§ 11 am
§ Mr. Joseph Ashton (Bassetlaw)
I thank the House and Madam Speaker for giving me the opportunity to raise this complex matter, which is of great concern to everybody in health and especially to my constituent, Mrs. Diane Blood of Worksop.
Mrs. Blood and her husband Stephen were married in May 1991, having been courting for nine years. It was a long-standing stable relationship. Mrs. Blood worked in advertising and public relations and went on to set up her own company under the Government's enterprise scheme, doing public relations work for nursery products. That job involved advertising and matters relating to children, so she has much experience of children and babies.
Mrs. Blood's job was a struggle at first and she dealt with publications such as Baby Magazine; First Steps; Mother and Baby; Parents; Pregnancy and Birth; Practical Parenting; Our Baby; Right Start; Twins, Triplets and More Magazine; Under Fire Contact; You and Your Baby; New Generation; Offspring; Maternity and Mothercrafi; Nursery Choice —The Complete Lifestyle Magazine for You, Your Baby and Child and others.
I have read out that list to show that Mrs. Blood was experienced in terms of babies, in knowing what to expect after a birth. She and her husband very much wanted children and they spent much time discussing a possible pregnancy. They had the good fortune to share similar religious beliefs and believed that one of the central purposes of marriage and of human existence is to found a family. They regarded the miracle of modern reproductive medicine in aiding procreation to be of great benefit to society at large. They also believed that the personal choice of parents must be respected and that, except where necessary, the state should not interfere with personal choice in such private and family matters.
Mr. and Mrs. Blood married in the Anglican Church using the traditional service from the 1662 "Book of Common Prayer" because that service places greater emphasis on procreation than the modern alternative service book which is now used. They regarded themselves and their bodies as joined together in holy matrimony and that is why this is a serious debate. It is about a possible mother being prevented by the state from having her husband's child. They were in favour of birth control, although her husband was against abortion. They both thought that artificial insemination was a wonderful way to help unfortunate people to have children.
Mr. and Mrs. Blood discussed at great length how they would be prepared to have a child if they discovered that they had problems in conceiving. They agreed that they would go to any artificial lengths if Mrs. Blood was unable to conceive from her husband's sperm. They saw no objection to the posthumous use of Mr. Blood's sperm, provided that the interests of the child and the other children of the family were properly protected. The arguments in favour of such use struck them as particularly compelling, especially in the case of a married couple since their reproductive material, sperm and embryo, would create a child who would be confident of his or her genetic inheritance from natural, biological parents. They saw no objection to taking sperm from a permanently unconscious or brain-dead husband for his wife's procreative use.
585 Mr. Blood wished to donate his organs for the benefit of others and there is no doubt that he would have wished that sperm could be taken from him and used by his wife in the tragic circumstance of an untimely death. That would enable his wife to have the child that they had always wanted and it is the main reason for Mrs. Blood wanting her application to succeed: she wanted to respect her husband's wishes as well as her own. They discussed the issue many times, especially because of conversations that resulted from newspaper articles and the magazines that I have mentioned. Such conversations arose because of Mrs. Blood's profession.
The couple talked specifically about newspaper items, about widows who wanted to use the sperm of their late husbands to have a baby, and they both thought that widows were right in wanting to have babies in that way. They did not think that a woman should be compelled to start again by remarrying or have to use somebody else's sperm, nor did they think that her desire to have a child should be confused with thoughts of the reincarnation of her husband.
Mrs. Blood remembers saying that she would not want to remarry if anything happened to Stephen and that she would want his baby. He stated categorically that that was his position. She remembers that, when she went to the hospital. the conversations came back to her when her husband was ill and unconscious. They were undoubtedly strong factors in persuading her to ask the doctors to take sperm from her husband for artificial insemination.
In 1995, Mrs. Blood's career was stable and she and her husband were ready to have a child. From that time they began trying to conceive. They installed new furniture in the spare bedroom to make more storage space and chose the name for a possible baby. Then Stephen fell ill. However, up to that time the topic of having a family was a constant source of conversation. There were some signs that they would be successful and that their desire would be fulfilled because they thought that Mrs. Blood was pregnant.
On 26 February Mr. Blood complained of feeling unwell. Four days later he was dead. At first it was thought that he had influenza, but he was rushed to hospital because it turned out that he had meningitis. While he was in hospital two samples of sperm were taken, and Mrs. Blood wishes to have an artificially assisted pregnancy using that sperm either in the United Kingdom or abroad. Tests have shown that she would have no problems relating to that.
On the evening of Sunday 26 February, Stephen started vomiting and at about 10 o'clock Mrs. Blood rang the duty doctor. He arrived at 11 o'clock and after conducting an examination said that there was a slim chance of meningitis and that Mr. Blood should be admitted to hospital. The ambulance arrived at 11.15 and doctors began treating Stephen with drugs for meningitis. On Monday 27 February the doctors decided to move him from Worksop to a hospital in Sheffield and Mrs. Blood accompanied him in the ambulance.
On Tuesday the doctors finally succeeded in performing a lumbar puncture, which had been attempted several times since Stephen's admission to hospital. At about 6 o'clock the cardiac arrest team was summoned and the doctor told Mrs. Blood that although they had 586 kept her husband's heart beating, they were unable to sustain his breathing without a machine, and that his condition was not at all good. Mrs. Blood mentioned that they had been trying for a family and that there was a chance that she was pregnant. They asked whether she had been given any tablets to protect her from meningitis and put her on a course of tablets. They knew then that there was a chance that she was pregnant.
Stephen Blood was moved to intensive care on the top floor of the hospital and at that stage Mrs. Blood asked the doctor to find out whether it would be possible to take a sperm sample from her husband for later use because his condition made her fear the worst. She knows now that, even had Stephen recovered, sperm retrieval would still have been sensible because his illness may have rendered him sterile. That would have given them a chance to have a child, even if her husband recovered. The idea of preserving the sperm came to her because of their discussions and because they were trying for a baby, after all the time of waiting. When Mrs. Blood mentioned taking the sperm sample, the doctor did not seem to know immediately whether it was possible.
On the morning of Wednesday 1 March, Dr. Edbrook told her that things had got worse in the night. Hospital staff had tried to get her husband to breathe on his own by withdrawing sedation, but he was unable to do so. At that stage, Dr. Edbrook informed Mrs. Blood that, as for the sperm sample, it was an unusual request, but that the hospital happened to have the foremost expert in the field, a registrar, Mr. Tophill, who was prepared to take a sample. Mrs. Blood asked if the sperm might be infected by Stephen's illness and the expert said that it would not be.
Mrs. Blood discussed the matter with her parents and Stephen's parents. All four agreed that the sample should be taken if possible. Mrs. Blood received counselling in relation to the taking of the sample. She was also warned that there may be some problem in relation to inheritance rights and that the sample might not be successful, but she was prepared to take that chance.
