§ 2.43 p.m.
§ LORD BLACKFORD rose to move to resolve, That in the opinion of this House, artificial insemination of a married woman by a donor other than her husband is tantamount to adultery, that it should be sufficient ground for divorce, and that all children so conceived are illegitimate. The noble Lord said: My Lords, I beg to move the Resolution which stands in my name on the Order Paper. There are at least three methods of artificial insemination. There is A.I.H., where the husband is the fertilising agent; there is C.A.I., known as confused artificial insemination, where the husband co-operates with the donor; and there is A.I.D., which is artificial insemination by an unknown donor. My remarks this afternoon will be confined to the last of these three methods. Your Lordships' House is rich in ecclesiastical dignitaries, legal luminaries, medical leaders and others who may have made a deep study of this subject, and it may well be thought that it would have been more suitable for this debate to be opened by one of them instead of myself. I am bound to say that since the impulsive moment about thirty days ago when I handed this Resolution to the learned Clerk, I have often thought the same thing. Still, it may not be a bad thing, perhaps, that an ordinary man in the street who a month ago knew nothing about artificial insemination should submit his opinions to your Lordships after a cursory study of one month, and then leave them to be torn in shreds by the experts afterwards.
I thought my first action should be to find out whether this matter had any Parliamentary history, and I was not at
all surprised to find that your Lordships' House has been in the van in this matter. As long ago as July 23, 1943, a debate was initiated by my noble and ever-enterprising friend, Lord Brabazon of Tara, in a speech of great brilliance,
full of wise saws and modern instances.
many of them highly scientific. The subsequent half dozen speakers, including the Minister in charge, made scant reference to my noble friend's remarks, possibly because they did not rightly comprehend they confined themselves almost entirely to the question of the insemination of livestock. Then in 1945, the most reverend Primate set up a Commission of representative men of science and the law, and so on, and they reported in 1948 in a comprehensive document which is well worth reading by anybody interested in this subject. In 1949 a debate took place on two Motions moved by the noble Marquess, Lord Reading, and again by my noble friend Lord Brabazon of Tara, and only three speakers followed the two movers—a total of five. This afternoon fifteen peers have put down their names to speak, which shows the measure of increased interest in the subject.
§ I thought my next job would be to try to find out something about the historical antecedents of A.I.D. and something about its numerical scale. This is not an easy matter because of the "cloak and dagger" secrecy in which the whole transaction is wrapped. No doubt there have been isolated, unknown instances of the operation down through the years, ever since the celebrated surgeon, John Hunter, produced a baby for the benefit of a linen's draper's wife by A.I.D. in the year 1790, but as a regular, recognised branch of medical practice this method is certainly hardly twenty years old in this country. In the year 1938 a small group of scientists and doctors was formed under the ægis of Sir William Gilliatt and Sir Charles Reid, two eminent gynecologists, to experiment in this field. I have interviewed a practitioner belonging to this group. The group practised for ten years and then broke up, because they came to the conclusion that their experiments were bad from the point of view of the child and because they said that so many of the couples who approached them were unsuited to become parents at all.928
§ In answer to the question, how many babies had they produced during those ten years, the doctor was extremely sensitive to secrecy, and all I could achieve was that they had at any rate reached three figures. Of course, that could mean anything from 100 to 999, but for the sake of argument I have taken the figure of 200. Doctor Mary Barton, who is a leading exponent in this field, in a speech in 1947 said that she had started the practice in 1942 and up to that date had produced 300 A.I.D. babies. What has happened since 1947? The News Chronicle, in an article on February 4, estimated that there are now 10,000 A.I.D. children in this country. I wrote to the editor and asked him for his basis of information, and I received a most polite letter from the writer of the article saying how difficult it was to arrived at any accurate estimate, owing to the secrecy, but saying that he had consulted eight doctors and had come to the conclusion of the 10,000 figure.
§ At this point I ought to say that I have had the great advantage of a long interview with Dr. Mary Barton. She is a most co-operative individual, who answered all questions with frank directness, or with vigorous rebuttal if she did not agree with me (which was often the case); she is devoted to her practice and utterly convinced that she confers a great benefit and happiness on all her patients. At the end of our interview, which lasted an hour and a half and was conducted in the presence of two other doctors, I asked her to what extent, if at all, I might quote her. After a moment's consultation with the doctors as to whether to allow her name to be used might be unethical, she looked at me directly and said, "You can repeat as much as you like; I have nothing to hide,"—altogether a most engaging personality.
§ Now let us get back to the figures. Dr. Mary Barton will not admit to a higher figure than 5,000 A.I.D. children. She herself has produced about 900; she speaks of another practitioner who has produced about the same number, if not rather more. She mentioned also five other practitioners, and agreed with the News Chronicle man and with me that it is very difficult indeed to arrive at any accurate estimate. So I have chosen a figure mid-way between that of the News Chronicle and that of Dr. Barton; I take 929 a figure of 7,500 as being the number of A.I.D. babies hitherto produced, of whom only about 500 were produced prior to 1947. That is a significant thought, because if 7,000 have been produced since then, their average age can be only about 5 to 5½ years. That will be a point to remember when, later on, we come to consider the effect of A.I.D. upon the children.
May I now turn to the case which aroused my interest in this subject, the case of Maclennan v. Maclennan, recently heard in the Court of Session at Edinburgh before Lord Wheatley. In this case the husband petitioned for divorce from his wife, on the ground that she had left him and gone to America, and had produced a child which she alleged had been produced by artificial insemination in that country; and the appellant's counsel argued that that constituted adultery. Lord Wheatley has delivered an opinion on that argument. I obtained a copy of it which I have here—it runs to thirty-one pages of closely typed foolscap. The Scots are a very thorough race. Your Lordships would not wish me to read it all to you. At page 2 Lord Wheatley says that this case is
unique in the annals of our law"—
by which no doubt he means the annals of the Scottish courts, but I think the statement is equally true of the English courts. Then, at page 7 he says:
It is almost trite to say that a married woman who, without the consent of her husband has the seed of a male donor injected into her person by mechanical means in order to procreate a child who would not be a child of the marriage has committed a grave and heinous breach of the contract of marriage. The question for my determination, however, is not the moral culpability of such an act, but is whether such an act constitutes adultery in its legal meaning.
§ Then he goes on, for twenty-seven pages, to say why it does not constitute adultery in its legal meaning; and in support of that view he quotes a large number of cases and a large number of definitions of adultery by eminent bygone jurists, like Stair, Erskine and Sir George Mackenzie, who used such phrases as "violation of the marriage bed", "conjunctio corporum","carnal concupiscence" and other similar repugnant words. Of course, these jurists were quite right. But when they made their definitions they were not aware of this new scientific knowledge: they 930 were concerned only with the age-old conception of sexual intercourse; so it would be idle to try to argue that artificial insemination is adultery. That is why I say in my Resolution that it is "tantamount to adultery", and I will now proceed to try to enlist your Lordships' support for that argument.
§ To do so I will rely on only two points. The first is this: in normal sexual intercourse between a married couple, assuming that they want to beget a child, there are two ideas present, the love idea and the reproductive idea. At the crucial moment, of course, the reproductive idea is submerged in the love idea, but immediately afterwards the reproductive idea reasserts itself, and the wife may well turn to her husband and say. "Well, I hope we have started a baby this time", or words to that effect. If the wife surrenders herself to a lover, of course, only the love idea is present. She in a state of emotional rapture, wants to give him ecstasy to receive from him the same; and she positively prohibits the reproductive idea by the use of a contraceptive; and the last thing that the lovers wish to do is to produce an illegitimate child. But in artificial insemination by a donor the situation is quite different. There, there is no love idea present, only the reproductive idea; and the woman surrenders her reproductive organism to the seed of a total stranger with the cold-blooded, deliberate hope of begetting an illegitimate child. If she does that without her husband's consent has she not committed just as grave and heinous a breach of the contract of marriage as if she had given herself to an illicit lover? I believe that she has done worse, because she has foisted an illegitimate child on an unwilling husband, for him to bring up for the rest of its life, whereas in the first case no harm is done.
§ The second point that I wish to bring to your Lordships' notice is the condition known as fecundation ab extra. This is a very rare happening in normal sexual intercourse but one which is admitted both by medical science and the law. It was a crucial point in the case of Russell v. Russell and the late Lord Dunedin delivered himself of an opinion on that case when he said that if this condition occurs in an illicit intercourse then fecundation ab extra is, without doubt, 931 adultery. The noble and learned Lord, Lord Wheatley, will not accept that, nor will so great an authority as the Lord President of the Divorce Court, the noble and learned Lord, Lord Merriman—unless he has changed his mind since he spoke in 1949. On the other hand, I must say that the two eminent lawyers who drew up the legal section of the Archbishop's Report—Mr. Justice Vaisey and Mr. Henry Willink—do not agree. They take the opposite view, and those two learned gentlemen will be much fortified to know that I agree with them.
§ Of course, when Lord Dunedin was speaking in 1924 this new field of scientific knowledge had never been heard of, at least in this country. It was sixteen years before it began to be practised here and there is no question that when Lord Dunedin gave his dictum he was thinking of ordinary sexual intercourse, with the close juxtaposition of bodies, organs and so forth; but if he were here to-day l should like to ask him, as I would ask anybody else, if artificial insemination is not fecundation from outside, what is it? Those are the only two points that I bring forward in support of my argument that this behaviour is tantamount to adultery. I believe that if it is performed without the husband's consent the husband should be entitled to relief by divorce if he so wishes. I believe that the law ought to be amended to that effect, and I ask your Lordships' support for that part of my Resolution. Now we go on to the third phrase in the resolution which speaks of illegitimacy.
§ VISCOUNT ASTOR
My Lords, just before the noble Lord, Lord Blackford, leaves that point, will he make clear what is his attitude on artificial insemination by a donor with the husband's consent? Does he want that to be considered adultery, or not?
I am only arguing that the actual act is tantamount to adultery. If the husband has consented then of course he has connived in the act, and there is nothing more to be said—
§ A NOBLE LORD: Oh, yes, there is!
My Lords, I appreciate that there is, but I am only answering the point put by the noble Viscount.
932 There seems to be some confusion of thought about illegitimacy in this matter. I have had two or three letters, particularly from other practitioners, pointing out that a child born in wedlock is held to be legitimate in the eyes of the law until its legitimacy is challenged in a court. We all know that, of course; but surely it is equally true to say that the only legitimate child is the one who is the joint product of a husband and wife; and an A.I.D. child is not the joint product of a husband and wife and therefore basically is illegitimate. The fact that in the eyes of the world he may appear legitimate is due only to the fact that the husband and wife have conspired to conceal the truth about his birth and have committed the crime of perjury in putting down the husband as the father of the child when signing the birth certificate. Surely that is the correct view.
What makes husbands consent to artificial insemination in preference to adoption? There is one chief reason which, I suppose, applies in some 80 per cent. of cases: it is the wish to satisfy the cravings of the childless wife for maternity. That is a reason with which we can all sympathise. I suppose we men cannot possibly appreciate the feelings of a woman who has not produced a child from her own body and the cravings she may have to do so. We are not in a position to pass an opinion on that subject because as the male sex we cannot understand it. But it is a reason with which we can very deeply sympathise and it is a good reason. A second reason is the wish of both the husband and the wife to have a child which is at any rate 50 per cent. theirs and to have the interest of bringing up that child rather than a child which is adopted.
There is a third reason: the fear of the husband that unless he consents to a practice of this kind his wife may run away to another man. Doctor Mary Barton said that in her experience that was a very rare reason. Then there is a fourth reason, which is a bad one. It is to get a spurious heir to a title or the life tenancy of an entailed estate or a trust fund. That is obviously a bad reason because naturally one would thereby defraud the rightful heir. When I put that point to Doctor Barton she seemed rather surprised at it and said, "Surely people of that kind would never 933 apply for artificial insemination by a donor." She went on to say that her patients were mostly what she described as moderate, middle-class people, that she has some patients from the wage-earning classes and has even had one application from a couple who were on public assistance. But is there not the possibility that the moderate, middleclass person may unexpectedly become the life tenant of a trust fund? That idea cannot be entirely ruled out.
I have given your Lordships four reasons for my view, and no doubt noble Lords can think of others, but your Lordships will notice that there is one characteristic which is common to all four reasons: that they are all completely selfish reasons. They gratify the longings and desires of the husband and the wife. But they take no account of what effect their action may have upon the religious aspect; upon the community; upon the family unit, and, above all, upon the end product: the child. In the presence of so many distinguished divines, of course, I should not dream of touching upon the religious aspect of this question, but I should like to say a word or two about the effect upon the community and the family unit.
I suppose it is true to say that the strength and integrity of the community is dependent upon the strength and integrity of the family unit, by which I mean not just the childless couples, but all the fathers, mothers, brothers, sisters and so on. I think this country believes very strongly in the family unit, and some of us feel that there is a tendency for the family unit to weaken in these days, through the enormous increase in divorce; through the rush and hurry of modern life; through the laxity of parental discipline, and so on, which gives rise to juvenile delinquency, and insulting hooliganism at Glasgow University, and hysterical dancing, unhealthy plays and so forth. Is A.I.D. likely to increase the weakening of the family unit? Of course, Dr. Barton and her co-practitioners would say, "No; on the contrary, we help to strengthen the family unit because we give a child, or children, to couples who would otherwise be childless, and we inject into the family healthy blood from a virile donor which would not otherwise be there." And I am bound to agree that it is a little difficult to argue against that view in the presence 934 of the idealistic, highly selective, highly-trained practitioners with whom I have been in contact.
But there is one proviso about that thought, and that is the keeping of the secret. That is my most serious thought and doubt about this whole operation: will the secret be kept? Last Spring, my wife and I attended a tea party on Salisbury Plain, and there were three young girls there of about seventeen or eighteen years of age. The conversation turned to the subject of adoption, and suddenly the three young women, who up to that point, had been modestly listening to the wisdom of their elders, burst unanimously into song, with intense vehemence, to say how they would all have hated to think they were adopted children. I was very much struck by that attitude—but what would they have thought if at about that age they had been told they were A.I.D. children? I venture to think that the result would have been psychologically disastrous.
At this point, I would remind your Lordships that the average age of the 7,500 A.I.D. children I have mentioned is still only about five. It is a cardinal principle of adoption that one has to inculcate the adopted child with the truth, or, at any rate with the story that one is going to carry on through life with him, about his origin. One cannot possibly do that in the case of A.I.D. On the contrary, one is enjoined to keep the secret from him for the whole of his life. We all know how difficult it is to keep secrets; and we all know how precocious and inquisitive young people are. Boys of twelve or fourteen years of age—and girls, too, for that matter—know a tremendous lot in these days. They have access to newspapers and so on. Supposing your young boy, of, say, twelve to fourteen years of age, suddenly looks up from to-day's Daily Mail and says, "Look at this article on the middle page, Daddy. What does 'A.I.D.' mean?" What is your answer to that question? It is no use in these days telling him to turn over the page and to look at the football news. You have to give some answer to the question, or he will go and find it out from somebody else.
