§ Mr. Thurnham
I beg to move amendment No. 56, in page 6, line 31, at end add'including information about their physical characteristics, family background, education, skills and interests and health history.'.
§ Mr. Deputy Speaker (Sir Paul Dean)
With this, it will be convenient to consider the following amendments: No. 57, in page 7, line 14, at end addincluding information recorded under subsection (2)(c) above.'.
No. 33, in clause 30, page 17, line 17, at end insert—
'(aa) giving the applicant all information including identifying information relating to the person concerned, if the applicant, the person treated by virtue of sections 27 to 29 of this Act as the parents of the applicant and, before the information was recorded, the person concerned, have all recorded in writing their consent to the identity of the person concerned being made known to the applicant.'.
§ Government amendment No. 60.
No. 31A, in page 17, line 21, at end insert —
'( ) A person who has attained the age of eighteen ("the applicant") and who has received the opportunity for proper counselling required to be provided under section 30(3)(b) may by notice to the Authority require the Authority to comply with a request to give the applicant all the information relating to the applicant which is held by the Authority.
§ Government amendments Nos. 59 and 58.
§ Government new clause 11—Civil liability to child with disability.
§ Government new clause 12—Disclosure in interests of justice.
§ Government new clause 13—Disclosure in interests of justice: congenital disabilities, etc.
§ Mr. Thurnham
It is not my intention to divide the House on this amendment, but I take this opportunity to 987 raise the point at issue: the very difficult question of anonymity and striking a balance when talking about personal secrets. Should a mother tell her child that her apparent father is not her father? This is an area of family secrets for which it is most difficult to decide how the House should legislate. Apart from the issue of donor children, I understand that between 5 and 20 per cent. of the population have a father who is not their true father. [Interruption.]
§ Mr. Deputy Speaker
Order. I hope that those hon. Members who are not listening to the debate will carry on their conversations elsewhere.
§ Mr. Thurnham
Approximately 60 per cent. of donor parents do not tell anyone—the child or their relatives and friends —that the child is a donor child, but some 40 per cent. of donor parents are happy to tell their families and friends, and, in due course, the child that the child is a donor child.
The Swedish Government decided that it was wrong to allow such secrets to be kept and legislated that donor children must be told the identity of their true fathers and mothers, but in Britain there is a strong weight of feeling that we should allow anonymity to continue. Some people feel that we should not force a family to burden a child —as they see it—with the details of his or her parents. So the Government are in a dilemma as to how to legislate to allow anonymity to continue but to allow for possible changes in future as has happened with the adoption laws which allowed it retrospectively.
We have to consider whether donors who donated anonymously could retrospectively lose that anonymity. Some people in the medical world believe that the supply of donors would dry up without anonymity, but others tell me that that is not the case. King's College hospital in London carried out a survey among donors. Only one third of the donors were opposed to identification. The other two thirds were either in favour of it or reserved their position on any disclosure of identity. I understand that Hammersmith hospital is also in favour of the identification of donors on the basis that dark secrets within the family are not the best way to bring up a child. The British Agencies for Adoption and Fostering, the British Association of Social Workers, the Association of Directors of Social Services and the British Infertility Counselling Association are all in favour of moving away from anonymity and towards identification.
I tabled amendment No. 33 with a view to finding out whether any middle ground exists. If donors are agreeable to identification at the time of donation and the parents agree to identification at the time of treatment and, in due course, the child is in favour of identification, the child could discover the identity of his or her true genetic mother or father. That is not always clear, and no doubt one would have to have a DNA genetic blood test to establish a sure identification. Although I put forward amendment No. 33 to establish whether there is any middle ground, I feel that people are on one side or the other.
I should like the Government to make it clear whether they consider that there is any possibility of a retrospective change in the law and, if they wanted to change the law to allow identification, how they would go about it and how they would assess what people's feelings really were. If they do not want to accept amendment No. 33 as part of the Bill, perhaps they will accept the wording as part of 988 regulations so that we could have regulations now to allow children to be born who would be able to identify their genetic parents at a later date.
There is an argument that that might create two classes of children, but later tonight we shall discuss an amendment that concerns another place dealing with whether donor children should be allowed to inherit titles and sit in another place. If we are to allow two classes of children in those circumstances, surely it cannot be wrong to enable at least some children to have a legal right to establish the identity of their father or mother.
Amendments Nos. 56 and 57 do not go quite as far as amendment No. 33. Amendment No. 57 seeks to ensure that information about donors is given to prospective parents at the time of treatment. There may be good reasons not to disclose the identity of the donor to the parents, but the rest of the information about the donor needs to be given to them so that they can pass it on to the child when he or she is ready to receive it. Children's curiosity about their genetic origins may arise at any time and the best people to attempt to satisfy it are likely to be their parents. The information may also help the parents in bringing up the child.
It is worth noting that the Adoption Agencies Regulations 1983 require adoption agencies to give prospective adopters details of the child's personal history and background before placement and, as the Government's circular accompanying the regulations points out:it should be explained to the adopters that the information is provided not only to help them to bring up the child but also on behalf of the child himself.Counsellors working with couples receiving infertility treatment have found that the lack of information about donors is frequently the cause of much disquiet and distress to their clients.
Amendment No. 56 seeks to ensure that where gametes or embryos are provided by donors to be used for treatment services, sufficient information about the donor is obtained at the time of donation and recorded. The purpose of recording such information is chiefly to enable any child born as a result of the treatment services to have some knowledge about his or her genetic parents.
Although, without the amendment, it would be open to the licensing authority to specify in regulations that such information should be recorded, it is too important a matter to be left to directions. The Warnock committee talked only of recording particulars of the ethnic origin and genetic health of donors. There are problems concerning the ethnic community involving infertility treatment and attention should be paid to helping ethnic minorities in that connection.
The Warnock committee also spoke of a view among some of its members that there should be a move towards gathering more information and making it available to prospective parents. In the six years since the Warnock committee reported, there has been a considerable shift in views among those with experience in these matters, and it seems important to ensure that as much information as it is reasonable to seek should be gathered from the donors. Even if the current legislation does not make provision for that information to be made available in its entirety to any resulting child, it is more likely that well within the lifetime of such a child there will be a change in the law which will permit children access to further information about their 989 genetic parents. It is important therefore that the information should be recorded now to allow for that future possibility.
Other points have been put to me by people working with these issues. I understand that there is a legal case which may have some relevance. My attention was drawn to the decision of the European Court of Human Rights in the case of Gaskin v. The United Kingdom in 1989. That case centred on Graham Gaskin's demand for access to records held by Liverpool city council in whose care he had been as a child. The court, finding in favour of Gaskin, held thatrespect for his private … life",as outlined in article 8 of the European convention on human rights, requires thateveryone should be able to establish details of their identity as individual human beings".I have covered the main points that I wish to raise. I do not wish to push the amendments to a Division, but I should like the Government to consider them, answer fully and, if they intend to leave it to regulations, to make sure that those regulations cover the points that I have raised.
§ Ms. Dawn Primarolo (Bristol, South)
This group of amendments is concerned with anonymity, and there are two competing arguments about anonymity of the donor. The first argument is that put forward by the British Association of Social Workers and the Association of Directors of Social Services. Their argument is compelling in that it advocates that the identity of the donor should be revealed, including characteristics, and they draw a direct analogy with adopted children. While we accept the strength of their case in respect of adopted children, only 5 per cent. of those children, when they reach the age of 18, take the opportunity of finding out the identity of their natural mothers. Obviously it is impossible for many of them to discover the identity of their natural fathers. We do not accept that there is a direct and fair comparison with the possibility of young adults, created as a result of infertility treatments, seeking the identity of their natural parents. It is not a sensible comparison.
We accept and understand that the clinics, and the licensing authority eventually, will collect information and know the identity of donors. If, for medical reasons, it is necessary to identify a donor at a subsequent stage, that will be possible. However, we do not believe that it is necessary for a person on reaching the age of 18 to be given information identifying the donor.
Those of us who are parents and who care for children and understand their needs, and those of us who wish to create a caring and supporting environment in which children are valued, would not want to create circumstances in the Bill that would allow children to be distinguished or separated from each other on the basis of whether they were adopted children, the issue of their natural parents or children produced as the result of infertility treatments. We should aim to create an environment in which all children are loved, supported, cared for and respected. To try to develop divisions and to distinguish between types of children because of infertility treatments is unacceptable.
The information and views of those who put forward the opposite argument—for the non-identification of the donor—stem from the experience in Sweden. We received submissions, which we discussed in Committee, to the effect that identifying the donor will restrict the number of donors who come forward to take part in research 990 programmes. It is also argued that the parents of children produced as the result of IVF do not want the donor to be identified.
I do not believe that children's curiosity about themselves and their attributes extends to them wanting to know about their genetic origins or the characteristics of their donor mother or father. Amendment No. 56 suggests that the information that should be made available to children isphysical characteristics, family background, education, skills and interests".Those are very emotive characteristics and we could have long debates about the definitions of those characteristics.
Who would want to discover that one's donor was dull and uninteresting, but well meaning? Who would want to discover that the family background of one's donor was that he was the only son of a family that was now deceased? Who would want to learn that one's donor's education amounted to five GCSEs at grade D? What if the donor's skills were clerical and his interests were bird keeping and being a wireless ham?
While I have nothing against those interests, I believe that people would rather see the following attributes about the donor: physical characteristicstall, slim, blond and blue-eyed; family background—athlete and astronaut; education—Cambridge PhD; skills—astrophysicist; interests—opera, theatre and sport.
I do not mean to be flippant; I just want to show that providing such information would be exceedingly difficult and would not be in the best interests of the child. It would not help the child to understand himself or herself or to develop in society. The Bill should do nothing to threaten the possibility of people coming forward as donors. It should do nothing to undermine the programmes.
There is evidence that those seeking treatment are opposed to any possibility of a child having access to information about the donor. We believe that at this stage the donor should remain anonymous and no information about the donor should be available.
In that sense, the Bill as it is currently drafted makes no commitment to either camp. It does not commit itself to making the identity available, nor does it commit itself to not making that information available eventually. We believe that perhaps there is no other way to satisfy both views and we support the view expressed in the Bill.
