§ Order for Third Reading read.1.56 pm
§ Mr. Stephen McCabe (Birmingham, Hall Green)
I beg to move, That the Bill be now read the Third time.
It is a pleasure to move that the Bill be read the Third time. I confess that I was anxious earlier that we might not have had this opportunity. I hope that there is such good will for the measure among hon. Members on both sides of the House that we will be able to use the time available economically and efficiently.
I said on Second Reading that I did not believe that the issue was particularly contentious. I think that the debates on the Bill so far have tended to show that. I am grateful to hon. Members on both sides of the House for their help and support for this small but significant measure. It is a short Bill with a simple purpose that is wholly compassionate. It will permit: a man's name to be entered as a child's father on the birth certificate when the child has been born following fertility treatment after the man has died.
The Bill is not deeply concerned with underlying philosophical and ethical fertility treatment issues. I recognise that they are very important issues for many people but this Bill seeks only to make a relatively simple change for the purpose of birth registration. The change proposed is symbolic only. It will not confer on the children any inheritance or other legal rights. Nevertheless, hon. Members will know of mothers, children and grandparents for whom this is a very important recognition. I pay tribute to the people who have campaigned long and hard on the issue.
This is the second time that a Bill with essentially the same provisions has reached Third Reading in this House. I hope and believe that, as a result of the scrutiny to which the measure has been subjected, it has been significantly improved. Some straightforward amendments were made in Committee to allow additional flexibility where the mother cannot register the birth herself, perhaps due to the tragedy of death in childbirth, or serious illness leading to incapacity. As a result, the amended Bill is more in line with current registration practice. I proposed those amendments largely as a precaution. As I said in Committee, I hope that those circumstances will be extremely rare.
I fully understand the issues that some hon. Members have raised about the Bill's retrospective provisions. That is hardly surprising as legislation is rarely made for retrospective purposes. In this case, however, I believe that it is right that the Bill should apply to existing as well as future cases. I hope that Members will be reassured that it does so in a way that sends an appropriate signal for the future, particularly in terms of the clear process that will have to be followed.
§ Mr. Eric Forth (Bromley and Chislehurst)
I am not asking for an exact figure, but can the hon. Gentleman give us a rough idea of how many cases the Bill would apply to retrospectively? I suspect that it is a very small number, but it would be helpful to know even at this stage of the Bill's consideration.
§ Mr. McCabe
I am grateful to the right hon. Gentleman. As he rightly says, there is no way of coming 990 up with an absolutely accurate figure. However, we believe that the provisions could apply to about 30 children, and possibly fewer. I hope that that makes the position clear.
Fundamentally, the Bill represents a crucial opportunity for the House to put right earlier attempts to deal with such legislation. That is long overdue and, in reality, what we are doing is righting a wrong. The original intentions were never to prevent a father's name from appearing on a birth certificate. It is clear that the original architects of the Bill were concerned about inheritance and succession rights, and we can all understand that. All that I am seeking to do is ensure that the father's name appears on the child's birth certificate. That is a symbolic recognition; no issues of inheritance or succession are allowed. I commend the Bill to the House.
§ 2.2 pm
§ Chris Grayling (Epsom and Ewell)
I congratulate the hon. Member for Birmingham, Hall Green (Mr. McCabe) on the way in which he has stewarded this Bill to Third Reading. It is obviously an evocative and sensitive issue, and he has managed it well.
We know that the origin of the Bill is the situation that faced Diane Blood. However, as the hon. Gentleman rightly points out, many children and families—we do not know exactly how many—have been affected by the circumstances that the Bill seeks to cover. It is right to say that the House would wish to do the right thing by those children. Therefore, Conservative Members have welcomed and supported the Bill right the way through the proceedings on it.
I raised with the hon. Gentleman two concerns on Second Reading. I would like to put on record the way in which my concerns have been responded to. First, the hon. Gentleman has dealt well with the Bill's retrospective elements. They will not create an open-ended process for the future, but they acknowledge that some children today cannot, as a result of the lack of such legislation, have their position clarified. I am now comfortable with the Bill's retrospective elements.
I also want to put on record my concerns about the proposed new section 28 (5D) of the Human Fertilisation and Embryology Act 1990. I shall explain why I ultimately decided not to object to that. It allows an unmarried couple who have gone through fertility treatment using another man's sperm—the treatment may even have taken place outside the UK—to benefit from the provisions of the Bill. On reading that, my first thought was, "Hang on a moment. This is going a bit too far."
The hon. Gentleman has set aside my concerns for two reasons. First, he pointed out that the provision is reflected in the existing human embryology legislation. It already exists in law. That is fine but my challenge to him was that, in cases covered by the existing legislation, the child would get to know the father, so there would be a bond between the father and the child. In a case in which the father had predeceased the child, that would not be the position. We had a long conversation about the matter and agreed that there are circumstances in which such a measure must be necessary.
