§ 2.43 p.m.
§ THE MARQUESS OF READING rose to call attention to the effects of certain recent judicial decisions upon the legitimacy of children; and to move for Papers. The noble Marquess said: My Lords, the Motion standing in my name is both wider in its general but subordinate application, and narrower in its special and principal application, than the Motion standing in the name of my noble friend, Lord Brabazon. But since the main theme of my Motion is closely connected with the subject of his, we have agreed, if your Lordships assent, 387 that the two Motions shall be dealt with together in a general debate.
§ I desire to deal with two separate groups of cases, the first no doubt rare, and perhaps even so rare as to be almost freakish and likely to remain so, and the second still rare but likely, so far as can be foreseen, to become more common in the future. The terms of my Motion call attention to certain recent judicial decisions, and it is right that I should say at the outset that I should not, of course, be guilty of the presumption or impropriety of criticising either the judges who delivered judgment in those cases or their actual judgments. My object is to direct your Lordships' attention to the state of the law which made those decisions inevitable, and to ask your Lordships to consider whether that is satisfactory, or whether it requires some, and if so what, alteration. It is perhaps essential—although I apologise for having so to do—that I should try very briefly to indicate at the outset, in order that your Lordships may appreciate the background against which these cases are set, the law as it now stands in regard to nullity, which is the main burden of my theme.
§ Your Lordships will bear this in mind: that the effect of a successful petition for nullity differs from the effect of a sucessful petition for divorce. In the case of divorce, the effect of the decree is to dissolve the marriage from the time of the decree, but until the decree is granted a normal legal marriage has subsisted. In the case of nullity, the effect of the decree is to say that in the eyes of the law no marriage has existed, and that the marriage is to be regarded as null and void from the beginning. That difference, of course, has a radical effect upon the position of children. In the case of children born where there is a subsequent divorce they are legitimate, having been born in lawful wedlock. But in the case of children born in a marriage where there is subsequently a decree of nullity, they become illegitimate, because it is held that no marriage, in the lawful course of which a child could have been born, has ever existed. It is the position in various contexts of these illegitimate children that I desire to consider briefly to-day. It may be that the brand of illegitimacy is not so black as once it was, but nobody could plausibly argue 388 that it was an advantage in setting out in life, and if it be a hardship upon children which can be removed without outraging public conscience then I would submit that it should properly be so removed.
§ Many of your Lordships will remember that there were long debates in this House in 1937 upon the Matrimonial Causes Bill of that year, which was sponsored in its early stages by the Junior Burgess for Oxford University. Up to 1937, the position in regard to nullity, as I understand it, had been this: the only ground upon which a petition for nullity could successfully be brought was the ground of incapacity to consummate the marriage, or the refusal of the respondent so to do. Before the 1937 Act, the wilful refusal of a respondent was not a ground. The 1937 Act made some very considerable changes in the law. In the first place, it laid down that wilful refusal to consummate a marriage should be a ground for nullity, presumably upon the theory that the contract of marriage imported both willingness to complete the normal terms of the marriage relationship and also the ability so to do, and that in default of these two essential characteristics the marriage could be annulled.
§ The 1937 Act also introduced—and it is necessary to bear this in mind—certain other grounds than non-consummation upon which a marriage could be declared null and void. Those grounds were that one of the parties to the marriage had been of unsound mind at the time when the marriage took place, that one of the parties had suffered from venereal disease at the time of the marriage, or (in the case of a woman) that she had been pregnant by some man other than the husband at the time when the marriage took place. Thus, four new grounds for nullity were introduced by the 1937 Act—namely, wilful refusal to consummate, unsoundness of mind, venereal disease and pregnancy by another man. But the Act did not stop at that, because it proceeded to deal—although in a very limited sphere—with an aspect of the problem with which I am concerned to-day. It went on to say, perhaps illogically but very wisely, that in a case where there had been a child of a marriage which was subsequently annulled, not on any of the four grounds 389 but on only two of them—unsoundness of mind or venereal disease—that child should be regarded as legitimate. However illogical it may have been to say that a child born of a marriage which was regarded as never having taken place should be legitimate, yet it seemed so sensible as to command general approval.
§ But in introducing those exceptions to the normal rule of illegitimacy, unsoundness of mind and venereal disease, the Act of 1937 did not go a step further and say that a child born of a marriage which was subsequently annulled for non-consummation should be legitimate—and, indeed, at first glance it might seem to be so superfluous as to be farcical to insert such a provision, because one would think that the mere fact of a marriage not having been consummated ruled out any possibility of a child of that marriage ever having been born. Yet the facts have proved that this is not the case. May I deal very briefly, simply by giving your Lordships two illustrations, with what I mean?
§ In the first of these cases, the parties were married in 1926 and they lived together until 1940. In the year 1930, after four years of marriage, a child was born. In 1940 they ceased to live together, and two years later the wife filed a petition against her husband on the ground of his adultery, to which he made the perhaps totally unexpected reply that in fact, although they had been married for thirteen years, the marriage had never been consummated, in spite of the fact that a child had been born which, by common consent, was the child of that husband and that wife, and that on those grounds he was entitled to ask for a decree of nullity and to have the marriage declared null and void as from the beginning, thirteen years earlier. On consideration of all the evidence, which included a considerable amount of medical evidence, the judge trying that case came to the conclusion that in fact that marriage had never been consummated in the only sense in which the law understands consummation of a marriage, that is, by actual penetration, and that the child had been conceived by an accidental process which the law describes in the very intelligible phrase, "fecundation ab extra"—fecundation from without.
§ I will trouble your Lordships with only one more example. In the second case, a child had been conceived before 390 the marriage, intercourse having taken place between the husband and wife before the date of their marriage, but was born after the marriage had taken place. Seventeen years after that marriage had taken place, the husband filed a petition for nullity, on the ground that the marriage had never been consummated throughout the seventeen years because of the wife's wilful refusal to do so. The husband in this case was a Marine, and had been absent for long periods on foreign service, which to a large extent explains this delay of seventeen years which had admittedly taken place. There again, the judge came to the conclusion that if he was satisfied—as he was—on the evidence that there was a reasonable explanation for the delay, and that the wife had wilfully refused to consummate the marriage, the fact that the decree of nullity would bastardise the child was no reason why that decree should not be made. He consequently made the decree; and the effect was that from one moment to another, by the issuing of that decree, this child, then seventeen years of age, having had seventeen years of legitimate existence, was declared for the rest of his life to be a bastard.
§ That seems a very remarkable consequence of the law. I suggest respectfully that there might be a way of dealing, without too much difficulty, with a case of that kind. In the first case I mentioned, that of the thirteen-year-old child, there was common agreement that he was the child of that husband and that wife. In the second case, obviously and not unnaturally, the draftsmen of the 1937 Act had never contemplated a situation in which a child might be conceived before marriage but born afterwards, and that the effect of a subsequent annulment of the marriage, owing to non-consummation, might be to bastardise the child.
§ I called your Lordships' attention deliberately at an earlier stage to the fact that new grounds have been introduced by the 1937 Act, and also that, in the case of annulment on two of those grounds, there was provision in the Act for the child to be legitimate. It would seem that it would be no very difficult extension of the law to add one case to those where a child is regarded as legitimate, in spite of the annulment of the marriage, by saying merely that a child 391 born of a marriage subsequently annulled owing to non-consummation should be legitimate, as well as a child of a marriage that is subsequently annulled for unsoundness of mind or venereal disease. That is not a very intricate step. Probably it is not a provision which would have to be put into force in very many cases, but, at the same time, it would protect the position of the children born of this type of case who, as I submit to your Lordships, under present conditions suffer quite unnecessary and unjustifiable hardship.
§ I now come to the second group of cases, or rather one case which raises a separate, perhaps wider and certainly more perilous and controversial issue. The question of artificial insemination practised among human beings is, I realise, one which some people may regard as beneficent and advantageous, and as a scientific development for which humanity ought to be grateful. On the other hand, there will be many people who will view it with horror and repugnance, and devoutly wish that it had never been devised. But the fact remains, and has to be faced, that it does exist, and is, I believe, increasingly practised. It is a question which is nowadays not infrequently discussed in the Press. It is a question which forms the subject, objectively and sincerely treated, of a play running at this moment in London. If there is any doubt in the minds of any of your Lordships as to the seriousness of this problem, the wide area of potentialities it reveals and the possible dangers inherent in it, I would merely call attention to the fact that not long ago the most reverend Primate found it desirable to appoint a special Commission of his own to inquire into the various aspects of this difficult and troublesome matter, and to report to him their conclusions.
§ Moreover, the matter has been brought very closely to the attention of the public, and has been the subject of general discussion, as the result of the third and last of the cases with which I need trouble your Lordships. In that case, the parties were married in 1943, and by 1945 the wife had realised that her husband was unable to consummate the marriage and that it was open to her, if she wished, to initiate proceedings to have it annulled. She was, however, fond of him and 392 anxious not to break up the marriage unless no other course was open to her. After further waiting, towards the end of 1947 she had herself artificially inseminated, with the husband's consent and through his agency. Some two months later, for some reason of which I am ignorant, she decided to leave him and to start proceedings for nullity on the grounds of his impotence.