Mrs. Blood went into the room where her husband Stephen was lying unconscious and sat with him. The woman doctor in the room told her more about the possible use of the sperm after Stephen had died. This bit is important. She told her that it would be taken to Jessop hospital first, a maternity hospital in Sheffield, but that Mrs. Blood did not need to use it there. It could be moved to wherever she wished later. The doctor mentioned the need to signan organ, or in this case semen, donor form".Mrs. Blood was happy to do so, but no form was ever produced for her to sign, despite her repeatedly asking whether the form had arrived. Later the same doctor said that, because of legal reasons, the hospital was not sure whether the sample could be taken, but Mr. Tophill arrived and confirmed that he was willing to take the sample.
Before the sample was taken, Mrs. Blood was again specifically asked for consent to the procedure taking place. It was clear to her that it was important and the medical staff in the room were asked to be witnesses to her response. She assumed that she was being asked to give her consent and the consent that Stephen would have given, had he been in a position to do so. She may have been asked whether she consented on Stephen's behalf, but she certainly would have done so.
587 At 6 o'clock, Mr. Tophill said that the first sample had not been successful, but that he would, if necessary, take another on Saturday when he returned. He was concerned that freezing the sperm might cause its condition to deteriorate. Mrs. Blood then said that she was happy to have the treatment there and then while, technically, her husband was still alive, if that was the best option, but Mr. Tophill said that there were other alternatives, including growing sperm from a sample of testicle tissue.
At that time, Mr. Blood was being kept alive on life support machines. I will go into detail because this is important as to whether this matter falls within the Human Fertilisation and Embryology Act 1990. Mrs. Blood was anxious that the machine should not be turned off until further attempts had been made. Dr. Edbrook said that the second test as to whether Stephen was clinically dead had not yet been done and that it would not be done until at least the following morning, depending on his clinical condition. He said that there was no reason why Stephen should not be kept on the support machines.
Mr. Blood's parents visited him for the last time on Thursday and indicated their acceptance that he was dead. Later in the afternoon, Dr. Edbrook said that the hospital was going to do the second test as to whether Mr. Blood was clinically dead. He then confirmed to Mrs. Blood the good news that the first sample had been much more successful than the hospital had initially thought. He said that it wasa million times better than expected".He asked whether, given that the first sample had proved okay and that the second test had confirmed Stephen to be clinically dead, it would be all right to turn off the machines. Mrs. Blood agreed.
If the insemination had taken place while Mr. Blood was alive on the machine, there would have been no problem. Mrs. Blood would have been bearing her husband's child. At that time, she thought that she was pregnant, so it may not have been necessary to use the sperm. That was why she did not agree to use it there and then. Obviously, there was great grief when her husband died and Mrs. Blood resolved to have his child by any means.
No other child's interests in relation to inheritance rights might be affected by the use of the sperm. There is no risk to a possible child's health or to Mrs. Blood's health. The Human Fertilisation and Embryology Authority has not suggested that allowing her to procreate in such circumstances, even in other countries, would offend against the policy of the 1990 Act or moral values, or create a substantial risk of injury to any public interest. Mrs. Blood does not understand what conceivable good reason there might be for preventing her from having her husband's child by combining their reproductive material, simply because he was unable to give his written consent when he was unconscious and dying. He undoubtedly did give his consent to the taking and use of sperm so that his wife might have his child. It is not fair or reasonable, under any law or any circumstances, moral, legal or otherwise, that this woman should be denied the right to have a child by her husband.
The sperm samples are being held at the Infertility Research Trust for Mrs. Blood. She has been invoiced and asked to pay a charge. She has paid the most recent invoice—a charge of £100—for keeping the sperm there since March. Unlike third party donors, who receive 588 payment for donating sperm, she has had to pay another £250 for obtaining the sperm from her husband. The law looks more and more like an ass.
If Mrs. Blood is permitted to export the sperm, she can have the treatment abroad. She can have it in the European Community, in Belgium, in New York or even in Greece. Insemination can be done there, but this point of law should never have arisen. Who would have objected to the HFEA giving consent for a wife to be inseminated with her husband's sperm? What are its reasons? The way that it objected is absolutely appalling.
Mrs. Blood applied for the sperm to be used. Her application was rejected in May 1996 and, even though the HFEA received an affidavit in June 1996, it still refused to change its mind or to review its decision in any way, shape or form. Mrs. Blood has now been compelled to go to court to seek a judicial review of the 1990 Act. It has cost between £30,000 and £50,000—she does not receive legal aid. She has had to take a second mortgage out on her house to challenge the HFEA's view of the law.
There are 21 members of the HFEA, a quango that has discretion to use its common sense, we would think, without having to be challenged. What is the point of having this quango if we have to go to court? We may as well let people just take a chitty in, as they do to get married in a register office, yet it has refused to use its discretion.
There has been enormous sympathy for Mrs. Blood. Throughout Britain, people's response has been fantastic. Their views are all along the lines of The Times editorial, which said:How can a dead man's interests be harmed by such useof his sperm by his wife? It goes on:Parliament gave it"—the authority—total discretion on the import and export of sperm and embryos.The sperm could be used anywhere in the world, so what is stopping it from being used here? As the editorial says:The authority should now use the discretion it possesses under the Act".Baroness Warnock, who chaired the committee whose findings led to the creation of the HFEA, said:We didn't think of this kind of contingencyand that the case was "extremely exceptional". Every hon. Member has sat on Standing Committees making law and has tried to imagine what could happen. We probe and table amendments, not because we want to vote on the amendment, but simply to find out what could happen.
During the passage of the 1990 Act, no hon. Member asked, "What would happen if a man went into a coma and died?" It is no one's fault, because none of us has a crystal ball. However, we expect the people who are put in charge of such authorities or privatised industries to use their common sense to act in the public's best interests—especially if the public do not object to a given course of action. Mrs. Blood is facing that type of situation.
Lord Winston—professor of fertility studies at Hammersmith hospital—said that it was "cruel and unnatural" for such a decision to be taken, and that he would consider introducing in the other place a Back-Bench Bill, to which he thought there would be very little opposition, to remedy a situation in which a man can donate
589his kidneys, his lungs, his heart and every other organ without any informed consent, but is unable to give sperm to his wife. That seems ridiculous.The judge who conducted the judicial review—Sir Stephen Brown, president of the High Court Family Division—said that, although he deeply regretted the law's rigidity and the case had "stirred the emotions", he had no option but to carry out the law and to maintain its dignity. There was tremendous national media interest in the case after he said that and Mrs. Blood lost the case. The Secretary of State for Health was interviewed and said that he had great sympathy for her and that he would do what he could to resolve the situation.
Mrs. Blood has two or three options. She could appeal against the decision—although I know that her legal advisers have asked her to delay such action until we have heard the Minister's reply to this debate. There may be an appeal, depending on what the Minister says. Perhaps the Government could find time for the House to consider an amendment tabled by Lord Winston in the other place. The Act requires only one more phrase, specifying that "in normal circumstances" written consent must be provided by donors. The addition of that phrase would mean that a husband could not give consent in abnormal circumstances—such as if he were in a coma. If the couple were not married, the authority might refuse consent.