I remember, in the case of my own boys, when they came home for the holidays at about the age of twelve or 935 fourteen, what a great deal they knew, and how it was quite obvious that their conversation at school was directed to all sorts of social questions, and how they quizzed and criticised other boys' parents and so forth. I find it extremely difficult, in face of that sort of knowledge, to believe that it will be possible to keep these secrets inviolate. I went and saw a psychiatrist about this matter, a well-known man in the Harley Street district. He said that most children pass through a phase in their youth of doubt about their parenthood. I am not conscious myself of ever having passed through any such period, but then imagination is not my long suit. I asked my son whether he had ever passed through such a period. He said "No; I have always given you the benefit of the doubt!"
Let us have a look at the question from another point of view. Not all marriages turn out to be happy—goodness knows! we are aware of that. Dr. Barton, will tell you of the parents who bring children to see her year after year, and of parents who send her photographs at Christmas time. Those, of course, are all the successful cases and the happy ones. I wonder what percentage (I forgot to ask her about it) of her children or parents act in that way. Let us put it at 10 per cent. What happens to the other 90 per cent., of whom it is not possible to keep a record in these days? They are not all happy, by any means. And what is going to happen in the case of unhappiness? For instance the mother may lavish her affection on the child to the neglect of the husband—that is quite a common occurrence in an ordinary marriage. The husband may one day say, in a fit of fury, something to the effect, "Thank God, you are no child of mine"—and the secret is out. A man may be impotent with one woman and potent with another. A man may run off and the wife may have to divorce him; and the A.I.D. child would be left in the custody of the wife. Then the wife, in her turn, may marry another man and have a child in the normal way by him. I think she would certainly tell her second husband the truth about the first; and I wonder whether that secret would be kept.
Two of the practitioners I interviewed admitted that they both had cases 936 in which normal children were born to couples who had already had A.I.D. children. What is the position of the A.I.D. child there? Is he going to receive the same love and affection as the normal child? I could go on thinking up instances of this sort ad nauseam, but the long and short of it is that I do not believe that in a large number of cases the secret will be kept. I think that the effect of a child getting to know, at the age of fourteen, fifteen or sixteen, that he is what is known as a "test-tube baby" would be disastrous psychologically. Therefore, I come down definitely against A.I.D., and I think that it ought to be discouraged. I use the verb "discouraged" advisedly, because I agree with Dr. Soper, the Methodist leader, when he says that A.I.D. has come to stay and that we must adjust ourselves to its difficulties and perplexities. I may say that in all the conversations I have had with various people during the last month, besides the three practitioners and one other person I have not met a single soul who is in favour of A.I.D. I am authorised by the current President of the Royal College of Obstetricians, Professor Clay, whom I interviewed, to say that he is against A.I.D. and that, in his opinion, most gynæcologists are also.
Having reached this conclusion, I should be rather feeble if I did not offer some suggested solution. As a matter of fact, when I first handed the Resolution to the learned Clerk, I had a solution tacked on to the end, but on the next day I recanted it, for two reasons: first, because on reflection I thought that it was the wrong solution; and secondly, because I knew that any suggested solution was bound to be highly controversial and I did not want to introduce a note of controversy into the Resolution. I have not the least idea what line the noble and learned Viscount the Lord Chancellor will take, but I hope that the House will support me in this Resolution, which seems to me a necessary first step to remedy a lack of justice.
When we come to try to suggest any solution to the whole practice it then becomes a highly controversial matter. However, I will make four suggestions to your Lordships. The first is to do nothing, as we have done hitherto. In 937 America, where they started this practice about fifteen years before we did, there are said to be 100,000 A.I.D. babies; and as the population of the United States is 150 million that means one A.I.D. baby to 1,500 normal babies. Here there are said to be 7,500, and if the population is 50 million, that works out at one A.I.D. baby to 6,666.6 normal babies. Your Lordships may well think that that proportion is so small as not to be worth bothering about.
§ LORD CHORLEY
My Lords, is the noble Lord not putting a total figure against the yearly figure and getting this result? If I understand him, that is what he is doing.
No, my Lords, I do not think so; still, my arithmetic is not good. All I am seeking to show is that the proportion in this country is much smaller than it is in the United States. The second solution is to set up a Royal Commission to make a thorough investigation into the whole matter. That entails a delay of three years before any legislation can be forthcoming, and during that time I should expect to see A.I.D. increased, on the principle of getting the gallop over while the going is still good. I do not think that a Royal Commission would achieve very much more than the comprehensive Report produced by the Commission of the most reverend Primates. The third solution is to make A.I.D. a criminal offence. That is what the Church wants to do. I am dead against the Church on this.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, I do not think that the noble Lord has any justification for that statement. The Church has never pronounced on the matter.
Of course, my Lords, I must take the most reverend Primate's reproof to heart; but that is what he said in his speech of 1949.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, I must tell the noble Lord two things. First, I am not the Church. Secondly, that was nine years ago and he has no means of knowing what I might think now.
§ LORD MORTON OF HENRYTON
My Lords, I wonder whether I may be 938 allowed to say that a Royal Commission has investigated recently the question of whether A.I.D. without the consent of the husband should, or should not, be a ground for divorce. That Royal Commission, without expressing any view about whether it was adultery or not, because that was not within their field, said that in their opinion it should be a ground for divorce. That Commission was the Royal Commission on Marriage and Divorce.
I thank the noble and learned Lord very much, but just now I am busy about the Church. If I am wrong, then, of course, I withdraw and apologise, but I thought that the whole tenor of the speeches and attitude of the right reverend Prelates and the most reverend Primate was along the line that they wished to make A.I.D. a criminal offence; and if, in their speeches to-day, they do not show they are completely opposed to A.I.D., I shall be very surprised. But let me assume that they still want to make it a criminal offence. If they do take that attitude, I am against it. I am against it for several reasons, but I will give only one: that is, that adultery is not a criminal offence and I am sure that Parliament will never make it a criminal offence. Adultery is a sin but not a crime. I argue that A.I.D. is "tantamount to adultery"; therefore it cannot be worse; and I say it is the same thing. It must not be made a criminal offence. Nor do I think that A.I.D. is a sin if it is performed with the consent of the husband. All I think is that it is an undesirable practice.
I come to the fourth solution, which is some form of registration. This idea was touched upon by the President of the Divorce Division when he spoke in 1949, but perhaps he has changed his mind, like the most reverend Primate. He only touched on it rather indefinitely, but there seems to me to be something to go for along this line. I believe that the most discouraging thing of all would be to insist upon the registration of donors. I think, for one thing, that donors would be very unwilling to register. There is one disadvantage. If they had to be registered they would be known, or it is highly likely that they would be known, to the woman; and practitioners say that if the woman knew who the donor was, 939 there would be a great danger of her running away to him.
One could insist upon registration by parents. I think that that would be very difficult to do, because it is asking a lot of a man to register his own impotency. I think that a system of licensing a very limited number of practitioners who may carry out this operation would decrease the increase which is now going on. But, after all, it is not for me to argue all the afternoon on this matter. I am here only to initiate a debate, and I want to hear what the experts will have to say later. I see that I have already detained your Lordships for no less than forty minutes.
My noble friend says forty-five minutes. Well, all I can say in mitigation is that it is about twice as long as I have ever spoken before. I thank your Lordships for your forbearance, and now, with you. I look forward to hearing the experts. I beg to move.
§ Moved to resolve, That in the opinion of this House, artificial insemination of a married woman by a donor other than her husband is tantamount to adultery, that it should be sufficient ground for divorce, and that all children so conceived are illegimate.—(Lord Blackford.)
§ 3.31 p.m.
THE LORD ARCHBISHOP OF YORK
My Lords, I think it is true that since the debate on this subject which took place in your Lordships' House in 1949 the volume of accessible testimony about the practice of A.I.D. has vastly increased. There has been a good deal of responsible testimony from parents about their approach to it when they have used it; from doctors about their attitude towards the type of people who approach them and towards the conditions which, in their view, justify the use of A.I.D.; and from families in which A.I.D. has been used. As one who holds that A.I.D. is thoroughly wrong. I want to say that, from the volume of available testimony, it seems to me that we are bound to acknowledge that high motives of doing good to unhappy people are often very conspicuous, and that amongst doctors who practice A.I.D. ethical distinctions are shown to be clearly present 940 as to when it is right and when it is not right for A.I.D. to be given. I say this because I am anxious to give the fairest possible consideration to the plea that A.I.D. might be controlled by ethical standards and made to start a sort of new moral way of doing things.
We have had doctors, writing with a great sense of responsibility, setting out what they regard as the right and only right conditions for the giving of A.I.D. Doctors have said, in effect: "I do not do this for any married person who asks for it. I weigh the circumstances, according to clear principles, so that the thing is, and can be, ethically controlled." What seems to me to undermine this assurance is that when a fair-sized volume of testimony is looked at there is a vast discrepancy as to what the so-called principles of this ethical control are. To-day the Manchester Guardian, in a leading article, defines carefully grounds on which A.I.D. is set out as being right.It is worth attempting",says the writer.for the sake of the few instances—and they are few—in which the use of A.I.D. can be a real blessing to family life. Those instances come when it is psychologically improbable that the husband can father a natural child, when both husband and wife have studied A.I.D. and its implications, when both strongly want a child by this means, when their marriage is stable and secure, and when both hold the same religious beliefs. Each of these conditions must be satisfied.That is the plea that is made.
Behind that plea there was an interesting and responsible article in the same newspaper on February 8, entitled: "A.I.D., a physician's view." The writer was emphatic that a doctor should agree to give A.I.D. only when there was some organic defect in the husband and when the sexual life of husband and wife was harmonious and happy. In his view, it would be wrong, and dangerous for the potential child, if A.I.D. were given where husband and wife were strained or unhappy, or incompatible in their physical union. He goes so far as to say this:… to perform A.I.D. in order to hold together a marriage which is already strained is in my view unpardonable. A child obtained by A.I.D. is in my view the crowning happiness of a marriage which would go on reasonably well in any case.There is here some sort of a claim for carefully defined ethical conditions 941 about the giving of A.I.D., but how far is there agreement about this? The view of this particular physician is but one of a veritable forest of medical and psychological opinions which have come across amongst the bulk of testimony. This same article refers us to a massive work by Dr. Schellen, Artificial Insemination in the Human—and your Lordships will note that, whereas we used to call them men, women and children, we move into a world where "the human" has become the phrase. In this massive work there is a review of information about the theory and practice of A.I.D. in America, in England and in other countries, disclosing the variety of conditions which are deemed, now this, now that, to make a sound plea for A.I.D. While the writer in the Manchester Guardian vetoes A.I.D. where a marriage is strained, I find amongst this body of testimony other writers commending it as a way of salvation for a marriage under strain. I am trying to be fair to those who have pleaded for A.I.D. on the ground of careful discrimination in the practice. But it is the tangle of inconsistencies which makes it impossible to believe that, with the spread of A.I.D. in the country, any one agreed theory as to what is the right occasion for the granting of it can come about or can control the practice.
But, my Lords, I do not believe that there ever can be a right occasion for the granting of A.I.D. Take the point of deception. When the matter is discussed, phrases are used like "the happiness of a family"; and it is often found that the phrase is used in sole regard to a husband and wife and a child. But has not a brother a right to know whether his brother's supposed children really are his brother's children? Has not a grandfather a right to know whether those who are described as his grandchildren are indeed his grandchildren? It was this point which was criticised with much force in the Report of the Archbishop of Canterbury's Committee of 1948. The Report said:It would change the whole basis of society if a man could not safely regard his brother's child as of the proper common 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 infusion of suppositious offspring into a family.942 I now turn to what the Motion before your Lordships' House sets out to do. Let me say, first, that, for myself, I do not think it would be wise to legislate to make A.I.D. a criminal offence. If other right reverend Prelates or the most reverend Primate said something different it would not disturb me. There might be a hundred views amongst Churchmen as to by what legislation it is best to try to promote what is right to withstand a particular evil. That on which Churchmen are agreed, and many other people are not, is a matter of vastly more importance. What I am convinced about is the need to eliminate any shred of an idea that A.I.D. can somehow be made to lie within the marriage bond. The Motion of the noble Lord uses the word "tantamount". I should guess that noble and learned Lords will not recognise "tantamount" as a legal term, and I should not myself recognise it as a theological term. Perhaps "tantamount" is no more than a rhetorical term.
I do not want necessarily to plead that A.I.D. be defined as adultery, or that morally it has all the features of adultery, for obviously it has not. What I think is essential is that if there are divorce laws, A.I.D. should be a ground for divorce as adultery is a ground for divorce. A logical corollary seems to me to follow from this, and I mention it in passing: that if the law is to be framed so as to treat A.I.D. as akin to adultery, it ought also to be framed so as to treat A.I.H. as akin to marital intercourse in its own legal context. So far they are parallel. But only so far; for while A.I.H. is an attempt by married persons to fulfil one of the ends of marriage, A.I.D. is the intrusion of a third party in a way which is incompatible with the pledges of marriage.
I am sure it is the earnest hope of many of your Lordships that we shall have to-day from Her Majesty's Government the promise of legislation. We should gladly not have had legislation. We should gladly have avoided discussion of this unpleasant matter altogether. I think it was the hope of many that it might turn out that judicial decisions would of themselves provide something of a solution. If they have not, then it seems that the alteration of the law is requisite. The matter seems to me to be urgent because people—doctors, parents and young persons—want to be 943 given the answer to a number of questions about which they are at present in doubt.
But there is another reason for the urgency of this matter, related, I think, to the trend of public opinion. There is an idea abroad—I do not say it is widespread, but certainly it is abroad—that A.I.D. can, so to speak, be brought within the terms of a decent fulfilment of the contract of husband and wife. It is this that needs to be resisted. If that idea were ever to grow in this country it would have its effect upon the interpretation which a man and a woman put upon the marriage contract when they make it. It would mean that a man and a woman could be making their promises at their marriage with this sort of interpretation put upon them. I will quote the words of the marriage ceremony most familiar to me, but the point can equally be made by quoting any lawful marriage ceremony, religious or civil. The bridegroom has this question put to him:Will you love her, comfort her, honour and keep her, in sickness and in health; and, forsaking all other, keep you only unto her, so long as you both shall live?Is the man to think this interpretation possible?: "I will—if need be, with the help of the seed of another man." That is a serious issue. The intrusion of the seed of a third is as contrary to the proper meaning of the marriage bond as is the intrusion of the illicit affection for body of a third. It is for the trend of public opinion that this fact urgently needs to have recognition in our law of divorce. Towards that public opinion and public sentiment your Lordships' debate to-day is able to give a lead. That is why I believe it would be lamentable for the country if we drift on and delay in getting the legislation for which the noble Lord's Motion calls.
§ 3.47 p.m.
§ LORD DENNING
My Lords, this subject is of profound social significance, but I would consider its legal significance because it is more my line of country. Some doctors who carry out this practice by a donor to a married woman think that it is lawful for them to do so: that there is no law against it, and there is nothing wrong in it. If it is done openly and without concealment, truly there is 944 no law against it. But if it is accompanied by secrecy and deception, I would say it is unlawful. It is a criminal conspiracy, as I will show.