§ When she came to that decision and left him, she had not realised that she was in fact pregnant as a result of the artificial insemination. She left him in January of last year, and in September a child was born. Two months later, in November, the case came before the courts, and a decree of nullity was granted on the ground of the husband's incapacity. There had, of course, been no consummation of the marriage in the sense hitherto understood by the law of actual penetration of the woman having taken place; but there was a child. The child, however it had been procreated, was the child of that father and that mother; and yet, as the law stood, the decision on the part of the learned judge to grant a decree was inevitable. The child was, therefore, rendered illegitimate.
§ That case raises in concrete form the whole of this intricate and incendiary topic of artificial insemination which, as I say, whatever view noble Lords individually may take of it, is not one which can be either suppressed or dismissed. It is admittedly a subject of very acute controversy and divergence of opinion, and one which raises any number of problems. For the purpose of my Motion, I have deliberately circumscribed the issue to the legal position. But, equally, I recognise that the Legislature, the Judiciary and, indeed, public opinion in general, have to come to a conclusion upon the matter as a whole, and that it cannot be dealt with in separate compartments. It is largely for that reason that my noble friend Lord Brabazon and I have agreed that these two Motions, mine on the legal and his on the social aspect, shall be taken together, because only in that way can a general expression of opinion, covering the whole area, be given vent to in your Lordships' House. I think it is a subject upon which public opinion in general is asking for a lead, whatever that lead may be and in whatever direction it may tend.393
§ All sorts of questions arise, even upon the very limited field with which I have dealt. If artificial insemination is to be regarded as consummation of marriage, it may have disastrous effects, in so far that there may be a marriage in which a husband and wife, having failed to achieve marital intercourse by the normal means, resort to artificial insemination and it is a failure. If artificial insemination is recognised as being the equivalent of consummation they are then left with the situation that they are tied to each other for the rest of their lives—unless one of them is divorced through contracting an extraneous and adulterous relationship with somebody else—
THE MARQUESS OF READING
Or desertion. But otherwise, as I say, they are left in the position that they are unable to consummate the marriage in the normal way but at the same time are debarred from saying that the marriage has not been consummated and to obtain an annulment of it, for the reason that they have once unsuccessfully tried artificial insemination by the husband.
THE MARQUESS OF READING
On desertion after a period of time, I agree. My Lords, there is also the other aspect of artificial insemination, not by the husband but by a donor, which means any person other than the husband. That aspect of it seems to me to raise even more complex and far-reaching questions than the other. I have seen the view expressed by an eminent legal authority—not, I agree, acting in that context in his judicial capacity—that artificial insemination by a donor constitutes adultery. My Lords, I respectfully beg to say (if I do not go so far as to say that I entirely dissent from that view, which is what I should like to say) that at least it is a view which needs further careful consideration before any definite decision is made upon it. If that view is right, then presumably if the donor were known (although he is rarely identifiable in such cases) he could be cited as a co-respondent, unless the husband had consented and thereby connived at the adultery.
394 My Lords, I confess that this process of artificial insemination by a donor seems to me to lack the constituent elements of what the law regards as adultery, and to require very close further consideration before any final opinion is pronounced upon it. But it is a somewhat irrational situation if, in the case of artificial insemination by a husband, the marriage can be annulled because there has been no consummation of the marriage (artificial insemination not being taken as consummation for that purpose) whereas on the other side it can be put forward as an instance of adultery, because for that purpose it is regarded as extra-marital intercourse of that kind. Subject after subject can be put forward, to a wearisome extent—though I will not try your Lordships' patience by so doing—in which, as a matter of public policy, some decision must be given upon these matters, and given soon. There is the question, in the case of artificial insemination by a donor, of the declaration that is made of the birth of a child. Whose name is to be put in as being the father? If the actual father's name is put in it may well be that the person doing that is committing perjury. It may be that a doctor will find himself involved in a charge of conspiracy, as well as of perjury. The position of the medical profession in this matter is one of immense delicacy and responsibility.
I have deliberately refrained from raising many questions which could be raised. Equally deliberately, I have refrained from offering a solution to many of the problems that I have raised. I want to offer only one concrete and very definite opinion. I have seen it suggested authoritatively that the way to deal with this problem in the interests of the country at large is to make artificial insemination by a donor a criminal offence. I believe that that would be a fatal error. Any attempt to make a practice of this kind a criminal offence would, at the point at which it has now arrived, have the effect merely of driving it underground and forcing it into clandestine and uncontrolled use; and I think that the consequences of any such step would indeed be damaging to public interest.
My Lords, I have raised these questions, and I have deliberately left them unanswered, because I believe the subject needs far more careful and detailed inquiry from many more angles than can 395 be brought to bear upon it here. What I do strongly press upon His Majesty's Government is that this matter has now reached the stage in its development at which it can no longer be conveniently shelved or ignored. It is essential that the public should know without delay where they stand. In order that they may arrive at a conclusion and be guided in their decisions on these matters, I would press upon His Majesty's Government the desirability of appointing either a Royal Commission or a departmental Committee which can go into every aspect of this difficult, dangerous and debatable matter. I am not normally addicted to that particular form of escape from a problem which is represented by a Royal Commission or a departmental Committee, but I believe that this is essentially one of the matters in which no other machinery will adequately arrive at a decision and enable the Government to have before them all the facts, all the considerations derived from the wealth of evidence which would, no doubt, be forthcoming; and which would enable them, as the result of that inquiry, to take such action as they might be advised and decide to pursue to guide public opinion. It is in the hope that they will agree, and agree to-day, to take action of that kind that I have set down this Motion for your Lordships' consideration. I beg to move for Papers.
§ 3.19 p.m.
§ LORD BRABAZON OF TARAhad on the Order Paper Notice of a Motion to call attention to some of the social problems resulting from human artificial insemination; and to move for Papers. The noble Lord said: My Lords, after twenty years in another place, I look upon myself almost as a professional listener to speeches—one of the most lugubrious occupations, I suppose, in which it is possible to indulge. But there are bright spots, and one of them is always to hear a speech from my noble friend, Lord Reading, whether it is from natural causes or from heredity—and in this House we should be perfectly clear that it comes from heredity.
It is six years ago that I, as a very new member of your Lordships' House, had the temerity to raise this question, and I remember the rather shocked feeling in the House at my doing so. But
early on I was wise enough to use these words:
The first question which will be asked is why I bring up this question at all. My answer is perfectly plain. I am now sixty years old, and in my life I have seen science run ahead of human wisdom, with the result that in the aeroplane we produced out of our technical skill something which has very nearly destroyed civilisation itself. If that is true in the mechanical world, surely it is even more important that we should know all about other advances in other walks of science which are sure to have the most tremendous repercussions.…
From that moment it was easy. All your Lordships were very kind to me, and I did not feel that there was any antagonism at all towards myself for raising the question. I do not know whether the most reverend Primate will say that it was so, but I have sometimes thought that his committee was set up because of the impetus to thought which was given by the raising of that particular matter in this House six years ago.
§ The document on the subject of artificial insemination which was inspired by the most reverend Primate is a remarkable document. I am proud to belong to a Church which can produce such a document. It is not biased in any way; it presents every question from both sides. All points are argued as fairly as possible. I do not think I shall be going too far in paying this tribute: I do not believe that there is another Church in the world which could have produced a document anything like that. I will say a word or two later about the conclusions which are set out in that document. But first of all I would like to ask what exactly the most reverend Primate means when he says that it is not a Church document. I should have thought he would be proud to have it called a Church document. But I am afraid I do not know what a Church document is. I do not know whether the most reverend Primate would describe his admonition of "the Red Dean" as a Church document.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, the answer is that neither of those statements—the report or what I said of him whom the noble Lord has called "the Red Dean"—is a Church document. They are both issued on my own personal authority, without the assent of the official bodies of the Church in Convocation.
§ LORD BRABAZON OF TARA
I see—authoritarian rather than democratic, I am going to say a few words later about that particular document, but if I may I must follow my noble friend Lord Reading in some of the legal technicalities which he has raised. Of course he has dealt with the matter from a lawyer's point of view, and the pitfalls and complications are very great. Most of us are ordinary civilians. We say to the lawyers: "Thank you; much obliged"; we look at things from a different point of view from theirs. But to the ordinary man it does seem a most extraordinary thing that the law of this land can give a decision regarding a child, begotten by a married man and his lawful wife—never mind how, even though it be by artificial insemination—the effect of which is that the marriage has not been consummated and that that child is illegitimate. It appears to me a shocking thing that anything of that sort could occur in this country.
I am not going to criticise either the judges or the law, but it would appear to me that the sacred institution of marriage is not being viewed from the right angle, and that all the law is concerned with is a sort of investigation into physical jerks. All through this subject there arises this very difficult question of adultery. It would seem to me that there again the law has got to "get into step." Actions of a man relative to a woman to whom he is not married constitute adultery, whereas the same actions of a man relative to a wife can be used as ground for pleading non-consummation of marriage. These two things must be brought together from the point of view of the law; otherwise the situation is nothing short of ridiculous.