The necessary amendment would be very small and would require very little of the House's time. Perhaps the Government could provide one and half hours after 10 pm to change the law, which could be changed in two or three weeks. I should welcome such action, but we must also deal with the matter of Mrs. Blood's costs, which now total between £30,000 and £50,000 and will increase if she appeals against the decision.
Perhaps the Minister will say, "We can find a sympathetic hon. Member who has won the ballot for private Members' Bills." But, as hon. Members who have won the ballot know, it is very difficult to amend the law with a private Members' Bill. Hon. Members can talk out an amendment, and a sufficient number of hon. Members must come on the day to vote in favour of it. The current Session is very short, and there may be only two or three Fridays for private Members' Bills. Moreover, the election is approaching, and an hon. Member who wins the ballot may have a marginal seat and may not wish to introduce controversial legislation. So even that approach is fraught with difficulty.
The Minister must tell us what he intends to do about the situation. Late this morning, I heard on the BBC that the HFEA has said that it will re-examine the case. I do not know what that means. Does that mean that the authority will change its mind and approve Mrs. Blood's request, after the court has said that it cannot? That seems unlikely. Will the HFEA use its discretion to allow Mrs. Blood to take her husband's sperm abroad so that she can be inseminated? I do not know, because it has said only that it will re-examine the case.
The authority has made no guarantee, and much firmer assurances will have to be given. If not, poor Mrs. Blood—who is determined to have her husband's child—will once again have to face the harrowing experience of going to the Court of Appeal and of paying for a provision that Parliament would gladly have made in the 1990 Act, had anyone thought of it at the time.
590 I am grateful for having had the opportunity of this debate, and I thank hon. Members for listening so patiently. I look forward to hearing the Minister's reply.
§ Dame Jill Knight (Birmingham, Edgbaston)
The hon. Member for Bassetlaw (Mr. Ashton) deserves to be paid great tribute for the way in which he has presented his constituent's case. He has been very factual, but he has also been very moving. He has demonstrated what the House is all about, and has undermined the arguments of those who constantly attack hon. Members and think that they do not do their jobs. The overwhelming majority of hon. Members, from both sides of the House, behave honourably and do their utmost in serving their constituents. The hon. Gentleman has done his utmost, and I can pay no higher tribute to him than that.
The Blood case is very sad, and no one can help but be moved by Mrs. Blood's plight. I sometimes think that only those who have lost a beloved husband can understand what such a loss means. I have lost a husband, and I understand. I have the greatest possible sympathy for Mrs. Blood. Moreover, from what the hon. Member for Bassetlaw has told the House, I have no doubts about Mrs. Blood's excellent character, her experience and interest in children or the fact that, if she and her husband had been able to have a child in the normal way, they would have been extremely good parents.
I cannot help thinking, however, of the old adage about hard cases making bad laws. The only aspect of the speech by the hon. Member for Bassetlaw that worried me was that not one word was said about the child. I am very concerned about children. I am concerned that, when children are brought into the world by methods that I can describe only as "unnatural"—that sounds unkind, but it is not meant to be; it is meant to be factual—or by a scientific procedure, they have the right to expect the law to protect them, because they are so utterly vulnerable. They have no say in whether they are to be born.
Some years ago, when the House considered such children, we rightly said that the child's interests should be paramount. There were no two ways about it: we said that their interests are paramount. After hearing the tragic circumstances of the Blood case, which the hon. Gentleman has explained so well, in my heart I still cannot believe that the child's position should be downgraded because of the mother's tragic despair. I am extremely sorry for Mrs. Blood, but I should be very sorry for a child who would be bound to know when his father had died.
All hon. Members understand that a child might not be born in this case at all, and that it is not correct to say that a child would definitely be born if Mrs. Blood were successful in her request and underwent the procedure. If it were successful and a baby were born, however, the child might grow up to be imaginative. For him to have to take on board the fact that he was born as the child of a dead man, and not until many months after his father's death, would be enough to cause nightmares in that child.
§ Dame Jill Knight
No; I should like to finish this argument first. 591 All hon. Members understand that children are sometimes born and their fathers then die. We weep about such desperately sad cases, although the mothers in such tragic cases often bring up their children very well. Surely, if the interests of the child are paramount, there cannot be any doubt that the best way to have a child is with a father and a mother. Sometimes, that is not possible because something terrible happens, such as the father being killed in an accident. Of course I am not saying that a single mother or father—it could be the mother who dies—cannot bring up a child well. Many single parents do a marvellous job of bringing up their children.
§ Dame Jill Knight
Forgive me, but I must finish this point. My hon. Friend must be a little patient.
§ Dame Jill Knight
I shall let my hon. Friend make her point, but I must say that there can be little doubt that the ideal way to bring a child into the world is with a father and a mother. It is no use saying that that is not the best way just because tragedies can occur.
§ Dame Elaine Kellett-Bowman
I rarely disagree with my hon. Friend on such matters, but I cannot for the life of me understand her strong objection in this case. Given the fact that the mother will clearly adore the child and bearing in mind the history of the family, with the father also having wanted a child, why should the child have nightmares? He should be thrilled that his parents so wanted him.
§ Dame Jill Knight
How can a child be thrilled that he has no father? How can a child be thrilled that he has only one parent? He can be sad about that, but he cannot be thrilled about it.
§ Dame Jill Knight
A sensitive child might well have nightmares at the certain knowledge that he was born from a dead man. That frightens me.
§ Mr. Illsley
I am grateful to the hon. Lady for giving way. Is not consent the issue? If Mr. Blood had given written consent before he died, the child would have been born to a single parent. The issue is consent, not the effect on the child of being born by a particular procedure.
§ Dame Jill Knight
The hon. Gentleman's point is reasonable, but it does not address the whole situation, which is as I have described. We do not know what the gentleman might have done. We think that we know, but 592 we are not sure. We cannot judge on what can be only a presumption. We know that such a child would be born from a dead man months and months—more than a year—after the father died. I do not think that it is ever a good thing deliberately to bring a child into the world with no father.
The hon. Member for Bassetlaw rightly made some important and sympathetic points, but those points cannot give the child a father, which is what I am worried about. It cannot be right to say that fathers do not matter much or that it does not make two bits of difference whether a father is there. If the interests of the child are paramount, we must consider the fact that a child needs a father.
The hon. Member for Bassetlaw said that the birth was prevented by the state. It was not. It was prevented by the tragic death of the poor man. The situation is not the same as for kidney, hearts or livers because, as I am sure that the hon. Member for Bassetlaw knows, such organs can be used only if they come from a virtually living man. Hearts or livers cannot be frozen. The two situations are not the same.
I am sorry for Mrs. Blood and her predicament, but I would be even sorrier for a child deliberately brought into the world with no father.
