set out how close it thought this science was to reaching the clinic. My understanding is that this peer review group thought that it was five to 10 years away. That is before the time scale within which another Bill is likely to be introduced. They recommended that the Government look kindly on permissive legislation which would allow that to happen, and made it clear that they thought there was a great deal of hope, with this technology, for clinical treatment of individuals. It is unfortunate that the Government seem to be opposed to allowing a regulation-making power now without setting out clearly why they think it would be discriminatory to restrict it and, separately, what the key ethical issues are and why they are new compared to other issues.
I conclude my remarks by regretting that the Government have not been willing to set out clearly their grounds for believing that the amendment tabled in the Lords would be too discriminatory, not setting out why they think there are fresh and significant ethical concerns here, and not appearing to be willing to have a debate in a Committee of Parliament about those issues.
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
The hon. Gentleman creates a case, advances it, and then, when he does not get the answer he wants, says that a justification has not been given. He asked me a question about discrimination, and I gave him the answer with regard to advice. The hon. Gentleman knows that it is not normal for Governments to publish legal advice, and we are not about to start now. I went on to say that, notwithstanding the advice, there are ethical issues, beyond what is in the Bill, that need further consideration, and there is a difference between what we are currently providing for and what would be provided for in these circumstances. What we have is a stand-off. The hon. Gentleman simply does not agree with me. It seems to me that there is a difference between a power dealing with mitochondrial donation to avoid the transmission of serious diseases and with the repairing of existing embryos—which is where the regulation-making power is—and a different power dealing with artificial gametes and the creation of gametes and new life. There is a fine distinction.
On behalf of the Government, I am saying not that we have set our face against this, but that further discussion and further consideration of the issues is needed. I hear what the hon. Gentleman says, but not everybody agrees about how far away the science is from possible use. The appropriate way forward would be proper consultation on these issues and, if necessary, amendments to primary legislation. That is a far more significant and important place to have these sorts of discussions. I hear what the hon. Gentleman is saying and I understand that he disagrees with me, but no matter how many times he puts this proposition to me, that will be my reply on behalf of the Government.
There is a question of understanding the very fine differences between what science might be able to do in the future and how we seek to regulate it, and that goes to the very heart of what we are trying to deal with in discussing this Bill and its predecessor. Discrimination is a subset of that, but the ethical issues must come first. I am sorry if the hon. Gentleman does not agree because there is a lot about which we have agreed. However, in response to his raising such important issues in a clause stand part debate, I have laid out the reasons for the Government’s view and if the House takes a different view, that is a matter for the House. We remain wedded to our view.