I think we are all familiar with the two expressions, A.I.H. and A.I.D., but to make it clear I had better say that A.I.H. means artificial insemination by a husband and A.I.D. means artificial insemination by a donor. It is, of course, axiomatic that a child born as the result of A.I.D. must be illegitimate because it is not the child of the two parents. That, I should have thought, is patent to the world. But I would like to read to my lawyer friends a quotation from Nature, published on November 13. In an article dealing with the most reverend Primate's Report this passage occurred: 398Since publication of the report, there has however been a case in the Supreme Court of New York State which has a direct bearing on the problem. In it the judge, Mr. Justice Greenberg, was asked to declare that a child whose mother had been artificially inseminated with the husband's consent was illegitimate. This he refused to do, saying that it would be 'inhuman and inhumane and contrary to the highest concepts of sociology.' Further, he declared that the child was legitimate and that the husband was the legal father.
§ LORD BRABAZON OF TARA
Yes, by a donor. We have had some Alice in Wonderland decisions in this country, but I thought your Lordships would like to hear of one from America. Anyhow, I have great sympathy for the noble Lord who is to reply for the Government; also for the Lord Chancellor and the others who will, as I hope, have to follow up the suggestions made by my noble friend.
Now I would like to say a word about these curious people called "donors." It is pointed out in the great document to which I have referred that if the donor's identity is discovered he is liable to maintain his offspring, however numerous. I hope that that will be a very healthy deterrent. It is, of course, the general idea that the donor should always be a man of splendid physique and sound mind. But it would appear to me that anyone who wished to be a donor must be a megalomaniac of the first order, and consequently not sound in mind. Anyone who desires a large family while remaining completely without the sympathy, love or personal contact of the woman concerned must be partially, at any rate, I should imagine, on the way to a lunatic asylum. Be that as it may, I do not believe that in any country of advanced social type such as ours there will be found many people who will consent to be donors. I sincerely hope that if they are ever discovered, they will be ostracised by society.
Now as to the findings of the Commission as they appear on page 58. I do not think anyone can find much fault with what the Commission s ay. They say that A.I.H. is allowable and that they think A.I.D. is wrong. And there, I should have hoped, they might have left the whole thing. Instead of that, however, they go on rather further and recommend that A.I.D. should be prohibited by law. 399 There I start to disagree with them, because I agree with what the Dean of St. Paul's says in some very wise words. He says:I distrust also the method of deducing moral laws from theological premises. We should never forget that one of the duties which has been deduced from theology by most of the churches is that of intolerance and the persecution of heretics. I do not find that Jesus deduced his ethical teaching from a theological system. He based it on his belief in God as Father. The Christian ethic springs from the one central conviction that God is love.Those are very wise and tolerant words and they breathe that splendid spirit of toleration which has been the pride of our country so long.
But there is another remark made by the Dean which rather surprised me. He said:Artificial insemination separates the mechanical factor in procreation, not only from the personal, but from the organic life of the individual. This is most evident in the case of A.I.D. etc.I cannot help thinking that he has got things a little wrong there. It has been laid down, has it not, that acquired characteristics are not hereditary. Russia says the opposite, but we can perhaps ignore that. If that is the case, then nothing we can do in our lives can alter our progeny. In artificial insemination all we do is to help nature by placing spermatozoa nearer the ovum. Many clever people sometimes think that because they understand a sequence of events, they understand what is happening. The simplest instance of all is the question of gravity. If I let go this glass it will fall to the ground. We can work out the acceleration and we may think we know all about it, but nobody knows what is pulling it. Force at a distance is completely incomprehensible. That is the case with inanimate things. When we come to the birth of a child there is such a sequence of events occurring in the building up of the fœtus as absolutely to stagger the intellect. Here we have what might be called inverted entropy, the going from the simple to the complex; whereas in inanimate things matter degradates down to a general level. But in life it is different. It is God working. A child is just as much a miracle started this way, by artificial insemination, as by any other. That is why I cannot allow this idea that they 400 should be called "test tube children." It is not true. They are as much genuinely born as any other.
The Dean later says that there is no evidence at all that the child is likely to suffer psychologically. I should say that is quite true, but of course we have no real data on which to go. I cannot see how anything like that can occur. I do not say that this idea is basically designed to increase the population, but that is the effect. I do not know if any of your Lordships have read Road to Survival, but after reading that book it is clear that it would be better to stop breeding, rather than to encourage it. When we look at all we have done for India, all the blessings we have conferred on her in the way if irrigation, transport, agriculture, and so on, we recognise that all that has been done is to increase the population from 100,000,000 to 400,000,000. Consequently, instead of there being 100,000,000 people starving, there are now 400,000,000 in a state of starvation. That is the sort of thing that happens in this world with uncontrolled breeding. I will not say anything about what is happening in America, where the Indians are in reservations. I agree that the analogy will not stand investigation, but sometimes the British Empire is accused of doing such dreadful things which are not in any way true.
In conclusion, I must thank the most reverend Primate for this great document and also the very reverend Prelate the Bishop of London, who presided over the Commission. I should like to end, curiously enough, with the same words I used six years ago; they seem to be peculiarly fitting even now:I do not think we should live in a fool's paradise and ignore this subject on the ground that it is, as it is, unpleasant. I do not think that is the right attitude to adopt. It is our duty, as I see it, to know the problems that are about to face us and in our wisdom to do the best that in us lies so to direct those new forces that they will result in bringing happiness and good into the world.That was six years ago. We have done very little.
§ 3.37 p.m.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, difficult and unpleasant though this subject is, I think we should all be grateful to the two noble Lords who have brought it up for discussion this afternoon. The prac 401 tice of human insemination is far less widespread in this country than it is in the United States, but it is established here, even though at present on a small scale, If left to itself, it will certainly grow. As the noble Marquess, Lord Reading, said, it is the subject of discussions in the Press and of a play now running. It raises matters of such importance that certainly it should not be left to grow merely by inadvertence. It is time that there should be here in this House an open and full discussion of the question.
There are very great difficulties in discussing it, because it touches human and social life at so many points. Moral theology most decidedly is concerned with this matter. It would not be appropriate for me here to develop the arguments which moral theology would put forward, but in my judgment moral theology has a very clear verdict on this matter and I would summarise it in two sentences. First, the practice of artificial insemination by the husband, though it raises certain problems for the moralist, is on the whole justifiable, in that it enables the fulfilment as between husband and wife of one of the chief ends of their marriage and, indeed, of holy matrimony itself—that is, the procreation of children. Secondly, artificial insemination by a donor, is wrong in principle and contrary to Christian standards. That is the finding of the Commission, to which the noble Lord made such generous references.
It was a very representative Commission which I set up, containing doctors, lawyers and theologians. I appointed it in December, 1945—not, I am sorry to have to tell the noble Lord, because of his Motion in this House—and the report was published in 1948, and is on sale. I shall make frequent reference to it, but first I would affirm as my own profound conviction the finding which I have just quoted. In doing so, I am fairly certain that I am speaking for the vast bulk of opinion in the Church of England, and in other Churches. I do not wish to argue here the matter on the basis of moral theology. We have to consider the sociological, the eugenic, the psychological and the legal implications of this practice. For the rest of my argument I shall be referring only to A.I.D.
402 My Commission observed, very truly, that as yet there is little evidence available upon which to judge the sociological and the psychological effects of A.I.D. There are too few observed cases, and too few cases observed for a sufficient length of time. If judgments are made about these effects, even though they are highly probable, we cannot claim for them scientific verification. For the moment I wish to postpone those aspects, and to deal, first, with the legal aspect, about which at least we know what is the situation. It is accepted by all those who concern themselves with A.I.D. that it is vitally necessary that the donor should remain absolutely and always unknown to anybody but the doctor concerned; the identity of the real father of the child must not be revealed; the real father must not know what child he has begotten, and the mother and the nominal father must never know who is the real father of their supposed child. 'But when the child is registered the law requires that the name of the father shall be furnished—and that, surely, is a necessary requirement. The nominal father, contrary to the true fact, registers himself as the real father. That is a criminal offence under the Perjury Act, 1911, for which a sentence of seven years' imprisonment may be imposed. That offence is being deliberately committed whenever A.I.D. is being employed
This falsity in the declaration of paternity obviously raises other important legal points, connected with titles, estates, interests or funds; quite obviously, it may seriously affect a question of inheritance or succession. I will not elaborate that point; it is fairly clear. The simple fact is that in the eyes of the law of this country the child of A.I.D. is illegitimate, and that fact is deliberately concealed. The whole process rests on a basis of deceit and, indeed, on the committal of an act of perjury. I would submit that the matter cannot be left like that. Either the law must be altered to allow relief from perjury to the nominal father—it is not easy to see how that is to be done without disclosing the fact that A.I.D. has been employed, or without other consequences—or, if not that, then A.I.D. should, as I would submit, be made a criminal offence. It is the recommendation of my Commission that it should be made a criminal offence.
