§ Order for Second Reading read.1.51 pm
§ Mr. Tony Clarke (Northampton, South)
I beg to move, That the Bill be now read a Second time.
The Bill is simple in intent—even though it has a long title. Although the Opposition Benches are sparsely attended, I hope that no Members on either side of the House will oppose the measure. In essence, it corrects an injustice that should never have arisen.
The purpose of the Bill is to permit a man's name to be entered as a child's father on the birth register and on the long birth certificate when a child has been born following infertility treatment or in vitro fertilisation after the man has died. For example, that may be because the man's sperm or an embryo created using his sperm was stored before his treatment for cancer or other medical conditions and he died subsequently. Another reason may be that infertility treatment had already begun, the man died suddenly but the treatment continued.
I can give the House no clearer example of such circumstances than those of Stephen and Diane Blood. In 1995, Stephen lost his fight for life after contracting meningitis; he was 30 years old. He had given consent for his wife, Diane, to undergo fertility treatment, using his sperm, after his death. Diane fought for the right to receive that treatment. It was almost four years—after numerous legal battles and much anguish—that her son, Liam Stephen, was born on 11 December, just before Christmas 1998.
Diane's fight for the right to have Liam Stephen drew widespread media attention and public support. Indeed, in opinion polls—we are all keen on them in this place—on whether Diane should be allowed to continue her treatment, she received 90 per cent. support for that right.Hansard records the involvement of the House on several occasions.
That fight was not limited only to the right for treatment. Even after Liam's birth, his father's name could not rightly be recorded on the birth certificate. The effect of the Human Fertilisation and Embryology Act 1990 is that it does not allow a man to be treated as the father of a child where his sperm, or an embryo created with his sperm, is used after his death.
Currently, the birth certificates of children born in such circumstances show a blank entry or a line alongside the mother's name. A letter from Joanne Tarbuck—a mother thus affected—to the Department of Health in April 1999 points out:Despite undergoing two years of counselling before I was allowed to try for mine and Martin's baby, I was unaware that my husband's name would not be permitted on the birth certificate. I was therefore extremely upset to learn of this for the first time when I went to register Jonathan's birth. This does not seem fair on him or on other children born in similar circumstances.That is the injustice which we seek to address under the Bill.
Although the Bill would amend the 1990 Act, it is not in essence deeply involved in the ethics or the moral debate that surrounds such procedures. It is a simple and 643 straightforward measure, in which the rights of children to have their fathers properly recorded in the birth register are recognised as foremost.
We may ask why the anomaly was not discovered during the consideration of the 1990 Act. Under that Act, sperm can be stored for 39 years. It was thus recognised at the time that if legal rights—for example, those involved in succession or inheritance—were to accrue and a child was born perhaps many years after the death of the father, it would become almost impossible to wind up that man's estate. Under the Bill, therefore, the needs of those children and their families would be addressed without affecting the current law on succession and inheritance.
There are 30 such children today, but that number is expected to grow at a rate of at least 10 a year—it could be much higher—and the Bill is of considerable importance to their mothers. Two of the mothers affected-Diane Blood and Joanne Tarbuck—are with us in the House today, together with their children and families. I take this opportunity to pay tribute to their resilience over the years.
I also pay tribute to my hon. Friend the Member for Stourbridge (Ms Shipley), who has championed the case of her constituent, Marion Jordan, and her son, Daniel, in the House on numerous occasions. I thank her for the work that she has done in allowing us to get this far.
Following the case of Diane Blood, the previous Government instigated a review of the 1990 Act. The review was undertaken by Sheila McLean, who is professor of law and ethics in medicine at Glasgow university. Professor McLean made several recommendations in her report, among which was the proposal that the father's name should be allowed to appear on a child's birth certificate. In recommending that course of action, Professor McLean considered that the current restriction may not be compatible with the 1979 United Nations convention on the rights of the child.
Article 2.1 of the UN convention states that the rights accorded to each child, as set out in the convention, should be respected without discrimination of any kind, including that involving the child's birth or any other status. I share that view.