It is because of those circumstances that the hon. Gentleman has my support for that aspect of the Bill even though it causes me some anxiety. There may be 991 cases in which, for example, a partner in a relationship, perhaps a marriage, is in a long-term coma from which he is unlikely to recover. If the other partner forms a new relationship but does not want to get divorced because of the particular circumstances, she may be caught up in the situation addressed in the Bill. That is an unlikely circumstance, but unlikely is not never. In such a situation, which would be brought about by tragedy rather than by personal choice, it is right and proper that we should acknowledge the rights of the child. For that reason, following my discussion with the hon. Gentleman, I am happy not to challenge new section 28(5D).
The measure is welcome. It will right a wrong and is overdue. I am delighted that it has had such a smooth process through the House. I congratulate the hon. Gentleman and all those who worked with him on their work. I wish the Bill well when it reaches another place and hope that it receives Royal Assent before too long.
§ 2.6 pm
§ Dr. Vincent Cable (Twickenham)
I have not been involved in the Bill before. I simply want to put on record my colleagues' support for it and to congratulate the hon. Member for Birmingham, Hall Green (Mr. McCabe) on promoting it. My hon. Friend the Member for Hazel Grove (Mr. Stunell) supported the original Bill when it went through the House.
A key point, which has partly been covered, is that it is limited in both scope and scale. The scope is limited because it is confined to the one issue of a name appearing on a birth certificate. The scale is small because we are talking about 30 individuals. The estimate is that the measure could cover 10 additional babies a year. Presumably that could increase as technology develops. None the less, the Bill will have a limited scale of operation.
It is fair to say that my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) shared many of the concerns of the hon. Member for Epsom and Ewell (Chris Grayling) about the retrospective element, but he, too, is reassured that the problem is largely resolved. We therefore support the Bill and wish it well.
§ 2.7 pm
§ Dr. Andrew Murrison (Westbury)
I also congratulate the hon. Member for Birmingham, Hall Green (Mr. McCabe) on promoting the Bill. It is overdue and I wish it well. There are one or two mildly controversial aspects, in particular to do with the retrospective elements and written consent, which is a complex matter, especially if the man is incapable of giving it for one reason or another. However, I hope that the Bill has a speedy passage.
§ Mr. Tony Clarke (Northampton, South)
I, too, congratulate my hon. Friend the Member for Birmingham, Hall Green (Mr. McCabe) on his sterling job in stewarding the Bill through to this stage. It will have a significant impact on the lives of the individuals whom it is meant to support and help, both retrospectively and in the future. I can think of nothing worse than going through life without being able to right the wrong of not having one's father's name recorded on one's birth certificate. I wish the Bill a good and speedy passage, even at this late stage.
§ 2.8 pm
§ Mr. Eric Forth (Bromley and Chislehurst)
In some ways, this is a model private Member's Bill. As has been mentioned, it is limited in scope and is, to use that ghastly modern term, focused. However, it does have complexities. I was gratified, not least given the earlier debate on the Fireworks Bill, that the Committee considered this Bill responsibly and saw fit to amend it. That is what Committees are for. Too often Bills, not least private Members' Bills, are ushered through Committee without proper scrutiny and run into difficulty on Report, which is what happened to the Fireworks Bill.
I congratulate the hon. Member for Birmingham, Hall Green (Mr. McCabe) on the Bill. It has been carefully considered and has drawn on the experience of previous attempts to deal with the problem, and rightly so. I wish it well, and I think that we can be confident that it will go through to another place.
It is worth noting that the Bill has been brought about partly by the advance of technology. The hon. Gentleman mentioned a moment ago that technology often obliges us to react within the legislative framework, and that is certainly the case here. However, this is also a very human Bill; technology has had a bearing on people in the most difficult of circumstances, and the law has been unable to catch up until now, courtesy of the hon. Gentleman and his Bill.
Although I have always been very unhappy about retrospective legislation, we have now to accept that, as with almost everything in life and in legislation, there will occasionally, of necessity, be exceptions to the principle. The principle of retrospectivity, or rather the lack of it, in our legislation has been built up over many centuries as a proper protection for the citizen. However, in this day, when so many things advance so quickly, we have to be prepared to make allowances, particularly when, as in this case, the number of people involved is necessarily small. It may increase, but only slightly, so we are not opening a floodgate or risking abuse. Almost by definition, there will only ever be a few people, in their very human family circumstances, affected by these advances, and in that case we can take a more relaxed view of retrospectivity. The hon. Gentleman had that in mind when he was framing the legislation, and we have all been prepared to take a positive attitude to that.