403 It may be asked: Why make it a criminal offence, since it already involves perjury which is a criminal offence and is, therefore, already illegal? There are three parties concerned in this action—namely, the husband, the wife and the doctor. The husband and wife are directly involved in the act of perjury, but the conditions are such that their perjury cannot be known or detected by any means. They can reckon, therefore, on an absolute impunity, and the law is so far utterly frustrated. But what of the doctor? He assists at an act which, to his knowledge, will involve perjury. I am not clear whether thereby the doctor becomes an accessory to the crime, but he knows that that will follow. It astonishes and perturbs me that the Medical Defence Union should have given advice to medical practitioners concerned in this practice on how to protect themselves professionally against adverse legal consequences to themselves in connection with this practice, when it is known that the doctor is taking part in something which requires the commission of the offence of perjury. If the practice of A.I.D. is made a criminal offence, then no doctor could employ it without losing his professional standing and without himself becoming liable to a charge.
I believe the only effective way to prevent the practice—if that is what is decided—is to forbid the doctor to employ it; and that means to make it a criminal offence. What is intolerable, morally and socially, is to allow a practice which depends upon deceit and perjury to continue without either ending it or making it legitimate. Which it should be depends, of course, upon what is thought of the practice itself. On that I wish to say something. Before doing so, however, I would like to make a further point touching on the matters raised by the noble Marquess. A year ago, in the case of Baxter v. Baxter in the House of Lords, it was ruled that a marriage had been consummated even though by the use of contraceptives procreation had been prevented. At the time I welcomed the judgment, though not all of the obiter dicta which accompanied it. But, at least, the marriage was taken as having been consummated, although procreation was prevented. More recently, in a case in the Probate and Divorce Division which the noble 404 Marquess quoted, a decree of nullity was given—which means that the marriage had not been consummated—although by the use of A.I.H. a child had been born of that marriage. That is to me, with all respect, quite an astonishing decision, and I very much wonder whether it would be upheld if it came to a higher court. A child of the marriage born in wedlock by A.I.H. is thus declared illegitimate, so it was conceived in adultery or in fornication—presumably fornication, since a decree of nullity was given. We then have the absurd position that, although at the time of the marriage it was supposed to be a real marriage, between husband and wife there was fornication. Presumably, any couple who have children born by A.I.H., and a fortiori by A.I.D., if there are no other children, could get a nullity if they came to desire it.
I would ask that we should attach some intelligible meaning to such words as "consummation of marriage" and "adultery." In Baxter v. Baxter, though contraceptives prevented the mutual surrender of the reproductive organs, there was a mutual surrender of the sexual organs. I think the distinction is clear. That is not, in the Christian view, full consummation of the marriage, which requires both. I am sure, however, that the judgment was right which said that, in the eyes of the law, this surrender of the sexual organs, without surrender of the reproductive organs, should be treated as consummation. But in the other case, where A.I.H. was employed, though through the impotence of one party there was not a mutual surrender of the sexual organs there was, by A.I.H., a mutual surrender of the reproductive organs. That, surely, is and must be regarded as consummation of the marriage. Thus, in marriage (if your Lordships can follow this rather complicated argument), mutual surrender either of the sexual organs without procreation, or of the reproductive organs by means of A.I.H., is to be regarded, in my view, as consummation. Equally, adultery must cover all these things. Adultery is the surrender outside the bonds of wedlock, and in violation of it, either of the sexual organs alone, by the use of contraceptives, or of the reproductive organs alone by A.I.D.—or, of course, of both, as in normal intercourse. If that be so, A.I.D. is adultery.
405 I do not wish thereby to stigmatise A.I.D. as having the same moral turpitude which attaches to the word "adultery" in ordinary use. A defender of the practice of A.I.D. has said this:Adultery and artificial insemination are the absolute antithesis of each other. One is done clandestinely to enjoy carnal pleasure; the other decently and frankly to beget offspring without the emotional and physical enjoyment.There is certainly a moral difference between adultery in the ordinary sense and A.I.D.—yet in fact A.I.D. is adultery. Lord Dunedin, in Russell v. Russell, said bluntly: "Fecundation ab extra" (which I take to mean from another party) "is, I doubt not, adultery." Other legal judgments have supported that. It is a mere fact, whether you like to use the word or not, that by the introduction of semen ab extra outside wedlock, there is an intrusion into and a breach of the natural marital relations of husband and wife—and that is what adultery means; and the exclusive union set up by marriage between husband and wife is thereby violated—and that is what adultery means.
It may be said that by the use of A.I.D. the marriage bond is violated voluntarily, for a good reason, by the consent and wish of the husband and wife concerned. So we come to the case for A.I.D., which has not yet been stated this afternoon. Seen from one single point of view, there is a case, and even a strong case for it. We of the male sex cannot easily appreciate how much childbearing means to the spiritual and the psychological life of a woman. We know that there are many women who are never married and are thus frustrated in childbearing. We know how splendidly many of them sublimate their maternal instincts and express them gloriously in spacious works of charity and maternal care for others. If some unmarried women feel frustration, they are outnumbered by those who make a splendid life of service out of their childlessness. I would say that society owes an immense debt to the maiden aunt and to the unmarried woman in works of charity, religious service and in countless family circles.
Let me say here—for it is relevant to this discussion—that the suggestion that A.I.D. should be employed to enable unmarried women to bear children is on all grounds to be altogether rejected— 406 even though I am told that there is a movement on foot to found a society to encourage this very thing. It is directly opposed to universal social instincts, to Christian principles of morality and to the meaning and dignity of marriage. It is directly opposed to the interests of the child, who is thus deliberately deprived of its normal right to know both its parents and to be brought up in a home in which each takes its share. There are only two countries in recent times which have encouraged this practice. One was Nazi Germany and the other Soviet Russia, and I dc not think that in such matters they are examples which we should wish to follow. Unmarried women, hen, must bear the deprivation of childlessness.
It is obviously much harder for a woman who has married in the full expectation that thereby she shall bear children to find in her marriage that that wish is frustrated. It is, indeed, a grievous burden in many cases. It often causes severe psychological disturbances; it often brings strain and stress, and even rupture, into a marriage. Surely, if there is a legitimate way of putting this right it should be taken. As I have said, I think A.I.H. is a legitimate way. But what if it cannot be employed because of the husband's sterility, or because he suffers from a transmissible disease? Here is, so far, a strong case to be considered for the practice. There is evidence that where A.I.D. has been employed it has often had the most beneficial results to the wife and to the marriage, with happiness increased beyond expectation. Let me say at once that I believe that those who have been concerned in it, doctors, husbands and wives, have acted in the utmost sincerity and in the belief that they were doing a thing good in itself.
We recall that the evidence on which A.I.D. is based is not yet very extensive, but some who have a good deal of experience are convinced of the beneficial results. Es the remedy, therefore, still to be refused to them, or taken from them? In passing, I would observe that a husband often has a great longing to have children, and sometimes his longing is frustrated by the sterility of his wife. No one has yet suggested that he should relieve his frustrations by introducing into his family a child wham he has fathered by A.I.D. or otherwise by another 407 woman. He has to bear his frustration, and so can a wife. There are many examples of its being accepted and becoming spiritually valuable and creative in the married life. But is the remedy to be refused?
As soon as one begins to look at it, not merely from the point of view of the husband and wife concerned, but from the general view of society, it becomes, as I think, necessary to reject altogether the practice of A.I.D. This cannot be merely the concern of the husband and wife in their personal and private relations. If there is a handicap to be borne, that is a common and perhaps a salutary part of human life. We all have to bear many deep hardships, for the good of others and for the good of society. Consider, then, very briefly, what the practice will mean if it grows and continues. Consider first what it will mean as between husband and wife themselves.
If difficulties and jealousies arise in their married life these will surely be complicated and aggravated by the father's knowledge that the child of the marriage is not his at all. It is not to be supposed that every marriage will be delivered from all frictions from the fact that A.I.D. has been employed, and the intruded child may easily become a source of recrimination. Secondly, difficulties may arise as the child grows and develops. Suppose, for instance, he shows characteristics markedly other than those of his supposed father or his real mother: it may disturb the home. In some cases, if the characteristics are of one kind or another, it may easily give rise to speculation outside the home as to the parentage of the child. Thirdly, difficulties will arise for the child, and for every child, since the fact that the practice is in use will be known to everybody, young and old. The days have long since disappeared in which things can be kept from the young that are known to the old. The child, as he grows up, knowing of this practice, may begin to suspect his parentage and to ask questions which cannot be avoided and which must be answered and the answer, if he be a child of A.I.D., may profoundly disturb his own psychological and emotional set-up.