§ Mr. David Alton (Liverpool, Mossley Hill)
The debate so far has been conducted thoughtfully. We should all be grateful to the hon. Member for Bassetlaw (Mr. Ashton) for the way in which he has put the harrowing details of the case before the House—details that illustrate the moral choices that we have to make as a result of the Human Fertilisation and Embryology Act 1990. The hon. Gentleman will know that the hon. Member for Birmingham, Edgbaston (Dame J. Knight) and I voted against that legislation because, as we said at the time, it opened a Pandora's box. The fact of being scientifically possible does not necessarily make certain actions right. We said then that the Act would inevitably lead to the Human Fertilisation and Embryology Authority having to consider circumstances such as those of this tragic case.
I echo the words of the hon. Member for Edgbaston on how hard cases can sometimes make bad law. However, that does not relieve us of the responsibility of examining the conduct of an authority established by Parliament. I entirely agree with the remarks of the hon. Member for Bassetlaw on the conduct of the HFEA and the need to reform that body. Most of my speech will address that.
Before I come to that, I shall follow the hon. Member for Bassetlaw in addressing some of the issues raised by Mrs. Blood's case. The hon. Gentleman cited Lord Winston, with the example of someone giving consent for their kidneys, lungs or any other organ to be taken. Many of us carry organ donor cards because we recognise the need for medicine to have access to organs to save lives. However, there is a distinction to be drawn between the organs that we give to help maintain another person's life and those elements that create new life. That is the distinction that the House and the HFEA must examine carefully.
Many people have argued that Mrs. Blood's desire to have her husband's child should be satisfied and that it is harsh and pedantic to use the law to prevent that, but it is important to consider all the ethical issues raised by the 593 case, particularly in view of the fact that the interests of Mrs. Blood may not be as clear cut as has sometimes been suggested.
Great emphasis has been laid on personal choice. I have never accepted that the word choice should be paramount above the right to life. In his moving introduction to the circumstances behind the case, the hon. Member for Bassetlaw mentioned the fact that Mr. Blood was opposed to abortion. He believed, as I believe, that there must be limitations on choice. People do not have the right to do certain things. Our rights language has become one of the biggest problems that we suffer. Everything is considered to be a claimed right. We do not say enough about our responsibilities, duties and obligations. The right to create or destroy life is highly contestable. Parliament has a duty to protect the interests of a child and to weigh them carefully alongside the rights claimed by parents, doctors or scientists.
Mrs. Blood's case is not simply about rights. It raises issues of consent, but it also concerns respect for human generation, the posthumous generation of children from dead parents and, as the hon. Member for Edgbaston said, a child's need for a father.
An act of artificial insemination after the father has died cannot represent a couple's on-going commitment to each other, nor can it lead to the welcoming of new life into an existing relationship. The father is obviously no longer present as a living human being. To use a part of him to make a child is a travesty of normal, conscious human procreation.
The need of the child for a father is one aspect of the case which has been neglected in the public discussion despite the fact that the HFEA specifically requires that need to be taken into account in giving fertility treatment. Indeed, that was the decision the House took when we considered the 1990 legislation. It is a provision that we laid down, so the HFEA is acting on something that Parliament insisted on.
Mrs. Blood has argued that she could have had sperm from an anonymous donor who could, indeed, be dead by the time his sperm was used in fertility treatment. It is true that single women are sometimes given fertility treatment. However, that practice is of doubtful legality and it is a matter to which the House should return in due course. I hope that the debate that has been instigated by the hon. Member for Bassetlaw today will open a review of the legislation and of the workings of the HFEA.
To treat a father simply as a source of genetic material and as someone whose presence will not be required at any stage is to ignore the strong interests of children in forming relationships with those who bring them into being. It is well known that adoptive children who, of course, are usually adopted by couples, frequently develop a strong desire to know their birth parents. The child of a single woman is deprived not simply of his or her genetic father, but of any father, genetic or social. Children need a male as well as a female parent in order to learn about human relationships, and boys in particular need a male role model at home.
It has been claimed that Mrs. Blood has a right to the use of her husband's sperm, but that is very doubtful. Society has a strong interest in the creation of children 594 in circumstances that are conducive to those children's well-being, especially when health care professionals are involved in their procreation.
Whatever a person's desire to have a child, a single woman faces a difficult task in bringing up a child single-handed. If the father is not present at any stage, not even during the pregnancy itself, the woman is deprived of an irreplaceable source of support. Two people, in a committed marriage relationship, should be involved in the creation of a child and two people should be involved, as far as is possible, in caring for the child so created. That is a perfectly reasonable demand for Parliament to make, even though it means that from time to time there will be terribly tragic cases of the sort described today.
It would be wrong to breach the principle that wherever it is reasonably possible, if we are deliberately creating life, there should be a father and a mother to bring up that child. That is clearly in the best interests of the child, and in saying that, I am not making any judgment about people who, through other circumstances, are having to bring up children by themselves. Most people who are in that situation would say that they would much prefer to have the support of the father or the mother, depending on who is absent.
The hon. Member for Bassetlaw has a strong point when he talks about the conduct of the HFEA. A year or so ago, the HFEA began the process of public consultation on the use of eggs from aborted girls who were to be selected by a scientist in Edinburgh who had sought permission to do so. The HFEA felt that it was a reasonable enough proposition to go out to public consultation. It failed to take an immediate stand on the principle of the deliberate selection of unborn baby girls and the harvesting of their eggs for use in subsequent fertility treatments, which would mean that the child's mother would be an aborted foetus and the grandmother the person who allowed the abortion to take place. That was a pretty hideous proposal which, as a result of the amendment tabled to subsequent legislation by the hon. Member for Edgbaston, which I supported, was outlawed.
That proposal contrasts with this case, and it is no wonder that people are confused. To place such importance, as the HFEA has done, on the issue of sperm donation, whereas a fertilised egg is not to be treated in precisely the same manner, raises the question of the basis on which the HFEA operates.
The constitution of the HFEA is the genesis of its dilemmas. On 18 November 1993, BBC Radio 4 broadcast the "Analysis" programme. The presenter, the admirable columnist from The Observer, Melanie Phillips, laid bare the way in which Parliament was manipulated into passing the 1990 Act. One example concerned the way in which membership of the Warnock committee of inquiry was determined.
On 23 July 1982, the Government had announced the terms of reference for an inquiry into the ethical issues associated with human fertilisation and embryology. That was done largely to spike an attempt by Enoch Powell, then a private Member, to ban human embryo experimentation. The Oxford philosopher Baroness Warnock was appointed to chair the committee, which reported on 18 July 1984.