§ Ms Debra Shipley (Stourbridge)
I thank my hon. Friend for his kind comments about myself in relation to my constituent Marion Jordan and her son Daniel. Does he agree that the rights of the child should be paramount and that the Labour Government have put child-friendly policies—and, indeed, money—where their mouth is? However, there has been no movement on this issue to date, so my hon. Friend's Back-Bench initiative is to be welcomed. Does he also agree that the proposal is the morally correct, the legally correct and, frankly, the humane thing to do?
§ Mr. Clarke
I entirely agree with my hon. Friend's sentiments. This is more than simply a moral question; legal questions also need to be answered. The Bill, if passed, would easily answer the challenges that may accrue from those parents if the Bill is not successful.
In addition to my reference to the UN convention on human rights, I shall comment on the issues that may arise under articles 8 and 14 of the European convention on human rights. Those articles deal, respectively, with the 644 rights to choose or discover who one is and the enjoyment of rights without discrimination at birth. Those concerns would be dealt with under the Bill.
The suffering caused to those families is unnecessary and avoidable. We must remember that those women suffer not only from the bereavement of their husband or father of their child, but because they feel that the absence of the father's name on the child's birth certificate robs those men of legitimate recognition.
To assist the House, I shall outline the circumstances in which the Bill can be applied. It mirrors the current provisions in the 1990 Act that provide for a man to be treated as the father of the child when he is still alive. The four circumstances outlined in the Bill are as follows. The first relates to when the couple were married before the man's death and the woman uses his sperm or an embryo created with his sperm to conceive a child after the man's death. Diane Blood would have fallen into that category, and that is covered by the proposed subsection (5A).
Secondly, the circumstance in which a couple were not married but were being treated together before the man's death and the woman uses his sperm or an embryo created using his sperm to conceive a child after the man's death is listed as the proposed subsection (5B). Alternatively, the circumstance in which a couple were married and the embryo was created before the man's death using donor sperm and the woman uses the embryo after the man's death to conceive a child is covered by proposed subsection (5C). Finally, the circumstance in which the couple were not were married but were being treated together in the United Kingdom at a licensed clinic where an embryo was created using donor sperm and it is used after the man's death to conceive a child is covered by the proposed subsection (5D).
Under the Bill's provisions, the mother may elect, within 42 days of the child's birth, for the man to be recorded on the birth register. The registrar will require proof of the treatment undertaken and that can be provided by any medical practitioner. The provisions are also retrospective and can be satisfied in any case, where relevant, on or after 1 August 1991, which is when the 1990 Act came into force.
The Bill would also amend section 10 of the Births and Deaths Registration Act 1953, adding to the categories covered by that Act. That simply means that on a certificate of birth, after the father's name, the words "pursuant to section 10" would be added. Anyone looking at the register in future would be able to discover from the wordings of the proposed subsections (5A), (5B), (5C) and (5D) the reason why the birth was registered under that section.
The Bill would extend to Scotland and Northern Ireland as well as to England and Wales. I am glad to say that it has been welcomed by the devolved Parliament and Assemblies.
Under the Human Rights Act 1998, Ministers are required to make a statement expressing whether the Bill is compliant with the convention. I believe that the provisions are not only compliant but support the Act's intentions.
I have sought to highlight the unusual case of families, who under the current provision, are not permitted to write and record the name of the husband or father alongside the name of the child's mother on a certificate of birth. 645 It would be of great comfort to the child's wider family and to future generations of the families that the truth should now be recorded.
I leave the penultimate words on the matter to Diane Blood. In a letter sent to me, she said:Those who have lost someone dear to us know how precious time is. You only get to live once. Why grow up being officially recorded as illegitimate, when the alternative has been agreed? When Liam is asked, say maybe at school, for a passport or for hospital records, 'who is your father?' I'd rather he wasn't left confused by what answer he is allowed to give.I firmly believe that it is right and fitting that we should support the Bill. I commend it to the House.