First of all, let me make it clear that the child so produced is illegitimate. In order to prove a child to be legitimate you must show that it is the child, the offspring, of both husband and wife, a married couple in lawful wedlock. You must not only identify the mother; you must identify the husband as being the father. One of our most experienced judges laid that down only three years ago. If you cannot identify the husband to be the father, but someone else, then that child is illegitimate, and this has been the law of the country for centuries. So much so, that the only question in legitimacy cases is what evidence is admissible. Is it admissible for the husband himself to prove non-access? It was held that he could not, but that by his friends and relatives he could. Now, by Statute, a husband can prove non-access himself; and once it is established in the court that the husband is not the father, then the child is illegitimate. Therefore, with this artificial insemination by a donor, if you ask: "Who is the father?" and the answer is: "It is not the husband, but somebody else," the child is illegitimate. Let there be no doubt on that.
From that a whole train of consequences follow in law. Secrecy and deception are the badge of conspiracy. If the wife and the doctor agree together to keep secret the fact that a child is illegitimate and falsely to pretend that it is legitimate, they are guilty of a wicked conspiracy. If they do it without the knowledge or consent of the husband it is a gross fraud on the husband. He is made to maintain a child which is not his and which he is not liable by law to maintain. For centuries, in the old books you will find that when a woman, the mother of a bastard, agrees with others by fraud or concealment to saddle an innocent person with the maintenance of that child, it has been held to be an indictable conspiracy. Lord Holt so ruled in 1705, Mr. Justice Buller, a very learned Judge, in 1788, and Lord Denman in 1834. It is, I believe, if done without the knowledge or consent of the husband, a fraud and an unlawful, indictable conspiracy.
945 But even if the husband does know and consent, so that it is no longer a fraud on him, is it not a potential fraud on others? Suppose a grandfather leaves his money, as many do, to his son and his son's children; or suppose there is a trust for the couple and their children. As the law stands this child, being illegitimate, should not receive it; but by the fraud and deception, if successful, this illegitimate child will receive it. Or suppose a simple case. If the husband dies without a will, by law his property is to go to his wife for life and after that to his children. This child is not in law entitled to it; it is not the husband's child. But by this fraud and deception it would receive it.
What is the effect of this contingent fraud, this potential fraud? Again if you look into the old books you will find that the fraudulent foisting off of a child as legitimate when it is not, has been held to be a conspiracy, because, as Lord Hardwicke, the Lord Chancellor, said, it impedes the due course of descent; and Lord Chief Justice Wiles at the same time so ruled. So I say that this action, when done in fraud or potential fraud, is an unlawful conspiracy by both the wife and the doctor with her. And I have not mentioned the Register of Births. The conspiracy goes back long before that. The conspiracy is when the plot is hatched. But when it comes to a false statement in the Register of Births, there is not only the overt act of the conspiracy; there is an additional crime, the crime of perjury, making a false statement in a Register of Births, when it is said that the husband is the father when he is not.
So much for the conspiracy between the doctor and the wife. What about the agreement between the doctor and the donor? What have they agreed? The whole essence of it is that it should be secret, not told to anyone, not told to the mother or the child, told to no one. And for what purpose? So that the donor should evade the responsibilities which by law attach to him. The natural and probable consequence of this is that he gets exemption from maintenance or responsibility for his own child. If he could be defected and found he could be made liable to maintain this child, not by the wife herself, because she is a married woman, but through the National Assist- 946 ance Board. So I say that there is a double unlawful conspiracy, by the doctor with the wife and by the doctor with the donor. And not only is that so in the criminal law; it also gives rise to damages by any person injured by it.
Now, my Lords, let me turn to the question of adultery. A judge of the Supreme Court of Ontario, in 1921, applying our English law, ruled that it was adultery. The Court of Session in Scotland, which in many ways in its divorce law goes on divergent lines from ours in England, has ruled that it is not adultery. In view of this divergence, may I suggest a rather different line of approach: not whether artificial insemination is adultery but whether it is any defence to a charge of adultery. The way in which any petitioner proves adultery when there is an illegitimate child is that he proves the birth of the child to the wife and then proves that he is not the father. He has to prove no more; that is sufficient proof.
Let me give your Lordships as an illustration a case which arose a few years ago. A soldier went off to do his military service in Germany; 360 days later—nearly twelve months—his wife gave birth to a child. He brought a petition on the ground of adultery relying on that one fact: the birth of an illegitimate child. The wife swore she had not committed adultery. There was no evidence of any association with any other man, and much evidence of her good character. The judge at the trial refused to find adultery, but this House, sitting in its judicial capacity, inferred beyond reasonable doubt from that one fact that she had been guilty of adultery and a divorce was granted. No one knows whether the child was produced by artificial insemination or how it was produced, but on those two facts, the birth of the illegitimate child and the husband not the father, adultery was inferred.
If I may trouble your Lordships with an indelicate case, the Russell case, I would point out that it shows the same thing. There was a case where the wife was not penetrated by any man; she was fertilised from outside. Some man must have lain sufficiently close to her to emit seed which found its way into her and gave rise to the child. On that 947 a divorce petition was brought. The husband gave evidence that it was not he. The jury accepted his evidence and found there was adultery with a man unknown. This House reversed that decision solely on this ground: that as the law then stood the evidence of the husband was inadmissible. Since that decision Parliament has enacted that the evidence of a husband like that is admissible, and if the case were reconsidered to-day there would be no ground for quashing the jury's verdict. Therefore in that case, although there was fecundation ab extra (fertilisation from outside), there would have been a finding of adultery. Is that not the right way in any of these cases? The husband can prove his case by showing that a child has been born and that he is not the father of it.
Then, I ask myself, is it a defence for a wife to say, "I was voluntarily fertilised by artificial insemination in fraud of you"? I should be surprised if the law held that to be a defence to such evidence of adultery. I know, of course, that the burden is on a woman to prove that she is raped. That is a defence because she has not voluntarily surrendered her reproductive organs to another man. But if she has voluntarily surrendered her reproductive organs to the seed of another man, not only is it no defence, but I, for myself—I am sure I should be following Lord Dunedin's opinion—would say, not only is it tantamount to adultery, it is adultery.
So much for the legal considerations. Just one word on its social significance. It seems to me that if this practice became widespread it would strike at the stability and security of family life; it would strike at the roots of our civilisation. I would say to the doctors "Where by your science are you leading us? Seek to relieve suffering by all means, but do not do it by secrecy and deception.'For what is a man profited, if he shall gain the whole world, and lose his own soul?'
§ 4.3 p.m.
My Lords, we are all greatly indebted to the noble Lord, Lord Blackford, not only for initiating the debate on this curious subject but for the most interesting speech which he has made to us this afternoon. The noble Lord is, if I may say so, not only one of 948 the most attractive but one of the most virile speakers in the House, and I am not at all surprised to hear that in a certain matter he was given the benefit of the doubt. We among your Lordships would, I know, always give it to him.
We have listened, since he spoke, to two weighty pronouncements. For my part, I do not rise this afternoon to give what might be called the point of view of the Opposition. My noble acting Leader, Lord Silkin, in the regretted absence of the noble Viscount, Lord Alexander of Hillsborough, wishes me to make it plain that, so far as the Labour Party is concerned, there is no Party line with regard to A.I.D.; and I should imagine that that applies also in regard to other Parties. We can speak or vote on it entirely as the spirit moves us. I am most grateful to my noble colleagues for what I might call a plenary indulgence in being allowed to offer views this afternoon which may inflict on some of them a short spell in purgatory, though I hope that will not be the case. I have no reason to think, of course, that it will be the case, in particular, with my noble friend Lord Stansgate—I am not associating my noble friend in the remotest degree with A.I.D.
I felt it right this afternoon, if the House will allow me, to offer some arguments from the point of view of the Roman Catholic Church, more particularly in view of the fact that leaders of the Church of England have been, and will be, making very weighty pronouncements. When I say that, I have the advantage, or disadvantage, of committing no one but myself, although I shall be surprised if my remarks are not regarded as fairly acceptable to Roman Catholics. Certainly this is not a matter upon which the Roman Catholic Church has been backward in making its position plain. In a broad sense artificial insemination was rejected sixty years ago, in 1897, by a Papal pronouncement by Pope Leo XIII following the interest which was aroused in A.I.H., where the husband was concerned, by the work of a well-known Roman Catholic gynæcologist, Mantegazza.
Anyone who is interested in studying Roman Catholic teaching on this subject might do worse than consult three documents, in particular. There was an Address which was delivered to Catholic 949 doctors by the late Cardinal Griffin on April 8, 1945; there was an Address by the Pope (from which I will quote in a moment) to physicians on September 29, 1949; and recently there was a sermon preached by the present Archbishop of Westminster at Wembley on Tuesday, January 28 of this year. As the most reverend Primate has told us, there has recently been published a most impressive survey of the whole subject by a Dutch doctor, Dr. Schellen, and in it the point of view of the Roman Catholic Church, and of all the Churches and many of the main bodies concerned, is treated in a most comprehensive way. I should also mention a pamphlet called Artificial Human Fecundation, written by a Professor Davis, which appeared some years ago, and an article by Dr. Letitia Fairfield which appeared in the Tablet of January 25 of this year.
To-day we are concerned with two aspects of this most important question. There is the moral aspect and how far artificial insemination should be approved, tolerated or condemned. Then there is what might be called the public policy question of what steps should be taken to give effect to this moral verdict. On the question of practical policy there is plenty of room for argument among Catholics, as among others, in this country and abroad. I will return to that before I close. But on the moral issue the teaching of the Roman Catholic Church can be stated briefly without any distortion.
I realise that to-day the House is concerned with A.I.D.—that is the case where, as we have been told more than once to-day, artificial fecundation is brought about by a donor who is not the husband. Concerning the Roman Catholic attitude to A.I.H., I will confine myself to a few words which are taken from the Address of the Pope, which I mentioned just now and which was delivered in 1949. The Pope said:One does not necessarily proscribe the use of certain artificial means destined only to facilitate the natural act or to secure the accomplishment of the end of the natural act regularly performed.But he made it plain that there can never be a legitimate justification for obtaining the sperm by actions that run counter to nature, such as masturbation. In the words of Dr. Fairfield, who I think puts the matter clearly, 950… this leaves the practice of A.I.H. for Catholics licit in principle but greatly restricted in practice.As a matter of fact, as I think most of us are aware, the total number of people affected is in any case very small. But the procedure which is regarded as morally blameless for Roman Catholics is better perhaps described as assisted rather than artificial insemination, in view of the associations that A.I.H. has acquired in this country.
However, our topic this afternoon is A.I.D. where an outside donor is concerned. This, in the words of the Pope, is unequivocably condemned, whether it occurs outside of marriage or whether it occurs within a marriage, and irrespective of the husband's attitude. So I find myself. I am glad to think, entirely in line with the most reverend Primate who has addressed us. The House will perhaps forgive me (because there is no point in my paraphrasing words when the words are available), if I quote a few sentences from the short statement made by the Pope on September 29, 1949. He said:Artificial insemination outside of marriage must be condemned as essentially and strictly immoral. Natural law and Divine positive law establish, in fact, that the procreation of a new life cannot but be the fruit of marriage. Only marriage safeguards the dignity of the spouses, principally of the wife in the present case, and their personal good. It alone provides for the well-being and education of the child.The Pope went on to make plain that there can be no divergence of opinion among Catholics on the condemnation of artificial insemination outside of marriage and that the child conceived in those conditions would be by that very act illegitimate; but he also said thatartificial insemination produced in a marriage by the active element of a third party is equally immoral and consequently to be condemned without appeal. For only spouses have a reciprocal right upon each other's body to generate a new life—an exclusive inalienable right which cannot be ceded and so it must be, even out of consideration for the child.I feel that there is no discrepancy there, between what I have read to the House and what the most reverend Primate told us earlier on behalf of the Church of England.
So far as I can make out from fairly careful study, basing myself on this recent work of Dr. Schellen, the Christian Churches of the world are united in the I strength of their condemnation of 951 artificial insemination. The words of the right reverend Primate the Lord Archbishop of Canterbury, who is to speak later this evening, have been quoted very often on this subject. I believe one may say that they have been quoted all over the world, and with great approval among my own co-religionists. Your Lordships will remember that in the last debate on this subject the most reverend Primate said, that since A.I.D. involves criminal perjury, since it is based on a gross deception, since it imperils the moral safety of the child, family and community, since it is contrary to Christian principles and teaching, it should not be permitted to spread or continue. Those words were used some time ago, but I hope and believe that he will reaffirm them this afternoon—I am glad to see him nodding assent.
The American Episcopal Church is described in Dr. Schellen's book as rejecting A.I.D. emphatically and stigmatising it as adultery. In Sweden, where I am sorry to say the practice appears to have made considerable strides, theologians of the Lutheran Established Church have denounced it violently. They say:There is no room in a marriage for a third person. And any process which breaks this exclusive union between marriage partners must go by the name of adultery.In Paris the Professor of Divinity states with emphasis that Protestantism utterly rejects A.I.D. as conflicting with the principle of monogamous marriage; and another interpreter of the French Protestant point of view sees in A.I.D. one of the strongest manifestations of man's revolt against God's creative power and defiance of the Scriptures which hold to him the close association of appropriation with the mystery of the one-ness of man and wife. A representative of the Protestant Committee in the Netherlands concluded that A.I.D. violates the validity of conjugal intercourse because it is, in essence, adultery. So much for a fairly wide selection from Christian teachers. I hestitate to dogmatise about the Jewish Church, in which possibly more than one trend could be detected. But it is worth observing that the present law in Israel puts A.I.D. on the same footing as adultery. A Mohammedan is allowed by law to have four wives, and there is therefore perhaps not the same temptation there towards A.I.D. In any case, 952 it seems incompatible—and it is generally felt among Mohammedans to be incompatible—with the Mohammedan duty to see in a barren wife the will of Allah.
I have quoted the Jews and Mohammedans to show that it is not just the Christians who are concerned and that it is fair to say that there appears to be an absolute conflict between A.I.D. and the great Monotheistic religions. But this country is supposed to be a Christian country and in some respects, in spite of all our failings, it seems to me to be more Christian than it was when some of us were growing up a number of years ago. Whether Christians are wise or foolish, they must at least be supposed to know more about their own religion than non-Christians. And there appears to be overwhelming agreement among Christians, whatever the denomination of the sect, that A.I.D. is in sharp and flagrant contradiction to the God-given institution of the family and, indeed, with the whole Christian idea of the proper attitude of man towards his Maker.
I cannot believe that any practising Christian who knew what A.I.D. involves would have any hand, lot or part in it, or refrain from doing all in his power to discourage it. I hope that some of those who are present and who cannot accept the beliefs of the Christian (and this is a free country) will understand that if I do not stop to wrestle with them this afternoon over the whole plane of belief and disbelief, and the Christian versus the non-Christian concept of the family, it is not through any lack of regard for their earnestness and sincerity but simply through shortage of time and the fact that there are many other and better speakers. But I would venture to offer non-Christians one very striking quotation from an article which appeared in the Sunday Times of November 10 last year under the heading "Can Scientific Man Survive?" written by one whom we must all admire, whatever we may think of his views about religion—the noble Earl, Lord Russell, the most distinguished living rationalist.
In that article he argued with much feeling that world survival now:demands a morality which will be new only in the sense of being acted upon. As an ideal it is not new but very old. It has been preached for countless centuries by sages and religious 953 leaders who have been highly honoured after being put to death.Surely he must there include the Founder of the Christian religion, for I do not know who else he has in mind. Bearing in mind that quotation from the noble Earl, Lord Russell, is it possible to hope that the new horrors of to-day—nuclear warfare and all the rest of it—may be bringing this compensation at least: that they may help even the most modern and sceptical of us to realise that we neglect traditional wisdom and traditional morality at our peril, and that if a procedure is contrary to nature and is inherently evil then no scientific magic or justification can make it natural or good?
