Mark Simmonds (Shadow Minister, Health; Boston & Skegness, Conservative)

I beg to move amendment No. 5, in clause 15, page 11, line 47, leave out ‘ten’ and insert ‘seven’.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss amendment No. 34, in clause 15, page 12, line 3, leave out ‘ten’ and insert ‘seven’.

Mark Simmonds (Shadow Minister, Health; Boston & Skegness, Conservative)

Amendment No. 34 is a consequential amendment to amendment No. 5, so I shall concentrate on the latter. It is, I acknowledge, a further probing amendment, which relates to how long gametes and embryos can be kept in storage. At the moment, embryos can be kept for five years, and then for five years beyond that, if the couple chooses. Will the Minister put on record what evidence exists that embryos and gametes are of sufficient quality after and up to 10 years? For how long afterwards does she believe that embryos can be kept in storage without deteriorating, if there is indeed evidence to support that?

Is the Minister concerned that removing the five-year break will result in fewer couples giving their embryos for research as they will not necessarily be reminded of the possibility after the five years? As the 1990 Act  lasted for 18 years, I think that the general view in the Committee is that we wish this Bill, after it becomes an Act, to last similarly long. Is it possible to change the time period under regulation if future techniques allow longer storage?

I think that a recent case forms the basis of an amendment that has been tabled by the hon. Member for Oxford, West and Abingdon. A young girl, because of treatment she has received, will not be able to have children later on in life. However, she is of such a young age that even if her mother donates an egg for her now, after the 10-year period has elapsed, she will still not be old enough to have a child. Regulations might allow that situation to be changed as scientific techniques develop and, again, it could be amended by new clause 2, which was tabled by the hon. Gentleman.

Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)

I recognise that limits on the storage of gametes and embryos can cause some concern. The length of storage needs to ensure fairness, while also taking into account the safety of freezing. I believe that the statutory 10-year period for gametes, with extended storage for medical reasons, remains appropriate. I also consider that the same limits should be applied to embryos. Therefore, the Bill brings storage limits into line with each other.

The Warnock report proposed a 10-year period. I suppose that the hon. Gentleman is quite right about which years one picks—it is arbitrary. Five years was the decision of Parliament. In the 24 years since the report was published, there has been no body of evidence to suggest that using embryos that have been frozen for 10 years endangers a mother or child. There is a possibility of change—the hon. Gentleman pointed to the regulating power—enabling an extension beyond 10 years in specific circumstances, but that is something that would need to be considered later. At this point, because we can see that there is an application to go further, it seems sensible to go for 10 years. I suppose that his guess might be as good as anyone else’s. That is the reason for settling at 10 years, but allowing variation under specific circumstances and having the regulatory power in place, if it is necessary to extend it further in the future.

Mark Simmonds (Shadow Minister, Health; Boston & Skegness, Conservative)

I am grateful to the Minister for that explanation and for the confirmation that there are regulatory powers for changing what is in the Bill, if scientific advancement allows. In that context, I beg to ask leave to withdraw the amendment.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss new clause 2—Extension of statutory storage period for treatment of blood relatives

‘(1) The Human Fertilisation and Embryology (Statutory Storage Period) Regulations (S.I. 1991/1540) are amended as follows.

(2) In regulation 2(1) for “paragraph (2)” substitute “paragraphs (2) and (2A)”.

(3) After regulation 2(2) insert—

“(2A) The circumstances referred to in paragraph (1) are that the gametes were provided by a person who has given written consent for them to be used by another person—

(a) who is a blood relative of the person providing the gametes,

(b) whose fertility was, in the written opinion of a registered medical practitioner, significantly impaired on the date on which the gametes were provided, and

(c) who was aged under 45 on the date on which the gametes were provided.”.’.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat)

I wanted to draw attention to something that has already been touched upon: a problem with not only the current storage legislation, but the regulations. The Minister will be aware of the case that I am going to cite on behalf of my hon. Friend the Member for Hazel Grove (Andrew Stunell), who has been assiduously pursuing the issue for one of his constituents. He raised it on Second Reading and wrote to the Minister on 14 May to set out the problems. I thought that it would be useful to summarise the situation and to quote from that letter, with the permission of my hon. Friend.

The problem is that the regulations for storing gametes were set by the Human Fertilisation and Embryology (Statutory Storage Periods) Regulations 1991, which could, in theory, be amended under the current Bill. In this case, there is a woman whose daughter suffers from Turner syndrome. That is not life-threatening—a relatively normal life can be led with treatment—but one of its features is infertility. In this case, the mother wishes to donate her own eggs so that her daughter will be able to have children by IVF treatment in the future. The problem is that the time limit for storing gametes is set at 10 years. Regulations state that gametes must be donated before the donor reaches the age of 36, which creates a problem in this family and, presumably, others. If the mother donated before the age of 36, the 10 years would expire when her daughter was still only 18 and therefore extremely unlikely to be ready to use the eggs.

The Committee will be aware that the current regulations provide for an exception if the gametes are stored for the use of the donor. However, according to a letter received by my hon. Friend the Member for Hazel Grove from the HFEA, the reason for the 10-year limit is that it is best if clinics are not overburdened by the number of samples in storage. I accept that there is a regulatory issue, so the question is whether there could be exceptional circumstances in which samples might be permitted to be stored for longer than 10 years, for example if donated eggs are intended for another family member who is infertile, which is the case that my hon. Friend has made in a number of forums. Would new clause 2 achieve that? If not, might an amended version?