But it is worse than that. Even now the sensitive and imaginative child is sometimes seriously affected by utterly 408 unfounded fears and terrors that he is not the child of his own parents. I have known such cases, and I have no doubt others have also. If this practice grows, that kind of fear may occur to anybody. Any child may say, and with some reason, "I cannot be sure that I am the child of my father and mother"; and the agonies of the sensitive child over a fear like this are probably worse than anything, that adults experience in their grown-up life. Next, family stability equally is gravely threatened. Perhaps I may be allowed to read a sentence from the report of the Commission to which reference has been made:It would chance the whole basis of society [...]f a man could not safely regard his brother's child as of the proper stock of his and his brother's parents and could not feel assured that it was not the product of an anonymous donor. We can imagine few suspicions more fatal to family confidence than that of the intrusion of supposititious offspring into a family. Family pride and family tradition are qualities by no means confined to the propertied or monied classes. They would suffer a grievous blow if trickery and deception in regard to family relationships were to be encouraged or permitted."'In the interests of society, of the family, and of the child—indeed, on a long-term view, since obedience to Christian principles is the only firm basis for happiness, in the interests of those who are drawn to this practice for their own relief—I think it should be neither encouraged nor permitted.
May I put the matter finally in two ways, one negative and one positive? Negatively, it is based on concealment, it is rooted in perjury, it deprives the child of its right to know for certain who its parents are and it deprives relations and society of that same right. If the law were altered so as to make it legitimate, that would merely extend by so much this range of insecurity. For that reason it should be forbidden. If it be said that this would drive it underground, the answer is that it is underground already, for by its very nature it is secret and concealed. Positively, there is at stake here, I believe, a deep spiritual principle and I would put it in words borrowed from an article in the February number of the Fortnightly:It is the fundamental principle of Christian belief that God is Love and our common Father, from which belief springs the dignity of human personality. This requires its correlative principle that children should be born of the love of their parents. In A.I.D. the 409 purely material and mechanical element in procreation is separated, and not temporarily but absolutely separated, from the organic and personal lives of the two persons involved. And A.I.D. itself protests that this is wrong by what is regarded as essential in its practice, namely, that the inseminated wife and the donor of seed, shall remain ignorant of each others identity. In A.I.D. human life is initiated as the result of a momentary mechanical process entirely divorced from the spiritual, mental, emotional and physical lives of its parents. If extensively practised it would inevitably degrade the whole conception of personality and intensify that tendency towards the reduction of life to mechanism which is one of the most sinister features of our time.And, I would add, if all that be true when the semen is derived from a single donor, it becomes yet more true, yet more sinister, yet more destructive of personality and yet more degrading when the semen is derived—and this practice exists—from what the Medical Defence Union describe as a "Bureau" or "Bark" in which the semen from many donors is intermingled before use.
So, my Lords, I submit that since the practice of A.I.D. involves criminal perjury, since it is based upon a continuing deception, since it endangers the moral security of child, family and society, since it is contrary to Christian principles and standards, it should not be allowed either to grow or to continue. I agree with my Commission that the evils necessarily involved in A.I.D. are so great that early consideration should be given to the framing of legislation to make the practice a criminal offence. I would therefore support the noble Marquess's proposal that, if nothing else be done, there should be a full official investigation into the matter.
§ 4.9 p m.
§ LORD MERRIMAN
My Lords, I make no sort of claim that the office which I have the honour to hold gives me any special right to debate the social aspect of this grave question. Indeed, I am rather inclined to agree with the noble Lord, Lord Brabazon, that perhaps it is a disqualification. But, as your Lordships have already heard, there are a good many technical questions involved in this matter about which perhaps I may be able to give a little help.
The most reverend Primate has just raised the question about the apparent inconsistency between one of the cases to which the noble Marquess, Lord Reading, referred and the case decided before your 410 Lordships' House, of which incidentally, I was a member, the case of Baxter v. Baxter. I am not going into the side issue which the most reverend Primate raised a bout a debatable passage in that judgment, but I would call his attention to the fact that on page 45 of the Commission's Report he will find, in the theological section, something exactly to the same effect. The most reverend Primate has raised the point that the decision in Baxter v. Baxter cannot stand together with the decision about non-consummation in spite of artificial insemination to which the noble Marquess referred. To my mind, there is really no inconsistency at all between the two.
If I may, I should like first of all to deal with this question of adultery in relation to artificial insemination. The Commission, in their view of the legal aspects, say:We entertain no doubt at all that the act both of a married 'donor' and a married recipient constitutes adultery.I gather that the most reverend Primate is of the same opinion. Incidentally although he did not commit himself, the noble Marquess mentioned that that view might prevail. I must not be taken to be dogmatic, because, after all, I have never heard an argument about this point, and I may have to give a judgment on it, but, speaking for myself, that seems to me to be absolute nonsense. I will tell your Lordships why. At the same time I can deal also with the question of fornication, and with this supposed conflict as between non-consummation, in the case of insemination, and consummation in the case of Baxter v. Baxter, because the root of the whole matter is to consider, both in connection with adultery and consummation, what is meant by sexual intercourse.
I should like to preface this point by three general observations. The generally accepted definition of "adultery" is the "voluntary sexual intercourse between a married person and a person of the opposite sex during the subsistence of the marriage." The word "voluntary" is inserted, of course, to exclude questions of rape and insanity. Fornication is exactly the same thing, without the element that one of the parties is married. So far as if know, that definition has been accepted from the earliest times of the Ecclesiastical Courts down to the recent publication of the 411 well-known textbook on the subject. Secondly, anybody who has ever had to try a nullity case is well aware that there are degrees in the signs of virginity which vary infinitely from cases of extreme doubt to cases of absolute certainty of virginity. Thirdly, for a very long time—certainly well over a hundred years—the possibility, rare though it be, to which the noble Marquess referred, of conception without actual penetration has been well recognised. It is manifest that the less the actual signs of virginity the more likely that is to happen. Nobody pretends that it is anything but a rare occurrence, but it is perfectly well recognised medically. That appears in reported cases over one hundred years ago.
When one turns to the passage in this Report, to which I have referred, one finds that those who are advising the most reverend Primate relied upon a passage in Lord Dunedin's speech in the well-known case of Russell v. Russell. It is short; I will read it to your Lordships:The appellant conceived and had a child without penetration having been effected by any man; she was fecundated ab extra. … The jury came to the conclusion that she had been fecundated ab extra by another man unknown, and fecundation ab extra is, I doubt not, adultery.My purpose is to show your Lordships, as shortly as I can, that that passage has nothing whatever to do with the subject which we are discussing. I do not want to rake up the ashes of a dead case, particularly as it affected a member of your Lordships' House. I think that I can make my explanation of this point quite clear with reference to other cases without doing more than referring back eventually to something which is indicated by dotted lines in the middle of the quotation that I have just read. May I go back a moment? So far as I know, it has always been accepted that sexual intercourse, in the ordinary sense of the word, is necessary to constitute adultery. To what extent it proceeds is another matter, but the man and the woman must be, as it were, personally concerned.
On the point to which I am addressing myself at the moment, I would call your Lordships' attention to a case decided, as it happens, in the year before the Divorce Court, as we now know it, was 412 set up. I am not going to bore your Lordships with the details. The point was this: There was every conceivable circumstance of suspicion against the wife—locked doors, blinds down, all sorts of suspicious circumstances which quite plainly, as the Dean of Arches, Sir John Dodson, said, would have obliged him to find that adultery was proved—but for one circumstance. The lady had been examined by two very eminent doctors. They recognised, as the judge recognised, that there were these degrees in the signs of virginity. They committed themselves, and he accepted their evidence, to the statement that in her case it was absolutely impossible that sexual intercourse could have taken place from the signs which appeared. After accepting the evidence that sexual intercourse had never taken place, he said that the conclusion necessarily was that, however imprudent the wife may have been, however reprehensible her character, she had not been guilty of adultery.
There is a whole range of cases to which I need not even bother to refer, covering the intermediate stages, showing that adultery may be regarded as proved, though penetration must have been very slight. I need refer your Lordships to only one case in your Lordships' House. It was a case in which Lord Birkenhead made the leading speech, which was accepted by Lord Dunedin and which occurred in the very year before Russell v. Russell was decided. In fact, after a finding against her, based on admissions in part by the husband and in part on supposed admissions by herself, the Court of Appeal had reversed the finding of adultery against the woman named, and your Lordships' House upheld that reversal. One of the points, but an inconclusive point, was the question of her medical examination, and Lord Birkenhead referred to the evidence of the doctor as "cautious and guarded." He said there had been a suggestion, that though her condition was inconsistent with penetration it was not inconsistent with some lesser act of sexual gratification. Then he added:If there were evidence of such an act"—that is, an act of lesser sexual gratification as between these two people—it cannot be doubted that, whatever view may have been taken in past ages in the Ecclesiastical Courts, a decree based on adultery might issue.413 But there is abundant authority since that date that once you get to a state of doubt created by evidence of virginity, a very heavy additional burden is thrown upon the husband who asserts that adultery has been committed.