Amendment No. 56 relates to clause 13 and in no other part of the Bill is the tension between biological and social more explicit. None of us can honestly say that we know the effects of the Bill on children who are born as a result of donated gametes. We cannot say whether it will matter to those children to know that they have been born as a result of that process. Although the approach of the Department of Health will not satisfy the competing arguments, we believe that the Bill advances the best way to proceed bearing in mind the Swedish experience.
According to the notes on clauses, new clauses 11, 12 and 13 provide for the suing of the donor parent and the parents who have undertaken the infertility treatment by a child who has suffered a disability as a result of the treatment. Those provisions refer to the Congenital Disabilities (Civil Liabilities) Act 1976, which isAn Act to make provision as to civil liability in the case of children born disabled in consequence of some person's fault".We are surprised, indeed stunned, that such a serious addition to the Bill should be produced at this late stage, 991 making it impossible for hon. Members adequately to consider the proposal. We are not happy about the new clauses because they open up dangerous questions. Unless the Minister can give us various assurances, we believe that the House would be making a dreadful mistake if it were to include that material in the legislation. We shall vote against the new clauses.
§ Mr. Alton
I entirely agree with the hon. Lady. I very much welcome her statement and can assure her that many of us will be in the Lobby with her on that matter. Does she accept that the provisions would do two undesirable things? First, they would place pressures on doctors who would then feel unable to carry out IVF, and they would place on doctors the pressure to destroy an embryo that they think might in any way result in a disabled person. Both those things are highly undesirable and unacceptable. It is appalling that at this late stage—at the very fag end of our deliberations on the Bill—such provisions, involving enormously important principles, should be introduced so cavalierly.
§ Ms. Primarolo
I am in some sympathy with the hon. Gentleman's point. I shall be interested to hear the Secretary of State's reply on this matter—as I am sure the whole House will be.
It is ludicrous to include in the Bill such highly emotive and contentious words asinformation about their physical characteristics, family background, education, skills and interests and health history.We are pleased that amendment No. 56 will not be pushed to a Division. We believe that anonymity must remain to protect both the donor service and the possibility of infertility treatment. Any changes to the legislation must be made by the House only after a full debate, if that is what the House subsequently decides to do. As currently drafted, the new clauses give rise to considerable concern and we look forward to hearing the Secretary of State's justification for them.
§ Mr. Key
I wish to speak to amendment No. 60. It was a pleasant surprise to find, on coming to the House early this morning, that my amendment had been hijacked by none other than the Secretary of State himself.
I agree with much of what has been said about anonymity by my hon. Friend the Member for Bolton, North-East (Mr. Thurnham) and the hon. Member for Bristol, South (Ms. Primarolo). We had a good debate about that in Committee when it was debated with great care and not a little feeling on both sides of the argument. My hon. Friend the Minister restated the Government's position, which had been set out in paragraph 83 of the White Paper, which stated:all adults over the age of 18 should have a legal right to find out whether they were born following gamete or embryo donation and that those who were should have a right of access to certain non-identifying information about the donor to be prescribed in regulations.I am sure that the Government were right. That position.reflects the way in which the majority of those involved see the situation.
The Government were also right to leave open the possibility that the public perception of what is right may change over the years. It may, in future, be right to take advantage of the regulatory provision in the Bill to make available information that will identify the donor to they 992 young person. However, that presents a real difficulty here and now for clinicians, donors and potential donors. Up to now, clinicians have told donors that donations are given on the clear and categorical understanding that their identity will not be made known to any young person who might subsequently be born as a result of the donation. Now, clinicians will have to say to donors, "At present your identity will not be disclosed"—the new legislation makes that clear—"but a future Government may change the rules".
I draw the attention of the House yet again to the Swedish experience. Legislation introduced in Sweden in 1985 stated that when a child is of "sufficient maturity"—in practice that means around the age of 18—he or she has the right to know the identity of the donor. There were some beneficial and some damaging consequences of that move. As I understand it, the number of donors fell, donations had to be sought from a wider recruitment base—this may have been beneficial—partly in the hope of securing donations from men in stable relationships for whom later identification would not prove an embarrassment, and the number of couples seeking help fell. That was because of the overwhelming desire of the prospective parents to feel that the child would be fully theirs, and because of the social stigma that still attaches to infertility.
The Government's intention to provide legislation that will be responsive to future changes is wholly admirable. However, as the Bill stands, the effect will be the same as if they had legislated not to retain the anonymity of the donor—hence my amendment, which is designed 10 make it as sure as possible that all who donate under the present rules are protected if the rules change in the future. My amendment seeks to outlaw the retrospective identification of donors. It is in line with the Government's express intent and would enhance the viability of their approach in this sensitive area.
§ Mr. Alton
I do not intend to pursue the points made by the hon. Member for Salisbury (Mr. Key).
I listened carefully to what the hon. Member for Bolton, North-East (Mr. Thurnham) said about Graham Gaskin case. I raised that case in the House at the time because Graham Gaskin lived in Liverpool and his family had been my constituents. I was, therefore, well aware of the case which raised the issue of a person's identity and right to know about decisions that are made concerning his or her life. It was partly as a result of that case that my hon. Friend the Member for Roxburgh and Berwickshire (Mr. Kirkwood) introduced his Bill about the right of access to medical records.
It is vital that people should know how and why decisions about their lives have been made, and that they should know about the people who created them. I believe that we face great dangers subsequently in life if we are unaware of the identity of our parents. If that knowledge is not made available, its absence can cause complex problems in the life of the person concerned. It is far better to be as honest, open and up-front as we possibly can.
The hon. Member for Bristol, South (Ms. Primarolo) referred to new clause 11. I register my concern that such provisions have been tabled at such a late stage. I hope that the Secretary of State and the Solicitor-General will reconsider whether it is right to press the matter tonight or whether they should take the provisions away for further consideration. The new clause raises important new 993 questions, which were not debated in the Lords, in Committee or on Second Reading. It has been brought in with only 24 hours notice.
Only a few hon. Members spotted that it introduces a wholly new principle into our law. It means that if a doctor fails to remove and discard an embryo that may in some way be disabled, the doctor can subsequently be sued. That will place pressure on the medical profession to destroy embryos and to incorporate eugenics into medical ethics. That is wholly unacceptable.
The new clause will also result in the wrong kind of pressures on IVF treatment. Obviously, some doctors will feel great fear about proceeding with such methods if they think that they might be open to prosecution subsequently. It is hard to read the provisions in any other way. New clause 11(1)(1A)(1) states:(b) the disability results from an act or omission in the course of the selection, or the keeping or use outside the body,"—presumably, that means the freezing of embryos—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,the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.The House should note the words, "the wrongful act".
If during the delivery of a child in a maternity unit a mistake was made—we are all familiar with disabilities caused as a result of the use of forceps, for example—and there was an accident, we would all accept that there would be a case to answer in court. However, to build into the Bill at this stage in its consideration the provisions that are set out in the new clauses is to send out all the wrong signals.
Many disabled people are left wondering. Serious handicap is not specified. The doctor may have doubts about cosmetic disability. I have in mind a cleft palate, a club foot or a hare lip. As the clause is drawn, that will be a reason why the doctor will have to remove and discard the embryo. If the doctor fails to do that, he will be open to prosecution. The House is being asked to follow a repugnant course and I hope that more thought will be given to it. The introduction of provisions with profound moral implications at such a late stage in our consideration of the Bill needs to be given much more thought before we can enact them.
There are many hon. Members present with whom I do not necessarily agree on all occasions, and that can be said of their response to my arguments. There is, however, unanimity among many Opposition Members on this issue, and I suspect that that is the position on the Government Benches. I hope that the Secretary of State will feel able to give much more consideration to the provisions that he has presented to us and, if necessary, to bring them back in the form of Lords amendments.
§ Mr. Kenneth Clarke
I did not rise at the beginning of the debate because my hon. Friend the Member for Bolton, North-East (Mr. Thurnham) had tabled the first amendment in the group and because I did not anticipate any serious controversy on the Government's three new clauses. I intervene at this stage because it is clear that hon. Members are anxious for an explanation of the new clauses. I hope that I shall be able to persuade the hon. Member for Liverpool, Mossley Hill (Mr. Alton) that he 994 has misunderstod the purport of them. New clause 11 is the only one that appears to be arousing controversy, but it is designed to afford protection to the children in question. It presents no threat to them and it does not raise the great moral issues with which, as we all know, the hon. Gentleman is consistenly concerned.
The selection of amendments and new clauses turns on the nature of the information about the donors of sperm that is to be kept on the authority's register and on the circumstances in which certain information might or might not be released to certain people. We should remind ourselves that clause 30 requires the Human Fertilisation and Embryology Authority to keep a register of information if it relates, first, to the provision of treatment services for any identifiable individual or, secondly, the keeping or use of the gametes of identifiable individuals, or if it is shown that an identifiable individual was or may have been born as a result of treatment services. Treatment services for these purposes really mean infertility treatment involving donations of sperm, eggs or embryos.
That information is confidential, and it must be. Clause 32 provides that save in certain specified circumstances it will be a criminal offence for a member or an employee of the authority to disclose information kept on the register.
The new clauses are all designed to cover three circumstances where the Government, including my noble Friend the Lord Chancellor, have upon reflection thought that there should be cases where the courts must have access to the information in the interests of the child concerned and in the interests of justice. Amendment No. 59 provides an exception to the normal rule where the courts may order disclosure of information on the register in specified circumstances.
I shall deal first with the two new clauses that I think will not cause a great deal of trouble. New clause 12 deals with the position where a question arises in a court of law whether a person is or is not to be treated as a parent by virtue of clauses 27 or 28. There are various circumstances in which that might arise, such as certain orders under the Children Act 1989 and declarations of parentage under the Family Law Act 1986. A good example might be an application for a maintenance order for the child where paternity is disputed. I am talking about a situation where a man and a woman have gone together for infertility treatment, in circumstances where the man should thereafter carry the legal liabilities of a father for maintenance. Let us suppose that subsequently an argument arises about whether the man was a party to the treatment. The court might have no evidence upon which to base its decision other than the word of the parties. Those circumstances would contrast rather sharply with an ordinary case where the child has been conceived naturally.