595 During her interview with Miss Phillips, Baroness Warnock admitted that she vetoed the appointment of a particular member of the committee because of that person's religious and moral beliefs. Miss Phillips had referred to the constitution of the committee, saying thatthe shape these committees take is so important in determining their eventual conclusions.Baroness Warnock replied:The potential chairman is approached either by the Minister or by the permanent secretary or both. But, of course, one doesn't know how many other people have been approached.I sometimes get the feeling really that they sort of wade through dozens of names and then come up with someone who's a sucker and says yes. But, at any rate, after that, the thing is shrouded in mystery really.I was then given a kind of draft list and asked whether there were any other people I thought would be obvious choices.Maybe people who were not yet among the great and the good. And was, with some difficulty, allowed a power of veto.In the interview, Baroness Warnock then said that she used the veto to exclude one nominee on the ground of that person's religious and moral convictions. She said:I just knew that I couldn't work with him. We went right up to the day before publication with the civil servant saying, 'But there's nobody else in the world.'So, in the end, the night before publication, I said, 'Well, will you please tell the Minister that it's a very bad way to embark on working on a committee when you know that there's somebody you're not going to find easy to work with.'The following morning two names were suggested. So I did win on that but it was very, very hard and it took a lot of persistence.I subsequently wrote to the Prime Minister to protest at the way in which a parliamentary committee had been rigged and to call for a better balance on committees considering ethical questions, between those who believed that ethical actions carried consequences and those who believed that there were no consequences. My letter received a courteous enough reply, but no action was taken.
Baroness Warnock got her committee and she got her report. However, difficult ethical questions were ruled out of court from the beginning. In her own words, the committee deliberately excludedquestions of when life or personhood begins.That comes back to the point made by the hon. Member for Bassetlaw. As that question was one of the central ethical issues in determining the new law, it seemed an extraordinary omission.
The report was widely cited in both Houses of Parliament during the passage of the 1990 Act. The Government, having established the committee, laid the committee's proposals before Parliament and hid behind the august figure of Lady Warnock as if the Bill had nothing to do with them.
The 1990 Act for the first time permitted destructive experiments on human embryos. The debate today is in sharp contrast with the decision this summer to destroy up to 3,000 fertilised human eggs. This debate is an extraordinary contrast to the way in which the HFEA dealt with that issue.
The relative ease with which the Warnock committee secured its objectives became the model for the composition and operation of the HFEA. Apart from loading its membership with people who share the Warnock view of ethics, the HFEA finances itself from 596 the very clinics it is supposed to police. Fees account for 70 per cent. of the authority's income. That is utterly incestuous. It means that people cannot afford to say no too often and, in the case of the HFEA, ever.
The HFEA earns money from the creation of spare embryos, because it is funded through the licences it grants to the clinics that create the spares and then undertake the experiments. In terms of job security and future funding, it has a built-in incentive to make the situation even worse. That is no basis for good ethics.
The members of the HFEA were chosen so that there would be no squeamishness about the practices that it was established to regulate. Its members are a mixture of the politically and religiously correct. They include Liz Forgan, the managing director of BBC network radio, and the Bishop of Edinburgh, who said thatwe are all horn with adulterous genesand thatgenetic engineering may be compared with corrective medicine. such as the fitting of a pair of glasses.Another member is the actress Penelope Keith, best known for her starring role in "The Good Life". She is a neighbour of the former Secretary of State for Health, now Secretary of State for National Heritage.
There is not and never has been a single member of the HFEA who upholds the sanctity of human life from fertilisation. Such old-fashioned religious belief is thought of as quaint at best and as dangerous bigotry at worst.
The HFEA behaves in an arrogant and unaccountable manner, arrogating powers to itself. For example, it has refused to allow Members of Parliament sight of the study that it undertook into the freezing of human embryos—so much for freedom of information, public disclosure or access. The HFEA has also been deceitful, and was forced to withdraw a published claim that French scientists had withdrawn their work demonstrating a link between the freezing of human embryos and subsequent disability.
The House must return time and again to those questions and others raised by the hon. Member for Bassetlaw today. The HFEA must be reformed and members appointed to it who uphold the dignity and sacredness of human life. There is also a need to address the deep and complex questions that have rightly been placed before the House today.
§ Mrs. Elizabeth Peacock (Batley and Spen)
I greatly welcome the opportunity to discuss this important subject and I congratulate the hon. Member for Bassetlaw (Mr. Ashton) on obtaining today's debate. It gives us time to consider the various issues and the workings of the HFEA.
I intend to raise various questions and, perhaps unusually in the House, suggest some answers. But, as a mother myself, I want to say at the outset that I have the greatest sympathy for Mrs. Blood and the tragic circumstances in which she now finds herself. The hon. Member for Bassetlaw put across her case with great dignity and she has the sympathy of the House in the predicament in which she now finds herself.
We are often asked whether the HFEA is doing a good job and working well. As the hon. Gentleman said, it may not be. It was established as a watchdog to oversee the test-tube baby procedure, but in practice it has become more the lapdog of the embryo research industry.
597 The legislation establishing the HFEA was argued for largely on the ground of helping the infertile to have children, but the research licensed by the authority has included studies with the opposite aim—of trying to prevent the birth of children to fertile couples, as the recent case suggests, and that has included the testing of drugs such as RU486, designed to cause abortion, as well as those designed to prevent conception.
Does the HFEA provide full information about its work and the embryos created and used in research? It has failed to give a satisfactory account of the fate of thousands of human embryos created in laboratories under the aegis of the authority. The Department of Health, using figures supplied by the HFEA, left 175,000 embryos unaccounted for. We do not know where they are. A further set of figures on that subject were inconclusive.
HFEA statistics have recently been criticised by one of its own members, Dr. Brian Lieberman, who pointed out that the authority's practice of citing the so-called adjusted live-birth rate as the main figure in the league table of fertility clinics is misleading, as it masks the number of twin and triplet births occurring.
Dr. Lieberman said:One is concerned not just with adjusted live-birth rates, hut with live, healthy, non-handicapped babies … I'm concerned about triple pregnancies. The higher the rate of triple births, the higher your chances of having handicapped children.That was reported in The Independent on 9 October 1996.
Was the HFEA right to refuse to Mrs. Diane Blood permission to be inseminated with sperm taken from her late husband while he was in a coma? Many criticisms may be fairly levelled at the HFEA, but whatever one may think of the decision, it was following the letter of the law. The hon. Member for Bassetlaw suggested that that law should be changed.
The requirement that a person's gametes should not be used to create embryos without explicit written consent is perhaps the only criterion that the HFEA is required to apply that is not an arbitrary restriction. All the other criteria that it is called upon to enforce, such as time limits on the keeping of embryos, the kind of scientific research for which embryos may be created, or the number of children who may be fathered by a sperm donor, are, to a certain degree, arbitrary. We may argue, as many of us do, that some of those arbitrary criteria are wrong, but at least the requirement for consent is a morally valid point.
Should the requirement for written consent be changed in some way to allow for cases such as that of Mrs. Blood and others, tragic though they are and with which we all have sympathy? If so, it is most important that specific circumstances should be spelt out in law. It would certainly not be wise to give the HFEA discretion in the matter and it would be completely unacceptable to give it discretion over the use of female gametes. The HFEA keenly promotes egg donation. It facilitates embryo experimentation, both on so-called spare embryos left over after fertility treatment and on embryos created specifically for experiments.
