HC Deb 28 March 2003 vol 402 cc602-12

Order for Second Reading read.

12.15 pm
Mr. Stephen McCabe (Birmingham, Hall Green)

I beg to move, That the Bill be now read a Second time.

As some hon. Members will appreciate, this is not just a Second Reading, but a second attempt by Parliament to achieve certain changes. A similar Bill was introduced by my hon. Friend the Member for Northampton, South (Mr. Clarke) in March 2001. But for the general election that was held in the intervening period, it might have made it to the statute book. My Bill has a simple purpose—to permit a father's name to be entered on the birth certificate when the father has died and the child is conceived as a result of fertility treatment. I hope that hon. Members agree that the Bill is not contentious. All that I seek to do is to ensure that a child, whom the mother and father wanted so much that they sought the assistance of fertility treatment, can have his or her father's name on the birth certificate. I think that that is a basic right—a right to identity; a right to know who we are and where we came from; a right, as one mother put it, to make sure that the birth certificate tells the truth. That is a right that the courts now recognise.

Such a measure is long overdue. The Bill is limited in scope, and its intention is wholly compassionate. It seeks only symbolic recognition for children who, as the law stands, have no father. It is not concerned with issues of inheritance or succession, nationality or legal status. It simply allows the name of the father to be put on a birth certificate—currently, the law requires the father to remain unknown. I accept that for some people there are serious concerns about the ethics of reproduction and assisted conceptions, but the Bill is solely concerned with the simple and straightforward issue of birth registration. I am happy to accept that deeper philosophical and ethical issues need to be kept under review, particularly given the pace of technological advance, but those issues are not for consideration here. As previously stated, the Bill's only purpose is to permit a man's name to be entered as the child's father on the birth certificate when the child has been conceived after the father's death.

At present, section 28(6) of the Human Fertilisation and Embryology Act 1990 prevents a man from being treated as the father of his child if his child is conceived as a result of using stored sperm or a created embryo after the father's death. Because the law allows sperm to be stored for 39 years, there are understandable concerns about succession and inheritance, and the problems that that might lead to in winding up an estate. The problem that we face now is the unintended consequence of those concerns. Hon. Members will know of mothers and children in the situation that I have described—people who have campaigned long and hard for their children's legitimacy.

Ms Debra Shipley (Stourbridge)

Will my hon. Friend accept the thanks of my constituent, Marian Jordan, for taking up the matter and introducing the Bill? Marian Jordan had her son in 1999, but he is not allowed to have his father's name on his birth certificate, even though the father gave consent. The law is surely wrong.

Mr. McCabe

I am grateful to my hon. Friend, and I acknowledge her long association with the matter, her attempts to bring about legislative change, the support and help that she has given her constituent, and the advice and support that she has given me in the preparation of the Bill.

We all know of people who have campaigned long and hard on the issue—parents who have campaigned for their children's legitimacy. Those children are loved and wanted. I pay tribute to those people for their courage and determination. It seems doubly unfair for them to lose their loving partner and then to have the existence of that partner denied on the child's birth certificate.

The Bill is retrospective in so far as it deals not only with future cases, but with existing ones. I understand that 30 to 40 children are in the predicament that I have outlined. That number could grow by five to 10 children a year. There are four specific circumstances in which the Bill might be applied. The first, set out in proposed new subsection (5A), relates to a married couple where the dead husband's previously stored sperm is used or an embryo is created using that sperm. New subsection (5B) covers the same circumstances where the couple were not married. New subsection (5C) relates to a married couple where the embryo was created using donor sperm, and new subsection (5D) applies to an unmarried couple where the embryo was created using donor sperm.

Diane Blood recently said to me that if the only official document designed a register a child's paternity is a fiction, then it strikes at the heart of family relationships. Her sons Liam and Joel are four years old and seven months old, respectively. There are many children like them across the country—children who are growing up in good homes, full of love; children adored by their mothers and grandparents, but growing up without their father. What they do not need is to have their father's identity denied.

Today we as parliamentarians can help those children. We can help those women, who have already suffered more than most. We can put right a wrong that was never intended. We can spare people such misery in the future. We can ensure that every child, irrespective of how he or she was conceived, has the right to have his or her father's name on the legal birth certificate. I commend the Bill to the House.