The best evidence of the legal relationship between the persons concerned may be contained in the authority's register. The information held may show, for example, that the two named persons did receive treatment together. Without that information, the court may have insufficient evidence to reach a decision. The result may be the making of no maintenance order where the man was, in fact, the legal father. That would be an injustice to the mother and to the child. We believe that it would be wrong to deny courts access to that information.
§ Mr. Clarke
I shall finish my explanation and then I shall give way to my hon. Friend.
We must ensure that the only information that is released under a court order is that which is relevant to the issue before the court. New clause 12 cases would involve facts relevant to the question whether a person is or is not the parent. In none of these cases will the court require information about donors. What is needed to determine who is to be treated as the parent is information about the persons who receive treatment services and persons who were born as a result. New clause 12(1) expressly prevents information about donors being disclosed because the physical characteristics of the donor are irrelevant. It is necessary only to know whether it was an AID case in which the man was a party to the treatment being received.
§ Mr. Clarke
I shall give way to my hon. Friend after I have completed my explanation of the new clause.
There are two further safeguards. First, subsection (2) provides that a court must not make such an order unless it is satisfied that the interests of justice require it. Secondly. it gives a court dealing with a civil case where such disclosure has been made the power to sit in camera. In common with other matrimonial proceedings, this is not something that should be on public record.
I would not anticipate that anyone would be opposed to new clause 12. At this stage, I give way to my hon. Friend the Member for Derbyshire, South (Mrs. Currie).
§ Mrs. Currie
It would help those of us who have struggled to understand at short notice the principle of the new clauses if my right hon. and learned Friend will confirm that they are not intended to create a situation in which claims can be made by the child against the donor. We wish to be assured that donors can donate freely, as we would want them to do, and to be sure that in years to come they will not have someone appear out of the blue and say. "I am after your house, your property and your name".
§ Mr. Clarke
That issue arises under new clause 11. It is the one which has alarmed the hon. Members for Bristol, South (Ms. Primarolo) and the hon. Member for Mossley Hill. The answer is that those circumstances will not arise. There is no intention to give the child any general right of action against the donor.
New clause 13 is non-controversial but I shall deal with new clause 11 first before turning to it. New clause 11 is designed essentially to give children born as a result of these treatments the same rights against people who have caused him or her injury as a result of some default or negligence as those that have been given to children born naturally. The rights of children born naturally were given to them by the Congenital Disabilities (Civil Liability) Act 1976. That measure was passed to give children legal remedies in respect of wrongful action or omissions that took place before the child was born or, perhaps, even conceived. It deals with wrongful acts or omissions where the negligence of those carrying out the treatment has led to the child being born disabled.
The Act was not required to give the parents a remedy. If parents suffer injury, under common law they can sue those who gave the treatment for the injury from which 996 they suffer. Before the 1976 Act, there was serious doubt whether, in cases where the parents could not demonstrate that they had suffered from an injury, the child had a right of action in respect of acts that took place before birth or even conception. Clearly, in 1976 the House thought it right to extend to a child the right to take civil action in those circumstances. New clause 11 is merely trying to ensure that that protection is given to children born as a result of AID. It would put them on the same footing as children born naturally.
§ Ms. Primarolo
As the Secretary of State outlined the new clause as giving the same protection to children born by IVF as exists for those born naturally, we accept the principle. Clause 1 of the Congenital Disabilities (Civil Liability) Act 1976 states:If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below…a person (other than the child's own mother) is under this subsection answerable to the child.Who could perform the wrongful act?
§ Mr. Clarke
The people administering the treatment. If someone responsible for IVF was negligent with the result that injury was caused to the child, the new clause would give the child a legal remedy. The action would be similar to that which a child would have against an obstetrician in natural childbirth. Nobody would wish to take away the remedies provided in the 1976 Act to a child who is damaged during a natural delivery by negligence, which, inevitably, occasionally occurs.
§ Mr. Clarke
I can conceive of no circumstances in which the donor of sperm for the treatment could conceivably be accused of a wrongful act which gives rise to injury to the child, unless there were a deliberate failure or refusal to disclose a transmittable disease. If a donor wilfully donates what he knows to be contaminated or genetically defective sperm, such an action could possibly arise, but that is to go into the realms of fantasy. [Interruption.] If somebody willingly donates sperm which he knows to be HIV positive, I am not sure why he should be protected from an action brought by the child. On the other hand, I do not think that a child would do that because those who administered the treatment who had failed to screen for HIV positive or to detect that the embryo was not developing normally through some other congenital abnormality would be the obvious choice.
I am in danger of speaking off the cuff and I am glad that my right hon. and learned Friend the Solicitor-General is sitting behind me because he has been in practice more recently. One reason for having a properly licensed and regulated treatment is that a responsible treatment centre should screen for HIV positive sperm and should take steps to ensure that there is no genetic defect in the embryo in the early stages of development.
I do not believe that we are giving any extra incentive to doctors to abort children or anything of that sort. There is no difference between these cases and cases of natural childbirth. The hon. Member for Mossley Hill presupposes that anybody who is responsible for the supervision of a case and who discovers that something is wrong will kill his or her mistakes. That is not likely to happen. With respect to the hon. Gentleman, that is to get the wrong end of the stick.
997 The new clause is designed to give these children the same legal remedies as those that are available to children born as a result of natural childbirth. I know perfectly well that the hon. Gentleman would not intend to put children born as a result of IVF in a weaker legal position than those born as a result of natural childbirth.
§ Mr. Alton
Obviously, the Secretary of State accepts that because this involves establishing new principles and and a new birth procedure—not natural childbirth—the law must be considered differently. Presumably, once a child is born, whether through natural childbirth or IVF, the same remedies will exist in law, so the opportunities that he has just described would all be available. What happens if a child is born HIV positive? The parents may not know of the possibility because not everyone is screened in advance. What happens where some congenital disorder occurs subsequently, which the parents did not know about—perhaps caused by a strain which appears from time to time in the family? What happens if a disability occurs after freezing embryos? Everybody knows that the risks of disability in those circumstances are far greater, according to Professor Ronald Taylor and others. If that is true, what remedies will be open to a disabled person in those circumstances?
§ Mr. Clarke
I see no negligence or cause of action that could arise in any of those circumstances. I am not sure about the failure to screen for HIV. I understand that it is usual regularly to screen the donors of sperm to make sure that sperm is not being taken from an HIV-positive individual. It almost certainly would be negligent to do so. Certainly the other circumstances do not give rise to a cause of action.
§ Mr. Clarke
If the hon. Gentleman accepts the opinion of those who say that frozen sperm are more liable to have defects, he should appreciate that the new clause could give a child possible cause of action against the person who uses frozen sperm. It may give rise to litigation which the hon. Gentleman, presumably, would welcome, although, personally, I think that it would fail.
This possibility arises in few cases. It was an obscure change of the law in 1976. The parents in such circumstances always have the right to sue, but sometimes parents can demonstrate no particular damage, for example in financial terms, to themselves. Until 1976 the child was in an ambiguous position, not so much that he or she definitely had no right to sue as that it was unclear that the child had a right to sue for damages, relying on facts that occurred before he or she was born or even conceived. The law was changed for natural childbirth. If the new clause is accepted, the law will be changed for those born as a result of IVF. I imagine that the number of cases that would occur would be about the same. If the new clause is not accepted, the old legal problem would arise if a child conceived through IVF brought an action.
I accept that the provision is being introduced at a late stage. The point was not noticed previously. The House will recall that the Bill started in another place. If we do not introduce this provision on Report, we shall not be able to do so ever. If the Bill were at an earlier stage, I should probably undertake to withdraw the new clause 998 and give hon. Members more time for reflection, confident that they would accept it. If I do that this evening, we shall end up with a gap in the law and will deprive these children of a protection which other children have.
§ Mr. Wigley
I understand that if this provision is to be included, it must be inserted now and that it cannot be introduced in another place, unless as an amendment from this House. Can the Secretary of State clarify whether we shall have some opportunity to return to this matter, if the Bill is amended in another place? If so, could that opportunity be used to give hon. Members a chance to get into the guts of this a little more? Many of us feel that, although the Government may be right, we have not had an opportunity to take advice as we should like to do. We should be happier if we knew that the House of Lords could be encouraged to make amendments to allow us to return to this later.
§ Mr. Clarke
If the House carries the new clause, it will return to another place and their Lordships will have to decide whether they agree with it. I have no doubt that the case I am arguing will be argued with greater eloquence by my noble Friend the Lord Chancellor, whose amendment it is in origin, I am assured by the Solicitor-General. I imagine that the Lord Chancellor has a fair chance of persuading their Lordships. Unlike me, he has an audience of Law Lords who will doubtless take an interest in the subject as well.
I am speaking off the cuff, but I think that it is true that if their Lordships agree with the new clause it will not return here. However, it means that there will be an interval within which hon. Members can make representations to the Lord Chancellor while the new clause is returning to another place and being debated there.
The Government are not proposing to impose on the House something that, in our opinion, raises serious ethical issues of the sort that we normally expect to concern the hon. Member for Mossley Hill and members of the pro-life group—or members of the pro-women's choice group such as the hon. Member for Bristol, South. I think that my right hon. and learned Friend the Lord Chancellor believes that he is merely filling a gap in the law that had been overlooked at an earlier stage of drafting.
§ Mr. Brian Sedgemore (Hackney, South and Shoreditch)
The Secretary of State was saying categorically that he could not think of any circumstances in which there could be a cause of action against the donor with relation to the Congenital Disabilities (Civil Liability ) Act 1976. Will he assure the House that there will be no cause of action running on the following lines. The child would say that the donor clearly had a duty of care towards the child. The donor may not have known that the sperm was defective, but his duty of care would have run to having had all the tests and personally satisfying himself that he knew that the sperm was not defective. Why could not a cause of action in negligence run against the donor, operated partly by taking on those giving the treatment, who would then join the donor? By an act of omission, could an action for negligence be taken out against the donor?