§ 2.3 pm
§ The Parliamentary Under-Secretary of State for Health (Yvette Cooper)
The Government strongly support and welcome the Bill introduced by my hon. Friend the Member for Northampton, South (Mr. Clarke) and I commend his clear and well-argued speech in favour of it.
The Bill would bring into effect some of the recommendations in the McLean review that the Government accepted last year. We set out then our intention to introduce legislation, but we have a tight parliamentary timetable this Session. That is why I am particularly pleased that my hon. Friend has taken up the issue and introduced the Bill.
The Bill provides for the father's name to be entered on the child's birth certificate when his sperm or an embryo created with it is used after his death. These are not common circumstances; we should be thankful that they are not, for they are inevitably tragic and difficult for the few families concerned. For those few families, this is an extremely important issue about which they feel passionate. The obstacles placed in the way of getting legal recognition for the father of the children are unfair and insensitive.
To be faced with that insensitivity, as well as the frustration of what is in effect an outdated law, can only compound the distress that those families face at a time when they are trying to look forward and celebrate the new life of a child. That is why it is right to change the law. That is why the Bill is right and why we wish it a speedy passage through the House.
§ Ms Shipley
Is my hon. Friend aware that visiting the House today are two little boys to whom, as the law stands, we are legally saying, "You do not have a father"?
§ Yvette Cooper
My hon. Friend makes a powerful point. I pay tribute to her for her work on the issue and the representations that she has made on behalf of constituents who have been affected by the existing law. That is why it is right to make the Bill retrospective, and not simply so that it affects future families facing those circumstances.
The Bill applies where couples have decided to have children through IVF but when the man, sadly, has died before the treatment is completed; perhaps when he has stored sperm or where the embryos have been created but not yet implanted. Their intention to start a family is clear but, sadly, the man has died through illness or accident before the embryos can be implanted.
646 In the circumstances, the widow faces a double loss; the loss of her partner and of the shared plans for their lives together and their future family. The law allows women in that situation to use the stored sperm or embryo to have a child, provided the father has consented to that. Despite having a child that they both wanted, he cannot be recorded as the child's father on the birth certificate. If the embryo had been implanted before his death, his name could have been on the birth certificate. If they had conceived the child in the normal way before he died, his name could go on the birth certificate. In the specific circumstances that I have described—and despite that man being intentionally the father of the child—he is not recognised on the birth certificate because, effectively, of the date on which he died.
§ Mr. Eric Forth (Bromley and Chislehurst)
I thought I heard the hon. Member for Northampton, South (Mr. Clarke) refer to whether the treatment had been carried out in the UK or not, or at a licensed facility or not. Does the Bill seek to make any distinction as to where the treatment may have been carried out? Are there circumstances in which that would invalidate the provisions of the Bill?
§ Yvette Cooper
The right hon. Gentleman makes an important point. As I understand it, the Bill would apply to treatment in a UK licensed clinic only for those families who have used donor sperm, rather than the sperm of the father. If that is incorrect, I will happily write to the right hon. Gentleman.
§ Mr. Tony Clarke
The reference to clinics in the UK would be of relevance only to the final category where, as my hon. Friend rightly said, donor sperm is used and the couple are not married. It is only in that last category that we sought, rightly, for treatment to be carried out in the UK.
§ Yvette Cooper
I thank my hon. Friend for that clarification.
We should be clear that the Bill will not allow the child succession or inheritance rights. The reason for that is that the child could be born many years after the father's death. If those rights were granted, it would be impossible to wind up the father's estate until all the sperm or embryos had been used or destroyed. Clearly, that is impractical.
The Government set out our intention to go further than the McLean report and the Bill does that. The problem with the recommendation in the McLean report is that it is not retrospective. It would have applied only to new families facing such difficult circumstances, not to those who have already experienced them and who are now bringing up children whose fathers have died.