There is discretion on retrieving eggs after the age of 36. In exceptional circumstances, clinics can use eggs from women over the age of 36, but I think that everyone is aware—the Minister is, of course—that fertility and thus the efficacy of the treatment diminishes rapidly after that point.

Even if the drafting of new clause 2 is not perfect—if there are imperfections, it is through no fault of my hon. Friend—I hope that its intention is clear. It states that an exception can be made when a person

“has given written consent for them to be used by another person...(a) who is a blood relative of the person providing the gametes...(b) whose fertility was, in the written opinion of a registered medical practitioner, significantly impaired on the date on which the gametes were provided, and...(c) who was aged under 45 on the date on which the gametes were provided.”

This is not a unique case—I am conscious of the fact that we should not legislate to provide for an individual case—and I wonder whether an amendment could be made. Obviously, we do not need primary legislation, so I would understand if the Minister said that the Government wished to consider the matter themselves and introduce their own regulations to allow for an exception.

Mark Simmonds (Shadow Minister, Health; Boston & Skegness, Conservative)

My concern with new clause 2 is about the extremely broad nature of the phrase “blood relative”. Has the hon. Gentleman thought about narrowing it down to a sibling, son or daughter of the donor to exclude third cousins twice removed and so on?

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat)

That is a fair point. There are questions about whether the wording is broad. I am not wedded to the wording of the new clause, so I accept that it might need further work. I have never claimed to be a parliamentary draftsman, despite what was said earlier, and I do not seek to be one. My cup overflows already.

I wish to make a further point about surrogacy. I have not tabled an amendment on this, but any provision would be very similar to new clause 2, so the matter relates to this debate. The Human Fertilisation and Embryology (Statutory Storage Period for Embryos) Regulations 1996 specify the period for which gametes and embryos respectively can be stored in cases where the patient is, or will become, permanently infertile. In extending the normal five-year storage period, the regulations enable patients to preserve their last chance to conceive their own genetic child until the female patient in question is approximately aged 55. Although the Bill extends the normal embryo storage period from five to 10 years, which I think is a good idea, it does not amend the special regulations for extended storage. I think there is a case for the regulations to be updated to benefit patients conceiving their own children through surrogacy. Surrogacy patients are explicitly excluded and, in practice, it seems to me—and to those advising me—that it is utterly arbitrary that a woman who has had her ovaries removed due to cancer can store her eggs and embryos until she is 55, but a woman who has had a hysterectomy due to cancer can store her eggs or embryos for only 10 years. That seems to be somewhat unfair, so I was wondering if the Minister would consider there to be scope to bring the situations more into line—if not in this Bill, through regulations.

Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)

I ask the hon. Gentleman not to press new clause 2 to a Division because I think that he raises a number of difficult issues with regard to some aspects of the regulation. As he has pointed out, there are regulation-making powers under the 1990 Act, and the Bill allows changes to regulations, such as those relating to statutory storage periods of gametes.

The hon. Gentleman made the point that it is not always wise to make primary legislation on the basis of one case. Perhaps if I could tell him when the regulations will be available for consideration, he might rightly feel—as I do—that that would be the appropriate place to raise these considerations. New policies will be proposed in regulations and they will need to be consulted on. The timetable for those regulations is such that the drafts will likely be available toward the end of this year.

I think that the points that the hon. Gentleman raises could be appropriately dealt with in that consultation and the consideration of those regulations, rather than through new clause 2, because there will be other points to consider. For example, the hon. Gentleman touched on surrogacy, which is not addressed by the new clause. There might well be other exceptional circumstances, but it would be wise to address them all in one place in the regulations.

I hope the hon. Gentleman and the hon. Member for Hazel Grove accept that the Government see that this issue needs to be addressed and intend to ensure that that happens during the consideration of the regulations, which will take place before the end of the year. That will be the appropriate point of the consultation to add in some of the points that the hon. Gentleman is suggesting.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat)

I thank the Minister for that response, although she did not necessarily say that she agreed that there should be a solution. I think she did accept that there was a problem in this case.

Dawn Primarolorose—

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat)

I am sorry if I misunderstood.

Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)

No, no, with respect, I do not know whether there will be a solution. I agree with the hon. Gentleman that it would be desirable to find a solution and the appropriate vehicle for this is the regulations. At this time, I do not know, so that is my only point.

Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat)

I apologise to the Minister. I am satisfied that she recognises that there is a problem and that she suggests that rather than trying to amend primary legislation through new clause 2, or another version of it, the appropriate time would be either during the drafting of regulations, or their redrafting following the consultation. I am delighted because she has confirmed that there will be a consultation on drafts, which we discussed earlier. That is always good when regulations are being considered because once they are laid, it is impossible to amend them unless the regulations are withdrawn.

I am grateful to the Minister for indicating that she hopes that the drafts will capture, if possible, a solution to a problem that she acknowledges. I am sure that my hon. Friend the Member for Hazel Grove, who might be listening to the debate using new or old technology, will share my gratitude—and, I suspect, that of his constituent—to the Minister for her positive response.