§ Mr. Clarke
This debate is becoming closer to a moot than a debate on the Floor of the House. I do not know about the hon. Gentleman, but I am out of practice at 999 moots. My instant reaction would be that, unless the donor knew that he was carrying a transmittable disease —in which case, he could be liable—he could ordinarily say that he had discharged his reasonable duty of care by relying on the expertise and precautions of the medical staff at the centre where the IVF treatment was given. He would expect something of which he was unaware to be detected by people with much more expertise to whom he gave the sperm that was to be donated.
It would be most unlikely for there to be a claim against the donor. I can think of no circumstances in which the child could have a claim against the parents—a point that was raised earlier. The wording of the Congenital Disabilities (Civil Liability) Act, which looked alarming to the hon. Member for Mossley Hill, already exists for children born naturally. It covers the range of causes of action that might arise before a child is born and for which a child might wish to bring an action.
§ Ms. Harman
I wish to follow up the point raised by my hon. Friend the Member for Hackney, South and Shoreditch (Mr. Sedgemore) about the duty of care. We must do everything we can to reassure donors, who provide a helpful service, that they will not be liable, because that would be a major deterrent for people donating sperm. They could sue the people responsible for treatment—the clinic. The clinic staff could look up the files to identify the donor and fish around to discover that he had worked at Sellafield but had not disclosed that. The position is not as clear as somebody knowing that they have AIDS. They might know that they had unprotected intercourse with someone who might have had other partners. Possibilities are opened up, and it is not necessarily good enough for the Secretary of State to say that he cannot, at present, think of any likely scenario. We have clearly identified that the possibility is very much there.
§ Mr. Clarke
It strikes me in retrospect that the possibility is exceedingly remote. I am prepared to concede that it is arguable that the donor owes the normal duty of care towards the child who is eventually born. However, he is only expected to take reasonable care and disclose the facts that he would expect an ordinary layman or medical student to have to give to those in the clinic giving the treatment, who have all the expertise and facilities at their disposal.
The primary duty is on the clinic staff to satisfy themselves, by questions of the donor and medical tests and screening of the semen, that the semen used is satisfactory. If a genetic abnormality is occurring it is in the nature of IVF that observation of the embryo's development and proper handling of the case is an important part of the treatment. Causes of action—I do not think that there will be many of them—are far more likely to arise against the clinic. There are only remote circumstances in which the donor could be at risk. He would be at risk only if there had been negligence on his part.
§ Mr. Clarke
It would do so no more than the failure to destroy a foetus carrying Down's syndrome could be the cause of action with natural childbirth. I am glad that the hon. Gentleman returned to that point, because I did not deal with it fully before. The hon. Gentleman believes that there will be a cause of action against doctors for failing to terminate a pregnancy likely to produce a disabled child, but I do not believe that. There is no distinction between an IVF pregnancy and a natural pregnancy for the purpose. It can happen with a natural pregnancy and, conceivably—although it is slightly less likely—happen with an IVF pregnancy.
We have not reached the position in this country—I hope that we never will—where a failure on the part of the doctor to pressurise a mother, against her will, to abort a handicapped child would be a cause of action. That is not the case. There is absolutely no difference between an IVF case and a natural childbirth case. Nothing new is being created here.
§ Mr. D. N. Campbell-Savours (Workington)
New clause 11(3) states: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 he) either or both of the parents knew the risk of their child being born disabled.The clinic, to cover the possibility of an action for damages being brought against it, might wish to make a blanket statement about any possible risks as a result of the treatment. It could be argued in future that the parent knew of the risk of his or her child being born disabled. Would not it be a way of insulating the clinic and the doctor against the possibility of damages if the clinic gave a general statement of the risks that might arise from such treatment?
§ Mr. Clarke
I did not completely follow the hon. Gentleman's argument, but I think that the answer is no. No action arises automatically because a child it; born disabled, whether it is born as a result of IVF or natural birth. It does not automatically follow that anyone has been negligent or liable for a civil cause of action because a disabled child has been born. The only cause of action that arises under either circumstances is if the disability arises as a result of somebody's negligence.
We are all accustomed to the cases where the parents, and, under the 1976 Act, the child, have an action brought on their behalf against the obstetrician in natural childbirth because the obstetrician's actions have, through negligence, unfortunately caused the disability. The same action would arise against the clinic. All that the I-louse will ensure by rejecting the new clause is that, whereas a child born naturally can sue the obstetrician for negligence, a child born as a result of IVF cannot sue the people who run the clinic and the doctors there for negligence. For that reason my noble Friend is correct to say that the logic of the 1976 Act means that we should put IVF children on all fours with those born naturally.
§ Mrs. Ann Winterton
I am getting more confused as the minutes roll by. Is not it true that a child conceived and born naturally will not be screened in the first part of its life? However, a child conceived by IVF will be screened because no gynaecologist or doctor would want to reimplant a woman with an embryo that was not perfect. 1001 If by any mischance a disabled child was born, would it have the right to sue the clinic or the doctor for having been born?
§ Mr. Clarke
I query the beginning of my hon. Friend's statement because, at least nowadays, in natural childbirth screening is carried out for handicap. Amniocentesis is becoming a regular practice. Nobody claims that an action for negligence could be brought by the child because the child was not aborted, presumably on the decision of the mother. I cannot imagine an action being brought because a child was allowed to be born when screening showed that it was disabled. If the child is not born because the defective embryo has been removed, no question of this kind arises. The parents might sue, but I cannot see how on earth a child would bring an action to obtain compensation for the fact that it was not destroyed at the embryonic stage. I could not put together a claim for loss or damages in such circumstances.
I do not think that we can take the matter much further. I have done my best to explain the new clause. We have not had long to look at the matter and it is understandable that some hon. Members are worried and suspicious and trying to find circumstances that might give rise to problems. They are mistaken to object to new clause 11 because, by doing so, they will be putting a child born as a result of IVF in an inferior position in law to a child born naturally. No doubt the other place will return to that.
§ Mr. Clarke
I shall give way just twice more and then move to new clause 13 in the fond belief that it will present no difficulties.
§ Ms. Primarolo
I understand the Minister's arguments, but there are still difficulties about clarification. As the Solicitor-General has entered the Chamber, perhaps he could give us a legal clarification. That could help us because, while we have much sympathy with the Secretary of State's argument and support it in principle, we are worried about the drafting of the new clause.
§ Mr. Clarke
I should be glad to ask my right hon. and learned Friend the Solicitor-General whether he would be interested in taking part in the debate. I trust that he will deploy the same arguments. I think that I took silk on the same day as my right hon. and learned Friend, but by that time I had ceased practising and he has practised regularly ever since. He has heard the hon. Lady and may consider having a second go on new clause 11.
§ Mr. Simon Hughes (Southwark and Bermondsey)
I am listening carefully to the Secretary of State. There are two solutions. I understand the logic of wanting to make sure that children born as a result of one procedure have the same rights as children born as a result of another. We could have amending legislation later if the matter is controversial. It might be better to proceed down that road if it is not possible to resolve the problems now. New clause 11(1)1A(1)(a) and (b) must, as a matter of drafting and logic, leave open a course of action by the child in relation to an argument that the selection process at the beginning of the child's gestation was in some way defective. The Secretary of State put an extreme case, but 1002 I am arguing not that the option is that the child would not have been born but that it would have been born able bodied rather than disabled. There must be that cause of action and I agree that it would be taken by the parents. Perhaps it would be better to take this matter separately and remedy the law soon.
§ Mr. Clarke
An action could arise in such circumstances. An action could arise in a case where a child would have been born able bodied if someone had not been negligent. It would arise where the embryo was healthy and developing normally, but, as a result of some default on the part of someone responsible for the care of that child, it was damaged and the child was born disabled. In precisely such a case new clause 11 could give rise to an action. I do not think that the hon. Member for Southwark and Bermondsey (Mr. Hughes) is worried about that.
If a child is born disabled because the embryo was naturally damaged from the beginning and everybody behaved properly, no cause of action arises. I am not sure whether my right hon. and learned Friend the Solicitor-General is persuaded to intervene. He may intervene later. He and I are perfectly prepared to undertake to ask the Lord Chancellor and the Law Officers to look at all this between now and the Bill going to the House of Lords to consider the points that have been made and to consider again whether the Government are unintentionally introducing an amendment that gives rise to the kind of moral and ethical issues that worry hon. Members. I do not think that that is the case, but no doubt after the debate the matter will be canvassed thoroughly and carefully in another place.
§ Mr. Campbell-Savours
The Minister says that he is trying to ensure that children born under these procedures would have the same rights under the 1976 Act as children born naturally. There is a distinction. Under the 1976 Act, as it has been explained by the Minister, a child would be able to sue back to the point of fertilisation and responsibility would be placed on the doctor during the period from fertilisation to birth. However, under what we are now discussing children would have an additional right to sue for procedures that were carried out to the embryo prior to fertilisation.
§ Mr. Clarke
I am subject to correction by my right hon. and learned Friend the Solicitor-General, but my understanding is that under the 1976 Act the law merely gives the child a right of action based on facts that have occurred before birth or before conception. I have already mentioned cases of negligence by the obstetrician with which we are all familiar. Other circumstances are where a car accident occurs and a pregnant woman is one of those injured and the foetus is damaged by a negligent driver. I can think of cases where a woman has been injured by the negligence of someone before conception and the nature of the injury is such that, when she conceives, the child is damaged. The 1976 Act is designed for such cases.
New clause 11 merely says that the same remedies are available to an IVF child so that where there is fault on the part of some person that causes injury to the child, and the fault occurs as a result of facts that occurred before the child's birth or conception and injures the parents, the child will have a cause of action.
1003 I hope that the House and another place are satisfied that all we are doing is putting the law on all fours for children. however they may be born.
§ Mrs. Fyfe
I thank the Secretary of State for his patience. What would happen in a case in which no clinic was involved, but a woman had simply come to an informal arrangement with a man and inserted the sperm herself? That is perfectly possible, and I hear that it is being done already. Obviously, it is an unsafe and undesirable procedure, but it happens.
§ Mr. Clarke
I do not think that anything arises from such a case because the provisions in new clause 11 affect those responsible forthe keeping or use outside the body, of the embryo…or of the gametes usedto create the child—usually the licence holders. The 1976 Act gives no right of action to the child against a parent. I cannot conceive of any action arising in the circumstances that the hon. Lady has described, which would he included in the provisions of new clause 11, and which would give rise to any action.