12.23 pm
Mr. Tony Clarke (Northampton, South)

I congratulate and support my hon. Friend the Member for Birmingham, Hall Green (Mr. McCabe), who is a parliamentarian known for his integrity and compassion. His choice in bringing the Bill back before the House is a credit to that reputation. The Bill deals with a wrong that needs righting as quickly as Parliament will allow, and I hope that his assurance that the Bill does not deal with fertilisation and embryology, but simply ensures that children born to deceased fathers can have their paternity recognised on their birth certificate will be borne in mind by hon. Members in all parts of the House during the Bill's passage.

This is also an opportunity for us to pay tribute to those families who have fought the case for such a long time, including Marian Jordan, Joanne Tarbuck and, of course, Diane Blood. Diane has fought a long, relentless and courageous campaign since 1995 when her husband Stephen died from bacterial meningitis. She had to fight for the right to conceive her child, and ever since she has had to fight for Stephen to be recognised as the father of Liam and of Joel, the latest addition to the family. That fight took her to the High Court. It does not bring much grace on the House that, in failing to right that wrong in 2001, we forced Diane Blood to go once again through the legal system to fight for the rights of her children.

In the High Court case, Mr. Justice Sullivan talked about the Government's outright capitulation, and he said that it was not the Department of Health's most shining hour. I hope in a few moments to defend the Department, because while accepting that the Government and Parliament are in the wrong for making Diane Blood seek legal recognition of Stephen as the father of her two children, counsel accepted that the 1990 Act was incompatible with article 8 of the human rights convention, which requires respect for a person's private and family life, and that is why we are here today. We are here because the 1990 Act is in breach of the convention and needs to be corrected.

That process was costly. It was costly in emotional terms for Diane and for those families who had to wait an extra time to gain recognition from the courts. It was costly in economic terms. Court costs of £20,000 were rightly awarded to Diane. It was also unnecessary. During the Bill's passage in 2000–01, it was only on Third Reading that the hon. Member for New Forest, West (Mr. Swayne), who is not in the Chamber today, intervened at the very last minute. His intervention was brief, but it was enough to stop the Bill's passage.

Ms Shipley

I am pleased that my hon. Friend has drawn to the attention of the House the action of that single Member of Parliament who came in on Third Reading, after the Committee, on which I had the pleasure to serve. That hon. Gentleman had made no speech and given no indication of what he intended, unlike his honourable colleagues who made valid and interesting points. Instead, as my hon. Friend said, in those last few seconds the hon. Gentleman basically blocked what was a supported Bill.

Mr. Clarke

I entirely agree with my hon. Friend.

Chris Grayling (Epsom and Ewell)

I believe that it is usually the convention of the House that hostile comments should not be made about hon. Members who are not present. However, the hon. Gentleman would surely accept that it is two years since that event took place, and there has been ample parliamentary time, had the Government chosen to make time available, for the Bill to have passed long ago.

Madam Deputy Speaker (Sylvia Heal)

Perhaps we can now return to the content of the Bill that is before the House.

Mr. Clarke

It is not my intent to be hostile. I mean only to put the record straight on previous parliamentary proceedings. It is my belief that we would not be here today were it not for the actions of the hon. Member for New Forest, West. He said at that time that it was a matter of conscience—

Mr. David Wilshire (Spelthorne)

On a point of order, Madam Deputy Speaker. Can you confirm that it is a matter of courtesy in the House that someone who is to be attacked in person should be given notice of it? Perhaps the hon. Gentleman might say whether he did give notice to the hon. Member concerned.

Madam Deputy Speaker

That is indeed the case.

Mr. Clarke

As I said, I do not wish to be hostile or to attack the hon. Member for New Forest, West. I intend just to put it on the record that this is not a matter of conscience. I am not talking about the hon. Gentleman or his behaviour, but the fact that he decided on that occasion to say that this was a matter of conscience. As my hon. Friend the Member for Birmingham, Hall Green said, this Bill does not deal with aspects of embryology and fertilisation. It simply addresses the fundamental wrong that does not allow a father to be included on the birth certificate of his children after his death.