My hon. Friend the Member for Northampton, South has described the case of Diane Blood. My hon. Friend the Member for Stourbridge (Ms Shipley) has raised in the House the case of her constituent, Marion Jordan, and has campaigned on the issue. The Government felt that it would be wrong not to extend provisions, under the Bill or in similar legislation, to include families who have already experienced so much and who have campaigned so hard for changes to be made. It is unusual to make laws retrospective in this way, and the Government have given 647 the issue great consideration, but we think that it is the right thing to do in the circumstances. That is why the Government are supporting the Bill.
It is true that many of the measures made possible under the Bill will have a symbolic value, but it is an extremely important symbolic value, particularly to the families involved. I join my hon. Friends in paying tribute to the mothers who have campaigned for this Bill for so long on behalf of their children.
§ Ms Shipley
The Bill is about more than the circumstances of one or two families who are affected. The law might be out of kilter with international conventions which we have signed. The UK might be in breach of United Nations conventions on human rights and on the rights of the child, so it is incumbent on the House to tighten up legislation on this important issue.
§ Yvette Cooper
My hon. Friend is right that concerns have been raised about the compatibility of the law in this area with European conventions. However, it is also simply the right thing to do to support the Bill, and that is why the Government are doing so. I wish the Bill a speedy passage through the House. As it is in the interests of families and of children being brought up today, I hope that it receives cross-party support.
§ Mr. Eric Forth (Bromley and Chislehurst)
It is obvious that the Bill deals with a difficult area, not least because it reflects all too well the extent to which it is incumbent on us to try to ensure that developments in the law keep pace, where appropriate, with developments in technology. It is entirely owing to the fact that medical technology has advanced as it has over the past few years that we are faced with this problem.
Fortunately for us, the Bill does not deal with the ethical and other considerations that surround the techniques involved. They are entirely separate. However, it is worth remembering that the techniques that allow the process to take place and so put people in this position are not without an ethical dimension.
I am not sure that I fully understand why this need be so, but great care is taken to distinguish between those who are married and those who are not. The modernisers among us—I am not one for this or indeed, most other purposes—constantly try to establish that marriage is becoming less and less important and that partnerships and long-term relationships matter more and more. Intriguingly, in operating in a difficult and sensitive area, the Bill goes to extraordinary lengths to make such a distinction, which I find reassuring even though I am not entirely clear about the reason why. That is even more true of the distinction that apparently must be made about whether the treatment took place in UK-licensed premises. The question of whether there are any UK-licensed clinics outside the UK might be relevant.
§ Mr. Tony Clarke
I am grateful for the right hon. Gentleman's interest, and the matters that he raises are important, but the Bill simply mirrors provisions in the Human Fertilisation and Embryology Act 1990. We are dealing with a minor issue: the right of children to have their deceased fathers recognise I on their birth 648 certificates, as fathers who are still living can be under the 1990 Act. I see the point of his technical questions, but does he accept that they are not relevant to the Bill?
§ Mr. Forth
I do not. I am grateful to the hon. Gentleman for trying to be helpful, but we have already had this discussion once today, in the context of an earlier Bill. It is not good enough to say that because a provision already exists, and has existed for a long time, a similar measure can be nodded through, especially when we are operating in an environment of rapidly changing technology and circumstances. He suggests that because a provision has been in statute law since 1990, we need not pay close attention to it; the reason for the Bill, however, is the rapid march of technology. Are not those two facts slightly at odds?
I thank the hon. Gentleman for his explanation, but I do not accept the basis on which he offered it. He seems to be saying, "Don't worry, folks. It's been around for a while, so it's almost certainly OK".
Surely the whole point of the opportunity that the Bill gives us to revise the law is that it allows us to consider whether any other matters need to be dealt with. That is verified by the lengths to which it goes in amending earlier legislation. The schedule, entitled "Consequential amendments", requires consideration to be given to the Births and Deaths Registration Act 1953, the Registration of Births, Deaths and Marriages (Scotland) Act 1965 and the Adoption Act 1976, among others.
