Amendment 58 not moved.

Group 5 is on authorisation by the nearest relative when no person has parental rights or responsibilities. Amendment 59, in the name of Eleanor Scott, is grouped with amendments 63, 109 and 111 to 113.

I should begin by declaring an interest, as I am a member of the British Medical Association.

Amendment 59 and the other amendments in the group, which are in my name, are very much in the spirit of the rest of the bill, and are simply intended to close a gap. In debating the bill, we are dealing with highly sensitive matters, none more so than the death of a child.

The sudden death of a child is always devastating and an unspeakable tragedy for the child's family. Some families can find a small measure of consolation if their dead child's organs can give life to another child. In general, the bill provides for that, but it makes no provision for the rare eventuality of no one having parental rights at the time of the child's death. One can all too easily envisage a situation that might arise if a whole family were involved in a fatal accident, when both parents were killed and the child later died of his or her injuries. As the bill stands, another relative could give permission for the parents' organs to be donated, but no one could give similar permission for the child's.

If the parents are unable to consent to their child's organs being donated because they have been killed or so severely injured that they are unable to give consent, a near relative should be able to give consent. That is what amendments 59 and 63 would do.

I will read out amendment 109, which gives the hierarchy of relatives in the order in which they can be asked for permission. That hierarchy is in line with the one elsewhere in the bill for adults, but it is the other way round. The amendment states:

"For the purposes of sections 10 and 11, the nearest relative is the person who immediately before the child's death was—

(a) the child's parent;

(b) the child's adult brother or sister;

(c) the child's grandparent;

(d) the child's adult uncle or aunt;

(e) the child's adult cousin;

(f) the child's adult niece or nephew."

That is similar to the hierarchy for adults, except that it does not include provision for a family friend to give permission if no relatives are found. I felt that that would not be appropriate in the circumstances.

Amendment 111 clarifies that the hierarchy outlined in amendment 109 includes step-parents and half-siblings, which is in line with the rest of the bill.

Amendments 112 and 113 are essentially tidying-up amendments. Amendment 113 provides that a relative can be skipped in the hierarchy if he or she either does not want to make the decision or cannot realistically be contacted. That parallels the provisions in the bill for adults.

My amendments would close a gap and are in line with the intention of the bill.

I move amendment 59.

As Eleanor Scott said, the amendments stem from concerns that were expressed in evidence that the BMA submitted to the Health Committee at stage 1.

As with other amendments this morning, we have sympathy with the concerns expressed and the motives that lie behind them, particularly in the context of transplantation, where there would—in a very few cases—be a risk of valuable organs not being used because there was no one to give the necessary authorisation.

This is a complex area, but to some extent the matter is already addressed in Scots law. Section 7 of the Children (Scotland) Act 1995 allows parents to appoint guardians for their children in the event of the parents' death. That means that, if the parents die, the appointed guardian immediately becomes responsible and takes over parental rights and responsibilities. The guardian would, as a result, be classed as the person who had parental rights and would, therefore, in the circumstances that Eleanor Scott describes, be able to give authorisation for a transplantation to go ahead.

That outcome would, of course, require parents to have appointed a guardian under the 1995 act. In any case, we are committed to raising people's awareness of what might happen after a person's death. One issue that we will want to highlight, and which reflects Eleanor Scott's concerns, is that parents should always take the precaution of appointing a guardian who would have responsibility for their children after their death.

The minister's approach seems strange. He says that he will take on board the concerns expressed by Eleanor Scott and try to make parents appoint a guardian. Frankly, I would be surprised if anyone in the chamber had appointed a guardian in the way that he suggests. I certainly have not appointed a guardian in the event of a car crash in which my wife, my daughter and I are all fatally injured. Why not accept Eleanor Scott's amendments and deal with the problem here and now?

Public awareness raising clearly must start in the chamber. All of us who have children should have regard to their interests in the event that we die unexpectedly. Everyone in the chamber and elsewhere should be encouraged to do so, and to appoint a guardian to take parental responsibility if, tragically, the circumstances arise in which that is required.

The point that lies behind the amendments is reasonable. However, the amendments have only been lodged at stage 3, and I fear that they do not achieve their intended purpose. I will highlight a couple of issues.

First, the provisions would not apply to children for whom a local authority has parental rights and responsibilities, which in reality is a far more common occurrence than the car crash scenario that the amendments are intended to address. The bill was amended at stage 2 to address the Health Committee's recommendation that local authorities be prohibited from having the power to authorise any of the activities in the bill. Children for whom local authorities have parental rights and responsibilities would not be covered by Eleanor Scott's amendments. The changes that were made at stage 2 reflect the recognition—which we believe is right—that there will be occasions on which it is not proportionate to make provision for authorisation of organ donation on the part of a child.

The other aspect that gives me significant concern relates to amendment 109, on the nearest relative list. As presented, the list includes in the hierarchy a parent of a child, but does not provide for circumstances in which that parent has, for one reason or another, ceased to have parental rights and responsibilities. In some circumstances, a parent might have had his or her parental rights removed, for example if he or she had been involved in abuse of the child. It would be inconsistent to allow such a parent to have the right to give or withhold authorisation under the bill. Equally, there might be reasons why another relative did not have access to the child during their life, and in such a case the relative should not be given a role after the child's death.

I fully recognise the purpose of the amendments, but I believe that promoting the appropriate mechanisms whereby parents can ensure that their children's interests are looked after in the event that the parents die is the way forward. I therefore oppose the amendments in Eleanor Scott's name.

I point out to the minister that amendment 109 was lodged only at stage 3 because we had expected the Executive to plug the gap earlier in the process. Amendment 109 is intended to plug a gap that exists in the bill, and it is very much in the spirit of the bill.

I agree with the minister's comment that if a guardian had been appointed they would have parental rights, and my amendments would not come into play. However, as Stewart Maxwell said, the reality is that most people have not appointed a guardian. Perhaps in 10 or 15 years' time public awareness will be such that most people will have done so, but in the event of a child losing both parents in an accident now, they are likely to be left without anybody who has parental rights.

As I said in my opening speech, the death of a child is always a tragedy. The only greater tragedy is when a second child who might have been saved by the donated organs of the first child dies. We are talking about rare eventualities, but they are circumstances for which the bill should provide, so I press amendment 59.

The question is, that amendment 59 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 4

For: Aitken, Bill, Baird, Shiona, Ballance, Chris, Ballard, Mark, Brocklebank, Mr Ted, Brownlee, Derek, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Davidson, Mr David, Douglas-Hamilton, Lord James, Fabiani, Linda, Fergusson, Alex, Fox, Colin, Fraser, Murdo, Gibson, Rob, Grahame, Christine, Harper, Robin, Harvie, Patrick, Hyslop, Fiona, Johnstone, Alex, Kane, Rosie, Leckie, Carolyn, Lochhead, Richard, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McLetchie, David, Milne, Mrs Nanette, Mitchell, Margaret, Morgan, Alasdair, Neil, Alex, Robison, Shona, Ruskell, Mr Mark, Scanlon, Mary, Scott, Eleanor, Welsh, Mr Andrew, White, Ms Sandra
Against: Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Robson, Euan, Rumbles, Mike, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stone, Mr Jamie, Swinburne, John, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

The result of the division is: For 39, Against 66, Abstentions 0.

Amendment 59 disagreed to.

Amendment 60 not moved.

Amendment 61 moved—[Lewis Macdonald]—and agreed to.

Amendment 62 is pre-empted.