Clause 48

Human Fertilisation and Embryology Bill [Lords] – in a Public Bill Committee at 9:00 am on 12 June 2008.

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Effect of sections 33 to 47

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health)

I beg to move amendment No. 159, in clause 48, page 43, line 4, leave out paragraph (b).

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment No. 160, in clause 48, page 43, line 9, leave out paragraph (b).

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health)

I acknowledge that the proposals are probing amendments to elicit from the Minister the logic behind the clause, under which a deceased person is to be treated as the father for the purposes of being named on the birth certificate, but for no other reason. Will the right hon. Lady explain what the clause is trying to prevent? Presumably, the deceased person will be the biological father in some instances, so would not normal inheritance circumstances occur? The Minister was right to mention the other day that if someone wanted to leave something after their death to a subsequent child, they could do so in their will. That explains how someone can circumvent the problem, but not why the clause is in the Bill. For those members of the Committee who want to follow this argument, the two parts of the clause that I am particularly referring to are subsections (3)(b) and (4)(b). I would be grateful if the Minister explained the intention behind them.

Photo of John Pugh John Pugh Liberal Democrat, Southport

The clause refers to someone being treated as a father for no other purpose. Elsewhere in the Bill, we read the simple phrase “treated as father”. Does the expression—

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

Order. Is the hon. Gentleman making an intervention?

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

Had the hon. Member for Boston and Skegness finished moving the amendment?

Mark Simmondsindicated assent.

Photo of John Pugh John Pugh Liberal Democrat, Southport

I want to know whether the expression “treated as father” carries the same meaning throughout the Bill, given that it is qualified in this context. The Minister has explained that when we were talking about someone treated as a father, we meant treated as a father purely for the purpose of recognition on the birth certificate. There is some inkling in this context that it means something different in certain circumstances, so I seek clarification.

Photo of Dawn Primarolo Dawn Primarolo Minister of State (Department of Health) (Public Health)

The Bill replaces and extends the provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. We have returned to this point several times as we have gone through the latter clauses in the Bill. The 2003 Act provisions are re-enacted in clauses 39 and 40. Clause 39 relates to the use of a man’s own sperm to create a child with his consent after his death, while clause 40 relates to the registration of a father when a child is born to a woman as a result of the transfer of an embryo created with donor sperm when her husband or male partner was alive and the man dies before the embryo is transferred. Clause 46 extends the provisions to same-sex couples, whether they are in a civil partnership or not, to mirror other provisions. We have had that discussion.

The provisions allow for a man, or a female intended parent, to be recorded in the register of births as a father or parent, but otherwise not to be treated as the legal parent for other purposes in law. The Human Fertilisation and Embryology Act 1990, as originally drafted, did not allow for deceased men to be treated as fathers of children conceived after their deaths. That position was based on the recommendations of the Warnock report and concerns that that might prevent the winding up of a person’s estate if children were born years after their death. In a well known case, of which the hon. Member for Boston and Skegness is aware, there are now several such children. The fear in the Warnock report was that an estate could never be wound up because people would have to wait on whether genetic material from the deceased man meant that any future children could have a claim on the estate.

The 1990 Act was amended by the 2003 Act, a private Member’s Bill piloted through the House by my hon. Friend the Member for Birmingham, Hall Green. That Act allowed a man to be treated as the father for the purpose of birth registration—the matter now under consideration—and for no other purpose, such as decoupling from concerns over the winding up of an estate. That represents a pragmatic and fair approach.

The probing amendments tabled by the hon. Member for Boston and Skegness would remove the subsection that ensures that no further legal status is assigned to those parents. They would have only the symbolic effect of their name being recorded on the birth certificate. I do not think that he will want to do that. On reflection—given the questions that he has asked and the fact that he says that these are probing amendments—I think  that he will believe, as the Government do, that it is right, even with explicit consent, that full legal parenthood should not be conferred on a deceased father or parent in relation to children born following their death.

The hon. Member for Southport asked what is meant by the phrase “treated...as the father”, which is used throughout the Bill. It has a specific meaning in relation to clause 48. The term is used to mean treated as the father under the law. When the term is used in a more limited sense elsewhere in the Bill, that fact is expressly conveyed. That is why it is necessary at this point, in a cross-reference to the 2003 Act, to say that it is only for the purposes of registration, which is what we are discussing. It ensures that there is no inadvertent opening up of issues to which the House has already agreed.

Photo of John Pugh John Pugh Liberal Democrat, Southport

Is the Minister saying that in a prior clause, or as a qualification in this clause, that the expressions “treated...as the father” or “treated...as a parent” have the general meaning of a parent in law—a father in the legal sense—except when expressly qualified in the legislation?

Photo of Dawn Primarolo Dawn Primarolo Minister of State (Department of Health) (Public Health)

Yes, that is the case, because of the unique circumstances being dealt with in the clause with reference to the 2003 Act. I hope that I have reassured both hon. Gentlemen that the provision is tightly drawn for a good reason. On reflection, I know that they will agree.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health)

The Minister has answered the point thoroughly and with great clarity. The point about it not being possible to wind up the estate many years after the person’s death is the ultimate reason for the provision. That seems to make sense, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 59, in clause 48, page 43, line 13, at end insert—

‘(5A) In relation to England and Wales and Northern Ireland, a child who—

(a) has a parent by virtue of section 42, or

(b) has a parent by virtue of section 43 who is at any time during the period beginning with the time mentioned in section 43(b) and ending with the time of the child’s birth a party to a civil partnership with the child’s mother,

is the legitimate child of the child’s parents.’.—[Dawn Primarolo.]

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss Government amendment No. 60.

Photo of Mark Simmonds Mark Simmonds Shadow Minister (Health)

I wish to lift a little more information about the amendments from the Minister. I understand that they relate to circumstances in which written consent was not required as the parties believed themselves to be in a civil partnership or marriage, but later discovered that the marriage or the civil partnership was invalid. Am I right that the amendments apply to marriages as well as civil partnerships, or only to civil partnerships? What is the basis for an invalid civil partnership? Presumably, it is not the same as a void marriage.

Photo of Dawn Primarolo Dawn Primarolo Minister of State (Department of Health) (Public Health) 9:15, 12 June 2008

These are consequential amendments related to other Acts, including the Legitimacy Act 1976 and the Family Law Reform Act 1987. They relate to the legitimacy of children born by assisted conception to civil partners and are intended to bring the rules into line with those for married couples.

Since the Bill was introduced, it has been identified that although a child born to a same-sex couple that later entered into a civil partnership would be treated as legitimate in law for all purposes, a child born to civil partners would be treated as legitimate in law only for the more limited purposes set out in statute. For example, many family trusts create classes of beneficiary limited to the lawful issue: the legitimate child of the settlor. That anomaly will operate in the cases before us unless we correct it by means of the amendments.

The amendments are tightly drawn to correct that unintended consequence by making a clear statement that a child born to civil partners will be treated as legitimate in law for all purposes. That comes back to the point raised by the hon. Member for Southport, who asked me to distinguish between a parent or a father elsewhere in the Bill, as opposed to in the clauses before us. The issue is the flip side of the debate that we have just had, and the example that we would use would be trust law.

Provision is already made—there is an equivalent—in clause 49, which we are coming to. That clause sets out the test that is applied when there is a void marriage or civil partnership. These clauses are interlinked to reinforce the point. I hope that that clarifies the hon. Gentleman’s point.

Amendment agreed to.

Clause 48, as amended, ordered to stand part of the Bill.

Clause 49 ordered to stand part of the Bill.