Robert Key (Salisbury, Conservative)

Schedule 6 is an enormous part of the Bill; it is 27 pages long and, in the other place, it received substantial scrutiny. Other things have happened since, so I wish to ask the Minister to clarify one or two points.

On 12 December 2007, Baroness Deech noted in another place that birth certificates are used for all purposes and that they will be used all over the increasingly globalised world of proof of this and that. She argued that birth certificates should therefore focus on the child’s origins, not the situation of the parents. Baroness Barker disagreed, arguing:

“A birth certificate is not a certificate of somebody’s genetic identity...but...a record of who a child’s social parents are at any time”.

The title of schedule 6 is “Amendments relating to parenthood in cases involving assisted reproduction”. The Minister in the other place, Baroness Royall, argued:

“The Bill allows that same-sex couples, whether in a civil partnership or being treated together, can both be legal parents of a child born through assisted conception. For these provisions to  be fully legally recognised, the Bill includes amendments to other Acts to allow birth certificates under UK, Scottish and Northern Irish law to record that”.—[Official Report, House of Lords, 12 December 2007; Vol. 697, c. 296-99.]

That seemed to be all very certain. However, on 4 February 2008, on Third Reading, Lord Jenkin tabled an amendment that would have meant that within four years of schedule 6 coming into force, the Secretary of State would carry out a review of the law and practice to decide whether to include donor conception on birth certificates. Baroness Royall resisted the amendment, but made a commitment that the Government would carry out a review. She said:

“I can make a firm commitment that the Government will carry out a review of practices in informing donor-conceived children of the fact of their donor conception and whether there is a need for a change in the law to best ensure that donor-conceived children are informed of their donor conception. We will do this within the timeframe suggested by the amendment tabled by the noble Lord, Lord Jenkin”.—[Official Report, House of Lords, 4 February 2008; Vol. 698, c. 904.]

That also seemed to make the matter clear, but on 2 June, the Secretary of State for Work and Pensions and the Secretary of State for Children, Schools and Families, issued their White Paper, “Joint birth registration: recording responsibility”, chapter 1, paragraph 5 of which states:

“This White Paper focuses on the way the birth registration system applies to unmarried parents and their children, particularly from the child’s perspective. It does not cover the birth registration process for married couples, which works well and where we do not propose to make any changes. Nor does it cover changes to birth certificates arising from adoption...or from the changes proposed in the Human Fertilisation and Embryology Bill to allow a same-sex couple to be recorded as parents at birth. Further consideration of the latter will be needed once that Bill has passed through Parliament”.

Will the Minister explain whether the 27 pages of the Bill that we appear to be about to nod through will be wiped off the statute book by future Government considerations when they legislate on the document “Joint birth registration: recording responsibility”? I am sure that the Minister has a very fine answer for us and I would be grateful to hear it before we proceed.

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

I have the same concerns about the schedule. If we are honest, few of us have mastered the complete detail of this horrendously large provision. It amends legislation—indeed, we have seen this in the past few minutes—that stretches from 1928 to about 1995.

Robert Key (Salisbury, Conservative)

From 1836.

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

I stand corrected.

We are confronted with an adjustment to the law that is of byzantine complexity, but we are implicitly being asked to believe that there is a kind of coherence to it, even though we have not established that there is—we must take that on faith. I am sure that we have enormous faith in the ability of parliamentary draftsmen to guarantee the integrity and coherence of the law, but I can hear the alarm bells ringing.

If anything, those alarm bells grew louder last night when I inspected a website devoted to fathers’ interests that explains how fathers can successfully deal with any threat to those interests. The website put enormous  stress on the importance of the birth certificate—what it means and how fathers can use it to get the rights, the access to their children and the responsibilities that they feel they deserve.

There was a naïve belief that the birth certificate had clarity, but that can no longer be established. If there is a dispute in the House of Lords between people who should know whether the birth certificate is supposed to indicate genetic origin or social parenting, the ordinary public will suffer from a certain vagueness.

The Minister said that an entry on the birth certificate could be purely symbolic.

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

With respect, the quote that the hon. Gentleman attributes to me, in which I used the word “symbolic” in relation to birth certificates, was not a general statement. I was speaking—following on from the 2003 Act—about specific circumstances in which the father or parent is deceased. I was not making a general point about the symbolism or otherwise of entries on the birth certificate. The hon. Gentleman should not take the specific for the general and assume that it reads across, because it does not.