All in all, the Bill is an intriguing mixture of the narrow, the focused, the technical and the retrospective. I am reassured on this occasion by the fact that the Standing Committee took its work seriously. I am, funnily enough, more reassured by a Bill returning to the House on Report that has been amended in Committee than by one that has not, because that tells me that the members of the Committee took their responsibilities seriously. They persuaded the promoter, and indeed the Government, that amendments were proper and appropriate. In that case we can take a more relaxed view of the Bill on Report. There is a message there for all concerned, not least future promoters of private members' Bills.
I congratulate the hon. Gentleman on how he has managed to steer his Bill through the House thus far. I am confident that it will succeed on this occasion, and I wish it well in the future.
§ The Parliamentary Under-Secretary of State for Health (Ms Hazel Blears)
I am absolutely delighted to add my congratulations to my hon. Friend the Member for Birmingham, Hall Green (Mr. McCabe) on his excellent job in promoting a complex Bill involving many technicalities, both in technology and in the legal framework. I congratulate also my hon. Friend the Member for Northampton, South (Mr. Clarke), who promoted an earlier Bill on the issue, which did not get to this stage. I know that he has long been a doughty campaigner on these issues.
We all appreciate the need to be compassionate and to recognise that there are children and their families who find themselves in incredibly distressing circumstances. It is right for the House to try and respond while maintaining the integrity of our legal process. The Bill treads a fine line in balancing the needs of the children and their families with those of the legal process, the considerations of technology and some of our long-held principles, particularly those concerning retrospectivity. All of us, whether as lawyers or legislators, are always very nervous about the effect of retrospectivity.
The Bill is an opportunity to make a real difference to the lives of those children and their families. In considering the Bill my concern is the rights of those children, their future and, I hope, their opportunity to have their father's name registered on their birth certificate. They find themselves in tragic circumstances. Not only do they no longer have a father, but they face the added distress of lacking legal recognition of their situation. That is why the families have campaigned long and hard on the issue. They have had excellent parliamentary representation, but we should not take away from them the fact that they have had the determination, tenacity and will to see the process through, despite the personal problems that they have faced. I therefore pay tribute to the families who have championed this cause.
Hon. Members have said that the Bill is a symbolic recognition, and we have made it clear that it will not have an effect on inheritance and the rest of the legal framework. Although it is symbolic, it is important for the people involved, and I hope that it will be of great emotional value to the children as they grow up. I am also delighted that there is an opportunity in the parliamentary timetable to implement one of the recommendations in Professor McLean's review. When that review was completed, we said that we would legislate when parliamentary time allowed. Clearly, there is a tight legislative schedule, but I am delighted that my hon. Friend the Member for Birmingham, Hall Green has managed to find parliamentary time to proceed with his Bill. There is one recommendation in the McLean review that remains to be dealt with, on the use of gametes that have been taken and put into storage. Again, that involves fairly technical circumstances. For example, a child may be unable to consent to having their gametes taken because they are in a coma, but they may well want to use them in the future. We still have legislative work to do in that narrow area, but I hope that we can make progress there too.
I shared some of the concerns expressed by the hon. Member for Epsom and Ewell (Chris Grayling) when I first saw the legislation, which attempts to think about 994 all possible eventualities. I am nervous of legislation that looks at hypothetical situations, because it can lead to unintended consequences that we may not have contemplated when we initially looked at the system. However, I am reassured that the provisions in the Bill do not simply mirror existing legislation. That is one good reason for doing something, but it is not always the whole story. If legislation mirrors existing provisions, it sometimes replicates problems as well as good measures. The hon. Member for Epsom and Ewell outlined a specific instance in which a couple, not married, undertook fertility treatment together but not using the man's sperm. There are a lot of "nots" in that equation, but such a procedure may have practical benefits.
Amendments agreed in Committee dealt with similar matters. For example, a woman would have 42 days to register a birth. If there were circumstances in which she was unable to do so immediately, her children would not lose the benefit of having their father's name on their birth certificate. Those amendments had a narrow focus and dealt with something that might possibly happen in tragic circumstances. It was right that they were considered in Committee, as the right hon. Member for Bromley and Chislehurst (Mr. Forth) said. They were properly formulated scrutinised and debated, and have improved the Bill.
There has been complex discussion of the interaction of the Bill and human rights legislation. Hon. Members will know that there was a declaration of incompatibility between section 28 of the Human Fertilisation and Embryology Act 1990 and article 8 of the European convention on human rights. That declaration was made some time ago in the courts, and was subject to the progress of this private Member's Bill. The judge who made it said that there was an incompatibility, but that he would stay proceedings pending the outcome of the Bill, which we consider remedies the incompatibility. We would only need to return to the possibility of introducing a remedial order under human rights legislation if the Bill did not make progress. That is another good reason why I am delighted that we have reached this stage in our proceedings.