I suggest to the House that I proceed to new clause 13. If my advisers and my right hon. and learned Friend the Solictor-General believe that I have gone off the rails and have misled the House, there will be an opportunity for hon. Members to collect their thoughts and for them to intervene and to correct me. I think that my right hon. and learned Friend is with me so far. We cannot continue this viva voce on new clause 11 this evening.
I shall read a note, which has been passed to me, concerning the issue raised by the hon. Member for Glasgow, Maryhill (Mrs. Fyfe). It says that it is not possible to sue the mother, except when she injured herself, for example in a motor accident, as a result of her own negligent driving. That is the provision of the 1976 Act. Therefore, except when the mother has injured herself by her own negligent act, and as a result has injured the child that she is carrying, the child cannot sue.
New clause 12 deals with the disclosure of information about donors or gametes to the courts, and it will not allow the disclosure of information about donors, because it is more sensitive than information about people who receive treatment. All hon. Members who have spoken have said that the anonymity of the donor should be preserved in all cases in present circumstances, which I shall return to in a moment.
New clause 13 contains the only case in which we propose that the courts should have the power to order disclosure of information about donors. Section 1 of the 1976 Act, which we have just been describing, provides a remedy for a child against a person who caused harm to his or her parent, which affected the parent's ability to have a normal, healthy child. An example might be the wrongful exposure of the parent to radiation or to a genetic disease which might be passed on to the offspring. When a child is born as a result of natural conception, the 1976 Act would enable the child to seek redress directly againt the third party who caused the injury to the parent, which was one of the issues raised in an intervention. When a child is born as a result of donation, the person whose injury led to the child's disability must be the genetic parent—the donor. Unless the child has the means of knowing who the donor is, in practice, it would be impossible for him to start such an action.
1004 We have given careful consideration to whether we should allow disclosure of identifying information about the donor in that case. We have decided that the main guide to policy must in principle be that children born by donation must have the same legal rights as children conceived in the usual way. Therefore, in that one case the privacy of the donor must take second place to the rights of disabled children to seek compensation against those people whom the law provides must be answerable to them. Under the 1976 Act that person is not the donor, but the person who injured the donor.
§ Mr. Wigley
Clearly, there is a danger that the donor's identity will become known when it otherwise would not be known. Is not there a possibility that the donor's identity will become known, but the donor may not be guilty of any trespass? Although he may not have done anything to warrant disclosure, he may find that his identity has been disclosed because an action has started, and the confidentiality, which we originally thought would exist, would therefore be taken away from him through no fault of his own.
§ Mr. Clarke
Yes, that is the case. In the circumstances that I have just described, which new clause 13 is designed to provide for, the donor would be innocent. He would have been injured before he donated the sperm—for example, by exposure to radiation—in such a way that his natural child, born later as a result of IVF, was injured.
The Government have decided that the right of the child, suffering as a result of the exposure of the natural parent, to bring an action should justify the courts making such an order. The extent to which information is disclosed would be restricted, but obviously it would be important to know who the person is before the child can have the chance to take any action.
I shall deal briefly with the other amendments, although I expected to speak about them more fully, but I cannot speak for much longer.
§ Ms. Harman
I presume that the Secretary of State meant that it would be for the court to decide the extent to which information was disclosed. Does he envisage some protection to prevent the publication of the name of a donor whose identity is revealed to the court? Would there be a prohibition on the name of the donor being given to the press? Would the information be given to the court, where there would be a barrier, and it would then leapfrog over the barrier of the person who has committed negligence to the donor? Or would the information be disclosed and be completely open from then on? For example, could we have the case of, "The Infant W v. Sellafield and Mr. Y," or would more information be given? What would be the procedure?
§ Mr. Clarke
The identity of the donor would have to be disclosed to all those people taking part in the action because the defendant would obviously have to know the name and identity of the person that the defendant is accused of having injured. At the moment, there is no express provision in the new clause for hearing in camera —[Interruption.] My right hon. and learned Friend the Solicitor-General assures me that the court could sit in camera if the anonymity of the donor in the case might otherwise be threatened, and the court could restrict reporting.
1005 Before I rose to answer the attacks on new clause 11 we were debating—at some length—the nature of information recorded about a donor and a donor's anonymity.
I am not surprised to see that my hon. Friend the Member for Bolton, North-East has abandoned the Chamber during discussions of the Government new clauses, but I am sure that he will be back. I must answer his comments about amendments Nos. 56 and 57, which I think he said that he was not proposing to press if the Government prefer to rely on regulations to determine the exact nature of the information to be kept. We must rely on regulations if only to keep the arrangements flexible and change them in the light of evolving opinion.
It seems undesirable to include in the Bill the type of information suggested by my hon. Friend the Member for Bolton, North-East in amendments Nos. 56 and 57. As the hon. Member for Bristol, South rightly said, if such information were available to those seeking treatment, people could select or join a waiting list for particularly desirable donors.
I shall deal more briefly than I intended with amendments Nos. 33, 31(A) and 60. They deal with the extent to which the information available to applicants might be changed in future. The Bill provides that the authority must give applicants certain information which will be specified in regulations to be made by the Secretary of State. It is the firm intention of the Government that the information given will tell the applicant something about the genetic parent, but not enough for him or her to be identified. The information given might include that which might be important for medical purposes or, where an applicant intends to marry, that which enables the authority to tell the applicant whether he or she is genetically related to the fiance or fiancee.
We strongly support the anonymity of donors for the reasons given by the hon. Member for Bristol, South and my hon. Friend the Member for Salisbury (Mr. Key). We have no intention of introducing regulations to allow that anonymity to be breached. It is true that circumstances may alter, so the Bill provides that the regulations can be changed. A later amendment provides that any regulations under clause 30 should be subject to affirmative rather than negative resolution. That will mean that both Houses of Parliament will have to give the matter thorough debate before regulations are made.
My hon. Friend the Member for Spelthorne (Mr. Wilshire) has yet to speak to his amendment. I apologise to him. I intended to wait until he had made his speech before I made mine. I thought that I had better stop the debate on new clause 11 before it went much further. My hon. Friend's amendment deals with the argument about whether people born as a result of IVF should have the right to know who their genetic parents are. To give them that right entails giving them information to enable them to identify the donor father. I have already said that we do not propose to provide that right in the regulations.
Although attitudes may change, I believe that it would be wrong to give people born as a result of IVF the right to know their genetic parents. In order to be brief, I shall not be repeating the arguments used by the hon. Member for Bristol, South and my hon. Friend the Member for 1006 Salisbury. I strongly agree with both of them. I do not believe that it would be right to provide that right, although we shall leave it open to future alteration.
I agree with the hon. Member for Bristol, South that the circumstances of adoption, in which the House has agreed to allow access to information, are different from those of IVF. The relationship between someone who has been adopted and the natural parents who had to request that the child be adopted is different from the relationship, which in emotional terms is non-existent, between a child and a donor of sperm where the child was born by IVF.
I strongly believe that in the present climate most people accept that anonymity should be preserved. I emphasise that the House will decide the matter by a free vote. However, I believe that, although we are leaving the matter open to be changed in future, it would be wrong, as my hon. Friend the Member for Salisbury said, to leave everyone who acts as a donor to proceed on the basis that the law might eventually be changed retrospectively.
Reference has already been made to the Swedish experience. It has been said that donors will be deterred by the possibility that at some time in future their names will be disclosed. I accept that, as my hon. Friend the Member for Bolton, North-East said, there is evidence that some donors would not be deterred. However, that does not alter the position. It is not just a practical matter of whether one could persuade people to become donors. One must consider the interests of all the parties. I understand that some children may feel a compelling desire to know the man who donated the sperm. But that cannot be conclusive. One must visualise the position of the donor. Whatever he said when he donated the sperm, 20 years later he may have a family of his own. He may not wish to have a child, about whom he knows nothing, present himself or herself to him.
We must also consider the parents of the child. The mother probably did not want to have another man's child or to have any emotional relationship with some unknown medical student who donated the sperm. It could create fraught situations if a child who for some reason becomes excessively worried about his or her parentage in teenage or adult years is suddenly enabled to obtain information about the identity of the donor of the sperm many years before to the acute distress of parents, donor and everyone else involved.
For that reason, I am happy for the Bill to be drafted in such a way that if my opinion is rejected or the House changes its opinion by affirmative resolution, the anonymity of donors could be lifted. However, if we do not pass the amendment of my hon. Friend the Member for Salisbury, to which I added my name last night, there will be an element of doubt from now on. Everyone will have to be told that it is possible that a future Government could change the law by regulations or by primary law. I should feel happier if a Government were obliged to go through that hoop, but that is only my view.
I intervened at an earlier stage than I intended, and I shall now listen to other contributions, particularly that of my hon. Friend the Member for Spelthorne who appears from his amendment to take a flatly contrary view. In the end, the House will have to make up its mind by, I am sure, a free vote on both sides.
§ Mr. Wigley
I am glad that the Secretary of State made his intervention before my brief contribution because he clarified the new clauses, yet I should have been happier if 1007 there had been an opportunity to study certain aspects of them more fully. It is unfortunate that the new clauses come before us at a late point in the proceedings, denying us the opportunity to take advice, and that they have been grouped with amendment No. 56. That led to the Secretary of State having to make two speeches. I understand the difficulty that he is in, and I understand also the objectives of the new clauses. One can sympathise with them while at the same time being uncertain about how they will work out in practice.
Perhaps the Secretary of State will at least nod if I am right in saying that in no way do new clauses 11 and 12 mean that someone who has been inseminated to avoid giving birth to a disabled child, but whose embryo is then found to carry a disability that the recipient did not imagine it would carry by virtue of the screening, will be able to bring an action.
§ Mr. Clarke
While my right hon. and learned Friend the Solicitor-General applies his mind to that point, perhaps I may ascertain whether I have understood the hon. Gentleman's argument. Perhaps he is contemplating a case in which a carrier of haemophilia undergoes fertilisation treatment to ensure the selection of an embryo that is not carrying haemophilia. We discussed earlier the situation in which only female embryos are reimplanted. If a mistake were made, a male embryo was reimplanted and a child having haemophilia was born, I suspect that the parents would have a right of action. That is my off-the-cuff reaction. I do not think that the child would have a case. We are up against the same problem that was discussed earlier, of the child bringing an action to the effect that it should not have been allowed to be born.