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

In no sense was I attempting to do that. However, we have established in the case of a deceased parent who does not contribute sperm to the IVF process that the entry on the birth certificate would indicate neither a social role nor genetic origin. We are in a very confused situation, although I am not sure whether we can rectify it in this Committee.

The hon. Member for Salisbury talked about whether donor conception should be indicated on the birth certificate. I stand to be reasoned with for or against on the issue and I have no fixed views, but donor-conceived adults should know their genetic history. If there is no way for them automatically to find that out—if nobody tells them and they make no inquiries—they could be asked in the doctor’s surgery whether they have a certain disease, and they would, in all honesty and with complete integrity, make an inaccurate and false claim because there was no such disease in what they thought was their family. That is a concern.

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

Does the hon. Gentleman not accept that the same could, regrettably, apply to people’s genetic make-up now? We put absolute trust in our parents to ensure that we know such things. With IVF, parents are put in exactly the same position of trust in ensuring that their children know these things. The legislation loops around.

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

Yes, we could be wrong about our genetic inheritance and our parents could mislead us, but they would do us a disservice, particularly as we are learning that disease profiles are related to one’s genetic disposition.

Robert Key (Salisbury, Conservative)

I believe that what the Minister said needs qualifying. Of course it is true that we trust our parents to tell us whether they are in fact our parents, but unfortunately we know that in one live birth in 10 the mother does not know who the father is. That evidence was given to the Joint Committee. More important today is that there is a difference between trusting our parents and trusting the state. To be involved in state  deception, with the state preventing a child from knowing its genetic antecedents, is quite another matter.

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

The hon. Gentleman makes a good point. The state is knowingly putting people in a position less advantaged than they ordinarily have. I believe that legal opinion ought to be sought on the matter, because there is a human rights issue to be decided. The state knows something that the individual does not. The individual may consult the state medical service, which may ask a genuine question, but that person cannot answer adequately because he has no means of doing so.

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

The hon. Gentleman may not be aware that legal advice has been sought, but counsel’s advice is that it may be against the human rights of the child knowingly to remove potential genetic knowledge—perhaps preventing the child from benefiting from treatment to resolve a genetic inheritance problem because the information had been removed from the birth certificate.

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

I am grateful to the hon. Gentleman for that intervention. It supplements the point that I was making.

The more fundamental point is explicit. It is that people have almost a moral right to know of what they are made. That is over and above what human rights legislation provides. The state should not be seen to frustrate that. We have opened up a wide debate, possibly going beyond schedule 6, but those concerns will re-emerge on Report.

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

Before the Committee goes down the human rights path, it is probably worth considering the report of the Joint Committee on Human Rights on the issue. As the hon. Member for Boston and Skegness said, at best it is a potential right—in other words, the right to know is engaged—but no case law in Europe or here has established any sort of actionable right, not even against the state.

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

I thank my hon. Friend for that intervention. I am reluctant to get into esoteric debates about human rights. My hon. Friend is a fundamentalist on human rights in a way that possibly I am not. The point is that I know discrimination when I stare at it; in this case, we appear to be staring at discrimination facilitated by the state.

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

Fundamentalist or otherwise, I am grateful for the opportunity to speak again. I am conscious of the fact that we might debate the subject further when we come to one of the new clauses, but it is important to clarify a number of things.

I support the Government’s position on this part of the Bill and their approach to birth certificates. I know that that view is not shared across my party; for us, it is a free vote issue, and Baroness Barker took a different view in the House of Lords. She was entitled to do that, and she did so effectively. I respect her sincere views on the matter, but birth certificates are a statement of legal parenthood, and it does not necessarily relate to genetic parenthood.

The hon. Member for Salisbury spoke of one in 10. Some research studies show that as many as 10 per cent. of children believe their social father to be their genetic father when he is not; whether the mother knows who is the father is a separate issue. The child does not know in non-paternity cases far more frequently than in assisted reproduction. There is clearly a difference if the state has the information, but in respect of allowing children to know who their genetic parents are, the Government have chosen not to tell the children directly, and not to force parents but merely to encourage them to do so.