Now may I come back to the case of Russell v. Russell and the dictum—it was more than a dictum—of Lord Dunedin? After saying that the case depended on the proposition that no intercourse had occurred between the husband and wife at the relevant time, Lord Dunedin went on in these wordsI have designedly used the somewhat unprecise word 'intercourse' because the facts of this case are very peculiar and, I should think, unique.Then follows the passage which I have already quoted from the Report of the Commission. But in between the first sentence and the last, when one looks at Lord Dunedin's speech, there are ten lines describing precisely what were the sexual practices which had occurred between the spouses in that case. I am not going to horrify your Lordships by referring to them. All I can say is that they were perfectly accurately summarised in the speech of Lord Birkenhead to which Lord Dunedin had himself assented the year before, as "not being inconsistent with some lesser act of sexual gratification." I venture to say that that passage in Lord Dunedin's speech had nothing whatever to do with the subject that we are discussing, and I defy anybody who reads the first half-page of the speech to say that he was even remotely concerning himself with anything like artificial insemination, which does not involve the act of sexual intercourse at all.
My Lords, the most reverend Primate referred to a Canadian case. In that regard I will say only this. I am, of course, no authority on Canadian law—very far from it, and everything that is said in the judgment quoted in the Commission's Report may be a perfectly accurate statement of Canadian law. But it has this demerit from our point of view: first, that as the learned judge had found all the facts the other way no expression of opinion was called for at all on this topic; and, secondly, in so far as the quotation goes, there is a disputable proposition from our point of view in every single sentence including, among other things, the suggestion that artificial insemination 414 against the will of the wife might amount to rape. I say no more than this: that in the days when indictments were formal, it used to be necessary to assert that the accused had carnal knowledge of the woman, and I think that that is none the less the law now, though indictments are less formal than they used to be.
In my opinion, everything that I have said about that question of adultery applies the other way round to the question of consummation, and there is really no inconsistency whatever between the decision in Baxter and the position in the case to which the noble Marquess referred. In Baxter there had plainly been full penetration and intercourse had been going on for years; there was no question whatever about it. In the case to which the noble Marquess referred there never had been penetration. All that had happened was artificial insemination by consent, and then there arose the much graver question whether the circumstances were such that the petitioner, husband or wife, was precluded from obtaining relief by conduct to which he or she had assented. So much for that aspect of the matter.
Now may I come to the very difficult question which the noble Marquess raised in connection with legitimacy. I do not in the least dissent from a single word that he said about the cases to which he referred. Personally, I think they were all rightly decided—I think they were inevitably decided—as they were; but that they do produce some of the absurdities to which the noble Marquess referred is equally indisputable. I shall have something to say about that in a moment. If the noble Marquess will allow me to say so, in dealing with the length of time that these parties had been married before their cases came up in the '40s, it might have been well to recall (as is recalled in at least one of the cases) that until January 1, 1938, there was no remedy for wilful refusal to consummate the marriage; so that many years of the delay were accounted for by the fact that there was no law which enabled the parties to sue at all.
I wish to say only a word or two about this point. Admitting, as I do, that there are these absurdities, I would like to summarise quite shortly, as I think it may be helpful, what are the cases in which 415 a decree of nullity may bastardise the child—because they are even more extensive than those to which the noble Marquess has referred. First, although of course the old decree of nullity for impotence goes right back to the Canon Law, the Ecclesiastical Courts, so far as I know, never dealt with this aspect of conception without penetration, and therefore even in the old law of nullity there is no provision at all for the legitimation of the child which has been conceived by fecundation ab extra. That may cut both ways—it may be a case of the husband's disability or of the wife's disability. I need not go into the details.
Then there is the case to which the noble Marquess referred: that of the marriage to "give the child a name." That, of course, does produce the absurdity that when, having married to achieve that purpose, one or other of the spouses then refuses to consummate, the whole purpose is defeated if nullity ensues. But it does not end there. There is the Legitimacy Act of 1926 where, although the parties were not married at the time the child is born, if they were free to marry at the time the child was born and subsequently do marry, the child is legitimated. Then if one or other of them refuses to consummate the marriage precisely the same result is produced. Of course, it sounds absurd, but there it is. Then there is the combination of the first case and those two. There is the case of impotence combined with one or other of those two marriages—marriage to give the child which is on the way a name, or marriage to legitimate the child.
Finally, there is this question of artificial insemination of an impotent spouse. That can cut both ways. I need not develop it, but I want to make a suggestion about it which I hope I may properly make. I venture to suggest to your Lordships that it is very undesirable to deal with these matters piecemeal. I say, at once, that it requires the addition of one letter—literally one letter—to the Matrimonial Causes Act, 1937, to deal with the two cases of the legitimation by subsequent marriage and the marriage to give the child a name. It is necessary only to add in Section 7 (2) the letter "a" before the letters "b" and "c." But when that has been done, 416 the whole problem has not been dealt with, and I venture to suggest that the whole problem should be dealt with rather than that it should be done that way. I know that I am speaking in the presence of the most reverend Primate, and I hope that what I am about to say will appeal to him. I understand perfectly the view of most Churchmen that it is undesirable to increase the number of grounds for divorce, and that if the thing can be made a nullity, so much the better. But, after all, this is no new ground now. Whether you call it divorce or nullity, it has been in operation for over ten years.
I am now going to say something about what happened at the time. The poor draftsman has been blamed—he always is. The noble Marquess said something about the draftsman to-day. What happened was this. I think it is probably an open secret by now, but when the Bill was in the House of Commons, at any rate—the same did not apply when it was before your Lordships' House—I was being consulted every day behind the scenes, and I tried very hard indeed to get this ground of wilful refusal made a ground for divorce, as it should be—not a ground for nullity; a ground for divorce, because, logically, everything that happens after marriage is divorce as distinct from nullity, and wilful refusal, quite plainly, is something which ought to have been made a ground for divorce. It was recognised that one was right about it, but at the same time the argument of convenience prevailed. The argument of convenience was this: that, in practice, the difference between the two, the line between wilful refusal and impotence, was sometimes so fine that it was very difficult to draw. It was thought that it was quite impossible to have a case brought before the courts which would approbate the marriage by saying there had been wilful refusal and would reprobate it by saying, on the same set of facts, that, in the alternative, non-consummation had been due to impotence.
If that consideration were ever valid—I recognise there was a danger of that inconvenience—it has long since gone. I am sure your Lordships will take it from me that ever since the beginning of the Act of 1937 we have allowed, for example, an alternative prayer for divorce in respect of desertion, coupled with a 417 prayer for nullity in respect of wilful refusal. There is no more difficulty in that case than there is in coupling an alternative prayer for divorce on the ground of wilful refusal and one for nullity on the ground of impotence on the same set of facts. I would suggest if there is to be any amendment, if the Government are not prepared to face all the implications of these cases, that at least they might restore wilful refusal to its proper sphere as a ground for divorce.
May I add one other word? I am afraid that I have been a great deal longer than I intended to be, but perhaps your Lordships will excuse me if I take up a few more moments. This problem is a growing one and it is very serious. One has only to look at two pages in the Commission's report to see that a thing which began with the insemination by the famous Dr. Hunter of a linen draper's wife in the year 1790, and by the year 1941 had already attained the proportions of five figures in America, has increased, is increasing, and ought to be diminished. There is one aspect of this matter to which no reference at all has yet been made, and that is, what is going to happen in the next generation? The Medical Union—there is a quotation here but I am not going to read the details—have said that they are prepared to limit the number of inseminations from one donor (I mean one donor at one time) to 100. There is no difficulty, of course, in increasing that number twofold. But what does that mean? Quite plainly, it means this: that in the range of the practice of any given doctor a man may be sireing 100 boys and girls at one time. What is going to happen when they fall in love with each other twenty years later, those half brothers and half sisters? That is a serious enough problem to face, and surely it demands facing by any Government.
Then there is the point which the most reverend Primate made and with every word of which I agree. Secrecy in this thing is fraud—there is no way of getting over that. I am speaking, of course, of A.I.D. It is fraud. It is no use comparing it with adoption. Adoption is done in the open. There is a register of adoption. The whole essence of this thing is fraud and secrecy. Of course, it is perfectly ludicrous to compare it with artificial insemination of animals, 418 because the question of knowledge at once comes in as between human beings and animals. And with regard to this vice of fraud, the undertaking exacted by the Medical Union—it is set out on a later page, I think it is page 67, of this Commission's report—the undertaking that no question of property is involved, simply is not worth the paper on which it is written. How can it be? There may be no document of which the signatory actually knows at the moment, but if there are such people as rich uncles living anywhere in the world in these days, can anyone say that a rich uncle is not going to leave so much to the eldest child of a marriage, or to the eldest boy? Who is going to say that a power of appointment will not be exercised in such and such a way or, alternatively, that it is rot going to be exercised at all, so that the property will be divided in default of any exercise of the power of appointment?