So much for the moral assessment. But when we face the question of how to combat this growing evil we must expect, at any rate at this stage, a considerable divergence of opinion. It may well be true, and probably is, that by means of some kind of registration or other form of regulation some, at any rate, of the worst consequences of A.I.D. could be averted and the amount of perjury and disception involved diminished, although if people are going to perjure themselves and deceive the community I do not see how another law will stop them doing so. But some good consequences could follow—on paper—from registration.
Here, however, as in other cases, such as prostitution and certain aspects of gambling, it seems to me that we have the dilemma that while, on the one hand, we want to regulate the practice and possibly to reduce it, by statutory action, yet by doing so we may well appear to condone it. It is very difficult to recognise a practice of this kind, for purposes of regulation, without appearing to give it some kind of official recognition and what may even seem to be condonation. Perhaps I might quote here words used recently by the Archbishop of Westminster, who I imagine (though I am not certain) had this kind of point in mind:To pass any legislation which seems to condone even the worst sins against Nature would be so damaging to the morality of the nation as to militate grievously against that peace and well being of a people that is the object of all government.And so I find myself in great difficulty in supporting any kind of State registration.
Should A.I.D. be described as adultery? Of course, this is the actual crux 954 of the debate this afternoon. Whether it is to be legally so described I leave to lawyers; but few who listened to the noble and learned Lord, Lord Denning, would remain unimpressed after hearing that powerful address. I leave any statement about the position to the great lawyers, including the Lord Chancellor, who have addressed or will be addressing us. From the point of view of the Roman Catholic, certainly its heinousness (as was said, I believe, by the Scottish judge who decided a recent case, and this cannot be overstated), must surely be regarded as analogous to that of adultery.
I may therefore be asked whether in the Roman Catholic view it should be made, like adultery, a ground for divorce. There, of course, is a problem for Catholics which is familiar to many of the House. As noble Lords are aware, Roman Catholics do not accept adultery as a ground for divorce. Therefore we are somewhat inhibited as to whether grounds for divorce should be extended to cover A.I.D. But, speaking as a citizen, I can only say that it would seem to me, and I think probably to most Catholics, logical that in a community which recognises adultery as a ground for divorce, A.I.D. should be placed on the same footing; and in that I join with the most reverend Primate who spoke earlier. It is perhaps hardly for Roman Catholics to take the lead in extending the grounds for divorce, but if that proposal were brought forward I should certainly find myself in support of it.
Finally, should A.I.D. be treated as a criminal offence? I shall listen with great care to what the most reverend Primate, the Lord Archbishop of Canterbury, has to say on that point this afternoon. I do not want to cover once again the ground which some of us covered and which I covered at great length in the debate on the Wolfenden Report. We drew at that time a distinction; we drew it in various ways and applied it in various ways, but we all, in one way or another, drew a distinction between crime and sin. Here I would not apply the distinction in quite the same way, although the distinction can only, in my opinion, be drawn in the same way. I think you can contrast the two situations.
I am stating here not any kind of official view, but I think a fairly representative Roman Catholic opinion, when 955 I say that the social consequences of A.I.D.—the long-term social consequences, quite apart from the immediate moral evil—could be so damaging to the welfare of our nation, particularly our children, that the Government can fairly be asked to consider how best to bring this practice within the orbit of the criminal law. I recognise the practical difficulties involved, but I put it to the Government as something they could reasonably be asked to consider.
I sit down now with this final thought. There are some in public life in this country, in the House, in various Parties and various churches or belonging to no Party or to no church, many of them more eminent than I and most of them more active, whose main interest in public questions derives from a desire to help the weak, the afflicted, the oppressed, the poor, the mentally sick, the delinquent, the old and the lonely. The sentiment which animates people of this kind—we are accustomed to being called sentimentalists—would place many of us naturally and easily on the side of the childless couple. Speaking personally, if I may, as one whose marriage has been greatly blessed, I should be callous indeed if I did not feel for childless people and did not recognise the great love of children shown by so many childless women, and the great services to children that so many of them render—a point to which I know the Lord Archbishop of Canterbury referred when he last spoke in this House. But however we like to describe our own ethical system—Aristotelian, Kantian,Utilitarian, Humanitarian or simply Christian—we must all be aware (and surely at this point the whole House is at one) that immediate happiness, as was brought out in those fine articles by Lord Radcliffe a day or two ago, while a laudable objective to be promoted by all legitimate scientific means is not the highest value here below. Grapes cannot be won from thorns, or figs from thistles.
It is literally impossible to help anyone, however humane our purpose, by means of evil, and A.I.D. defies the laws of God and the wisdom of Man. It has been brought out by the noble Lord, Lord Denning, that it involves for its so-called success, as even its advocates admit, deliberate and prolonged deception, and perjury at one point or another, 956 and this may or may not be successful. A lie, indeed, is of its very essence, which is not surprising as it appears to come from the Father of Lies. It opens the door to possibilities still more loathsome than itself. We must, and I believe this country will, reject with horror this brain-wave of Beelzebub. We must redouble our efforts to relieve the distress of those who in their affliction turn towards this terrible remedy; and whether we ourselves be fortunate or unfortunate in the quantity of our descendants, we must reaffirm once more our Christian purpose and re-dedicate the quality of our family life to nobler ends.
§ 4.26 p.m.
§ LORD AMULREE
My Lords, I want to say a few brief words to your Lordships from a rather different point of view from that which has been expressed before. It follows on from what the noble Lord, Lord Pakenham, has just said. What I want to do is to address your Lordships for a few moments on the ethical and social aspects of this particular problem. I should like to get one or two points which do not appear to be very clear in some of your Lordships' minds out of the way before I start, because I think it is obvious that the number of people who are going to resort to this form of begetting children is going to be extremely small. The vast majority of people can, and do, produce their children in quite normal ways, but you will find that there is a certain number of men and women who cannot—a fairly constant trickle, which does not increase a great deal, so far as I can judge. It is difficult to find out the exact figures. My informant, as in the case of the noble Lord, Lord Blackford, has been a doctor practising in this line for about twenty-five years. It is not the same doctor as the noble Lord mentioned but one who has been practising in the West Country for a long time, and it is from her that I have received a certain amount of my information which I propose to give to your Lordships.
The first thing I should like to do is to follow up what I have said before. So far as the general population figures are concerned, the number of children produced by this method of A.I.D. is going to be a very tiny drop in a very big ocean; but from the point of view of the sum of human contentment and 957 human happiness I would suggest to your Lordships that the matter is much larger, and from that point of view the subject requires sincere consideration by your Lordships. I was rather puzzled to find out what was the total number of children involved, because I think the figure of 7,000 may be rather on the large side. My informant (I admit, only one), has seen about 2.500 sterile, barren couples in the course of the last twenty-five years. From those 2,500 there were only 200 considered suitable for trying A.I.D., and the number of successful cases was approximately half. So I do not think the figures involved will ever become very large or formidable.
The work, I consider, should certainly be kept in the hands of the medical practitioners, who should be able to exercise certain criteria before using A.I.D. The practitioner must know the would-be parents extremely well. He must be satisfied that their marriage is really stable and that they do want a child. One may think that that is going to be difficult to enforce; but I am not at all sure that if public opinion, or any other means of training people which exists, is put into force sufficiently firmly you cannot build up some kind of ethical code like that which will cover the majority of people who wish to carry out this work. Obviously, if we are dealing with human beings—and, like other people, doctors are merely human beings—there will be occasional rogues who will go wrong, but I think that we can build up a good standard of ethical behaviour and therefore would not get results by this method that are not justifiable and right.
There should be two indications for the use of this method. One is that the husband is incurably and irremediably impotent. Whether one can say, as has been said by the noble Lord, Lord Blackford, that a man might be impotent with one woman and not with another, it is difficult to judge, but I think it is possible for the family doctor to know that a man would be impotent generally and not merely with one particular woman. It must be that a woman desperately desires to have a child and her husband can convince the doctor that he would prefer a child by that means rather than by the more normal means of adopting one.
958 I am informed by my West Country informant that he made inquiries of the people who wished to be treated in this way and found that the general theme running through their wishes could be roughly summarised as follows. They wanted children very much and felt that marriage was only half fulfilled if a child was not going to be horn. The wife felt that she was barred from having a child by the person she had married but very much wished to have a child. The husband had chosen the woman for his wife not only because he loved her but because he wished to have a child by her. Therefore, he would rather have a child by her, given by some accredited donor, than a child from an adoption society. If that is the general feeling of the people who wish to have this operation performed on them, it seems to me that we have to give serious consideration to the great human factors which are involved.
In the case of my informant, the work of artificial insemination has been going on for only about twenty-five years, so it is difficult to judge what becomes of the children and what type of children they are; but so far as the records have been kept and the follow-up has gone, the children born in this way appear to be of perfectly sound stock and have turned out to be perfectly satisfactory children. Although I said at the beginning that this operation must not be done if the marriage is considered shaky, it is the case that marriages seem to be consolidated by this means rather than broken up, and certainly the parents are not found to be psychologically upset by the fact that children are born as a result of insemination by a donor. I think it gives some assistance towards a happier result if semen from the donor can be mixed with some semen from the husband, where the husband's semen is found to have a certain amount of sperms but not enough for fertilisation normally and yet enough to make him feel that he has contributed something towards the birth of the child. Perhaps that is not a happy form of reasoning, but it does appeal to people, and here we are dealing with people and not with theories and abstract ideas.
There is one matter which has not been mentioned so far. It has been said that people born in this way may get 959 into great trouble through marrying someone born from the same donor. I think this bogy of inter-marriage is enormously exaggerated because it is doubtful whether the figure of A.I.D. children in this country will be big enough to cause any danger. There can be no more danger than we have now from illegitimate children happening to marry a brother or sister, or where several children of the same family are adopted, of them meeting a natural brother or sister in after life and marrying them. I do not think that the danger is one about which we need to worry. It is a possible but not a serious danger.
If I may, in the presence of so many noble and learned Lords and of the noble and learned Viscount on the Woolsack, I should like to turn to two legal points, on which the noble and learned Viscount can probably enlighten me. I am worried about the fact that this act should be considered to be adultery. So far as I can judge, after looking up dictionaries and books of reference, one of the bases of adultery is what is called carnal concupiscence ".The term indicates some kind of subservience to lust or unlawful love, which is a bad thing for society as a whole because it tends to break up family life. I cannot see that the transferring of sperm from a little glass tube by means of a rubber syringe can afford, except in very strange people, any kind of sensory pleasure and the purpose of A.I.D. is to encourage family life, which is one thing which adultery definitely discourages. So I should have thought that from that point of view there was no real reason for putting A.I.D. under the heading of adultery.
From the purely legal point of view, the question I want to be assured about is this. Suppose a wife were to resort to artificial insemination unknown to her husband, which I think is something that we should all deplore, would it not be possible for the husband to obtain a divorce on the ground of cruelty, rather than on ground of adultery? Suppose husband and wife had concurred in wishing the operation to be done, and then, five or ten years later, the husband wanted to get rid of his wife, would that not be regarded as an offence (if it were one) connived at, and therefore preventing the husband from being able to get a divorce and abandon the artificially con- 960 ceived child? I should deplore very much any recommendation for legislation to make artificial insemination a crime. It is an act which I am convinced will never become a large factor in the world. The one thing to make it safe and proper is for it to be carried out freely by responsible people. To do as the noble Lord suggests, to make it subject to regulations and rules, is to drive it underground and to have it done by charlatans and quacks, and the last state of affairs will be far worse than the state of affairs now.
§ 4.39 p.m.
THE MARQUESS OF READING
My Lords, as the noble Lord, Lord Blackford, who so cogently and engagingly introduced this Motion remarked, it is now some nine years since I ventured to introduce for your Lordships' consideration a Motion upon this subject. I did so at that stage from a purely personal and objective angle, and to-day I approach it from the same position. In his opening speech the noble Lord said that among the possibilities of dealing with the present situation was one which, I confess rather to my regret, he discarded as of little account—that was, the suggestion that there should be some inquiry into all the facets of this extremely intricate and elusive question. It was my object, when I introduced the Motion in 1949, to obtain from the Government their consent to an inquiry of that kind—and it is perhaps not entirely germane to the present debate to say that I received in reply, as reason for the fact that no immediate action was taken, an excuse which was superb in its monumental irrelevance. I confess that I had somewhat hoped that the present Government might in the intervening years have taken some steps to arrange an inquiry of the kind I had in mind. But to-day we are again debating this subject, after an interval of nine years, and no progress has been made. All that has happened is that probably the wider-spread character of this particular practice has during those years increased.
What concerns me in this matter—and I am reinforced in this view by the weight which has been drawn this afternoon into almost exclusively one scale—is that if we are to take any action upon a matter of this immensely important kind we 961 ought to know ourselves exactly what we are doing. We ought not to turn our eyes away from the subject because it is an unpleasant one; on the other hand, we ought not to be stampeded into premature action before we know exactly where we are going. It seems to me that that applies not only to Members of your Lordships' House, but also to the public at large. If legislative action is to be taken upon a matter of this kind, it would be right, and it would certainly be advantageous, for any Government to have behind them the feeling that the public support them in the direction in which they are going. It is my belief that in present conditions the public are mystified, uneasy and still groping in the dark in quest of authoritative information upon what is to many people a new and striking and equally, to many people, a repulsive subject. But it is a question which is before the public, just as it is before your Lordships' House, and I do not believe that, in present conditions, the public either have the information or the means of obtaining the information.
It seems to me essential that, if we are to have a public opinion on the matter, we should have an instructed public opinion, but that under present conditions what we are getting is, in many cases, a fragmentary and sensational presentation of a case, instead of a comprehensive and responsible one. That is, in my view, not the lead which should be given to the public in a matter of this profound social importance. I believe, therefore, that there should be—not a Royal Commission, because the wheels of a Royal Commission traditionally turn without marked rapidity, but perhaps a Departmental Committee, which is, in my experience, better equipped to get on readily with a particular task and to produce a Report. But I do not believe that we ought to commit ourselves to dealing with so intricate a matter until we and the public are better informed than most of us are at the present moment. It seems to me that the need for consideration of this subject by a Committee has only increased in the time which has passed since we had our discussion nine years ago.
I regret somewhat that the noble Lord who introduced this Motion confined its terms of application to the case of A.I.D. 962 without the husband's consent. In my view, the whole question ought to be brought under the review of a Committee; the one particular aspect should not be isolated in this way. What I suggest we are a little forgetting if we try to deal with this matter piecemeal is this. The noble and learned Lord, Lord Denning, called attention to a great number of extremely serious possible legal complications, many of which, if I may say so respectfully to him, were present to our minds, and indeed were mentioned, in the course of the debate nine years ago. But the objection in my mind to the limited character of the present Motion is that many of those difficulties to which the noble and learned Lord called attention arise just as much in the case of A.I.D. with the husband's consent as they do in the case of A.I.D. without the husband's consent. There are exactly the same questions about the inheritance of property and settled estates; exactly the same question in regard to this complex matter of registration, and the possible commission of perjury by one of the parties, and even the possible implication of the medical adviser in a conspiracy. Therefore I think it would be a great pity if your Lordships' House committed itself to a definite opinion on what is only a partial and limited approach to a whole question of this great importance.