That is best practice, and it is right that the Government’s funding approach promotes it. That is right and proper. Maybe I am being a fundamentalist about not being statist on the matter, but I do not think that it is the state’s role to wade into families, disrupt the family dynamic and tell them what to do. It would be going over the heads of parents, who are entitled to some privacy about non-paternity and, if they choose not to tell their children—regrettably, in my view—about assisted reproduction.

The point has been made that that puts such children at a disadvantage in terms of family history if they see a doctor, but non-paternity is far more frequent than assisted reproduction. As we know, even where one cannot access identifying information about a donor, it is always open to a child who knows to get that information as an adult. Parents have their children’s best interests at heart and will be aware if there is an issue of familial disease that will bear strongly on their children.

There is no perfect solution. There are significant drawbacks in seeking to specify over the heads of parents that children should be notified or birth certificates marked. Birth certificates are public documents—well, they are not public documents, but they must be produced on certain occasions—and people have a right to privacy.

To finish with the human rights issue, it is often stated—it was stated, incorrectly, in the House of Lords—that there is some human right to know one’s genetic parents. If that is the case, one would have a right to perform paternity tests on one’s father or lie detector tests on one’s mother, overriding their right to privacy. That is not the case. Fathers and mothers have a right to privacy. If we go down that path and follow that idea to its full conclusion—I do not suggest that hon. Members are saying that we should—there will be implications. I shall not read it out, but I draw the Committee’s attention to pages 56 and 57 of the Joint Committee’s report, which clarifies that the Rose case showed that article 8 was engaged on private life, but that that case was never decided in respect of what balance must be found between the person’s and the parents’ rights.

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

My hon. Friend spoke about maternity. The sort of case that most acutely affects me is one in which, for example, the child of a donor egg was female and a strong history of breast cancer, which has a virulent genetic component, was attached to the donor family. Would that not be putting somebody at a serious and possibly even fatal disadvantage?

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

Yes. Clearly, people who have inherited a genetic disease are at a disadvantage. That is also the case where a male transmits a disease unbeknown to the person who inherits it. Believe me, I know about the  tragedy of serious inherited genetic disease, but the fact that such things happen does not mean that we need to override parents’ rights.

The issues are difficult, but I think that the Government have taken the right approach. They have said that they will review the matter, and we must remember that when the Government removed donor anonymity—I thought that that was wrong and that there should be a choice—they chose not to force parents to tell their children of the fact of donor conception. When donors are identifiable, there is an increased risk that parents will not tell their children, so the result is more secrecy, not less, because parents believe—wrongly, but quite naturally—that children will try to find their genetic parent. The issues are complex, but in this Bill, the Government have got it right. Although the schedule is complex, I support its overall approach.

Brian Iddon (Bolton South East, Labour)

Before the Minister responds—I expected this discussion to take place under new clause 1, but it has been generated now—has she given any thought to the suggestion floated by one organisation that we should have a short and a long birth certificate? The short one would be essentially the one that we use now to obtain various services and produce to show what parents brought us up in a social way. At the same time, if it is a donor-conceived birth, a long birth certificate would be presented to the parents, which could be kept confidential, wherever those parents wish to keep it. When they think that the time is right to tell the child who is conceived in this way about its genetic background, they could present the long birth certificate to the child. I have not given the idea much thought, but it is worthy of consideration by the Committee—and by the review, when it takes place.

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

I would like to join other hon. Members who have spoken in the debate and again express my concern about schedule 6. As my hon. Friend the Member for Salisbury rightly pointed out, the schedule is extremely lengthy, detailed and complex. I do not wish to repeat what others have said, but I want to support the points made by my hon. Friend and the hon. Member for Southport on the seeming conflict that exists in Government policy direction. The Bill says, on page 73, in paragraph 4(3)(1B):

“the registrar shall not enter in the register the name of any woman as a parent of the child by virtue of that section”.

It goes on to make some exceptions. That throws up the question of the necessity and importance of a mother, as well as the importance and necessity of a father, which we debated on the Floor of the House a little while ago. That seems to be the policy direction in the Bill, but let us look at the White Paper just released by the Department for Work and Pensions. A press release from the Secretary of State for Children, Schools and Families quotes from the foreword by the two Ministers, which says that the White Paper

“sets out...measures to promote and support joint birth registration and changes to give mothers a right to insist that the father acknowledges his responsibilities to his child by registering on the birth certificate. Equally, it gives a father a new right to insist that he is registered.”

