(Except clauses 4, 11, 14 and 23, schedule 2, and any new clauses or new schedules relating to the termination of pregnancy by registered medical practitioners) - Clause 29
Human Fertilisation and Embryology Bill [Lords]
4:00 pm
Dawn Primarolo (Minister of State (Public Health), Department of Health; Bristol South, Labour)
Before we broke this morning I was responding to the amendment tabled by the hon. Member for Oxford, West and Abingdon about offences under the Human Fertilisation and Embryology Act 1990 and the Bill.
The 1990 Act makes it clear, as I said this morning, that it is an offence to store gametes, or to create, use or store an embryo, without a licence. The Bill introduces further offences relating to the creation without a licence of human admixed embryos, to come alongside the provisions that already exist. Those offences apply whether or not a person intended to create an embryo or human admixed embryo. In addition, it is expected that any person working in the field will know the rules under the Act when they apply, and when a licence is needed. The point that the hon. Gentleman has raised in relation to his amendment is about things that happen accidentally or without being planned, because of the nature of division before fertilisation. I shall answer his specific points.
It is my view, and that of the Government, that the clear set of rules that has been set out is appropriate. That is because we are dealing with one of the most sensitive areas, which Parliament has deemed it appropriate to regulate. I appreciate—the hon. Gentleman quoted from the letter that I circulated to the Committee—that there are occasions when an embryo could be created when that was not the intention. An example would be the accidental creation that the hon. Gentleman referred to this morning.
Amendment No. 173 would add a new defence to the 1990 Act for a person charged with an offence of creating, storing or using an embryo or admixed embryo, or storing gametes, without a licence. It would allow a defendant to raise the defence that at the material time they believed that what they were doing was not something to which the Act applied. As I said this morning, it is not acceptable in this complex area for the law to include a caveat to the effect that, despite the fact that incredibly knowledgeable people are engaged in highly complex activities, the test should be what was or was not in the mind of the researcher as to whether the creation was accidental.
I reiterate what I said this morning: there is no defence in the 1990 Act, and for a prosecution to be brought under that Act some safeguards or additional points need to be borne in mind. The Crown Prosecution Service must first obtain the consent of the Director of Public Prosecutions to proceed. That is not a common proceeding for criminal offences. It is reserved for offences in relation to which weighing the discretionary factors relevant to the decision whether to prosecute is likely to be a sensitive and difficult task. That makes it desirable for the CPS to obtain prior approval for a prosecution. If an offence were committed under the 1990 Act, the facts of the case would be looked at carefully and in detail before any proceedings were brought. That is necessary in such a complex area.
The hon. Member for Oxford, West and Abingdon quoted from the letter that I circulated to members of the Committee last week. Where there is any doubt about particular research projects, it would always be wise to talk to the HFEA about whether a licence was required. Indeed, there is currently a licensed project in connection with the research that we are discussing, which indicates that such projects are covered by the current definitions, so no further clarity is required.
I would, however, go further. The amendment says that, although the individual creates an embryo, they do not think that the Act applies to them. However, we have talked about the responsible person and the circumstances under which a licence would be granted or revoked, and the obligations are quite clear: the emphasis is on the researcher to understand and comply with the law.
Clearly, a researcher storing eggs will know that they could divide and thus create an embryo. Such people are at the forefront of their science and need to be aware not only that such things can happen, but of the consequences. Equally, they should know that the 1990 Act regulates their activities. It is therefore incredibly difficult to see how the defence in the amendment could work, given that it is based on what each researcher will know, instead of taking a clear line from the Bill, with the caveats that I have outlined regarding when a prosecution might proceed. This is not a new issue, and there is no indication that we should move away from the current arrangements.