How important this matter is, and how conflicting are the views held upon it, is well illustrated by the debate this afternoon. If I may say so, it is not often that both archiepiscopal barrels are discharged in the course of a single debate. I hope that it is neither sacrilegious nor, indeed, disrespectful to refer to an Archbishop as "a barrel"; but that is incidental. The most reverend Primate, the Lord Archbishop of Canterbury, who has just come in, has not, I think, realised the context in which I made the last remark. We could perhaps again have no sharper contrast than in the speeches to-day of the noble Lord, Lord Pakenham, and the noble Lord, Lord Amulree—the one, if I may say so, advocating proscription and the other almost prescription on the subject. So it will no doubt go on in public discussion on the matter. The most reverend primate, the Lord Archbishop of York, referred to the leading article in this 963 morning's Manchester Guardian, and there have, of course, been other articles of different trends and tendencies reproduced in other papers since the noble Lord, Lord Blackford, put down his Motion. In view of that strong diversity of opinion, and in view of the ignorance which I still feel, in spite of all I have read and the speeches I have listened to in your Lordships' House, I would urge that we should not commit ourselves to any final view this afternoon.
I am not going to argue this afternoon the question of whether this practice does or does not constitute adultery. There is, of course, always the remedy to which the noble and learned Lord, Lord Morton of Henryton, called attention, which was outlined in his Report. Moreover, there is also (if I may add this comment, somewhat at a tangent) in that extremely able and comprehensive Report a recommendation as to the means of getting rid of a trouble arising in nullity cases in regard to artificial insemination by the husband, which was one of the matters I raised in the earlier debate, but which I do not propose to go over again. The noble and learned Lord's report dealt largely on that aspect, with the legal question, and there are immense social, moral and, indeed, medical questions lying behind the whole matter which I feel ought to be further developed. I do not propose this afternoon to go at all into the actual merits of this much-disputed subject because, as I say, I think the first stage—and I hope the Government will come to the same opinion—is to have this matter thoroughly inquired into. It may be said that that would be only playing for delay. There has already been quite substantial delay in dealing with this matter, however, and I would rather see a little more delay and an opinion arrived at upon solid material, than I would see us hurry into action without a proper basis of knowledge and understanding behind it. Therefore I hope that, when the noble and learned Viscount on the Woolsack comes to reply, he will be prepared to say that some form of Departmental Committee should be set up to inquire into this matter, because I feel that, for the general interest of the country and for the instruction of the public, it is right that we should, in endeavouring to come to a final assess- 964 ment of the situation, not struggle along through a morass of ignorance and uncertainty but along an open and properly surveyed path.
§ 4.52 p.m.
THE LORD BISHOP OF NORWICH
My Lords, I wonder whether the noble Marquess who has just sat down would have been quite so emphatic in his demand for a large inquiry on this subject if he had had in mind the Report, Artificial Human Insemination, produced by the Archbishop of Canterbury's Commission less than ten years ago.
THE MARQUESS OF READING
My Lords, may I say that certainly I had that Report in mind. We discussed it freely in the previous debate. But it is now thirteen years since that Commission started to operate, and ten years since the Report came out. It was a Commission appointed by the most reverend Primate. I want a Commission or Committee appointed by the Government.
THE LORD BISHOP OF NORWICH
My Lords, I accept entirely the noble Marquess's view. Quite obviously, this Motion must raise, and has raised, this afternoon, a large field of thought and discussion: the legal aspect, large and important; the social aspect, the religious aspect, the meaning of marriage, and so on. I want to speak only of something that lies right behind all those, for all those different sides of our reorganisation of our common life have grown out of, and are meant to maintain, the sanctity of family life. That is one foundation that this country has always considered to be essential, and our laws, for instance, have not been the product of judicial pundits. They have grown out of the necessity to preserve, maintain and extend the principles of family life. One might say the same of religious principles, for religious principles are not only given, they are also demanded by the creaturely nature of people in this world. The laws of marriage, for instance, are not merely the laws of the Church, but are Divine guidances by which the family life of the country can best be maintained. Therefore, I should like to direct our thoughts for a moment or two to the simple human factors that lie behind this question of A.I.D.
What is the source of the demand? The source of the demand is, in essence, 965 the sentimental longing of a married woman for maternity which is apparently denied her. For that longing, for that unsatisfied desire, every one of us would, of course, have the deepest possible sympathy. But it is true that there are many great and deep desires of human minds and spirits which, for one or other reason, cannot be satisfied; and the happy individual is the one who adjusts himself Or herself to those limitations. Is, indeed, this longing for a child a sufficient foundation for accepting a new method of propagating family life? Does it not mean building a very large structure on a very flimsy foundation? However this may be, have we not all known many cases of childless couples who, just because of their inability to have children, facing all the frustration which that entails, have been brought far more closely together than they could have ever been before, and so have become, as the years pass, centres of shining love and influence to all around?
I am taking the human factors, one by one. What of the husband? It is said that no one advocates A.I.D. except where the husband is in agreement. But what is to happen in a case where the wife is insistent that she must, and will, have a child? Suppose her husband hates the idea, and tries to argue her out of it. He tries to point out to her the higher happiness that the two of them can develop without the child. He fails. She continues insistent, and she becomes more bitter. He loves her and cares for the stability of his own life. Is it not almost inevitable that he will agree and let her have her own way? And he, having agreed, perhaps reluctantly, it would be a small step for him to say to the doctor, or anybody else: "Yes, of course you have my full consent in this." But can we be certain that it will really build a family life when A.I.D. has been used?
I come now to the third human element in this situation, lying right behind this question of religion and of legality. Supposing all goes well and there is born a happy, healthy child, what of this child, this A.I.D, product. He or she is going to be brought up in a false position. Are they, the father and the mother, going to forget completely what the child's origin really was or his relationship to them? May it not happen that, at some 966 moment, by some accident or otherwise, the truth will come out? Think of the shock to the child. It would be—and some of us have seen it—a pretty desperate tragedy for the young man or young woman to realise that he or she was illegitimate. At least they may gain some consolation from the thought that they were what is sometimes called a love child—what consolation, indeed, from the realisation that he or she is a test-tube child. Is it fair that anyone should be subjected to such a danger?
But supposing things do not go right—and one cannot guarantee they will. The donor may be most wisely chosen, but who can be certain what will be the character of the offspring of this strange man and this married woman? Suppose there is friction. Suppose the child grows up unsatisfactory. Is it not likely that, in some fit of forgetful anger, the man will say, "Well, he is your child. He is not mine. You can do what you like with him". Or, equally, "You forget that I have a right to decide what is to happen to this boy: he is mine, not yours". So the whole fabric of artificial secrecy topples to the ground. It may be said that that is an exaggerated and unreal picture, but is it ever possible to secure without doubt the complete secrecy, extending over years and years? Is it ridiculous to suggest that, some day, some Member of your Lordships' House who has inherited a title and estate might discover that he was not the son of his reputed father and has no real right to either?
That leads me to think that the whole case for A.I.D. rests on the assumption that it is the wishes of the spouses that must be regarded as paramount. Surely that is not true. It is not the welfare of individuals or of couples who are married but the welfare of the community that is paramount; and that cannot be overruled or strangled by clandestine arrangements that imply, and must imply, a measure of deliberate falsehood. There is not, we are told, a great deal of this practice now. Surely this is the moment when, by one means or another, it should be declared that this practice is illegal and must not be allowed to occupy a place in English national life.
§ 5.5 p.m.
§ LORD BRABAZON OF TARA
My Lords, the noble Lord the mover of the Resolution was kind enough to remind your Lordships that I moved a Resolution about this particular, rather unpleasant, subject in 1943, and I see that I wound up with these remarks [OFFICIAL REPORT, Vol. 128, col. 823]: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 in 1943. In 1945 the most reverend Primate the Lord Archbishop of Canterbury, not prompted by the debate, so he tells us, set up a Commission. That Commission reported in 1948. We had the Reading debate in 1949, and now, fifteen years after the original Motion, we are having a debate on a very narrow issue of the whole subject. I want to say how much I agree with my noble friend Lord Reading that we should explore the subject a little further than the very narrow point that the mover brought forward to-day.
There is no doubt about it, as my noble friend Lord Denning said, that A.I.D. without the husband's consent or knowledge is nothing short of a conspiracy. With his consent, the law is in a very difficult situation, and it is interesting to note that in America (I quote from Nature)Since the publication of the Report"—that was the Church Report—there has…been a case in the Supreme Court of New York State which had 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 without 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.I do not say that that is binding on anybody, but obviously the judge gave what he thought was the best decision on a difficult case, and "that was that." So the lawyers are going to have a most enjoyable time among themselves settling some of these difficult points.
But when we come down to brass tacks the whole question really revolves on 968 whether the child should be a bastard or not. It is quite true to say that the word "bastard" is still a term of abuse, but as time goes on bastards are viewed with much less horror than they were fifty years ago, and we cannot get away from the fact that all the marriage ties and the whole of marriage is slowly becoming discounted by many forces which act upon it. It always astonishes me that in an Established Church where things are regulated by law the Archbishop of Canterbury should advocate that divorced people should not be married. I am perfectly certain he is sincere in that sort of attitude.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, if I may interrupt the noble Lord, may I say that I do not advocate that divorced people should not be married. The whole of the civil ceremony of marriage exists so that they should be married, and I approve it.
§ LORD BRABAZON OF TARA
I thought the Lord Archbishop instructed his clergy that he did not like them to marry divorced people.
§ LORD BRABAZON OF TARA
That may be true, but most people think they are married only in church, and if they are not married in church it deprives them of a great deal of their satisfaction in marriage.
A second point is the agreement which the Roman Catholics endeavour to get that all the children born of the marriage should be of that religion. Whether that is binding in law, I do not know; but it is a deterrent to marriage in many cases. Then we have the State, with its arrangement of taxation by which both incomes are amalgamated for the purpose of surtax. I have always wondered what would happen if two people went to church and were married and, when they are asked to sign the register, said, "No, we will not sign the register." They would be married in the sight of God, so to speak, and of their friends; but legally, from the point of the State, they would not be married and each would be able to maintain his or her separate income. I should like two people to try that, and I hope that the Lord Chancellor will be 969 able to give us his decision on that particular matter.
We also have the Welfare State coming along and looking after the bastard just as much as the legitimate child—quite rightly; I am not complaining about it. But it is this sort of thing which is diminishing the objection to bastardy in its broad sense. I do not believe that fifty years ago one could have heard what I understand is a true story of a lady who engaged a maid and asked her if she was married. The maid said that she was not. But after she had been employed for three months, three children turned up. Obviously, they were her children, and the lady said to her, "You said you were not married." She said, "No, ma'am, I'm not married, but I haven't been neglected." It shows what a situation we are coming to, when such an incident can happen, because it never occurred to this woman that she had done anything wrong at all. I think we must consider these other points as well as the very narrow ones.
Take the case of a couple who are unable to have a child because of the man's inability. People may say that certainly they can adopt one. But, surely, even from the father's point of view—the father who cannot be the father—it is better that they should have a child which, at any rate, is half his wife's than to adopt the child of a perfect stranger, having a different father and a different mother. These are subjects which must be considered in the general outlook and consideration of this particular problem. I end by saying that I sincerely hope that we shall not hurry in this matter, but that the Lord Chancellor, in his wisdom, will have some investigation conducted and some appreciation made of this tiresome subject in the many fields where it disturbs us.
§ 5.14 p.m.
§ LORD CHORLEY
My Lords, I should like to add my tribute to those which have been paid to the noble Lord, Lord Blackford, for giving us the opportunity of debating this important subject, and for doing so in a speech which was full of information, most objectively argued and interesting from beginning to end. Before I heard him I felt that it might have been more useful if he had postponed his Motion until such time as we have Peeresses of Parlia- 970 ment helping us in our discussion, because a woman's view on this particular matter would have been not only of great interest but of great importance. I should like also to say how much I agree with the noble Marquess, Lord Reading, in his plea that there should be an inquiry into this matter. Whichever side one takes, obviously there are a number of important matters which are difficult and which need to be cleared up on a factual basis. He referred to the reply which I had to give him on a previous occasion as "monumentally irrelevant." I think that was perhaps a little unkind; there was a certain amount of relevance in the view that until the Commission on Population had reported the situation was not altogether clear. But, of course, on these occasions a very junior Minister has to do what he is told; and secretly I quite sympathised with the noble Marquess's desire that there should be some investigation into this matter.
Your Lordships may be interested to know that the Eugenics Society, itself obviously most concerned with this matter, has quite recently set up an Artificial Insemination investigation Council on which there are a number of distinguished scientists, lawyers and sociologists. It will be a fact-finding body to look into this matter from its genetic, medical, legal and social aspects. Of course, we have already the most useful and, I think, very fairly argued Report of the Archbishop of Canterbury's Commission, which has been referred to more than once this afternoon. But it is a pity that one should have to rely on these outside organisations for the fact-finding into, and the discussion of, this problem, which is obviously one of considerable concern to the State and ought to be looked at by some Committee or Commission appointed by the State.
My Lords, I find myself rather in opposition to most of the conclusions and a good deal of the argument which has been addressed to your Lordships this afternoon. I must say that I think it is because this Chamber tends to be so much out of touch with public opinion in matters of this kind that this House has lost a great deal of the public support which at one time it certainly had. I believe that the march of events is against the views which have been 971 expressed by most noble Lords this afternoon, and that the weight of what I, at any rate, regard as progressive opinion is against the proposal to try to put down A.I.D. in one way or another. I rather gathered that the most reverend Primate has altered the view which he expressed in 1949, that it should be made a criminal offence——
THE LORD ARCHBISHOP OF CANTERBURY
I do not know how the noble Lord knows that. All I said earlier was that the noble Lord, Lord Blackford, did not know whether I had altered my opinion or not. I have not.
§ LORD CHORLEY
I should like to deal with that aspect of the matter in a little time; but it seems to me that in the view of many enlightened, forward-looking and sincere people, A.I.D. can do a tremendous amount (I was very glad that Lord Amulree put this matter so clearly) to relieve suffering and misery and frustration among, it is quite true, a small but not an unimportant number of people in the community. I think personally that to that extent it ought to be encouraged and made more readily available rather than proscribed in the way that has been advocated by so many noble Lords this afternoon. It is this point of view for which I propose to make myself the spokesman to-day, for want of better qualified advocates. I am following largely the sort of line which the noble Lord, Lord Amulree took. I agree with practically everything he said in his speech. I appreciate, no doubt just as he did, that in doing so I am sailing into rather stormy waters and under the guns of the Church, in particular; indeed, to change the metaphor, I feel rather like Daniel in a den of Bishops.
This debate, as I think was to be expected, has ranged rather more widely than the exact terms of the noble Lord's Motion. He himself did not keep strictly to the Motion, and I hope that your Lordships will forgive me if I too range rather widely. I think it has now been agreed—at least, I thought it was, until I heard the noble and learned Lord, Lord Denning, this afternoon—that in English law A.I.D. is not adultery. In the debate of 1949 the President of the Divorce Division, the noble and learned Lord, 972 Lord Merriman, described the view that A.I.D. was adultery as "nonsense"—which is a rather forthright expression to use, though it is one with which I entirely agree. It is surely quite absurd, and indeed asking for trouble, to use a word which has been used down the centuries to describe a certain form of conduct to refer to such a completely different conduct as is connoted by the expression "A.I.D.". And I believe that to introduce a qualification like "tantamount to" does not help us in the slightest degree.