I accept that that is not yet legislative change. Those are non-legislative measures. However, the press release  goes on to say that the two Departments will jointly develop further legislation within the Government, which throws out the question of how the interactions will occur and whether they will fit comfortably alongside each other. That seems to be, at the very least, a conflict of direction.

I do not wish to get into the detail of the debate on new clause 1, which will occur later in Committee. We need to raise specific issues in some detail when we come to discuss that new clause. However, there appears to be an inconsistency. We have to acknowledge that there have been inconsistencies for some time on the contents of birth certificates. They have not always been an exact genetic record of the child, but that does not mean that the state should be complicit in making them less of an accurate record. I am sure that later we will have the genetic versus social debate, but the birth certificate is an important document. I am nervous about the state colluding in what is, ultimately, a deception on behalf of the as yet unborn child.

We can get into the legal wrangling later on, but I am nervous—the hon. Member for Oxford, West and Abingdon made the point, although he seemed to dismiss it rather quickly—that we could disadvantage a child who may well have a familial disease by not having an accurate record on the birth certificate. We should discuss the suggestion made by the hon. Member for Bolton, South-East, because it is a potential solution to the problem. I have wrestled with the issue for a considerable time and I think that I have come to a conclusion—although there are circumstances in which it would not be possible—that wherever and as much as possible the birth certificate should be a biological record of the child.

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

The hon. Member for Salisbury put the matter clearly. We have gone into other discussions that buttress that, but I want to answer his three points specifically, without drifting into new clause 1, which we will debate later. The Bill, set within the specific parameters of IVF, continually cross-references and refers to the need for the parents to be responsible for the child, except where the parent, including the father, is deceased. In that context, all hon. Members agree that, as I have said in our proceedings, the decision to have a child should not be taken lightly and carries with it responsibilities. That is continually reinforced in the Bill. It is about caring, nurturing, supporting and providing for that child.

Schedule 6 cross-references, for same-sex couples, the responsibilities that we are updating in the Bill in respect of the 1990 Act with every other piece of legislation on registration and responsibilities for a child.

The second point made by the hon. Member for Salisbury, which was also considered in the debate in another place, was about whether the fact that a child was donor-conceived should appear on their birth certificate. The point about transmission of genetic predispositions to certain diseases for donor-conceived children is already dealt with, as all donors are screened. We know a huge amount about such things now, so unless a condition is not known about, it is less likely that a donor-conceived child will be at a disadvantage, as the hon. Member for Southport mentioned, than that anyone else will, because their genetic parent will have been actively screened before conception. It is a long, difficult process and the donor enters into that consideration.

On the point about whether a child’s being donor-conceived should appear on their birth certificate—

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

Will the Minister give way?

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

I should just like to make the general points to get them on the record, but after that I am happy for the hon. Gentleman to respond. I should like to state my case first.

Before we go down the highways and byways of human rights and everything else, it is good to mention that the Joint Committee on Human Rights said that it was concerned about the suggestion that the donor information should appear on the birth certificate, because it felt that it raised serious concerns about the privacy of the donor as well as of the donor-conceived individual. On that basis, the Government recognised that this was a highly complicated issue and that other considerations were in place, including “telling and talking” projects and counselling. We accepted in another place that it would be sensible, after the Bill receives Royal Assent—we  cannot start before then—for us to consider the matter and return to the House within four years.

The final point was about what the Department for Work and Pensions record says. The DWP White Paper, which was written before the Bill—although the Bill is going the way the White Paper wants to go—is about the responsibility of parents. That has been recognised, specifically, in the context of a commitment to the upbringing of the child, financially and otherwise. The White Paper addresses that point, which is already dealt with in the Bill. The Bill also includes a cross-reference to the child support legislation to ensure that there is a commitment in that regard. Although the White Paper was written without reference to the details in the Bill, which has yet to receive Royal Assent, the Bill does not contradict it. In fact, the White Paper talks about bringing everything up to the point where all parents are responsible, including mothers and fathers and those in civil partnerships and relationships. That is a different discussion.