I welcome the minor changes that have been made to the original Bill since 2001. In particular, clause 3(6) allows children born prior to the enactment of the Bill the same rights as those born afterwards, but it does not impose on them unnecessary conditions that turn the clock back and ask them to provide evidence that will not be available in many cases. The Government have shown their compassion by making an amendment that can draw a line while allowing those who were previously affected to seek comfort and redress.

The other issue of great concern in relation to the original Bill was that hon. Members sometimes tried to use it as an opportunity to introduce other measures relating to aspects of the Human Fertilisation and Embryology Act 1990 with which they were unhappy.

I believe that we have a once-only opportunity for the House to regain its reputation and correct the matter before it returns to the High Court, and I hope that hon. Members across the House will allow the Bill speedy passage in Committee and on Third Reading. I hope that we can right a wrong and that hon. Members will join me in congratulating my hon. Friend the Member for Birmingham, Hall Green on bringing this matter before us so swiftly.

12.31 pm
Mr. Christopher Chope (Christchurch)

I was not going to speak, but in view of the comments of the hon. Member for Northampton, South (Mr. Clarke) about my neighbour and friend—my hon. Friend the Member for New Forest, West (Mr. Swayne)—I wish to say that it is absolutely wrong for the sponsors of this Bill and the previous one not to lay some blame and responsibility at the hands of the Government. It was the Minister who said in November 2000 that the Government would introduce legislation on the matter, but nothing was done. As will be apparent today, the issue is not controversial, and the Bill is also very short, so it is amazing that a Government with such a large majority were unable to give the proposal the priority that it should have had. They could have introduced the measure using Government time and without taking up much of the time of the House.

As my hon. Friend the Member for Epsom and Ewell (Chris Grayling) said, since the general election the Government have had plenty of time and a large majority that they could have used to introduce such legislation. If they had done so sooner, they would not have received the rap over the knuckles and the very strong criticism in the High Court from Mr. Justice Sullivan on 28 February this year, when he made a declaration of incompatibility and ruled that the Human Fertilisation and Embryology Act 1990 was incompatible with the Human Rights Act 1998 and article 8 of the European convention on human rights, which requires respect for a person's family and private life.

The Government had the opportunity to amend those provisions under fast-track procedures. I do not know whether the Minister will suggest that the Bill that is before us satisfies everything that the High Court had to say in relation to the Human Fertilisation and Embryology Act and the Human Rights Act 1998 or whether amendments will have to be made to cover the situation. None the less, it is unfair and unjust to pillory my hon. Friend the Member for New Forest, West, whom I think spoke only for a minute or two, while at the same time giving the impression that the Government have been keen to proceed.

Mr. Tony Clarke

I repeat that we have no intention of pillorying or being hostile to the hon. Member for New Forest, West (Mr. Swayne); we are simply placing on record the confusion that existed in the House between the position that he took at the Dispatch Box in speaking as a Front Bencher, when he decided that the Bill was a matter of conscience, and the comments that he later made to others in saying that he intervened under orders—I think that those were the words that he used with individuals in private. The issue is not about pillorying him, but an attempt to ensure that, this time, the House is as one in ensuring that the Bill receives a speedy passage and a quick conclusion. It may help the hon. Gentleman if I repeat that there is no intention of pillorying or being hostile to the hon. Member for New Forest, West.

Mr. Chope

I am grateful to the hon. Gentleman for that long intervention. Its contents justified the length, and I thank him for putting those comments on the record. I can now sit down.

12.34 pm
Mr. Andrew Stunell (Hazel Grove)

I congratulate the hon. Member for Birmingham, Hall Green (Mr. McCabe) on promoting this short but important measure. I wish it well.

As science and medicine advance, hon. Members are increasingly faced with issues about which our predecessors could not even have dreamed. Many are deeply divisive ethical and moral questions, as the debate has shown. Hon. Members are often sharply divided on them, by no means always on party lines.

Although the Bill clearly relates to such matters, it is much more straightforward. It is needed simply to put right an unintended consequence of the House's first attempts to legislate on a difficult matter. The courts as well as the House have had to struggle to make sense of the new landscape that medicine and science have created. They have worked within existing legislation as well as they could.