I entirely agree with the noble Lord, Lord Blackford, that if a woman agrees to A.I.D. against the will of her husband, that is a breach of the agreement she made with her husband at the time she married him, that she would bear his children and nobody else's. It seems to me that if she breaks that bargain, that ought to give the husband the right to a divorce; and I was glad that the noble and learned Lord, Lord Morton of Henryton, reminded us that the very important Royal Commission over which he presided with such distinction made a recommendation to that effect. That certainly ought to be the law; and if the noble Lord, Lord Blackford, likes to introduce a Bill to make that clear I shall be glad to support him.
I believe that it would be most unfortunate to try to get round this difficulty in the way suggested by the noble and learned Lord, Lord Denning, by means of the subterfuge (for that is what it is) of employing a rule of evidence. The case of Russell v. Russell was an example of the employment of a rule of evidence. It gave rise to a great deal of difficulty and heart-searching, and to many unfortunate situations, and the law had to be changed. If the point ought to be dealt with, then it ought to be dealt with in a straight-forward manner and not by saying that although it is not adultery the rules of evidence can be used in such a way as to make it adultery. Actually, I do not agree with the interpretation of the decision in your Lordships' House which was given by the noble and learned Lord, Lord Denning. He is a much more eminent lawyer than I am, but it seemed to me that the House of Lords was merely laying down a presumption that in the kind of circumstances he mentioned there was adultery. If the woman had given positive evidence to the effect 973 that the child resulted from A.I.D., I should say it was very arguable that the decision would be the same as that in the Scottish case which has been referred to more than once. This only shows how difficult the problem is. Decisions of this kind ought not to be reached without proper argument on each side. Surely that is the elementary principle of the administration of law in this country and we ought not to advance our views ex cathedrâ in this way about problems of this kind until proper argument has been heard on either side and the matter has been properly considered by those of us who are really qualified to come to a decision.
I believe that in the great majority of cases—and this is the real crux of the matter—not only has the husband's consent been given to what has taken place but he has been just as interested and concerned in it as the wife herself. That is certainly the experience of many of the doctors who have been most actively engaged in this kind of practice over recent years. The noble Lord, Lord Amulree, referred to the valuable work done by Dr. Jackson. She makes perfectly clear that in her opinion it is the husband, more often than not, who comes and asks that this should be done. The noble Lord quoted a most moving letter from a husband who explained how it came about that he had not only agreed but had encouraged his wife to have this treatment.
§ LORD WINSTER
My Lords, could not the noble Lord take that aspect a little further? Is it not the case that a doctor will not act unless he is himself satisfied, by the most vigorous investigation and inquiry, that the husband is a fully consenting party?
§ LORD CHORLEY
My Lords, I believe that that is so with all reputable doctors, and it has been laid down time after time by doctors. If this matter were to be made criminal and driven underground, it would be the bad type of man—for example, the man who does abortions—who would come into this kind of work, instead of reputable doctors doing it, as at present. We have therefore to face the fact that if an attempt is to be made to suppress this conduct, we shall in the great majority of cases be interfering with an action which the parties to it—not only the parties themselves but also the doctor, a 974 member of a most respectable and highly respected profession—believe to be perfectly right and moral. That is a very serious position to take up.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, may I ask the noble Lord a question? He said that this practice might be driven underground. But is it not a fact that it is now underground, and that the doctor, donor, husband and wife do this in secrecy—which is what I understand by the term "under-ground"?
§ LORD CHORLEY
My Lords, I do not for a moment agree with the most reverend Primate. The object of doing this confidentially is to protect the child; and that was the very point: with which the noble Lord, Lord Blackford, was concerned to make this afternoon. To use the epithets which have been used in regard to a practice which has been carefully built up for the purpose of protecting the parties to the marriage and the offspring of A.I.D. is really a most unfair way of treating the doctors in question.
THE LORD ARCHBISHOP OF CANTERBURY
The noble Lord said that this is done to protect the child. But the child does not exist.
§ LORD CHORLEY
My Lords, the child is going to exist. The whole object of this practice is to produce a child, and surely it is chopping logic to look at it in any other way. I believe that to make this practice illegal or a criminal offence would be to take a very grave decision, because it surely strikes at the liberty of the citizen. It is a commonplace of political wisdom that criminal law is not concerned with private morals but, as the Wolfenden Committee have recently reminded us and stressed so clearly in their Report, is concerned only with public conduct, and with public conduct which injuriously affects public order in a community. I am not convinced by any of the arguments I have heard this afternoon or read elsewhere. If A.I.D. is a sin—and I do not believe it is, though I suppose that whether or not a certain conduct is a sin is a theological matter on which one ought to bow to the theologians—as a student of law and of politics I suggest that it would certainly be a sin, against political wisdom at any rate, to attempt to suppress it 975 by making it a criminal offence or by any other means than by the persuasion of rational argument.
In the 1949 debate, if my memory serves me aright, it was the noble Marquess, Lord Reading, himself who stressed how important it was that a practice of this kind should not be driven underground. I entirely agree, and I have indicated some of the reasons why I believe that is so. It is important that this practice should not get into the hands of unscrupulous and charlatan doctors. Almost all of the doctors who are now engaged in this kind of work, if not every single one, are doing so, I am sure, with a high and reverent sense of the responsibility they are taking on themselves. From what I have heard I am quite satisfied that some of them, at any rate, take very great care to find a suitable donor, suitable both in respect of health, physique, mental strength and also in respect of compatibility with the mother. That is certainly an onerous and difficult task, and I believe that the doctors who have been prepared to undertake it are deserving of our praise rather than of the censure which so many of your Lordships have passed on them this afternoon.
These doctors, too, become great friends of the patients, and do their best to keep in close, helpful touch with the family afterwards. Lord Blackford said that that could not be possible in more than a very minute number of cases. Dr. Jackson, with whom Lord Amulree and I have been in touch, has succeeded in keeping in touch with almost all of the cases she knows, and her report is most encouraging.
My Lords, if the noble Lord will allow me to interrupt, may I say that I understand that Doctor Margaret Jackson has assisted in the production of far fewer cases? All I say, and Dr. Barton agrees, is that when you get up to figures like 900 it is almost impossible to keep in touch with them; and she, at any rate, makes no attempt to do so.
§ LORD CHORLEY
It is true that Dr. Jackson has not had so many cases: I think that she has had about 70, and the other doctor whom Lord Blackford consulted had about 300, so far as I can remember. At any rate, the course 976 which is advocated, as I understand it, by the Bishops would drive these patients into the clutches of charlatans. That would be a most unfortunate thing, because, instead of having good donors, they would bring in inferior donors, and that would have the result, in many cases, of producing, instead of a very high-class progeny, a progeny which was very poor in all sorts of ways, both moral and genetic.
But I should like to return to this question of liberty, which seems to be closely involved in this problem and which is fundamental to this matter. They should surely be compelling reasons which would persuade us to deprive a married couple of a free right to get a child in this way, if, after giving the matter due attention and considering it carefully and reverently, they decide that it is the right course to take. Indeed, we should not only be interfering with the liberty of these people, but we should be intruding into the marital relationship in a way which I think the law has always set itself against—the relationship which should be sacrosanct from the prying eyes of the law and of the State. It may be that in the case of members of their own confessions the religious leaders have the right to intrude in this sort of way. But I emphatically deny them the right to intrude into the affairs of other people who do not belong to their denominations and do not accept their religions. Nor do I believe that the people of this country would be prepared to accept from the Churches that point of view. I think the fact that the Churches are almost always to be found taking up this sort of attitude is one of the reasons why the great majority of the people in this country at the present time have not got any religion at all.
And what are these reasons for making A.I.D. a criminal offence which should be of such an overwhelming character that the balance goes down, and goes down with a bang, in favour of repressive legislation? They amount to very little, if I may say so. In his speech in 1949, which I heard at the time with great pleasure, because it was an admirable speech, and which I have read again with great care, the most reverend Primate the Lord Archbishop of Canterbury used a long list of adjectives—sociological, eugenic, psychological and 977 legal reasons—which he submitted to make out a case for criminality in regard to this work. He made a great point (and it is a point that has been made this afternoon) about the false registration of the birth by the putative father, if one may call him so. The word "perjury" has been used more than once this afternoon. But this is not perjury at all. It is a criminal offence, but it is not perjury; and the fact that the word "perjury" has been used is, I think, typical of the way this debate is conducted.
The offence of making a false statement in connection with the registration of a birth can be brought before a magistrates' court and tried summarily. That is not the case with perjury, which is a much more serious offence, triable only on indictment. I personally find it very difficult to regard this matter as so serious as has been made out. It has been called a "white lie," and I think has been very well described in those terms. But this is a point which might well be looked into by the sort of Committee that Lord Reading has suggested. The difficulty could be overcome, of course, perfectly easily by putting on the register "Father unknown"; and it may be that that is the right course to adopt, afterwards having an adoption for that child. But if that were done it would mean that the secrecy was at an end, and the possible psychological shock to the child, which Lord Blackford regarded as so important, would become inevitable; because the child would in due course get a birth certificate in connection with going in for an examination, or something of that kind, and the whole matter would conic out.
The question of the legitimacy of the children, with rights of inheritance and succession involved, is clearly very much more important, and this was one of the matters with which Lord Blackford and Lord Denning were particularly concerned. Many people attach enormous importance to descent by the blood, and in your Lordships' House that point of view is obviously likely to carry very considerable weight and to be strongly held. Yet we all know that until very recently in English law, as Lord Denning explained to us, children born in wedlock were normally presumed to be the children of the marriage, however well known it was to everybody that a par- 978 ticular child was not the child of that marriage at all. Even in your Lordships' House in the eighteenth century and the early nineteenth century it was very well known that a number of people who succeeded to peerages were not really peerages of the blood; and even a very famous Prime Minister, I believe, falls into that category. Although the abolition of the rule in Russell v. Russell, which has been explained to us, has now made this sort of thing much less probable, it will continue to be a perfectly possible event—and much more possible outside A.I.D. than within A.I.D., because A.I.D. is a very fractional business and affects only a very minute proportion of the community. The saying,It is a wise father that knows his own childgoes back a long way before A.I.D. was even thought about.
In spite of the decision in the United States that Lord Brabazon of Tara told us about, I think that in English law (and I am sure this was Lord Denning's view) if it could be proved that the child was the result of A.I.D. it would undoubtedly be held to be illegitimate. The noble and learned Viscount on the Woolsack will no doubt give us his view on this particular point. But I should think such cases would be very rare indeed, and that, generally speaking, public policy and the interest of the community as a whole will best be served by treating these children as legitimate offspring of the mother and the husband.
§ VISCOUNT SAMUEL
My Lords, may I interrupt the noble Lord? Are we to understand him to say that, if the case arose, a peerage ought to descend by A.I.D.?
§ LORD CHORLEY
It would be just as right that it should descend in that way as in some other ways by which some peerages have descended in the past. I think that, on the whole, from the sociological point of view, what was adopted in the United States by Judge Greenberg, and which was read to us by Lord Brabazon of Tara, represents a very sensible point of view. But if there was a dispute as to whether a peerage had descended properly, it would be open to proof before the Committee of your Lordships' House by the use of ordinary methods of evidence as to 979 whether or not a child was an A.I.D. child; and if there was sufficient proof to satisfy the Committee that the child was an A.I.D. child then it would be perfectly clear that he could not inherit the peerage.
§ VISCOUNT SAMUEL
The noble Lord said that such a child ought to be regarded as legitimate; then on what ground could the claim to a peerage be refused?
§ LORD CHORLEY
I said that in general there was a great deal to be said for the point of view that he should be regarded as legitimate, but if in a court of law he can be proved to be an A.I.D. child, then of course he is not legitimate. I entirely accept the view put by the noble and learned Lord, Lord Denning, in regard to this matter. But in the ordinary case, because no-one knows that there has been any A.I.D., the presumption is that the child is born in wedlock; and surely that is the best view to be taken of the matter from the point of view of public policy and the ordinary interests of the community.
Of the other reasons advanced against A.I.D. in 1949 by the most reverend Primate, the only one that weighs a great deal with me is the possible psychological injury to the child involved in a disclosure. This has already been stressed by the noble Lord, Lord Blackford. It is a real possibility, although, I think, a rare one. It is so rare that on the whole I think we need not attach too much weight to it. A.I.D. has now been practised in the United States and on the Continent for a considerable time. The noble Lord, Lord Pakenham, has told us that it was used in France in the last century, and that the Holy Office of the Roman Church held against it so long ago as the 'nineties. In the United States there are thousands of people engendered by A.I.D. who are already grown up, and if this were a serious psychological problem, it would be well known already to psychiatrists and the medical profession. There is no evidence, however, that it has had this bad effect. In England, although it is true that A.I.D. children have not reached completely adult years, many are approaching their twenties, and all the evidence I have seen shows that there is no real danger of this. I suspect 980 that this is typical of the bogies put up by the opponents of A.I.D.
I should have thought that psychological damage was much more likely to follow in the case of adoption, which is the remedy for childlessness usually advocated by the opponents of A.I.D. I certainly have no wish to decry adoption. In my view it is an admirable institution, and your Lordships have a Bill before the House at the moment for regulating it to some extent. But the suggestion that adoption should be preferred to A.I.D., which has already been criticised by the noble Lord, Lord Brabazon of Tara, does not stand up to rational argument. The A.I.D. child is at any rate the child of a party to the marriage, so that we start with genuine maternal love; and if the husband sincerely loves his wife, as almost certainly he will do if he consents to A.I.D., then he will have a father's love for the baby also. I think that the quotation given by the noble Lord, Lord Amulree, bears that out strongly.
The adopted child is not only a stranger, but generally an illegitimate stranger, the fruit of some passing and often sordid sexual gratification. It seems to be generally agreed that adopted children should be told about their origin. This may well make them realise that they are illegitimate, and may well result in their trying to find their mothers, who by that time may have settled down as perfectly respectable married women. This may give rise to all sorts of difficult problems and the establishment of all sorts of neuroses. An A.I.D. child, on the other hand, is engendered after careful thought and in a way which one may call reverent—often much more reverently than many children conceived in orthodox matrimony. He is likely to be a better human specimen than the lightly conceived offspring of many ill-considered marriages and certainly than an adopted child, who is often illegitimate.
Not only is he or she likely to be a sound, healthy human being, but such experience as has been published, I think, strongly supports the view that he actually is. Dr. Jackson, to whom I have referred (incidentally, she gave evidence before the Archbishop's Commission, and her report on this matter has been referred to by the noble Lord, Lord Amulree), has said that these children tend to grow up with habits, characteristics and minds closely 981 resembling not only those of the mother but those of the father as well, such is the importance of environment. There is no evidence that parents become psychologically disturbed. Dr. Jackson has found the contrary, and, as the noble Lord, Lord Amulree, said, these marriages have become consolidated. What might have resulted in divorce has become a consolidated marriage. Surely we all ought to support, surely the Church ought to support, anything which results in marriages becoming consolidated rather than divorce taking place.