It may be true that if insemination had taken place before Mr. Blood died—the point made by the hon. Member for Bassetlaw—it would have been within the law. However, my understanding is that the HFEA needs 598 written consent for such action to be taken. I hope that my hon. Friend the Minister will confirm that when he replies. If we are now saying that that is wrong, changes will have to be made. But once a change is made, a precedent is set, whether or not the authority made the decision without the protection of the law. As we all know, much of our law is based on precedent, which then becomes case law. It is the responsibility of the House to take such action, not to leave it to the say-so of the authority or lawyers making representations.
The HFEA, in its 1994 report on new ways of obtaining eggs for IVF treatment and embryo experiments, stated that it believes thatthere is no objection in principleto obtaining ovarian tissue from a dead woman to provide infertility treatment as long as she has given consent. In the section on using cadavers as a source of eggs to create embryos for research, it discussed only the issue of consent as a bar to using a dead woman's eggs in that way. To allow the HFEA to disregard consent would give it carte blanche to license activities involving vast numbers of embryos as guinea pigs.
I understand that the HFEA recently banned payments to gamete donors. Surely that shows that it is restrained in its promotion of sperm or egg donation. Such a move is to be welcomed, but it must be seen in perspective. Previously, a maximum payment of only £15 was permitted to gamete donors. But the HFEA has in other cases, particularly with reference to egg donors, shown contempt for the principle of consent. It has argued that in the case of an aborted female foetus, it would be permissible to retrieve the primitive egg cells from such a baby and use them to create embryos for research. That is not yet a practical possibility, thank goodness, but technically it may be feasible.
In such a case, as we have already heard, the mother of the embryo would be an aborted baby who could never possibly consent to the use of her eggs. The authority argued that, as next of kin, a mother should not be allowed to give consent on behalf of her dead daughter. That suggests a minefield of great moral and legal issues, which the House should consider carefully and discuss at greater length than is possible this morning.
The HFEA has rejected the use of eggs from aborted female infants for infertility treatment. However, that decision was based not on moral principles, but on social and psychological considerations. In the event, its ruling was academic as the amendment to the Human Fertilisation and Embryology Act 1990, promoted by my hon. Friend the Member for Birmingham, Edgbaston (Dame J. Knight) and supported by many hon. Members, had already been approved and was subsequently incorporated into statute.
There are objections to the workings of the HFEA. It was not established with a remit to protect the human embryo, but rather it was established to apply certain limits on the abuses to which an embryo might be submitted. The law imposes restrictions on what may be done to test-tube babies and provides wide-ranging protection for them, but it also creates broad exceptions and established the HFEA in the role of licenser of all manner of abuses of the embryo. The objection to the HFEA is not simply that it fails to protect the embryo, but that it was never intended to do so. I suggest that it was established to add a veneer of respectability to the 599 business of using embryonic humans as laboratory animals, freezing them for long-term storage and even allowing them to be the object of trade.
The HFEA may withdraw or withhold a licence from a clinic or research project if it fails to meet required standards, but in practice those standards have little to do with showing respect for the embryo in the test-tube. A research project may fail to receive a licence because it is not scientifically sound, but it is unlikely to be rejected because it is morally bankrupt. An IVF clinic might be in danger of losing its licence to treat infertile couples because too few babies were born to its clients, but not because it destroyed too many embryos in the process.
Time is moving on and does not allow us to discuss fully all the points arising from the debate. The matters that I have raised, like those raised by the hon. Member for Bassetlaw, suggest that we should carefully re-examine the decisions taken by the HFEA and the rationale behind them. I warmly welcome the opportunity that the hon. Gentleman has given us to discuss these important issues, which I believe the House will consider more fully in future.
§ 12.1 pm
§ Ms Tessa Jowell (Dulwich)
I join other hon. Members in congratulating my hon. Friend the Member for Bassetlaw (Mr. Ashton) on securing the debate. He has been tireless in his support for his constituent, Mrs. Diane Blood, and I am sure that other hon. Members will join me in thanking him again for giving the House the opportunity to discuss the important issues raised by that case.
This is not an issue that divides the House along party political lines. It touches the conscience and sensitivities of every Member. No one could fail to have been affected by Mrs. Blood's determination in fighting her case, and to have been moved by the distress that it clearly caused her and her family.
With such issues, the legislation must be kept under regular review. Raw human emotion is aroused, and technological advance creates moral dilemmas that may not have been anticipated only a few years ago. Precisely because of that, the House passed the Human Fertilisation and Embryology Act 1990, but the recent judicial review of Mrs. Blood's case exposed flaws in the Act and it is right that Parliament should have the opportunity to revisit the issues.
When the Bill was debated in Parliament, the then Secretary of State for Health, the right hon. and learned Member for Rushcliffe (Mr. Clarke), said that there wasgenuine agreement about the need for statutory regulation in this highly sensitive and fast developing area of science and medicine.That consensus still prevails, but I believe that hon. Members on both sides of the House will share my view that the recent case has tested the 1990 Act and identified an aspect to which the House should urgently return.
The Government have implicitly acknowledged the inadequacy of the Act to judge such cases. The Secretary of State for Health stated that the Government did not intend to stand in the way of a private Member's Bill. While the Government seem to be adopting a disinterested stance in this case, it is not clear that the Human Fertilisation and Embryology Authority is fulfilling the role that they envisaged for it when the legislation was introduced.
600 One of the explicit purposes of the Act was to remove from the political domain the responsibility for decisions on such matters. During the Second Reading debate in 1990, the right hon. and learned Member for Rushcliffe implied that the Government intended the HFEA to be able to act independently and use discretion. He said:It has been argued that, rather than having a completely independent authority, Ministers should be responsible for these matters. We decided against that, because it would place Ministers and the House in a permanently difficult position if. as a semi-political issue, it was said that Ministers should take this or that view on medical or scientific matters … The code of practice of the authority will have to be submitted to the Secretary of State and laid before the House, but some independence in medical and scientific matters is in the interests of Parliament and the Secretary of State."—[Official Report, 2 April 1990; Vol. 170, c. 915–20.]We can therefore assume that the authority was intended to use independent judgment in particular cases, not simply and slavishly to follow established rules and procedures. The Blood case has shown that the authority does not believe that it has such powers and independence. Ruth Deech, the chairman of the authority, said:Parliament carefully constructed the…Act so that courts would not have to judge each case individually, asking questions of an applicant which may prove difficult—often agonisingly difficult—to answer. It was made clear that decisions about people's genetic and reproductive material should not be left to the discretion of doctors or next of kin.She seems to mean that such decisions should not be left to anyone's discretion.
We are left with stalemate. Ministers stand back from the work of the authority, but the authority says that it can work only to the letter of the law. The court says that it cannot now substitute its discretion for that of the authority, unless the authority has acted with manifest unreasonableness. Parliament, however, intended that there should be room for discretion. A straitjacket has been created where none was intended.