The issue may be relatively narrow, and the Bill's intent may, as the hon. Gentleman claimed, be simple. By the standard of many private Members' Bills, however, it is lengthy and detailed. That, and the fact that the schedule seeks to amend consequentially a number of other statutes, suggest that there are ramifications that we nod through at our peril.
I concede that in many cases of this kind the principle, or the specifics, that gave rise to the Bill concerned make it, in one sense, relatively uncontroversial; but the consequences may not be uncontroversial. This Bill has ethical and other dimensions that, in my view, require close consideration—not least the element of retrospection that is explicitly included.
We are talking about unusual circumstances, including the circumstances of those whose lives the Bill seeks to improve. Perhaps, in that context, the element of retrospection is inevitable and desirable, but I am always nervous when Bills contain a retrospective element. When I studied politics at university nearly 40 years ago, I was told that changes in the law should never be retrospective: that was the doctrine on which I was brought up. When I arrived in this place, as recently as 1983, that was still the prevailing philosophy in matters of legislation. I now find that—rather surreptitiously, if I may say so—more and more elements are being introduced into legislation in a way that I, for one, consider undesirable.
§ Ms Shipley
Surely retrospection is the right course in this instance, because written consent will definitely have been given. My constituent Marion Jordan and her husband wanted children, and had planned to have them. Her husband died of cancer before they could have them, but he had consented. The child is his, but he cannot be registered on the birth certificate. Retrospection must be right when consent has been given.
§ Mr. Forth
Consent may well legitimise retrospectivity in that case, but it does not necessarily legitimise it in the 649 absolute sense that the hon. Lady suggests. I do not agree with the proposition that I think she is making that it is acceptable in every case.
Given the Bill's unusual and relatively narrow confines and the circumstances with which it and the case that the hon. Lady described deal, I may be able to accept that retrospection is justified. However, I am trying to lay down my own ground rule that states that retrospection has to be justified fully in every case and not introduced as a much more general proposition. Her response has helped greatly in that. The elements of the Bill that would usually cause me unease might be much more justified in this case than in many others.
I notice that there is a retrospectivity cut-off date of 1 August 1991. Limiting retrospection is an interesting idea, but I have no doubt that there is a very good reason for it.
§ Mr. Tony Clarke
The date was chosen simply because that was the date on which the Human Fertilisation and Embryology Act 1990 came into force.
§ Mr. Forth
Again, that does not necessarily make it the right thing to do. It may well be that, in some cases, a specific retrospection date should be determined in relation to, for example, a technology or the nature of a consent. However, in this case, I accept the hon. Gentleman's comments.
I hope that the Bill is as simple and limited in scope as the promoter has suggested. In this case, I shall overlook the fact that it has the Government's fingerprints all over it—although I usually take a dim view of the Government trying to sneak Bills through in the guise of private Members' Bills. However, perhaps there should 650 be exceptions to every rule, and it may well be that this is one of them. All I am saying is, do not think that it has not been noticed.
Consideration of the Bill in Committee will allow hon. Members to scrutinise it much more closely. It will also require further scrutiny on Report. At this stage, however, accepting what the promoter and the Minister have said about the Bill, and in view of the circumstances of the families it seeks to help, I see no reason why it should not be read a Second time.
§ Mr. Tony Clarke
I am grateful to the right hon. Member for Bromley and Chislehurst (Mr. Forth) for his brevity and kind wishes for the Bill's passage. I am sure that the issues that he raised will be addressed in Committee.
I am grateful also to the Minister—as I know that the families, who are in the Gallery, will be—for saying that the Bill has the Government's full support. I ask her to join me and do everything in her power to ensure that the Bill is passed in this Parliament. The families have had an extraordinarily long wait for justice. Their children are in the Gallery today, although they will probably have no reason to remember today other than as a day out in London and a visit to a strange old building that my daughter describes as an old church.
Perhaps one day in the future, those children and others like them will look back on a day when legislation was debated that made it possible for their rightful father to be recognised on their birth certificate. It is for those children, both born and unborn, that I promote this Bill. I thank the Minister for her comments.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 63 (Committal of Bills).