Clause 39
Human Fertilisation and Embryology Bill [Lords]
Public Bill Committees, 10 June 2008, 5:30 pm
Mark Simmonds (Shadow Minister, Health; Boston & Skegness, Conservative)
Clause 39 is quite important because it relates to the use of the man’s sperm after his death, irrespective of whether the embryo was implanted before or after his death. Subsection (1)(c)(i) refers to the circumstance where a man has consented to the use of his sperm after his death. Will the Minister confirm whether it would be standard practice on the consent form relating to clause 37 for a man to also give consent regarding use of his gametes after his death, or whether that is completely separate? Also, how does it work in relation to married couples, where a consent form is not required because consent is presumed? Can it be proved otherwise? Is specific post-death consent required?
The further point I want to make about clause 39 is that subsection (1)(d), which I do not understand, gives the woman the right to choose whether the man is considered the father of the child. Presumably, if the original father, prior to his death, consented for his genetic material to be used for the treatment for the purposes of creating a child after his death then he is the genetic father. Unless the woman has remarried, and therefore under common law the new husband is the father, why does the woman have the right to be able to choose whether the man is considered the father? He is the father; he is not an anonymous donor. Perhaps the Minister could also explain—I know that the right hon. Member for Coatbridge, Chryston and Bellshill will be interested in this—why there is a difference between England and Scotland on the 42 days and the 21 days requirements.
John Pugh (Shadow Minister, Treasury; Southport, Liberal Democrat)
I just want a simple clarification, but a more basic one. The clause states that if the man has agreed in advance and the woman chooses this within 42 days of the birth of the child, the man can be identified as the father of the child, provided, as the hon. Gentleman has said, that the woman is agreeable. If, as in that case, the sperm of a deceased person is being used, is there any limitation, whether biological, physical or legal, on how long that sperm could have been around? Theoretically, in legal terms we could be talking about a 10 or 15-year period and I wonder whether the law allows any possible period to be used. That could have significance for all sorts of inheritance issues.
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
There are no inheritance issues here.
Clause 39 replaces, for future cases, provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. Those provisions relate to the use of a man’s sperm to create a child with his consent after he has died. The clause provides that, where a woman conceives a child using the sperm of a man who has died, or where an embryo was created with his sperm before he died, but was transferred to the woman after his death, and the man had consented to the use of his sperm in this way after his death and the woman who carried the child gives notice in writing within 42 days—or in Scotland, within 21 days—after the birth of the child that the man is to be the father, then the man is to be treated as the father of the child, for the purpose of birth registration alone. That applies whether the assisted conception treatment of the woman was in the UK or elsewhere. Clause 39(1)(d) encompasses the right of the woman to choose to record the man on the birth certificate, which is symbolic. The man will be deceased, and that is why the woman has the right to choose.
The difference between Scotland and England and Wales is connected to birth registration, which is a devolved matter. The provision in the Bill reflects the fact that the standard time period in each country for birth registration is different—before the hon. Gentleman asks me, I do not know why, but it is—and it reflects the difference on devolved matters. That is what we are seeking to ensure. It is a standard part of the HFEA’s consent forms to ensure that such consent has been given when embryos and gametes are stored. The measure builds on the Act to which I referred, which I hope clarifies—
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
I have not concluded my remarks. I was going to give way at the end of my sentence but I have forgotten what I was going to say.
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
I can confirm that that is the case—the measure is for birth registration. It allows parenthood only to be recorded symbolically on the birth certificate and confirms no other legal status to the father—nor could it—and therefore no inheritance rights for the child. If a father wished to leave some of his estate to his unborn child, he could make that clear in his will. That is how such a situation would be dealt with.
Mark Simmonds (Shadow Minister, Health; Boston & Skegness, Conservative)
I am grateful to the Minister for her response but, unusually, she did not answer one of my points—I may have misunderstood or misheard what she said—on paragraph (d). It appears that a biological father who donated sperm prior to his death could, by the choice of the woman who has the child, never be placed on the birth certificate in the first place. He would therefore not be the father even if he consented for his sperm to be used for the purposes of creating the child. I do not understand what the defence for paragraph (d) is. The Minister explained what it does, but not why, nor why it is in the Bill. If the woman does not choose the biological father to be named as the father, and the mother has not remarried and, therefore, under common law, found a new father, who will be the father of the child?
Evan Harris (Shadow Minister, Innovation, Universities and Skills; Oxford West & Abingdon, Liberal Democrat)
I remember the debates on the 2003 Act, which began life as Tony Clarke’s private Member’s Bill—many of us remember him. It was predicated on the fact that Diane Blood, in that famous case, was keen to ensure that her late husband’s name could be on the birth certificate, prospectively at least, even if she were to receive treatment abroad. It was the view of the Committee that considered that Bill that the woman should be able to reflect on that issue after the birth of the child. The legislation was designed to provide maximum flexibility to a woman in a difficult situation, who was recently bereaved or who only recently became a mother, so that she could decide whether she wanted to put her late husband’s name on the birth certificate.
Mark Simmonds (Shadow Minister, Health; Boston & Skegness, Conservative)
I am grateful to the hon. Gentleman for that helpful intervention—it shines some light on the measure. I was in the House in 2003, but the private Member’s Bill to which he referred passed me by. Will the Minister confirm what the hon. Gentleman said, because I did not get the impression that she put forward a defence of paragraph (d)?
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
I referred to paragraph (d) and the right of the woman to choose to record the man’s name on the birth certificate, and said that it would be symbolic in the sense that it would not convey any further rights.
The hon. Member for Oxford, West and Abingdon asked what needs to happen. Both the man and woman would need to consent to the former’s name being put on the birth certificate. That allows the woman to decide finally whether to do that and gives her the final choice. That is not a right that can be enforced against another without their consent, so if there was not consent, it could not occur.