It is clear that the authority has already used its discretion once in the Bloods' case. The Act states that sperm can be stored only with the written consent of the donor, yet the authority waived that requirement after taking into account the compelling and compassionate grounds in their case.
In his judgment, Sir Stephen Brown referred to a note of a telephone conversation that took place in March 1995 between Professor Cooke of the Infertility Research Trust, where Stephen Blood's sperm was to be stored, and Flora Goldhill, the then chief executive of the authority. In her note of their conversation, Ms Goldhill recalled thatThe current situation was so traumatic for the wife in that the decision to turn off the life support system would be made in the next few hours that it would appear uncaring and unnecessarily bureaucratic to insist on the provision of proper legal consent at this time.That was a sensitive, practical and humane response.
The authority now says that Stephen Blood's sperm was stored illegally. That may be so, but I do not believe that anyone in the House would condemn Ms Goldhill for taking that decision. She clearly reached it after careful thought in the light of the compelling circumstances of the case, and I believe that it was the right decision.
The question that follows is this: if the authority has already acted once in this case with discretion and with attention to the special circumstances, why does it now 601 adopt the view that it can no longer exercise any discretion—and therefore compassion—in this case? Technically, perhaps, it should not have consented to the storage of Mr. Blood's sperm, but the fact that it did so suggests that agreement to the eventual use of the sperm by Mrs. Blood cannot have been ruled out.
The Act was framed in unequivocal terms. It was the product of growing unease in the House and in the country about the pace of development in reproductive technology and the complex moral questions that that posed, and to which several hon. Members referred today. Indeed, Sir Stephen Brown states:It is no doubt because the whole field of the artificial insemination with sperm obtained from a man who subsequently died was and is highly sensitive and ethically controversial that the Act of Parliament permitted no element of discretion on the part of the Authority.The current chair of the authority, Ruth Deech, shares this view. After the ruling she said:The court's decision has confirmed, however, that the Authority complied with Parliament's wishes as set out in the HFEA Act 1990".She has also said:The authority has been damned as heartless, stubborn and pedantic. But the law is clear and mandatory.That, perhaps, is the nature of the problem. Cases of this kind are by definition enormously complex and individual. No two cases will be the same and they cannot all be judged by an over-rigid set of rules. Somewhere along the line, it is vital that there is scope for informed and sensitive discretion to be exercised by properly authorised people.
There are other problems with the legislation. We know that the issues raised by the case that we are considering today were not fully dealt with when the Bill went through Parliament. As my hon. Friend the Member for Bassetlaw has already said, Baroness Warnock, who chaired the committee of inquiry, now admits that the committee did not even hypothetically consider a case of this type; but that if it had, she felt that it would have seen no ethical or public policy objection to allowing the woman to become pregnant by her husband's frozen sperm, in this country or abroad. That acknowledgment provides important evidence of the fact that neither the Warnock inquiry nor Parliament considered the issues raised by Mrs. Blood's case.
There are also other reasons that justify the House revisiting the issue. It is now six years since the Bill passed through Parliament. Such is the pace of change and development that, even without this case, we should now have had to consider whether the original legislation is still adequate. Mrs. Blood's case simply makes the need for further parliamentary consideration more urgent.
Science has moved on since the Act was drafted; it is now possible for a child to be conceived posthumously by other means. As my hon. Friend said, it is now possible, outside the terms of the Act, for testicular tissue to be taken from a man in a coma and for sperm to be created from it. Today, we are calling for the House to look again at the adequacy of the legislation to judge cases of this type. There is a case for the Secretary of State for Health to intervene and instruct the authority to amend its general direction so that it can exercise greater discretion.
602 No single piece of primary legislation will ever be sufficient of itself to deal with such a complex area and with such fast-moving technology.
Moreover, we urge the Minister to come up with proposals that will give the authority more discretion and to allow Parliament to debate those proposals on a free vote.
Lord Winston, who has great experience of the issues surrounding fertility and embryology, is considering introducing a Bill in the other place to amend the Act and allow greater flexibility in such cases. By whatever means an amendment to the law comes about, we urge Ministers to act with speed.
Diane Blood's case has aroused enormous public sympathy. At judicial review, Sir Stephen Brown said:I have found this to be a most anxious and moving case. My heart goes out to this Applicant.It would seem that the authority alone is unmoved. It has sought to defend the position it has adopted by dismissing opposition to it as the product of sentiment. I suggest that any public agency such as the HFEA has a responsibility to listen to, and take heed of, public opinion.
The HFEA has struck conflicting poses in explaining its position. On the one hand it has stated that it "profoundly sympathises" with the applicant, but its chair has also accused supporters of sentimentality. She has said:Critics of the HFEA say…consent was implicit because Mrs. Blood and her late husband clearly wanted children and Mr. Blood would certainly have agreed to the procedure. This argument is understandable, but it is sentimental.On the issue of consent, a parallel has been drawn with cases where the courts have ruled that a woman has no right to risk her own death and that of her unborn child by withholding consent to a caesarian birth. The rulings represent a trend in which the courts have edged away from the principle that medical interventions cannot be imposed except when the patient is mentally ill or unconscious. As The Independent has said:They show that the principle of consent is becoming a much more flexible concept when seeking to preserve life but not, it seems from Diane Blood's case, when seeking to create it.It is quite clear that public opinion is overwhelmingly sympathetic to Mrs. Blood and feels that she has been unjustly treated. There is absolutely no evidence from the case so far that any child born into Mrs. Blood's extended family would not find itself growing up in a secure and loving family. In short, it would not be disadvantaged. Mrs. Blood has incurred great hardship in meeting the enormous legal costs inherent in a case of this kind, but everyone to whom she turns wrings their hands and says that there is nothing to be done.
Parliament is responsible for this stalemate: Parliament should resolve it by giving the authority a reasonable but not excessive amount of discretion, to enable cases at the margin to be sensitively and speedily resolved. Technology will always be faster on its feet than the legislator, but we must be able to deal with the difficult and sometimes heart-rending decisions that changing technology will force us to confront without constant recourse to primary legislation.
I hope that this House will act and, in so doing, will recognise the suffering that Mrs. Blood's case has exposed.
§ The Parliamentary Under-Secretary of State for Health (Mr. John Horam)
We are all extremely grateful to the hon. Member for Bassetlaw (Mr. Ashton I for initiating this debate so early in the new Session. These are important matters and it is right that they should be debated in Parliament. I congratulate the hon. Gentleman on the moving and thoughtful way in which he put the case for his constituent.
