§ 23 Before Clause 39, insert the following new clause:
1123§ Civil liability to child with disability
§ .—(1) After section 1 of the Congenital Disabilities (Civil Liability) Act 1976 (civil liability to child born disabled) there is inserted—
§ "Extension of section 1 to cover infertility treatments.
§ 1A.—(1) In any case where—
- (a) a child carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination is born disabled,
- (b) the disability results from an act or omission in the course of the selection, or the keeping or use outside the body, of the embryo carried by her or of the gametes used to bring about the creation of the embryo, and
- (c) a person is under this section answerable to the child in respect of the act or omission,
§ (2) Subject to subsection (3) below and the applied provisions of section 1 of this Act, a person (here referred to as "the defendant") is answerable to the child if he was liable in tort to one or both of the parents (here referred to as "the parent or parents concerned") or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent or parents concerned suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability.
§ (3) The defendant is not under this section answerable to the child if at the time the embryo, or the sperm and eggs, are placed in the woman or the time of her insemination (as the case may be) either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk Created by the act or omission).
§
(4) Subsections (5) to (7) of section 1 of this Act apply for the purposes of this section as they apply for the purposes of that but as if references to the parent or the parent affected were references to the parent or parents concerned."
(2) In section 4 of that Act (intepretation, etc)—
§ The Lord ChancellorMy Lords, I beg to move that the House do agree with the Commons in their Amendment No. 23. I spoke to this amendment with Amendment No. 16.
Moved, That the House do agree with the Commons in their Amendment No. 23.—(The Lord Chancellor.)
§ Lord Prys-DaviesMy Lords, when I read the report of the discussion in another place it appeared to me that worries had been expressed about this new clause, and in particular about subsection (3). As I understand it, the effect of the clause, including subsection (3), is to ensure that the legal rights of a disabled child born as a result of an IVF pregnancy will be precisely the same as those of a child born after natural pregnancy. Can the noble and learned Lord confirm that interpretation?
§ The Lord ChancellorMy Lords, this subsection mirrors Section 1(4) of the 1976 Act. The new clause also applies the provisions of subsection (6) of Section 1 of the 1976 Act. That subsection preserves the defendant's right to rely on exclusion of his liability by contract with a parent. In practice, however, the Unfair Contract Terms Act 1977 severely restricts the scope of this defence. A person cannot by any contract, term or notice exclude or restrict his liability for death or personal injury resulting from negligence to any person.
If I understood the noble Lord's question correctly, subsection (3) has the same effect in relation to this kind of child as for a child born naturally.
§ Lord Prys-DaviesMy Lords, I am grateful to the noble and learned Lord for that explanation. I am sure that it will reassure all those who have expressed concern about the subsection.
§ The Lord ChancellorMy Lords, I am grateful to the noble Lord. If I find any reason to qualify what I have said I shall certainly write to him. But I think my answer was correct.
§ On Question, Motion agreed to.