§ Chris Grayling
If the Bill is to work, the clinics involved will be an important factor, whether in the NHS or not. They should make a point of drawing the measure to the attention of patients when they go for their initial treatment and say, for example, "In the event of the unthinkable happening, you need to get something down on paper." Can the Minister assure the House that the Department, in its communication efforts to the NHS, will make sure that that happens?
§ Ms Blears
The hon. Gentleman makes an important point. I understand that it is already in the code of practice that consent in writing to all procedures is to be sought from people undergoing treatment. We are due to issue a revised form of the code of practice in the autumn, and we can ensure that that message is as strong as it can possibly be. It is good practice that consent is obtained. It is also good practice that people should think long and hard, and engage in proper discussion and deliberation about what might happen.
The requirement in the Bill for written consent prospectively rather than retrospectively ought to enhance the possibility of further deliberation and 995 discussion between partners about "what might happen if". I can give the hon. Gentleman the commitment that the Human Fertilisation and Embryology Authority, which is responsible for such matters, will ensure that it is brought to the attention of NHS clinics, private clinics and clinics in the voluntary sector. It is an important aspect for us to be sure about.
With reference to the human rights provision, the right hon. Member for Bromley and Chislehurst raised the question of the class of people that we are dealing with, whether the commitment was open-ended, or whether it was a closed class of people so that we had a fairly definitive view of how many people might be affected. It is a closed class. In future people will need written consent, so the class of people that we are dealing with are those from 1991—after the 1990 Act was passed—up to the passage of the Bill. There will also be those whose sperm has been stored.
The normal period for the storage of sperm is about 10 years, so for a period of years following the Bill there may be cases where sperm has been stored. That could extend the class, but it is still very limited and closed. As my hon. Friend the Member for Birmingham, Hall Green said, we think about 30 to 40 children are affected.
Even within that closed class, I understand that the majority had written consent. What they might not have is written consent to having the name registered in the births and deaths registry. They may well have consent to the use of the sperm, but the Bill provides not only that consent is needed to the use of the sperm, but that the man must specifically consent to the fact that he will be registered as the father. It is important that that should be in the couple's contemplation. Even in the closed class of 30 or 40 individuals, many have written consent to the use of the sperm, so the effect will be marginal.
We discussed whether there could continue to be human rights challenges even to the provisions of the Bill, because article 8 is engaged, and whether the court would hold that the Bill is a proper and proportionate response in human rights terms to the problem that has been identified, concerning the rights of the children and the possible rights to marriage and family life. We said previously that we could not prevent a legal challenge or pre-empt the judgment of the court, but the Bill serves three purposes.
First, it makes sure that the requirement for written consent is clear. There was some debate about whether it was clear under the 1990 Act. Secondly, it serves a 996 legitimate aim by encouraging discussion about the use of the sperm before procedures are undertaken. That protects the rights of donors. Thirdly and probably more fundamentally, it reflects the right balance between the interests of children, donors, families and society. It meets a pressing social need and is necessary in a democratic society.
For those three reasons, we believe the law is defensible against any possible challenge under the human rights legislation, and I hope that we are in the process of making good, valuable, well founded and technically effectively law. It is always much more satisfying to all of us as legislators when we feel that we are meeting a situation with law that is not messy—that is not lazy legislation—but is designed to achieve the end upon which we are all embarked.
The Bill is fairly short. It deals admirably with complex technical provisions. Above all, for me and for my hon. Friends the Members for Birmingham, Hall Green and for Northampton, South, it will improve the lives of the children and families concerned, bring to an end the distress that they have suffered over a considerable number of years, and make a real difference to their future. I am tremendously grateful for the support of all Members of the House, including the Opposition, in giving the Bill a fair wind. I hope that we are able to bring it into law.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
Order. I appreciate that the hon. Member simply wishes to pay tribute to those who have assisted him, but he should seek the leave of the House to speak again.
§ Mr. McCabe
Thank you, Mr. Deputy Speaker.
With the leave of the House, I simply want to thank all those who have given me help and support in the preparation of the Bill, and I particularly thank hon. Members here today for their comments. I am also grateful for the welcome advice and assistance of the hon. Member for Epsom and Ewell (Chris Grayling).
The Bill will help people who have already suffered tragedy and it is in the interests of the children concerned. Today we are doing something that we all came here to try and do at some time in our life.
§ Question put and agreed to.
§ Bill accordingly read the Third time, and passed.