I should like first to remind the House of the framework within which the authority and clinicians have to operate. Fourteen years ago, in 1982, in the light of concerns about techniques such as in vitro fertilisation and the use of human embryos for research, the Government asked Baroness Warnock, as she now is, to chair a committee of inquiry. The committee's recommendations were published in 1984. There followed a consultation period. In 1986 the Government issued a consultation paper and, a year later, a White Paper which formed the basis for the Human Fertilisation and Embryology Act 1990. That Act contains important provisions on research on embryos, on the welfare and legal status of children born following the provision of relevant treatment, on the need for those providing gametes, eggs or sperm to consent to their use in particular circumstances, and on the establishment of the HFEA to regulate the whole system.
There has been a remarkable amount of public consultation over many years. The legislation was passed on a free vote after lengthy debate in both Houses. It was the first such comprehensive piece of legislation in the world, and it provides the parameters within which the Human Fertilisation and Embryology Authority operates. The authority's role is to regulate the activities of treatment and research centres, to promote good practice and to provide information and advice. The authority is fully accountable to my right hon. Friend the Secretary of State who, in turn, is answerable to Parliament for all matters concerning the authority. It produces an annual report which is placed before the House, as well as a code of practice to guide those offering and providing treatment. Like all such bodies, the authority is subject to review every five years.
In recent months much attention has been directed to individual cases. I can deal only with the issues that they raise and the broader framework within which decisions can be taken. Like other right hon. and hon. Members, I recognise the human side of such cases as well as the emotion that is integral to them and which they generate more widely. However, as I have said, Parliament decided that there was not to be a free-for-all in these matters, so there must be rules which must be observed by those to whom they apply. Sadly, at times, wherever the line is drawn it will result in some hard cases.
The hon. Member for Bassetlaw spoke about the case of his constituent, Mrs. Diane Blood, who wishes to be inseminated with her late husband's sperm. The president of the Family Division has described this asa most anxious and moving case".That point was made also by the hon. Member for Dulwich (Ms Jowell). I concur totally with the feelings of the hon. Lady and the president on this matter. We have all admired Mrs. Blood's courage and determination and have great sympathy for her. I understand that Mrs. Blood has been granted leave to appeal, should she wish to take 604 it, against the recent High Court judgment, so although she has decided to abandon her anonymity I must avoid going into too much detail.
There are some general issues that have been widely commented upon over the past couple of weeks and which we should cover. Some of them have been dealt with during the debate. First, Parliament decided in 1990 that written consent must be provided before eggs or sperm—or, for that matter, embryos—may be stored or used for treatment or research. The notion of consent goes to the heart of the legislation and featured prominently in the Warnock report which preceded the Act. As with the storage or use of embryos, consent is not something that can simply be waived. It is a statutory requirement. I confirm that to my hon. Friend the Member for Batley and Spen (Mrs. Peacock) who raised that matter. It is a statutory requirement under the Act as passed by Parliament.
Secondly, the 1990 Act enabled the HFEA to specify in directions the conditions and circumstances under which gametes may be exported abroad. Accordingly, in 1991, the authority issued general directions which permitted the export of eggs and sperm where written consent had been given. By the same token, it prohibited such export if the gametes could not be used for the intended purpose in the United Kingdom. Otherwise, of course, the regulation that exists in this country could simply be circumvented by removing the gametes to another jurisdiction. So once again, on the question of export, consent is a fundamental issue.
Consent is fundamental to all medical interventions. There are many issues to be considered by those embarking upon assisted conception, including the welfare of the new child as well as that of any existing children-although there are no existing children in this case. Also, we all respect—and must respect—the right of the individual to determine what, if anything, is to become of his or her genetic material. It is not for the HFEA to try to second-guess the wishes of any patient in that regard.
Even where consent is obtained, the welfare of the child must be considered. Paragraph 4.4 of the Warnock report said:The majority view expressed to us however, saw AIH (artificial insemination by husband) as an acceptable form of treatment, where clinically indicated. We see no moral objection to its practice. We believe that where there is the intention to bring about the birth of a child and this takes place within the context of a stable relationship, such intervention is acceptable. It is simply a means of bringing together the sperm and egg of a husband and wife so that fertilisation can take place in vivo. Nevertheless we have grave misgivings about AIH in one type of situation. A man who has placed semen in a semen bank may die and his widow may then seek to be inseminated…This may give rise to profound psychological problems for the child and the mother.In paragraph 10.9 the report says:The use by a widow of her dead husband's semen for AIII is a practice which we feel should be actively discouraged.Professor Michael Hull, professor of reproductive medicine and surgery at Bristol university, commented on the case of Mrs. Blood in a letter to The Times on 24 October. He said:The fundamental ethical concern in all fertility treatment must be for the welfare of the offspring…Is the fact that children arc born fatherless due to accident reason enough to allow treatment which plans such an outcome? Is our society ready to abandon its foundation on the traditional family?605 All those concerned in this case should take that to heart.
As the hon. Member for Dulwich conceded, the HFEA has behaved sympathetically in the case of storing the sperm. She recounted the telephone conversation that took place. It would be wrong to say that the HFEA has been unsympathetic. I know that it would wish to be sympathetic and to give full consideration to the circumstances in which Mrs. Blood finds herself. Therefore, it decided last Thursday to give further consideration to one aspect of the case, which is whether the gametes could be exported. Accordingly, I understand that Mrs. Blood, through her solicitors, has been asked if she wishes to place any additional material before the authority. I can assure the hon. Member for Bassetlaw that that will happen.
§ Mr. Ashton
May I press the Minister on that? It is a welcome assurance but Mrs. Blood is now having to decide whether to go to the Court of Appeal, virtually this afternoon. That assurance is a sympathetic assurance in that the authority will look kindly towards the export of the sperm. However, is the Minister saying that there is no way in which the Government will provide the House with an opportunity to alter the law in the near future?
§ Mr. Horam
I was about to come to that point. Suggestions have been made by the hon. Members for Bassetlaw and for Dulwich and others that the law should be amended to allow variation of circumstances and greater discretion in order to take into account evolving medical developments. This is genuine free-vote territory and it is for the House to determine whether it wishes to go down that route. If, in due course, it wishes to do so—it would take time—my advice would be for the House to ensure that it is in a position to take a genuinely balanced view of all the implications.
606 The present legislation was passed after substantial public and parliamentary debate and is carefully drawn. It is therefore not an area in which either policy or legislation should be tinkered with on the spur of the moment. I have listened carefully to the points made by hon. Members today and I have noted carefully the views expressed on both sides of the argument over the past few weeks.
§ Mr. Michael Alison (Selby)
Will my hon. Friend comment on another aspect of the post-natal well-being of the child, since the interests of the child are paramount? There is an allegation that not enough is being done to gather data about how the so-called test-tube babies get on later in life and the extent to which they are exposed to the risk of suffering from a late congenital disorder that they contracted via IVF. Those are important issues and, as I understand it, no monitoring is being undertaken.
§ Mr. Horam
I am glad to reassure my right hon. Friend that two studies have been undertaken, one in Cambridge in 1994 and another at Manchester university. Both studies found that there was no real difference between children born of a frozen embryo and those born more normally.
Finally, I am sure that we all agree that the HFEA has challenging responsibilities.