The law in the case that we are considering has produced an unexpected, unwelcome and surely unintended outcome that has had serious consequences, which caused grievous hurt to individuals and families. We should put that right. As the hon. Member for Birmingham, Hall Green said, the Bill returns the law to the position where, I suspect, most la .y commentators—I am certainly a lay commentator—would have supposed that it was in the first place.

I shall comment briefly on the matter that the hon. Member for Northampton, South (Mr. Clarke) raised. I hope that the measure is kept as simple as possible in Committee and that there will be no temptation to bolt on people's pet ideas—I was about to say "hobby- horses", but. I am not sure whether they can be bolted on—about what should be added to a straightforward measure.

The Bill deserves support today. It may have one or two rough edges, but they cart be smoothed in Committee. I commend the measure to hon. Members and wish it success on its way into law.

12.37 pm
Chris Grayling (Epsom and Ewell)

We have held a brief but important debate on a subject that arouses strong feelings in many people. People undoubtedly feel uncomfortable about such policy, especially since science takes us into realms that previous generations could not have imagined, as the hon. Member for Hazel Grove (Mr. Stunell) said.

However, acknowledging that the issues that surround the Bill prompt anxiety does not mean that it is wrong. As the hon. Member for Birmingham, Hall Green (Mr. McCabe) stressed, the measure is limited and focuses on a specific grievance. It is welcome.

We live in a world where women can legally become pregnant from sperm delivered by an anonymous donor. It is therefore wrong not to recognise the different position that pertains when a child is born through artificial insemination with sperm from a known biological father.

As hon. Members know, the measure arose from the difficult case of Diane Blood and hex battle to conceive and register her two sons from the sperm of her late husband. No one could fail to be deeply sympathetic to her and to many others who suffer bereavement before they have the chance to start a family. Mrs. Blood now has two growing children. I am sure that all hon. Members wish the whole family a successful future. It will undoubtedly be tinged with sadness because of the circumstances that surrounded the case.

As the hon. Member for Stourbridge (Ms Shipley) said when she spoke about her constituent, Mrs. Blood's case is not unique. Many other children and families have been affected, and the measure provides a vehicle for dealing with the injustice that they experienced. However, Mrs. Blood's case prompted us to think again about the difficult issue.

As hon. Members have pointed out, the Bill deals with only one part of the debate: the right of babies to have their fathers' names on their birth certificates. It must be right for children to know their parents' identities, especially in an age when genetic knowledge is likely to be important and to revolutionise preventive health care and new treatments in the future. That is not the only issue, however. This is also the right thing to do.

It must be a matter of regret that it has been left to the hon. Member for Birmingham, Hall Green to introduce the Bill. The Government have not seen fit to promote the measure themselves and it has been left to the persistent efforts of Back-Bench Members to bring it to the House. I congratulate the hon. Gentleman on his work in putting together the Bill that is before us today. He set out his case succinctly and effectively in his speech, and he deserves to see the measure pass into law, albeit following some discussion of the detail in Committee.

It is now nearly three years since Professor Sheila McLean published her report recommending that the names of deceased men could be placed on the birth certificates of children conceived through artificial insemination after their death. We believe that the report made sensible recommendations, and they are reflected in the Bill. As we have heard, however, the Government have not introduced legislation on the matter since that point. The hon. Member for Northampton, South (Mr. Clarke) made an important contribution to the debate in introducing his private Member's Bill, which, sadly, ran out of time. I very much hope that that situation will change, this year. I hope that the Government will oil the wheels because, as we all know, private Member's Bills need a bit of a nudge along the way and a supportive eye from the Government to ensure that they become law. I hope that the Government will give the Bill that nudge.

As the hon. Member for Birmingham, Hall Green said, much of the meat of the Bill is in clause 1, which sets out the different criteria that will be applied in judging whether a father's name can be used. It is particularly important that this part of the Bill should set out clear standards for the future. The complexity of the Diane Blood case resulted significantly from the fact that there was no tangible evidence that her husband had consented to the use of his sperm after his death. That was what prompted the original court battle that she went through. My first reaction on reading the Bill was that it did not provide for a case in which, for whatever reason, a man had taken a decision to store his sperm but had then, sadly, died suddenly, without having had the opportunity to make a written statement of consent.