§ Mr. Clarke
That is not what it says, with respect.
I cannot perceive of any action that could be brought on that basis. If the hon. Gentleman will proceed with his speech, perhaps my right hon. and learned Friend the Solicitor-General will take a hand.
§ Mr. Wigley
I am sorry for raising such a difficult point so early, but perhaps it helps to do so. It appears that the clauses do not concern actions to be brought by the parents in respect of negligence against them but relate to negligence against the child itself. We are talking about different children—the handicapped and the non-handicapped foetus. Presumably they would be different entities in law, and would therefore involve different possibilities for action.
§ Mr. Clarke
We are dealing with actions brought by the child against the licence holders and the others named in the clause in respect of actions that they took which injured the parents and which in turn damaged the child.
§ Mr. Wigley
Quite so. Therefore, action can be taken only on behalf of a child who has had the opportunity to grow and develop from the early embryo or pre-embryo —a different child from the child who might have been born had a different embryo been selected in those early stages. An embryo that has not been selected clearly has no rights in law. That leads us to a fraught state of affairs in which it would appear that some embryos have rights in law, and we need to think the matter through carefully before we legislate. I am sure that the Government are introducing the proposals with the best of intentions, but 1008 I wonder whether they have thought them through properly. Perhaps at a later stage we may be given the assurance that, by virtue of other provisions, parents will have a remedy in law if a mistake has been made in the selection of an embryo.
§ Mr. Clarke
Parents have all sorts of common law remedies against anybody who causes them injury, and the Bill does not affect that. Parents will certainly have the common law right of action against anyone who gives them medical treatment that causes them damage. There is no need for legislation to clarify that.
§ Mr. Wigley
The hon. Member for Workington (Mr. Campbell-Savours) raised another matter connected with new clause 11. He asked about the interpretation of the words:the parents knew the risk of their child being born disabled".I suggest that knowledge of a risk is difficult to establish, and difficult to make the basis of action in law. Two questions arise. The first concerns the degree of risk; parents may have been led to believe that there is only an outside chance, for example. The second has to do with whether the parents understand the implications of the risk to which they are open. In the difficult world of medicine and disability, doctors may point out to parents, perhaps using a technical term of which they may never have heard, that there is a risk that their child may contract a certain condition—perhaps a fairly small risk, which may not have far-reaching implications. Suppose that the parents do not take that on board. In their desperate enthusiasm to have the child, they may not fully evaluate the risk, and that fact may exclude the possibility of an action later on.
§ Mr. Alton
I am following the argument closely and I strongly support much of what the hon. Gentleman is saying. Suppose that parents are told that they run a risk of having a disabled child following IVF and subsequently refuse to have an amniocentesis test, because they know that that, too, might endanger the unborn child. Where does the negligence lie if the parents refuse to have that test?
§ Mr. Wigley
That raises interesting questions, not least because the amniocentesis test can, of course, endanger the mother as well as the child. The various factors will have to be balanced against each other. I hope that the Lords will be able to pursue those matters in considerable depth; we are clearly in difficulties tonight.
I had intended to refer mainly to rights of information —one of the most difficult questions that we have dealt with so far. Two important and conflicting interests arise and we cannot meet both fully: the first is the right of the child and the second is the right of the donor. I suspect that most people's instinct would be that we should give the child all the rights that we can. But if we try to give the child all possible rights, that child may not come into existence because the donor might be frightened away. We know of that from the experience in Sweden and it has been suggested in much of the correspondence that we have received. As the Secretary of State said, we must strike a balance. At what point do we accept that there is a limit, and up to what limit should we give information to the child about his or her background?
The Secretary of State tried to address a question that worries the House, although I must say that I am still not absolutely clear about it. Suppose that we leave the door open, by way of the regulations on which the Secretary of 1009 State proposes to rely, for further action to be taken on this matter in future. Is my interpretation of the Secretary of State's remarks correct? Am I right in thinking that if there is a change—by way of affirmative resolution or in primary legislation—there is no way in which we shall be able to guarantee that it will not have a retrospective effect? After all, if such backdating occurred, it could affect those who have already acted as donors or those who might act as donors between now and the time at which that change is made. The Secretary of State would say that the House cannot bind itself, so there will always be a risk. But I hope that he will find means of giving the maximum assurance to donors that they will not find themselves in a retroactive position, whereby their identity is made known.
§ Mr. Clarke
Amendment No. 60 gives the maximum assurance because it provides that regulations cannot be retrospective. For the reasons that the hon. Gentleman has given, we simply cannot say that no subsequent House will not pass retrospective primary legislation. We cannot guarantee that a future House will not pass legislation saying that one red-headed man in three should be beheaded, but it is highly unlikely. By passing the amendment, we are making it clear that we do not contemplate regulations under the Bill being retrospective; indeed, we shall rule that out. If a future Parliament wanted to make the Bill retrospective, it would have to start from square one.
§ Mr. Wigley
I hope that it will be understood that the maximum safeguard is being given.
I revert to new clause 12 and the courts dealing with cases in which identification may be necessary to a limited extent. I hope that potential donors can be assured that, although it may be necessary for their identity to be known to certain people within the courts, there will be provision for hearings in camera and for reporting restrictions to safeguard their identity. This is a difficult issue—I suspect that the hon. Member for Spelthorne (Mr. Wilshire) will put an opposite viewpoint in a moment—in which the interests of the child must be paramount to the interests of the donor.
I rest on the point that I made a moment ago: unless we have donors we shall not have children. We must be careful not to allow this matter to start drying up, if that is not an unfortunate phrase, to ensure that those who want children can have them and that, in our anxiety to safeguard the rights of the child to information, we do not, inadvertently perhaps, lead to fewer children being born and fewer parents being helped by IVF treatment.
§ Mr. Wilshire
As you have been elsewhere on your duties, Mr. Speaker, when you read Hansard in the morning you will discover that you have missed one of the better seminars on the more obscure parts of legal liability. Whether you will find it helpful I leave you to judge when you read it.
Hon. Members who are mere mortals rather than lawyers tend to stick to things that we think we understand. I therefore have nothing to say about the niceties of the new clauses. I want to speak to the amendment that I tabled—amendment No. 31A—which, 1010 as the Secretary of State rightly predicted, seeks to give those who have reached the age of 18, once they have been given a chance to receive counselling, the absolute right to all the information held about them on a register.
I find myself in an unfortunate position. I disagree with the hon. Member for Bristol, South (Ms. Primarolo), and having spent about an hour in the same Lobby as her earlier, that grieves me somewhat. I also disagree with my hon. Friend the Member for Bolton, North-East (Mr. Thurnham), and that upsets me equally because I spent much time helping him with the admirable work that he has done on other parts of the Bill.
It is probably foolhardy of me to disagree with my right hon. and learned Friend the Secretary of State, but nevertheless I shall. My case is essentially simple: I cannot accept that it is right to withhold from people information about themselves that others know, especially when that information concerns the unique genetic identity of the seeker.
The hon. Member for Bristol, South said that people's curiosity did not go that far, but, if the amendment were accepted, I believe that there would be ample evidence that it does—and such curiosity should be satisfied. People seeking information about themselves will quickly discover that the information is obtainable—after all, others will know. In certain circumstances, the Bill will give people the right to ask whether they have been produced as a result of treatment, and whether they are related to someone whom they are going to marry. Ergo, they will know that there is information about their genetic parents.
If I understood the seminar correctly, new clause 12 confirms the argument that I am making: that it may be necessary—albeit in only one case—to tell one group of people who are their genetic parents. If it is good for one person, in my book it is good enough for everyone.
§ Ms. Harman
How far would the hon. Gentleman take that argument? If a child were the result of incest, one group of people would know that. In those circumstances, does the hon. Gentleman think that that child should be told? Let us suppose that the child was not the child of its apparent father, and that the mother knew but the "father" did not. Should the child be told? It is a complicated issue. The way in which the hon. Gentleman is dealing with the question makes it seem simpler than it is.
§ Mrs. Currie
What my hon. Friend is suggesting is horrendous: that, whatever the truth about a child—however grievous and whatever the pain that it might cause to the child—he child should still be told the truth. Does not that elevate the truth above everything else in society, including people's happiness?
§ Mr. Wilshire
My hon. Friend makes an interesting point, but not a good one. The problem is that, if people choose not to tell a child the truth, some may assume that that is the end of the matter. If one does not tell a child the truth, and it then finds out, one compounds the lie when the child asks why it was deceived in the first place
§ Mr. Kenneth Clarke
Is not it sufficient, from the point of view of truthfulness, to be told that one's birth was the result of a donation by an unknown man who—for humanitarian reasons—never had a relationship with one's mother, and who then vanished from the scene? I find it impossible to argue that the child has a compelling right to know more than that and to trace the anonymous figure who carried out that humanitarian act many years before.
§ Mr. Wilshire
I do not think that that is adequate. We are referring to the origins of the unique genetic characteristics of a person. Simply to be told that there is someone who was one's genetic mother or father does not go far enough.
I disagree with my hon. Friend the Member for Bolton, North-East because the information that I want disclosed is that which is already provided for. I should be unhappy if additional information were put into the register. It is sufficient to say that a child can find out who its genetic parents are and leave that child to make its own inquiries if it wants. My hon. Friend's amendment does not appeal to me.
I should like to face up to the objections, which are coming thick and fast. There might have been a legal seminar before, but I now think that I am perhaps in the dock being examined with a view to being found innocent, or guilty, of being naive. If I have a chance to force my amendment to a Division, no doubt the House will tell me its judgment.
The objection that harm will be caused to the child has been raised already. What are we saying will cause that harm? The truth? The child will know easily enough that its social parents are not its genetic parents. Knowing one's social parents is only half the equation. The experience with adoption has been cited. I accept the comment of my right hon. and learned Friend the Secretary of State that there are some significant differences between adoption and being born as a result of donation. But the experience of the child who is adopted is relevant.