There is one other point to which I want to refer—that is, the bogy which has been raised of the possibility of semi-incestuous union between half-brothers are half-sisters which may result from the use of A.I.D. This is such a slight possibility that it is hardly worth while considering it, but it does indicate the sort of attitude which is so prevalent in regard to this matter—the completely fallacious misunderstanding which can put up an argument of this kind. Obviously, the small number of A.I.D. children, which at the outside is said to be about 7.000 from the very beginning, compared to the 33,500 illegitimate children born in this country in one year, 1956—over four times as many—means that the chances of semi-incentuous union amongst the 33,500 illegitimate children born in 1956 is much larger than amongst the whole of the 7,000 A.I.D. children (if there are, in fact, 7,000) who have been born since the beginning of this practice. So I suggest that there is no real danger in it.
To emphasise how small a problem this is from a practical point of view, I would point out to your Lordships that all the doctors who have discussed this matter say that A.I.D. is not even indicated as a possible treatment in more than one per cent. of childless marriages; and of that one per cent., for all sorts of reasons, under half will wish to have A.I.D. A number of them will prefer adoption. Others, on religious grounds, will not be able to accept A.I.D.; yet others will find it distasteful. By the time we have broken it down, we find that not more than a fraction of one per cent. of the births in this country are going to be A.I.D. births. The idea prevalent that this is a widespread public problem surely breaks down before this statistical analysis.
982 I have taken a great deal of your Lordships' time, partly because I have been heckled a good deal and partly because the case for A.I.D. has been put only by the noble Lord, Lord Amulree, and myself, and I feel that it deserves to be put fairly carefully before your Lordships. Therefore I hope your Lordships will excuse me.
In conclusion, it seems to me a little ironic that at a time when physical scientists, by discovery and invention, have made the continuance of human life on this earth a doubtful possibility, when the biological scientists and the medical scientists have provided us with a method of creating life, and not only of creating life but of creating life of a high and sound quality and standard, the Church, which, so far as I know, has not condemned the invention of nuclear weapons, should be found to be opposing it. I hope that in the bowels of compassion your Lordships will agree that this ray of light that has brought warmth into a number of households where the voices of children had not been heard is right, and will decide that this practice should not be suppressed.
§ 5.50 p.m.
§ LORD MERRIMAN
My Lords, I do not think I should have inflicted myself upon your Lordships at this stage of a full debate had it not been that the noble Lord, Lord Blackford, in introducing this Resolution challenged me, in the friendliest possible way, on two topics. The first was whether I was still of opinion that A.I.D. is not adultery. I nodded in assent to the proposition that I have not changed my mind. I have not; and I will shortly tell your Lordships why. The generally accepted definition of adultery is sexual intercourse—and I emphasise the words "sexual intercourse"—between a married person and a person of the opposite sex who is not the other spouse. Since I developed that opinion nine years ago certain things have happened. One is (and I think I ought to be allowed to refer to this) that the late Lord Jowitt, who was not present in this country at the time of the debate, in official correspondence with me indicated in the plainest possible way that, though he would like to reserve consideration until there was some further discussion, he agreed with the view I had expressed. That was nine years ago. 983 But recently, as we know, there has been a decision of Lord Wheatley in the Court of Session in a case which raised the issue in the most complete form. In a word or two, the action was for adultery. It was proved beyond doubt—indeed, it was admitted—that the husband had been far away at any time which could possibly be within the period of gestation, and that the wife had borne a child. But the wife pleaded a defence: that the child was the result of A.I.D. This was objected to as being irrelevant; and that was the case that was decided. It was said to be irrelevant because A.I.D. was adultery. The learned Lord of Session, Lord Wheatley, after an elaborate consideration, rejected that view.
The noble and learned Lord, Lord Denning, introduced what I thought was rather an unfortunate observation about the difference between the law of Scotland and the law of England. It is perfectly true that, as regards the offence of desertion, owing to the historical development of that subject in the two countries, there is a marked difference in the law. The Scots have had desertion on a Statute of Elizabeth, the details of which are still pretty strictly adhered to; whereas desertion in this country was introduced almost in a parenthesis by the original Matrimonial Causes Act, 1857 and, of course, it has been developed since then. But historically and legally the two conceptions of desertion are miles apart. However, as your Lordships' House decided a short time ago, there is no difference between the laws of the two countries in the other major offence of cruelty; and in the particular case to which I have referred, Lord Wheatley went out of his way to say that he believed he was following, as, indeed, I think he was, the corresponding law of England.
The other thing which has happened—and it has already been referred to—is that the whole of this topic of A.I.D. in connection with adultery has been considered by what, for short, I may call Lord Morton's Commission; and as I completely agree with what the Commission recommended on this topic and it is only a short passage, I should like to read it to your Lordships. It is under the heading: "Artificial insemination by 984 a donor without the husband's consent". The Commission say:Our terms of reference do not embrace a consideration of the moral and social implications of artificial insemination, but we have felt it right, to consider in what, if any, circumstances artificial insemination by a donor should constitute grounds for divorce. In our view, if a wife accepts artificial insemination by a donor without the consent of her husband she is doing him a grave injury, an injury which, in its possible consequences, is as serious as that of adultery. The intention is, and the result may be, to father a child on the husband without his knowledge. It was in fact suggested to us that this conduct should be deemed to be adultery for the purpose of the divorce law, whether or not it can accurately be described as adultery. We think that this would not be desirable. Instead, we recommend that acceptance by a wife of artificial insemination by a donor without the consent of her husband should be made a new and separate ground of divorce.I absolutely agree with every word of that; I am sure it is the right solution. There is nothing worse, in my opinion (I am old-fashioned enough to say this) than calling things by the wrong name and making things fit which do not fit. It is much better to grasp the nettle thoroughly and make this a ground for divorce.
While I am on that point, I should like to refer to a further matter in this context which I think is also something that could be dealt with at once and quite simply. The Commission recommend (I will not read the passage, but will paraphrase it in a word or two) that if the parties have assented either to A.I.D. or to A.I.H.—which is the insemination artificially by a husband's own seed—it should not be possible thereafter to raise the question whether the marriage has been consummated. That seems to me so eminently sound a suggestion that I hope it will be adopted. I am going to say a word about the possibility of a committee, or whatever body is decided upon to investigate the matter, but I should like to say, first, that, in my opinion, on those two topics to which I have just referred, there is no real reason why the legislation should not be immediate.
I hope the Lord Chancellor will not mind my saying this. A good many steps have already been taken to put the Morton Commission Report outside the category of the fate which sometimes falls to Royal Commission Reports—namely, the pigeon-hole or the waste paper basket. Everything that can be done by 985 rule has already been done. I think I may say this without betraying any secret: so far as legislation is concerned, with the assistance of those who advise the Lord. Chancellor and the Treasury Counsel, one Bill has already become law to implement a recommendation of the Royal Commission, and I think I am right in saying that seven others are in one stage or another of presentation to another House. So if one or two more Bills dealing with these two points are added, it will merely be carrying out the set determination of the noble and learned Viscount on the Woolsack to do what can be done to implement the scholarly Report which was presented by my noble and learned friend who is sitting alongside me.
Now I turn to the other matter upon which I was challenged, and that is the question of registration. On the previous occasion I expressed the strong opinion that there ought to be registration. I ventured also to anticipate the noble and learned Lord, Lord Denning, by pointing out to the House that false registration might involve both the doctor and anyone else party to the falsity in the charge of conspiracy. With deference to the noble Lord, Lord Chorley, I agree that I also used the word "perjury" in connection with false registration. If the noble Lord looks at the Perjury Act, he will find that there is a section—I have forgotten its number, but I think it is Section 14—which makes it an offence of perjury if anyone who is obliged to make some declaration by Act of Parliament makes a false declaration. Of course, that is not perjury in the ordinary acceptance of the term of lying on oath in court, but, nevertheless, it is perjury under the Perjury Act. In that sense I still stick to it.
Agreeing as I do that there must be some further inquiry, I would urge strongly that we are on the wrong lines altogether in this secrecy. I agree with what the right reverend Prelate the Lord Bishop of Norwich said about secrecy being unreal in the sense that somehow or another the fact would probably get out, but I think it is essentially wrong to have absolute secrecy at all. I have already advocated that A.I.D. without the consent of the husband should be a ground for divorce. How is the matter to be proved? Mainly by the record of 986 the fact that A.I.D. has occurred. If it acts, incidentally, as a deterrent to A.I.D., it perhaps would be no bad thing. hope that, whatever is decided about this matter, there will be none of the sort of circumstance in which a Secretary of State or his underlings can present a certificate that it is contrary to public policy to produce the facts from this particular record. It is in that context only that the facts should be known.
I do not agree, with all respect, with the noble Lord, Lord Chorley, when he described as a bogy, and the noble Lord, Lord Amulree, when he described as an exaggeration, the idea that there may be unwitting incestuous marriages as a result of A.I.D. It is not unreal when one realises that in the very Report which has been referred to—the Archbishop of Canterbury's Commission some nine or ten years ago—it was stated then as quite a common thing that one donation, so to speak, could actually fertilise one hundred women. Now suppose in the country circle comprised in the practice of one doctor that sort of thing occurs in one small neighbourhood. In the next generation the chances that the children thus produced will fall in love with each other is certainly not negligible and, I submit, is not a bogy at all. On the contrary, the very fact that there is this natural kinship, though they may not know about it, may be the very thing which leads to the sort of affection which arises between them.
I would suggest, therefore, that instead of absolute secrecy there should be safeguards. What form they should take should be a matter for consideration by the Committee who inquire into this subject. I would suggest, tentatively, that on really good cause shown, either for the purpose of a particular marriage which is contemplated or for the purposes of divorce, and so on, a Judge of the High Court should be empowered to allow discreet access to the register. I would make the register compulsory, containing a full statement of the facts, the name of the donor and the rest of it; or if it is the horrible case—I think it is horrible—of the mixed seed of the husband and the donor, that fact should be recorded, so that at least everybody would know where he stands. But, subject to that safeguard of the sanctity of the register, I would make the facts available to the 987 public—not the general public, but the public involved in the particular inquiry. I do not want to stray at all into the sociological aspect of this matter. I have tried to deal faithfully with the two points on which I was challenged, and there I leave the matter.
§ 6.9 p.m.
THE LORD BISHOP OF EXETER
My Lords, I find myself in substantial agreement with this Resolution, but I fear I am not able to go the whole way. A.I.D. constitutes a direct, violent attack upon the essence of the marriage contract, and deals as direct and deadly a blow at monogamy as does the sin of adultery. But I am not greatly concerned as to whether we shall call it adultery or not. It seems to me almost certain that it is not adultery in the accepted legal definition of that term. It seems to me also certain that A.I.D. has a different kind and degree of guilt than has adultery, for A.I.D. has not that element of carnal concupiscence or lust. On the other hand, for that fact A.I.D. substitutes another quite different sin, for A.I.D. involves the complete depersonalisation of the properly intensely personal procreative act, and it seems to me that for that reason alone it must be pronounced to be sinful and against the law of God and of nature.
Until I heard the Lord President of the Divorce Division speaking, relying happily on the vigour and power of the noble Lord, Lord Denning, I felt confident that there was really no need for any special legislative action in order to make A.I.D. without the husband's consent a ground for divorce. I remember that the powers of your Lordships' House when sitting in Judicial Committee to deal with legal definitions cannot be overestimated. In the case of Baxter v. Baxter the legal definition of the consummation of marriage was radically altered, and that in spite of much contrary evidence in earlier definitions in law hooks and hooks of morals. I was hoping that if and when a case came before your Lordships' House in Committee, where a woman had been impregnated by the seed of a donor without her husband's consent, a decision would speedily be reached that in future the term "adultery" should be held to rover that.
988 I am certain in my own mind that had the practice of A.I.D. been known in the days when these older definitions of adultery were drawn up the definition would have been so framed as to include it, because, after all, one of the most important elements in adultery is that it gives rise to the possibility of the birth of a child by the intervention of a third party. I suspect that one of the reasons, if not the chief reason, why in olden days the sin of adultery in the wife was held to be more grievous than the sin of adultery in the husband was that the wife's adultery might lead to the intrusion into the family of an extraneous child. Therefore I say that had A.I.D. been known in the days when these definitions were drawn up, the definition would have been so framed as to make it perfectly clear that A.I.D. constitutes, as I have said, as flagrant and violent an attack upon the very heart and essence of the marriage relationship as does the acknowledged sin of adultery.
But what of the practice of A.I.D. in itself? Does it stand in need of action by the State for its control and regulation? For myself, I find that I must admit that at the moment A.I.D. in this country does not seem to constitute a very grave problem. It is practiced, so far as I can judge, to a very limited extent. As your Lordships have heard, it is extremely difficult, owing to the secrecy which surrounds the whole matter, to arrive at anything like an exact figure of the number of A.I.D. births which have taken place in this country. But Dr. Margaret Jackson, to whom I was speaking the night before last, gave it to me as her opinion, based, of course, largely on her own perhaps somewhat limited practice, but taking into account the knowledge that she has of the activities of her colleagues, that the figure of 150 births per annum would be an exaggeration, and that the probable figure is much nearer 100. That does not seem to me in itself to constitute a very grave problem.
My Lords, may I interrupt the right reverend Prelate? That figure appears to be in total contrast with the estimates given in the House earlier on. That is so, is it not?
THE LORD BISHOP OF EXETER
It is indeed, but I can do nothing about 989 it. I have no access to any other information.
I can tell the right reverend Prelate of two doctors who admit that they do sixty each themselves. That gives us 120 per annum for only two practices.
THE LORD BISHOP OF EXETER
Then Dr. Margaret Jackson must have misinformed me and be herself misinformed. I think it will be agreed that at the moment, surely, the treatment of A.I.D. is in the hands of a very small body of highly-responsible, careful and magnanimous doctors, and that those doctors take the utmost trouble to provide this treatment only for couples who they assure themselves are, in their own words, "child-worthy"—that is to say, whose marriages are well founded and stable, and who are themselves psychologically normal. Further, those doctors for the most part select their donors from among their own personal friends and are sure of their physical, mental and moral fitness for the purpose. I am bound to say that I myself find it quite unintelligible how those donors, who are honourable men, are able to convince themselves that in coming forward as semen donors they are acting comparably, almost identically, in the scale of morals as are those who come forward as blood donors. I find it extremely difficult to understand how the donor can reach this conviction, though I accept that in fact he does, and he is able to perform an act which in any other set of circumstances he would find irresistibly repugnant and offensive. But I must accept what I am told: that those donors are nevertheless honourable men and act as they do with the same motive as that of blood donors.
Such, I think, is the situation concerning A.I.D. in this country at this moment. But it is, of course, not difficult to imagine that the position might quickly and radically change. The practice might increase substantially till it reached or passed the proportions which it now has reached in the United States of America. If that happened we might see here in England students lining up to offer their semen to the clinic in return for extra vacation pocket money. I understand that that is a not uncommon thing in the United States of America. The average fee for the students is from 990 five dollars to fifty dollars a time. That would not be a development which any of your Lordships would wish to see come about in this country, and it would certainly be the most unhealthy preparation by our young men for subsequent marriage.