I have talked quite a lot to the hon. Member for Birmingham, Hall Green over the past few days about his intentions in the Bill, and he has made it clear that he believes that it should be a matter of process that the written deposition should be made at the time that the sperm is taken for storage, so the situation that I have just outlined should not arise. I have to say to the hon. Gentleman, however, that I have read his Bill carefully, and I am not totally convinced that that will automatically happen as a result of the measure. Working on the assumption that the Bill will proceed into Committee—as I sense from the mood of the House that it will—I believe that that is an area at which the Committee should take a careful look. It must ensure that the Bill really does make consent happen at the time that the sperm is stored, otherwise the potential for something to go wrong—as it did for Diane Blood—will certainly exist.

The other element of clause 1 that leaves me uncomfortable is the provision that permits a father to be registered even if he is not the donor of the sperm. This is set out in proposed new subsection (5C). Again, I have talked to the hon. Gentleman about his intentions in this provision. He envisages a situation in which an unexpected death occurs while a couple are going through artificial insemination treatment using donor sperm. Under the current law, a child born in such circumstances is legally the child not of the sperm donor but of the husband of the inseminated woman, assuming that he has survived the birth of the child. I know that it is the hon. Gentleman's intention that the same situation should apply to a child born following such treatment if the husband had unexpectedly died.

I am a little uneasy about this provision, even though I understand exactly why the hon. Gentleman has introduced it. Clearly, issues arise relating to the rights of children to know their genetic origins. Those issues might perhaps belong to a separate debate, but I would ask those who serve on the Committee to give careful consideration to the final wording of this element of the Bill to ensure that we fully understand its implications, and to decide whether this wording alone is sufficient to provide safeguards for all possible eventualities.

I also have some reservations about the retrospective elements of the measure. I am not normally sympathetic to the concept of retrospective legislation; it is usually a bad idea and should be used only in the rarest of circumstances. This is the part of the Bill that would have dealt with a case such as Diane Blood's. Her husband died without giving written consent for the use of his sperm, and her evidence was based on reports of the verbal agreements and discussions that had taken place between them. Nobody would doubt her word on that, but the fact is that in enacting retrospective legislation we would be dealing with a much larger number of children in whose cases no written evidence exists. A number of issues arise as a result of that, particularly the circumstances in which the sperm were obtained. Again, the Committee should discuss carefully the wording of the retrospective rights provisions and ensure that the final version of the Bill is carefully structured so that those rights can be used only properly and responsibly.

The many families who have found themselves in these most traumatic and difficult of circumstances deserve to have the issue laid to rest once and for all. We have heard talk of the 28 February court case and the ruling that the Human Fertilisation and Embryology Act 1990 is incompatible with the Human Rights Act 1998 and article 8 of the European convention on human rights, which requires respect for a person's family and private life. That has clearly made the issue all the more urgent. However, although the courts have made a ruling, the measure should be not a response to decisions taken there, but a statement by the House on what is the right thing to do. That is the way forward for it.

I have been a Member of the House for just under two years, and in that time there have been plenty of opportunities to pass such a Bill. It is an illusion that time limits on Fridays prevent Bills from becoming law. If the Government want to make space for a Bill, they can do so. There have been plenty of half-empty evenings in the House and it would have been possible to slot in a couple of additional hours of debate. That will be no different in the coming months. There is no possible reason for the Bill not to be fully discussed, amended if and when necessary, and ultimately passed into law.

I very much hope that, with the support of the House and of parties on both sides, including the Government, the Bill makes speedy progress in righting an injustice and sorting the issue out for all the families affected, once and for all.

12.46 pm
The Parliamentary Under-Secretary of State for Health (Ms Hazel Blears)

I am delighted to be able to say that the Government strongly support and welcome the Bill introduced by my hon. Friend the Member for Birmingham, Hall Green (Mr. McCabe). I congratulate him on his success in the private Members' ballot and on his clear account of the purpose and scope of his Bill. The Government believe that it presents an opportunity to make a real difference to the lives of a small but growing number of children and their families.