Not many children who have been adopted want to know about their parents, so we are not necessarily saying that everyone's curiosity will be aroused. To that extent, the hon. Member for Bristol, South is correct. However, a significant minority of children who are adopted wish to know about their parents. All the evidence that I have seen suggests that the children who seek that information are not harmed by knowing more about themselves, but would appear to benefit from it. What evidence there is is a plus to my argument, not a minus.
§ Mr. Alton
I hope that I do not do the hon. Gentleman's case too much harm by saying that I, for one, certainly agree with much of what he said. Does he accept that it is important that those who donate the sperm accept that they are entering into something other than the type of irresponsible relationship that some have suggested? The Secretary of State talked about a medical student being able to clear off for the rest of his life and never thinking about what he did. Does not that reduce the position of parenthood?
§ Mr. Wilshire
The hon. Gentleman is not harming my case; he is just stealing part of my speech. I totally agree with him.
1012 It has been suggested that children might not know what they are doing when they ask about their parents. That is why my amendment states that they should be offered counselling first. The potential risk would be explained. That is exactly the position taken with adopted children who seek more information. I believe that that is how the risk should be approached.
Another objection that has been voiced concerns the wishes of the parents. It was suggested that if parents knew that the genetic origins of the child were known, the numbers of parents seeking this treatment might fall. I do not believe that that is sufficient justification. People have a choice. If we elevate the wishes and preferences of parents above those of the child, we have the whole matter out of balance.
I said earlier that the child should know the truth. What would parents be afraid of in allowing the child to have the information? Would they be afraid of a child's knowing the truth? Would parents wish the state to help them live a lie?
§ Mr. Wilshire
My hon. Friend says that it happens all the time. Yes, but it is not a function of the state to legislate to help that happen. If individual families want to do that, I should defend their right to do so, while disagreeing with them. But we in the House should not be legislating to enable people to live lies and withhold information from children. It is as straightforward as that.
§ Mr. Thurnham
There is a very real difficulty in that. The National Association for the Childless has said that many of its members would not wish to have a child if they had to divulge the fact that the child was a donor child and reveal its identity, as my hon. Friend's amendment provides. Does not he feel that that is a factor and that it might lead to some couples going abroad to obtain treatment and then returning to this country so as to avoid being caught by this legislation?
§ Mr. Wilshire
Happily, we do not legislate for what happens elsewhere. If people decide to leave the country for treatment, I defend their right to do so. The fact that others may have legislation that I do not like is no reason for allowing that to occur here. Points of order were raised in the House this afternoon in a different context— on the sovereignty of the House and the right of this nation to have its own laws.
Would fewer parents take advantage of this? As for myself, due to certain events, I have had cause in my family life to regret what has happened to me. I should not wish that on anyone else. It is a rough world in which we live. Some people cannot have children unless they take advantage of this treatment. It has physical, social, moral and theological implications. We cannot escape from them. We should not allow people to escape from facing up to the responsibilities of the treatment. If couples decide that the only way to have a child is to have treatment but they are unable to face up to the child knowing about it, then—in the rough old world in which we live—I fear that they have to live with it. I say that, having had a rough time myself, not out of callousness for other people. It is a matter of fact.
The other argument that parents may advance is that children may feel that they are unwanted and unloved, 1013 should they discover the truth. The exact opposite would be the case. If one's social parents have gone to all the trouble, expense, pain and anguish to have a child, what greater demonstration could there be of being wanted and loved than that? That is an advantage rather than a disadvantage. One could be proud to be able to tell one's child about his or her background.
As for the donors, the hon. Member for Caernarfon (Mr. Wigley) said that it all comes down to the question of the rights of the donor as against the rights of the child. It is not as simple as that. The donor can choose to be a donor. However, the resulting child has no choice. When there is choice on one side but not on the other, I come down firmly on the side of the person who has no choice: the child.
The question of whether there will be fewer or no donors does not stand up to critical examination. I have seen both sides of the case deduced from the experience in Sweden and New Zealand. I do not know what to make of that. What is relevant is research that has been done by King's College hospital. In 1989 that hospital received 100 inquiries from would-be sperm donors. Of the 100, 30 were accepted on clinical grounds. Of those accepted, 12 were happy to be identified and eight felt that they would be willing to consider it further, if a request were made.
That does not suggest to me that it would be impossible to maintain a sperm bank if my amendment were passed. If there were fewer donors, the important question to ask is: why? The hon. Member for Liverpool, Mossley Hill (Mr. Alton) made that point. Is it that people do not want publicity? Do they want it to be a secret? If so, it might be thought that they are ashamed of what they are doing. Should we legislate for that? It also means that those people do not want the consequences of their action turning up on the doorstep 20 years later. However, that is admitting that there are consequences. We are talking not about blood donation, but about the donation of the unique individuality of a child.
Donors cannot say, "I do not want to know anything about that", because it is there for the future. If that child were to find out—even if we legislated against it—there could still be a knock on the door, so the person who is the source of the gametes should be proud enough to say, "I was not ashamed of what I was doing. I knew what I was doing and I would do it again. I am in no way socially involved, but I am your genetic parent." If someone cannot face up to that, he should not be encouraged to become involved in the process.
§ Dame Jill Knight
My hon. Friend may recall that the House gave adopted children that right, whether or not their parents cared about them turning up on the doorstep. It seems odd to force parents who have given up their child for adoption to face the fact that that child might one day turn up, yet we do not give a child produced by artificial medical means the same right. Surely that is a strange thing for the House to fail to do.
§ Mr. Wilshire
My hon. Friend and I have had many discussions about why we keep voting in different Lobbies. Therefore, it is a pleasure to say that I agree 100 per cent. with the point that she is making. My hon. Friend is absolutely right that we should not make such a distinction because in both cases we are dealing with an individual 1014 child who should have the right to know. Whether parents are giving up a child for adoption or donating gametes, some of those people will one day have to face the consequences of that, whether they like it or not. I do not believe that we should be legislating for those people to live a lie.
I heard again the argument that several years later a donor may have a partner and may not wish that partner to know. If we allowed for that we should be legislating for that donor to live a lie and conceal information. If someone is planning to become a donor, he should be counselled that that might happen and then he should take a positive decision one way or the other. If he is prepared for a partner to know, he should go ahead, and if he does not feel that he could share that knowledge with a partner, he should not become involved in donation. The donors should have to make that choice and we should not legislate to help people live a lie.
Having gone through all the arguments, I fall back on my first point, which clinches it for me whatever other people may say—how would I feel if I discovered that people somewhere had information about me which the state said I was not entitled to have? I should feel a deep sense of outrage, that information which is personal and unique to me was not available to me. What right have doctors or Members of Parliament to withhold such information?
§ Mrs. Currie
First, let me express my unease about the amendments on the anonymity of donors tabled by my hon. Friends the Members for Bolton, North-East (Mr. Thurnham) and for Spelthorne (Mr. Wilshire) and my approval of amendment No. 60 tabled by my hon. Friend the Member for Salisbury (Mr. Key), which would be an excellent improvement to the Bill. The amendments that have been debated would change the Bill quite radically. I consider that the parts of the Bill dealing with the anonymity of donors are extremely good, and emerged from Committee unchanged.
In my view, only limited information should be recorded and made available to satisfy one important problem which overrides the issue of anonymity— the question of possible genetic linkage between future potential partners. It seems sensible, therefore, that a person should be able to ask the authorities which are holding that information in future two questions: "Am I the product of assisted fertilisation under the provisions of this Bill?— answer yes or no"; and: "Am I related to the person whom I wish to marry or have as my partner? — answer yes or no." That means that the information must be kept, and of course it is possible that the procedure might be changed in future. That is why amendment No. 60 should be accepted, because it protects the people operating under the law as it stands.
However, there are serious practical considerations which we must bear in mind if we are to change the law in the way proposed by the amendments tabled by my hon. Friends the Members for Spelthorne and for Bolton, North-East. The number of donors would be cut. If anonymity is not guaranteed and is not the norm, many people will simply not come forward. My hon. Friend the Member for Spelthorne was right to talk about accepting responsibility and facing consequences. If we were to insist that donors had to accept responsibility and face 1015 consequences, large numbers of donors would say, "Thank you very much, but no thank you." They would not be available.
I accept that the hospitals are rather divided on the issue of anonymity. I know that at least one of our most senior advanced and experienced hospitals in the area has said that at least as many as a dozen of its donors would be perfectly content to have details recorded. However, I feel uneasy at the thought that we might then be relying on a much smaller donor bank or a smaller group of people who would be prepared to act as donors.
As IVF becomes more successful, as I am sure it will be now that research will be permitted under the Bill, so many thousands more people will come forward requiring that care and treatment. Perhaps as many as 4,000 patients passing through two or three major clinics might take their gametes from only a handful of donors—who we must remember will include women donors as well as men—and that is what we are trying to avoid by encouraging and enabling assisted fertilisation, particularly for families who have problems with handicap. We should not amend the Bill in that way, because that would be a great risk.
§ Mr. Thurnham
It is accepted practice that no donor should be used for the creation of more than 10 children, and no one is suggesting that that should change. In practice, King's College hospital and Hammersmith hospital have found that the kind of donors who would come forward if identification were allowed would be middle-aged married people who had already had children, rather than medical students. I do not believe that there are fewer middle-aged, married people than medical students. In fact, there are probably more of them.
§ Mrs. Currie
I read the correspondence that was offered to members of the Committee. However, I do not believe that we should do anything that would reduce the number of donors who would come forward. If there was a well publicised case in which a donor was identified and appeared on the front page of The Sunand everywhere else, the number of donors would drop sharply. That would reduce the assistance to infertile families that the Bill is designed to create. I do not believe that that is a good idea.
My hon. Friend the Member for Spelthorne, when speaking to amendment No. 31A, was kind enough to allow me to intervene and put the case for harmony rather than absolute truth. We are bound to disagree on that point. However, one of the essences of the argument about the anonymity of donors is the question of what the child would do with the information. Why does the child want that information? The state should take a view that a child should not go on a fishing expedition. The child should simply not be allowed to satisfy its curiosity. That is not in the public interest. It may not be in the child's interest either, or in the interests of the donor. It is not in the public interest for a child to embark on that type of curiosity-satisfying exercise.