This is a very serious matter. I agree with the most reverend Primate on this question of the Perjury Act. Of course, it is only technically perjury. It is an offence under Section 4 of the Act to falsify any register. The sooner the medical profession become aware of the fact that by lending themselves to false statements in the register, they may be rendered liable to a charge of common law misdemeanour or of conspiracy, the better it will be. I would like to make one practical suggestion. Ought there not to be something of this nature? It may be undesirable to have the whole thing disclosed on the register of births in the actual locality. Take any precautions you please, by having some secret sign which will make it clear that some other document has been filed somewhere else, but at least somehow rind somewhere should not the actual paternity of any child, conceived as the result of a donor's insemination, be registered, and should there not be something in the nature of a statutory declaration by the doctor and other parties concerned showing the facts? It is no use saying that the doctor will be able to explain later on. When a question of property or inheritance comes up, he may have been dead long ago, and so may the spouses. I throw that suggestion out as a possibility.
THE MARQUESS OF READING
Before the noble Lord replies, may I ask the noble Lord, Lord Merriman, one ques 419 tion? I understand he is in favour of some sort of inquiry on the part of the Government, but he did not state it in terms. Does he support my view on this matter?
§ LORD MERRIMAN
I support an inquiry by all means, but I should have thought that some things are so glaringly obvious that they do not need any inquiry at all—they need action.
§ 4.43 p.m.
§ LORD CHORLEY
My Lords, I am sure that every member of your Lordships' House agrees that we should be grateful to the noble Marquess and the noble Lord who have initiated this interesting and exceedingly important discussion which, as the most reverend Primate has pointed out, involves problems of theology, of morals, of sociology and, perhaps particularly, of law. The problems of adjusting the patterns of the institution of marriage which was worked out in a patriarchal system of society to the requirements of a modern industrial civilisation are obviously exceedingly difficult. A good example is this very topic of to-day's discussion which has been brought about by one particular provision of the Matrimonial Causes Act, 1937. One of the difficult problems which have arisen from this Act is the question of the legitimacy, or the bastardisation, of children born as a result of a marriage annulled under the provisions of this Act; and it was to draw your Lordships' attention to this problem that the noble Marquess put down his Motion this afternoon.
Another problem which arises from this difficulty of adjustment is that of the refusal to have children, instanced in the case of Baxter v. Baxter, referred to by several noble Lords during the course of the afternoon's discussion. The first line of decisions to which the noble Marquess has called your Lordships' attention arises, quite independently of any question of artificial insemination. He has drawn attention to the fact that children born of marriages which existed for some time may suddenly find themselves bastardised as the result of decisions of the courts that these marriages were never really marriages at all—in other words, that they were null and void from the beginning. The noble Lord, Lord Brabazon, has stigmatised decisions of that kind as 420 "absurd," and I am not sure that he did not use the word "shocking." If that is so, it is Parliament which must accept responsibility, because it was Parliament who decided that this was to be done by way of nullification and not by way of divorce, and which rejected the advice of the noble Lord, the President of the Probate, Divorce and Admiralty Division which he has told us about this afternoon. There were reasons of practical expediency at that time why that line was taken by the sponsors of the Act. This proves, if any proof be needed, that it may be wrong to give way for reasons of expediency, rather than do what is obviously the reasonable and proper thing.
The noble Marquess has suggested that this difficulty can be overcome by a simple emendation of the Act of 1937; and in that he has had the powerful support of the noble Lord, Lord Merriman. Indeed, the situation which has been shown to exist calls for treatment. I think the noble Marquess said that these cases were freak cases. Certainly the first type of case where there is fecundation ab extra is a freak case; but the second, where the parties were together before the marriage and were married to give the child a name, is a good deal more common than perhaps the noble Marquess indicated. Only yesterday I heard of a case. There is often a revulsion on the part of a woman against her seducer. She wishes intensely to have the child she is going to bear born legitimately, and will move heaven and earth to go through a marriage ceremony in order that that may be so; but her revulsion against her seducer is such that she will not afterwards cohabit with him. There are also cases where the woman's family take a strong line against the man, and insist on her remaining at home, and when she gives way the marriage fails on these grounds.
On the other hand, as the noble Lord, Lord Merriman, pointed out, there are all sorts of other problems involved in this matter. It is not only a question of legitimacy. There is also a question of property rights, which the noble Lord has emphasised, and it would be altogether wrong if I were to give an undertaking to the noble Marquess on behalf of the Government that they are prepared to introduce immediately legislation of the kind which he indicated. Indeed, I do 421 not think he pressed that that should be done. Obviously, the matter requires very careful consideration, and in the light of the pertinent observations which have been addressed to your Lordships this afternoon, it is clear that it will receive very careful consideration at the hands of the Government.
The noble Marquess went on to deal with the problem of artificial insemination and showed that a rather similar problem might come before the courts where there is artificial insemination by the husband, as was instanced in the case referred to of R.E.L. v. E. L., decided only recently. This case was criticised in a very powerful argument by the most reverend Primate. If that case were going to a higher Court, I am sure the argument of the most reverend Primate would be used by the counsel who appeared in the case. Those of us who have practised at the Bar feel that a great member of the Bar was lost when the most reverend Primate went in another direction.
The noble Marquess also raised the question of artificial insemination by an outside donor. That aspect of the problem has received a good deal of attention from your Lordships, particularly in respect of the important matter as to whether this amounts to adultery. It is important for one thing, because the question of the registration of any birth which may result—that is, the question whether this amounts to a criminal offence—may to some extent turn on the question of whether there was adultery. In any case, there are these questions of inheritance and property which clearly turn upon it.
THE MARQUESS OF READING
I do not quite follow the noble Lord; perhaps he will explain. He said that the question of whether or not it was adultery might affect the question of registration. I did not quite follow his argument on that.
§ LORD CHORLEY
If the child is illegitimate, and is registered by the putative father, there will be the question of whether it is a wrong registration.
§ LORD CHORLEY
This might develop into a difficult legal argument. The noble 422 Marquess is aware of the case of Russell v. Russell, and the presumptions of legitimacy which exist as a result of that case. So it might be that difficult problems would arise. I do not say that they necessarily do arise. In any case there are obviously difficult problems in connection with, shall I say, inheritance and property, which everybody agrees do arise out of this question of adultery. It has been suggested by the most reverend Primate, and by the eminent lawyers who advised hint in connection with the report to which reference has been made, that what occurs is, in fact, adultery. Those lawyers were certainly men of great distinction, but perhaps their distinction had been won in other fields of law than that of divorce.
On the other side, we have the doubts of the noble Marquess, and the strong opinion of the eminent authority, the noble Lord who is President of the Divorce Court. I ought to say that those who advise the Government on legal problems share the doubts of the validity of this opinion which has been expressed in the report. It is not regarded as being at all clear that artificial insemination by an outside donor does, in fact, amount to adultery.
§ LORD CHORLEY
That question may eventually have to be decided by the courts. All I am concerned with this afternoon is to indicate that the Government cannot accept the view that this is so clearly adultery as has been suggested in that report.
The report then goes on to the question as to whether this type of intercourse should be made a criminal offence. That has been strongly supported this afternoon by the most reverend Primate in his powerful speech. On the other hand, strong arguments have been put against that view, both by the noble Marquess, Lord Reading, and the noble Lord, Lord Brabazon, who suggest that to make it a criminal offence would have the effect of driving it underground. The Government agree with that view. In any event, without further careful consideration they consider that it would be a most impolitic 423 and doubtful policy to make it a criminal offence. The most reverend Primate said that it is underground already. To a certain extent that is true, but the practice is being pursued on the basis of well-accepted medical supervision, which (as is shown by the report itself) is probably the best that can be devised. To make it a criminal offence would undoubtedly drive it underground in a very different sort of way. What is at present being carried on, with results that the most reverend Primate agrees in a number of cases have been successful, would become an altogether vicious state of affairs. Moreover, I doubt very much whether making it a criminal offence would fit in with the feelings of public opinion about this matter. We know there are a number of cases where people who have been injured as a result of war service, who were unable to enjoy normal marriage in the full way, have nevertheless by this means been able to have families and to enjoy the sort of happy married life which the most reverend Primate himself described. To make that sort of thing a criminal offence would undoubtedly shock a large number of people. On the whole, therefore, it appears that it would not be a very wise course to pursue.
The noble Lord, Lord Brabazon, and the most reverend Primate have drawn attention to a substantial number of important problems of a sociological and moral character which are raised by this practice of artificial insemination, particularly by an outside donor. I do not think it would be wise for me to express any views on those matters. It is clear from this report that the members of the Archbishop's Commission, who made a careful investigation into the problem, did not find that any great sociological problem had so far arisen. It may well be that the problem is not quite so serious as the noble Lord, Lord Merriman, suggested.
In passing, I also would like to pay my tribute to the excellence of this report. I entirely agree with everything Lord Brabazon said about it. It is a most enlightened and objective document. Even if one does not agree with all the Commission's findings, there cannot be any question as to the admirable spirit with which the report has been produced, or of the interesting material which it has 424 brought together. Indeed there are some extraordinary statements in the report. On page 10 it says:It follows that a fecund donor submitting two specimens weekly could, with ideal conditions, produce 400 children weekly (that about 20,000 annually).The noble Lord, Lord Brabazon, may well say that a donor who was held responsible for the maintenance of the children resulting from his donation might find himself in a most difficult position. This problem is probably dominated to a considerable extent by the question of fertility in marriages; the ceiling, so to speak, as to what is likely to happen is furnished by fertility in marriages—for unless this practice increases substantially, I think your Lordships will agree that it will not amount to such a serious problem.