Members know that the Government have been keen to put children at the centre of many of their policies, which is why I am especially pleased that my hon. Friend has taken up the issue. I agree with him that the law as it stands is unfair and, in the cases with which we are concerned here, there is no doubt about who the father is. It is unfair to deny children who are growing up today a legal recognition of that fact, at least in respect of birth registration.

The Bill would allow the father's name to be entered on the child's birth certificate when the child has been born following fertility treatment after the man's death. It attempts no more than that. There may, for example, be a case involving a couple undergoing fertility treatment and, tragically, the man dying before completion of that treatment. As the law stands, if the embryo was placed in the woman before the man's death or if the child was conceived in the normal way, his name could go on the birth certificate, but if the man died before the embryo was placed in the woman, the birth certificate must not record him as the father.

That is unfair on the child and the bereaved family, as they have to struggle not only with coming to terms with a tragic loss, but with the distress caused by what surely must be, as several Members have said, an unintended consequence of the law as it stands. That is why it is right to change the law in this respect and why the families involved have campaigned long and hard on the issue. I pay an immense tribute to them for their tenacity and determination to see it through.

Also, I pay tribute to all the Members who have championed the cause. My hon. Friend the Member for Stourbridge (Ms Shipley) has pursued the matter on a number of occasions and my hon. Friend the Member for Northampton, South (Mr. Clarke), who introduced the previous Bill, almost got to the final hurdle in trying to remedy this wrong. I hope that we can make significant progress with this Bill.

We need to be clear about the fact that the proposed changes would achieve only a symbolic recognition. The Bill would not allow the child rights of succession or inheritance, or any other legal status, primarily because doing so would make it extremely difficult to deal with the winding-up of a man's estate. Sperm, I understand, can now be stored for up to 39 years, so we can imagine the legal consequences of making such changes. Despite the Bill being only symbolic, it is very important, particularly to the families concerned, as it will be of great emotional value to the children as they grow up.

My hon. Friend the Member for Birmingham, Hall Green and other hon. Members have mentioned the review by Professor Sheila McLean. That review examined the issues of storage and removal of gametes and, crucially, consent. The Bill not only implements many of her recommendations but with the retrospectivity provisions perhaps goes a little further to try to deal with the particular circumstances that families have found themselves in.

I am grateful to the hon. Members for Hazel Grove (Mr. Stunell) and for Epsom and Ewell (Chris Grayling) for their support for the Bill. I understand that detailed issues will be raised around retrospectivity and perhaps consent, too. Those are important matters for the Committee to consider.

It is unusual for the Government to support a Bill that applies retrospectively. We all adhere to the general principle of the law in that regard but in these circumstances it is absolutely right that the rights of the children are pivotal to our concern a rd that in future, as they grow up, they will be able to have their father's name on their birth certificate and know that they were part of loving family. That is important for them.

I am pleased that the Bill emphasises the issue of proper consent. Again, we need to be clear about the circumstances in which consent was given and the process that is undertaken in using sperm in these circumstances. These are difficult ethical and moral issues. I know that hon. Members have a variety of views. The robustness of the process serves to reassure us all that matters will be conducted properly. The emphasis on consent is an important signal and is reinforced by the Human Fertilisation and Embryology Authority in its code of practice. The Bill reinforces the HFEA's principles about the importance of written consent.

I am delighted and happy to welcome and support the Bill—perhaps my hon. Friend the Member for Birmingham, Hall Green could take that as a little more than a nudge. As I have said, the Government believe that it is absolutely the right thing to do. I wish it a speedy passage through the House. I hope that the House will be able this time to say that it has played a constructive role and been able to right the wrong that has existed for far too long.

12.51 pm
Mr. McCabe

I thank all the hon. Members who have participated in the debate. I particularly thank the hon. Members for Hazel Grove (Mr. Stunell) and for Epsom and Ewell (Chris Grayling). I assure the hon. Member for Epsom and Ewell that we will seek to deal with his concerns in Committee.

I thank my hon. Friend the Minister for that very helpful nod and for all her encouragement and support. I thank also all the people who have helped and advised me in the preparation of the Bill.

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).