§ Mr. Wilshire
I suggest that my hon. Friend and I might just fundamentally disagree on my next point: I do not accept that it is for people like me to prove that a child should have the information; it is for my hon. Friend to prove that the child should not have it. If she is going to argue that the House knows best what is good for a child, we will be pursuing the nanny state avenue once more
§ Mrs. Currie
That is what we are elected to decide; that is what we are here to vote on, and it places a great burden on us all.
Another point leads me to think that my hon. 'Friend's amendment would open up another minefield of difficulties. There are people who would seek that information for reasons that none of us would find palatable. Let us suppose that the amendment is accepted and that a child born as a result of a donation finds that his father or mother is very wealthy. That may lead to financial and moral blackmail for the donor.
There are people who wish to perform humanitarian acts, but to do so anonymously. They do not wish to see news of what they have done spread all over the front pages—for very good reasons. That applies especially to women who may donate eggs at a time of great distress. If, for example, a woman is being sterilised, she may wish to donate her remaining eggs. However, that does not mean that, 20 years on, she wants somebody rolling up on the doorstep saying, "I know all about what happened and I am going to tell everybody."
§ Sir Hugh Rossi (Hornsey and Wood Green)
I wish to raise a small legal point which I hope is not facetious. The identity of the natural parent— the donor—can be important in certain circumstances. The Bill deals clearly with inheritance, stating that there is no legal right against the estate of the donor, whoever that donor may be. However, perhaps my hon. Friend will consider what happens with life insurance. An applicant has to answer whether there is any history of heart disease or of other diseases on either his father's or mother's side of the family. That has nothing to do with the inheritance of the legal estate; it relates to the inheritance of one's genes. How, eventually, does such a child—in adulthood—answer such questions directly and honestly so as to receive the right cover?
§ Mrs. Currie
Given that one third of all men in this country have heart attacks before the age of 65, the odds are that the answer is "yes" without the applicant having to look up the identity of his or her father.
§ Mrs. Currie
It is not a facetious answer.
However, that point brings me to the new clauses. My hon. Friend is right that there are circumstances in which a child may wish to know about his birth, over and above questions 1 and 2 that I outlined earlier. That principle —anonymity—is breached in the new clauses. Broadly speaking, the House has already accepted that it is entirely appropriate that such a child should have the same rights as other children to sue negligent doctors. The circumstances are covered by new clauses 11 and 12 and seem entirely sensible.
The provisions mean that doctors involved in IVF are not protected by anonymity from any case of negligence that is brought against them. I would not wish those doctors to receive that protection, any more than I want other doctors to receive such protection. I am content with that. In such cases, there is a higher obligation than absolute anonymity. However, if the current legislation is so obscure, one wonders how many times it has been used since 1976 and whether it is worth all this hassle tonight.
1017 New clause 13 also opens up difficult questions. I was glad that my right hon. and learned Friend the Secretary of State said that the provisions will be considered in some detail and that more comments may be made in another place. New clause 13 presents the possibility of the donor being sued by a disabled child. I heard what my right hon. and learned Friend said about not being able to conceive of any circumstances in which that might happen, but in that case, why bother with new clause 13? If something cannot happen, do not include a new clause about it.
However, this could happen under new clause 13—I can think of several circumstances. We now know that alcoholism can produce handicap in an unborn child. Supposing the questions asked by the clinic relate to genetic defects and the donor does not realise that he or she is an alcoholic, under new clause 13 would it be possible at some point in the future for the handicapped child to sue the donor? I believe that it might. That issue needs to be clarified.
As far as I understand it, there is no principle in English law—I cannot speak for Scottish law, but there is no principle in the law that covers my constituency—that a child can sue his ordinary parents for the genes passed on to him. None of us are responsible for our genes, but the act of donation is a different matter because it is a conscious decision. As I understand new clause 13, there might be grounds for regarding that as a case where suing would be possible.
It may be that there are good grounds for new clause 13, and I think that there are. It will mean that there is a tremendous obligation on donors not to donate unless they are sure that they carry no genetic problems. That is probably a very good thing. It may push IVF families to go to good licensed premises where donors are screened. That too is a good thing. It will certainly mean that clinics must have excellent procedures for screening and asking the right sort of questions. That is also a good thing.
I can see that there may be circumstances in which it may be appropriate to ask questions where a genetic defect has turned up much later which is not life-threatening. There are many examples, and perhaps glaucoma is a good one. The defect may be present in other related members of the genetic family, and it might be appropriate for that information to be made available. It is right that that information should be available through the courts, and it is right that there should be circumstances in which we can put on record our slight uneasiness that the clause could leave open the possibility of other types of case arising that are not so much in the public interest.
The tragedy of proving or disproving negligence in such cases is that the facts and information would have to be produced in court. When that happens, the damage is done. Even in cases which are thrown out because there is no case, the damage is done and anonymity is breached. That is the position even if the case is heard in camera and there are reporting restrictions. Although I am content with new clauses 11 and 12, I hope that my right hon. and hon. Friends on the Government Front Bench will take a careful look at new clause 13 to decide whether it does what the Government want it to do in precisely the circumstances that they have in mind.
My hon. Friend the Member for Congleton (Mrs. Winterton) and the hon. Member for Liverpool, Mossley 1018 Hill (Mr. Alton), who is no longer in the Chamber, talked about whether doctors would be deterred from implanting damaged embryos. I offer the House my personal view. I hope that doctors do not implant damaged embryos—
§ Mrs. Currie
I shall finish my sentence first.
I hope that doctors do not implant damaged embryos, precisely because many families that come for IVF have been through the misery of having handicapped children already. One of the reasons that they come for IVF is to try to ensure that they have the chance of a healthy child in future. To say that we should encourage doctors to implant damaged embryos is something that most people would find difficult to accept.
§ Mrs. Winterton
I am grateful to my hon. Friend for giving way, because it is plain that what I said in an intervention was not clear. My hon. Friend has misread the point that I was trying to make.
I appreciate that, because of IVF, no one will implant a damaged embryo that will grow to become a handicapped child. That part of the screening-out process is obvious for one and all. What happens, however, if the foetus develops a handicap naturally, and it is not possible to prove or disprove where it came from? Will that child, when it is born or later in life, not have the right to sue the doctor who, by the technique of IVF, gave it life in the first place? I think that my hon. Friend will find that it is a difficult question to answer and that the issue is unclear.
§ Mrs. Currie
That is not what I understood my hon. Friend and the hon. Member for Mossley Hill to be saying. I reiterate that it seems that, to have a sound and successful IVF service, which many of us want, there must be really good screening of donors, excellent keeping of records—that is entirely right and appropriate—and the taking of every aspect of care.
§ Mrs. Currie
My hon. Friend shakes her head at me, but I am offering my point of view, as she offered the House hers.
It seems that damaged children at some stage in the future should, by the new clauses, have the right to sue those who were responsible in the clinics for their creation, and would have to prove that there was some negligence. I do not think that chance would give the right to sue in the way that my hon. Friend has described. I am not a lawyer, and I am not introducing the new clauses. I am content to make comments on the amendments and new clauses.
I am reluctant to do anything which makes life harder for donors or for families needing donation. That should be the principle behind the Bill and the way in which we vote tonight.
§ Mrs. Ann Winterton
This has been an absolutely fascinating debate. There have been some good speeches representing both sides of the argument. Because the hour is late and I hope to speak on another of my amendments, I shall be brief. I shall comment on some of the amendments tabled, but not on the new clauses on which I have already said enough.
It gives me great pleasure to gallop down the aisle on my bright charger to the aid of my hon. Friend the Member for Spelthorne (Mr. Wilshire) and to share the 1019 high moral ground with him on his amendment about divulging information to children who are conceived by the medical technique of artificial insemination. I agree with the line taken in amendments Nos. 56, 57 and 33.
The child should have the right to the information recorded by the authority. The child should have a right to know its genetic background for insurance or health reasons. The child should have the right to know that when he or she marries it will not be to his half sister or her half brother. The child should have the right to know the identity of its donor father, just as an adoptive child does. My hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight) made a pertinent intervention on just that matter.
All those good arguments fall on stony ground because of one pertinent omission: how is the child conceived by artificial insemination to know that it has been conceived in that way? There is no reason whatever why the parents should tell the child. An adopted child knows that it is adopted. The best advice given to adoptive parents is to tell the child as soon as possible that it has been adopted. The child accepts that and all is well. In the fullness of time he or she may wish to trace the natural parents, but few do because most accept the parents with whom they have grown up as their parents.
The child conceived by artificial insemination will never know that, for the simple reason that the name of his or her social father will appear on the birth certificate under the heading "Father", whereas the words "By donor" should appear. Therefore, there is no reason why parents should tell the child. That is wrong. Yet in its wisdom or otherwise, the Committee rejected the proposition that that should be on the birth certificate.
As my hon. Friend the Member for Spelthorne said in his powerful speech, that means that the child is living a lie. All the amendments are as of nothing because they cannot be sprung into life for the simple reason that the child will not necessarily be told how it was brought into the world. That is a sad omission.
§ Miss Widdecombe
This is not a speech so much as a request to the Secretary of State for clarification. May I please have a verbal communication from him about whether I have understood his position on new clause 11 correctly? I understand that he believes that the new clause does not mean that if a defective embryo is implanted, that, per se, means that the child can sue if it is born disabled. There must be some compounding act of negligence.
Secondly, will the Secretary of State look again at the clause, and if there is the slightest chance of ambiguity —bearing in mind that it is not Parliament's intentions but the wording of the law that is taken into account in the courts—will it be put right in another place? Have I correctly understood those two points?
§ Mr. Kenneth Clarke
My answer to the first point raised by my hon. Friend the Member for Maidstone (Miss Widdecombe) is yes, that is my belief, which I think is shared by my right hon. and learned Friend the Solicitor-General, who sat through the debate. If, on reflection, we discover that we are wrong, we shall write and tell my hon. Friend immediately. I also give the undertaking she calls for that we shall readdress ourselves 1020 to the drafting with an open mind. I give that undertaking on behalf of my noble Friend the Lord Chancellor, who will handle the matter when it returns to the other place.
§ Amendment negatived.
§ It being Ten o'clock, MR. SPEAKER interrupted the proceedings.