There has been sitting for some time a Royal Commission on Population, which naturally has been concerning itself with the whole question of fertility. I suggest to your Lordships that until the Report of that Royal Commission is published (I understand that that is likely within the next few months) we lack very important material, without which it is impossible to come to any satisfactory conclusion on this particular matter. Until we get that Report it would be wrong, in my view, to set up some new Royal Commission or Departmental Committee, which would have to go over a great deal of the ground already traversed by the Royal Commission on Population.
THE LORD ARCHBISHOP OF CANTERBURY
Does the noble Lord mean that this matter should be decided with the requirements of population, or the maintenance of the birthrate, as the germane questions?
§ LORD CHORLEY
Not at all. Obviously, an important factor is this question of fertility, although, no doubt, there are other considerations into which the Royal Commission have been inquiring. It is obviously right and necessary that this matter should receive careful consideration. It is only a question of whether we start at once or whether we wait and see what comes forth from the Royal Commission on Population, in order to ascertain the situation at that stage.
THE MARQUESS OF READING
May I ask one question? Is the noble Lord saying that artificial insemination is one of the matters which this Royal Commission have in mind, are considering and are taking evidence upon?
§ LORD CHORLEY
My Lords, I am not putting it exactly as the noble Marquess wishes to put it to me. What I am saying is that this problem is to a considerable extent governed by the question of fertility, which is one of the important matters into which the Commission are going.
THE LORD ARCHBISHOP OF CANTERBURY
It is not in the least governed by the question of fertility; it has nothing to do with it. It is a separate inquiry altogether.
§ LORD CHORLEY
I hope I can persuade your Lordships that it is the extent of this problem which makes it serious. If in is growing on a very wide scale, then it is obviously serious. If it is growing on a small scale, I would submit that it is not so serious from a sociological point of view, whatever it may be from a moral standpoint.
§ LORD LLEWELLIN
May I interrupt the noble Lord? Surely this Royal Commission, if they are not dealing with this matter at all, will not be able to report whether it is being practised on a large scale or on a small scale. It seems to me that this Royal Commission has nothing whatever to do with the kind of Royal Commission for which the noble Marquess is asking.
§ LORD CHORLEY
It is a question of fertility, for only where the marriage is not fertile does any question of artificial insemination arise. Therefore fertility will put a ceiling on the extent to which this practice will go on, and that is a matter which is being investigated by the Royal Commission on Population. I submit that we shall be in a much better position to know the sort of inquiries which ought to be conducted when the Report of the Royal Commission is received, which I understand will be in a few months' time. In those circumstances, it seems to me that we should wait until that happens.
With regard to the specific problems arising from artificial insemination, such as legitimacy and inheritance which have 426 been referred to, it is the opinion of my noble and learned friend the Lord Chancellor that those problems are not likely to be very numerous in practice, and that they would be most satisfactorily dealt with by the courts as they came up. We are fortunate in this country in having a system of Common Law which is very adaptable, and which has in fact for centuries dealt with new problems as they came before the courts.
§ LORD MERRIMAN
May I ask a question? Does that mean that it is expected that His Majesty's judges will decide contrary to the law on the grounds of expediency?
§ LORD CHORLEY
It is expected that His Majesty's judges will decide in accordance with the law, on the evidence brought before them.
§ LORD MERRIMAN
I am sorry to interrupt the noble Lord again, but so far we are all agreed—perhaps that is an exaggeration, but at any rate I speak for myself and the noble Marquess—that the cases which have been decided are rightly decided. Is it suggested that we should decide them wrongly, in order to meet this question of convenience?
§ LORD CHORLEY
With respect to the noble and learned Lord, the fact that these questions have come before the courts and been decided shows that these problems can be dealt with as they arise. It may be that legislation should be introduced to correct the situation arising quite independently of artificial insemination which the noble Marquess has described this afternoon, and I have already given him the assurance that the Government is very carefully thinking about these matters, and in one way or another a solution to these problems will be produced. I think many of the other problems can be solved in the sort of way the Lord Chancellor has indicated, or as I am indicating on his behalf to your Lordships' House this afternoon. Many of these arrangements can be solved ambulando, and I suggest that the discussion we have had about this difficult and important problem this afternoon shows how that sort of solution is brought about—how the difficulties are canvassed and how the necessary information upon which legislation can, if necessary, be introduced is obtained. I thank the noble 427 Lords who tabled these Motions and the other noble Lords who have taken part in the discussion, and I hope that, as a result, we may be nearer to obtaining a solution to this difficult problem.
§ 5.5 p.m.
THE MARQUESS OF READING
My Lords, if we are nearer to obtaining a solution of this difficult problem it will not be the Government's fault, because a more unsatisfactory answer I have seldom heard given to any serious debate in your Lordships' House. I say that, not with the object of scoring a point off the Government, but quite deliberately. I would, of course, accept the suggestion made by the noble Lord, Lord Merriman, that it would be more convenient and more proper to effect the change that I want to see made as a means of dealing with the problem of wilful refusal by a change from the law of nullity to the law of divorce.
But whatever form the amendment takes, surely it should take some form. This afternoon we have had the noble Lord, Lord Brabazon, with his scientific approach, the most reverend Primate, and the President of the Divorce Division, all pressing that there should be a change, and all the Government say is that they are going to give it consideration. Well, one knows perfectly well what that means. It means that they are going to give it refrigeration and nothing else, and that is what they will continue to do.
As to the other point on insemination, certain points may well solve themselves ambulando, however long and circuitous the walk may be. But to say that judges are required to deal with these cases seems to be an extraordinary doctrine, because what we are trying to get round is a statutory situation. The Statute Law governs the position, and the cases which have been decided in relation to that law are, by general consent, accurately decided.
§ LORD CHORLEY
If the noble Marquess will allow me to explain, I would point out that it was the problems in respect of artificial insemination which the noble and learned Viscount thought would be solved as they arose by the courts.
THE MARQUESS OF READING
There again, why put it upon the courts? The 428 most reverend Primate has thought it necessary to have a Commission of his own, which has produced a report. That is surely some indication that he thought the problem existed, was serious and extensive, and required treatment. The Government, apparently, take a different view, and say that although it may develop seriously there is not very much sign of it at present. You can let the thing drop until something occurs. All the speakers this afternoon may, of course, have been wrong, but they were at least unanimous in thinking that not only in their own view was the problem already grave and far-reaching, but that public opinion shared that view and required some lead.
Are the Government merely going to sit back and do nothing until the Royal Commission on Population, who have been for a long time considering the problem of population and who have not had submitted to them this particular question of artificial insemination at all (and, indeed, into whose purview I should have thought it could not conceivably have come) reach some decision? It may still take months before that body reaches a decision, which decision is then most unlikely to throw the slightest gleam of light upon the present problem. In view of the opinions which have been expressed to-day, I think it is a little hard that the Government should merely indicate their intention to sit back and do nothing until some unknown day appears, on which some other Inquiry may galvanise them to take the action they should be taking to-day. I am very reluctant to withdraw this Motion, but with the consent of the House I suppose I shall have to do so. At the same time, unless the Government are prepared to show a little more sign of activity and of appreciation of the situation than they have demonstrated to-day, it may be necessary for us to raise the question again in the not very distant future.
§ Motion for Papers, by leave, withdrawn.
§ LORD BRABAZON OF TARA
My Lords, according to the agreement I shall not move my Motion, but I should like, by leave of the House, to say one further word on the subject. It has been said by many people that A.I.D. with the 429 husband's consent is definitely a conspiracy, but it is not so at all. It is only a conspiracy if the registration is false; and one of these days when this thing is considered—even if it is another six years hence—one of the most important points to consider will be the registration of a child by an artificial insemination donor. Something along the lines of the adopted child's certificate might well be introduced. It is a matter we cannot go into at present; it will have to be left to that imaginary body that is going to be set up.
§ THE LORD PRIVY SEAL (VISCOUNT ADDISON)
My Lords, I do not quite accept the picturesque though eloquent description by the noble Marquess of the attitude of the Government in this matter. We unfortunately suffer by the absence through illness of the noble and learned Viscount the Lord Chancellor; but I assure the noble Marquess that, seeing that a considerable number of very important questions have arisen in the course of this discussion (which has been of a very high standard) in addition to the one that he himself raised, it is not fair to represent our attitude in the language which he employed. I can assure the noble Marquess that, without delay, we shall give full and earnest consideration to what has been brought forward this afternoon.
THE MARQUESS OF READING
If I may, by leave of the House, just say another word, I should like to thank the noble Viscount who leads the House for at least a little more encouragement than we had received up to the moment of his intervention.