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Human Fertilisation and Embryology Bill [Lords]
5:15 pm

Further provision relating to sections 35 and 36

Question proposed, That the clause stand part of the Bill.

5:30 pm
Photo of Mark Simmonds

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

I have one question about clause 38 and how it will operate in practice. If a donor-conceived child is implanted in a woman and both the parents consent but are unmarried, and if during gestation the mother marries a different man, the husband under common law becomes the father. That is right. What happens if the woman who has had the embryo implanted enters a civil partnership? Does the new civil partner become the parent post-embryo transfer?

Photo of John Pugh

John Pugh (Shadow Minister, Treasury; Southport, Liberal Democrat)

I was hoping that the Minister could enlighten me along similar lines. I need to clear my head about this. As I understand it, if the father is the genuine, biological father through the normal route, he retains parental rights even if the relationship breaks up after pregnancy. If, on the other hand, IVF is the procedure through which the child is generated, it appears that if the relationship breaks up mid-process, all rights are forfeited. I think that they are forfeited regardless of whether the broken-up-with partner is the donor or not—it does not matter if the donor is someone else or the partner concerned. If the person then remarries, the newly married partner legally assumes the responsibilities—I think that I am correct in saying that.

We seem to have a degree of legal asymmetry, if I can put it like that. It would seem to be that in the case of civil partnerships it is, in a sense, a choice, whether the new civil partner does or does not take on the role and responsibilities of the parent. Does the Minister recognise  that legal asymmetry? Is that legal asymmetry just the result of a read-across from civil partnership on one side and marriage law on the other side? Is it simply the consequence of other bits of legislation? Or are those differing responsibilities and rights created by the Bill itself?

Photo of Dawn Primarolo

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

In the circumstances in which the hon. Member for Boston and Skegness described, it would be presumed that the new husband was the father of the child. If it was a civil partnership, the new partner would become the recognised parent, because the relationship was there before the child was born.

Photo of John Pugh

John Pugh (Shadow Minister, Treasury; Southport, Liberal Democrat)

I hate to correct the Minister, but the explanatory note says that there is

“no parallel presumption at common law for people who enter a civil partnership.”

Photo of Dawn Primarolo

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

If the marriage is dissolved and the person enters into a civil partnership, there is no common law presumption of legality to the original donor, which would therefore be the legal father. The hon. Gentleman is quite right. That is to do with the point at which it goes back to the previous clause, at which point the consent was active and the embryo was implanted into the woman.

This is much too complicated, Mr. Hood. The hon. Gentlemen should write to me so that I can understand the unusual circumstances that might arise. The hon. Member for Boston and Skegness has put on record a case that I understand, but I am not so clear about the case detailed by the hon. Member for Southport. I will then send them a letter.

Photo of Dawn Primarolo

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

Just a moment. Please let me deal with one complex point at a time. I will then give to the Committee the legal route that the case would follow and the consequences.

Photo of Michael Penning

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

Surely it would be more logical and helpful to the Committee—some of us did not follow what the hon. Gentleman was saying either—if the Minister could send to the Committee a copy of the transcript when it appears tomorrow, so that we know where we are, rather than having correspondence flying between one Front Bencher and another.

Photo of Dawn Primarolo

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

That is a helpful intervention, and it corrects my position. The hon. Member for Boston and Skegness outlined a scenario in which one legal relationship has broken up and another has been formed. He wishes to see the interaction between the consent given originally and the new circumstances. The point at which consent could be withdrawn has passed because it is during the pregnancy. At that later moment, what is the difference between being a married couple as opposed to a civil partnership, and what rights are transferred to each person in those circumstances? That is the mess that I have managed to get myself into. That is what I understand the question is and that is what I will seek to answer by way of “if this happens, that happens” to the Committee so that it can see where the legal responsibility finally ends up in either relationship. Would that be helpful?

Photo of Mark Simmonds

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

I am grateful to the Minister for her response. I am also pleased that she understands the question that I am asking, and the reason behind it. It would be helpful for the Committee to understand the response to that particular situation. I suspect, and I think that this was the point that the hon. Member for Southport was making, that it is not a simple matter of reading across from marriage to civil partnerships. Disparities will be exposed, and that was the point of asking this particular question. If the Minister can confirm that in writing after she has read Hansard tomorrow, that would be very helpful. That will have a knock-on impact for subsequent clauses that we will be discussing later on.

Photo of Dawn Primarolo

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

Absolutely, and it is about the common law presumption to which we have referred before. We need to focus clearly on that before we enter discussions on some of the other clauses dealing with surrogacy later in the week. I accept that point.

Photo of Evan Harris

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

I have kept out of this one because I am not clever enough to follow the strange family arrangements that the hon. Member for Boston and Skegness and my hon. Friend the Member for Southport feel so uncomfortable about discussing. This is probably an obvious point, but if there is not a read-across between marriage and civil partnership, does that lead to problems of discrimination? It is my understanding that it was the intention of the law, and policy, to ensure that as far as possible—even if it means converting from common law to statute law to provide that equality—there should be equality between civil partnership and marriage because someone could claim that they were not being given a presumption that other people were and that that was a significant infringement of their rights to equal treatment. There is a presumption in one case but not in the other and civil partners have to strive to overcome that extra barrier. I have raised that as a question for the Minister to consider.

Photo of Dawn Primarolo

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

I will reflect on that point. However, the Government have signed to say that the Bill complies with equality legislation so our lawyers will have checked it.

Question put and agreed to.

Clause 38 ordered to stand part of the Bill.