Again, if the practice were to increase considerably we might find that instead of the fine, admirable doctors who now control this field of medicine, other doctors would move in under the motive not of generous compassion but of an easy and lucrative practice. If that were to happen we might be fairly confident that the donors would then be much less carefully chosen, and that men who were mentally, morally and physically unfit—men possibly suffering at that time from venereal disease—would be employed as donors, to the disastrous loss of the child to be conceived. We should also find, with this other type of doctor, that unsuitable couples were treated—psychologically abnormal couples, couples whose marriages were strained already almost to breaking point, and then there would undoubtedly ensue the psychological disasters which the right reverend Prelate the Lord Bishop of Norwich described. Again, if A.I.D. became at all common as a remedy for childless marriages, every late-born first child of a marriage would come under suspicion. Society and the family could never be sure about any first child which was born more than—what shall I say?—three, five, certainly ten years after the wedding took place. It would be said "They have been married for ten years and now they have a child. I wonder!"
Sooner or later, therefore, I feel confident that some control of this practice of A.I.D. will become necessary, but perhaps later rather than sooner because at present we have so little information. Because of the secrecy which surrounds this practice there has been little follow-up of the case histories of the families and children involved. Perhaps now this will soon change. As I think the noble Lord, Lord Chorley, has told the House, the Eugenics Society has already set up a council to investigate carefully the continuing development of A.I.D. from its medical, social and legal angles, and it may well be that this council, having collected its information, will be in a position to recommend to Her Majesty's 991 Government that some kind of control should be established.
But that immediately raises the question: what kind of control? I myself was a member of the Archbishops' Commission which has been referred to so often to-day and which recommended that A.I.D. should be made a criminal offence. I signed that Report, but I should not sign it to-day. I am convinced that such a step would be gravely unwise. It would certainly have the effect of drawing the conduct of this practice from the responsible hands in which it now rests to totally irresponsible, possibly even disreputable, hands, as has happened in the case of abortion. I think, too, that to make it a criminal offence might open the door to a perfectly fiendish type of blackmail.
If it were a criminal offence—this is where I part company with the noble Lord who introduced this Resolution—I suppose it would be absolutely certain that the child conceived by A.I.D. would be illegitimate. I cannot but feel that to make these children illegitimate is to press most unfairly and hardly upon the child who is, after all, the only really innocent party in the whole matter. In my view, it would be far better to institute a system of regulation and control in some such way as this: that only those selected doctors who had been enrolled upon a panel by a competent medical authority should be allowed to practise A.I.D., and anyone else so doing should be guilty of a criminal offence; that the doctors selected should be empowered carefully to treat every donor for suitability; to give A.I.D. only to married women—that is a most important point—and then only with the husband's consent. Where the husband's consent has been given, the child, if born, should thereafter be deemed to be legitimate, so that it should never be open subsequently to the father to change his mind and to repudiate the child. Lastly, the fact of the A.I.D. should be registered either at Somerset House or on the birth certificate.
Of course, the chief difficulties in any system of control requiring registration centre round the profound secrecy which the advocates of A.I.D. think to be so necessary. It is this very secrecy which opponents of A.I.D. feel to be one of its most objectionable features. I am inclined to question how far this secrecy 992 is in fact necessary. The disadvantages of the secrecy are obvious enough: it increases and encourages the irresponsibility of the donor—the donor begetting children of whom he never hears and moving among his neighbours as the unknown father of "who-knows-who". Moreover, by this secrecy, as your Lordships have been told ad nauseam this afternoon, the family and society are imposed upon—whose child is who's? On the whole, the results of the secrecy seem to me to be unsatisfactory.
Of course, there are two sides to this secrecy. There is first of all the secrecy as to the identity of the donor. This is held to be necessary in order to avoid emotional entanglements: the jealousy of the husband towards the father of his wife's child; the interest in and growing attachment towards the father of her child on the part of the wife; the paternal interest of the donor in his offspring and a possible itch to interfere. All these are advanced as reasons why the identity of the donor must be kept a secret from the child and from the husband and wife. But it is only fair to note that not all the doctors seem to be agreed about this—that at least in the United States of America some doctors think that the couple should be told the identity of the donor; and their reason is that they wish to avoid the possibility of a gnawing and a nagging curiosity developing in either husband or wife into a positive obsession. It is not for me as a layman to presume an opinion where doctors disagree on a point like this. But at least this can be said: that the necessity of keeping the donor's identity secret is not profound and that there is certainly here a matter for further investigation.
The other side of the secrecy concerns the fact that recourse has been had to A.I.D. at all. This is said to be necessary, first, because no husband would wish his own infertility to be known; secondly, because the effect upon the child of knowing the truth about its birth would be psychologically disastrous; and thirdly, because the present state of public opinion is such that if it were known that a family had used A.I.D. they would suffer some kind of social damage. Yet the result of all this secrecy is that the whole life of the family is, and must be, based upon fraud and deception. Parents will continually speak of the 993 child as "our child" and will continually speak to the child as its father and mother. The whole life of the family and its very centre will therefore rest upon and be vitiated by a living deception. I cannot believe but that it would be much better to get rid of all this secrecy and, with the secrecy, of that unmistakable element of furtiveness which at present surrounds the whole of this business.
My Lords, the right reverend Prelate has been extraordinarily interesting, but from what he said at the beginning I gather that he will continue to regard this practice as gravely sinful.
THE LORD BISHOP OF EXETER
My Lords, would the noble Lord let me finish? Whether the identity of the donor is concealed on not, let the fact that there has been A.I.D. be openly registered as the facts are now to be registered in the case of adoption. Would it really be so disastrous for the child if it be told at the right moment and in the right way by its own mother the truth about its birth? Is the child in so different a situation from that of the adopted child, or that of the child whose mother divorced its father in its infancy—with an unknown father, or a father of whom one never speaks, but also a loving and a loved stepfather?
In the judgment of the Church—and I am in profound and complete agreement with it—A.I.D. is against the law of God. It is sinful, and wife and donor are guilty of the sin of adultery or something very like it; and the consenting husband and the doctor are guilty of formal complicity in that sin. Only the child is innocent. In my judgment and in the judgment of the Church that is the true state of the case, morally, for A.I.D. But of course there can always be some who will not accept that judgment To them I would say, and I believe the State also should say: "If you really believe that A.I.D. is right, then do it openly and without shame. Be rid of pretence and deception. Accept the necessity of open registration." If they cannot do so, may it not be because in their heart of hearts they know that A.I.D. is a wrong way in which to satisfy the desperate and noble urge towards parenthood, and that for doctor and donor A.I.D. is a wrong impulse of com- 994 passion to satisfy a need? And if, in their heart of hearts, they do think that, I would say to them, For God's sake, do not do it!"
§ 6.34 p.m.
My Lords, at this late hour I will leave out some of what I had intended to say, for I am sure that we all want to hear the most reverend Primate the Lord Archbishop of Canterbury and the noble and learned Viscount the Lord Chancellor. I should like to say how grateful I am to the noble Lord, Lord Blackford, for having put down this Motion, which he has moved so ably, and thereby done a great service to the country. That is a first step. I feel strongly that it is time for action, and I was hoping to find out to-day what is to be the second step. Legislation has been recommended. The Commission of the most reverend Primate recommended legislation in 1946, but what has been done? The Royal Commission has made recommendations, but what has been done?
I entirely agree with what was said by the noble Marquess, Lord Reading. I believe that it is our duty to the public for this House to make the position clear to them. I am quite sure that the public do not know where they are. Since Lord Wheatley has given his judgment in the case that has been mentioned, I believe the public are more than ever at sea, and that as a result of that decision this practice may grow. It is up to this House to do something to stop that increase, and there is a grave danger that Lord Wheatley's judgment will be misunderstood. How many people read a judgment like that? Public opinion is formed very much more by the headlines, in the newspapers, and those headlines, as I have read the Press, have been misleading on this point. Here is one which says: "Insemination Not Adultery: Judge's Ruling". I believe that that is a misleading statement. The public will say, "They say that it is all right."
What in fact did the judge say? He made no such remark as that insemination was not adultery. What he said was:Whether such an act constitutes adultery in its legal meaning … it does not conform to the common conception of adultery … it is not adultery as the law interprets that term.995 The judge went on to refer to case after case throughout the world, and he went through the law of France and Holland, as well as that of Scotland and England which, as has been said, is the same. He concludes that, as defined by the law, A.I.D. cannot be held to be adultery, for the simple reason, to take one of his conclusions, that it takes two people to commit adultery, as defined by the law; that that has always been so, and therefore, this practice cannot logically be regarded as adultery. It is all very misleading, and I do therefore urge, in my old age, that we must have a new definition of adultery.
In Scotland I find that all my legal friends to whom I have spoken are in agreement. All are urging that action be taken. I said to one judge who is a friend of mine: "How slow you are! Why have you not found a new definition?" His reply made me think. He said, "Who is to blame? Are you a Member of the House of Lords? We have been waiting for ten years for you to do something, and what have you done?" I feel that is a fair rebuke, and that it is up to us to take action. I feel therefore that we might know—I believe the public are entitled to know—what action is to be taken, and I would venture to ask the noble and learned Viscount whether, in replying to this debate, he could give us an answer to this question: Have Her Majesty's Government taken, or do they contemplate taking, any steps to promote legislation to prohibit A.I.D.? Or do they intend to set up an inquiry of some kind into the question?
§ 6.40 p.m.
§ LORD MATHERS
My Lords, I am glad that the noble Lord, Lord Kinnaird, has dealt so clearly with the judgment made by Lord Wheatley. That is to a certain extent the reason for the Motion before us. I agree with him very heartily that it would be well if we could make the position absolutely clear, although I think that there is very little room for disapproving of the Motion. Within the limits of this Motion, I feel myself able to go all the way with the noble Lord, Lord Blackford, who moved it. I am glad that he moved it, because I feel that it is time for this controversial subject to be ventilated and for something to be done regarding it.
996 I was out of the Chamber for a short time when the earlier speeches were being made, but I came back in time to hear the noble Marquess, Lord Reading, who declared in favour of an inquiry by the Government. I think that the position at the moment is so clear that it should be possible for a Government statement to be made and for Government action to be taken. I was greatly interested in the speech made by the right reverend Prelate the Lord Bishop of Exeter, and it was particularly interesting to me to see how he came round to the point of putting the child in the principal position with regard to the use of A.I.D. That is what I have in mind all the time when I hear illegitimacy being spoken about and talk of illegitimate children. To me there are no illegitimate children; there are only illegitimate parents.
What we see here is a breaking of our moral code. We agree that abortion, for instance, is a breaking of our accepted moral code in this country, and that fornication is against that code. But the practice we are discussing now is even more objectionable, I consider, than fornication, because it is so deliberate and cold-blooded in the way it is carried out. Fornication might produce a child in what Robert Burns calls the impulse of a "treacherous inclination." A.I.D. is used in cold blood for the purpose of producing a child which cannot be other than illegitimate. A child born as a result of a sudden impulse can be made legitimate by the marriage of the two parents, but a child produced under this means, as I see it (and I am keeping within the terms of the Motion before us), cannot possibly be made legitimate. When the right reverend Prelate the Lord Bishop of Exeter spoke about the child, he seemed to me to make the secrecy that was necessary so difficult that I felt it would be much better for us to work for the discouragement, and even the abolition, of the practice of A.I.D. rather than to think of remedying things or doctoring things up in a way that might lead to more agreement with what is being done under this practice.
I am wholeheartedly in favour of making this an offence, of taking steps to ensure that those who carry out this practice should be made aware that it is against what we stand for in this country, and of sanctions being taken against doctors who go to the length 997 of practising this means. I think that all these steps are necessary in order to clear away and to clean up the position that we are examining under this Motion to-day.
§ 6.46 p.m.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, I hope to detain the House for only a few minutes. This has been a very long and most valuable debate. Nine years ago I spoke myself on this subject. It is there on record and everything I said then is relevant and right to-day. I would just mention, as an indication, that we do not really want a long delay for more experience of this thing, because nothing has happened to alter its broad outline in the last nine years. What was said then is true now. Nor do I want to attempt to add to the debate, because there is nothing remaining to be added.
I want to do one thing only, in essence, and that is to say that I hope that the noble and learned Viscount will commit the Government to some kind of action. I do not very much mind, so to speak, what action, so long as some action is taken; for if we go on as we have done for the last nine years, talking occasionally about the subject and doing nothing, we shall get more than ever into the state where, by sheer inadvertence and inertia, this habit will be established as part of the social life of this country, and people will say all the more violently, as they are beginning to say now, "There is no going back on it. It has come to stay." I am perfectly sure that the matter cannot be allowed to stay in its present form.
I wish to say two things, merely to clear the air. First, so far as I can speak for the Church of England, there is no objection at all to A.I.H.; and I say this because even this afternoon I have been asked whether the Church's attitude is the same on A.I.H. as on A.I.D. It is totally different. A.I.H., as I conceive it, is a method for helping the fulfilment of one of the main purposes of marriage which would otherwise fail, and there can be no kind of moral objection to that. But A.I.D. is utterly different. Secondly, I would say, as I think my brother of Exeter said, I am not in the least interested in whether you call A.I.D adultery or whether you do not call it adultery: it is a matter of language and not the real thing. If the law likes to say 998 it is not adultery, let it say that; if it prefers to call it adultery and have done with it, let it do so. But the fact remains—and this, I think, everybody has admitted—at present it is a matrimonial offence; and that is what we have to deal with. Is this matrimonial offence to be allowed to continue unregulated and uncontrolled? It is on that question that I should hope we shall hear something from the Government.
I would add this. I am told that the Church is accused once more—and I am not sure that the noble Lord, Lord Chorley, had not got it in mind—of being too negative and of being always content to say "No" when anything new is discovered. That is really not true. I would say, in passing, that the Church has said "No" a good deal about atomic bombs. We have by no means taken them "lying down," if I may put it like that. We have a strong moral compulsion against the very idea of atomic warfare and atomic bombs. As we know, a negation has often a real positive value. Most of the Ten Commandments are negative, and they are none the worse for that. Therefore the Church considers this matter from a very positive point of view.
As has been already demonstrated by some of my brethren, the Church rests on the positive Christian doctrine of personal responsibility for every act. Every person shall carry his own burden and stand for what he is, honestly, before all men and before God. That puts an end at once to the whole of the environment of secrecy and conspiracy which surrounds A.I.D. A.I.D. involves in falsehood and deception—and nobody has denied it—the husband, who falsely claims the status of father; the mother, who pretends to bear in wedlock a child who is born out of wedlock; the donor-father, who, by his own choice, can never know his own child or the mother who bore it to him and can never discharge any of the responsibilities of his fatherhood; the child, who, after all, need not have been born but who is to be deceived as to his parentage and can never be undeceived but remains an anonymous child, bearing a false name; and (we may as well face it), however high-minded he may be, the doctor, who not only connives at a perjured declaration of birth but also makes the supposed father and mother promise to conceal the truth for ever from the child 999 and from society. I call that a conspiracy and nothing else.
If, as my brother of Exeter suggested, we can get rid of all the secrecy, at least that would bring the matter into a healthy atmosphere, but in the judgment of many doctors, that would kill the whole idea. Well, that would not be a bad thing. This moral confusion, resting on a series of deceptions, cannot be tolerated, because truth is the very cement of a civilised society and cannot be sacrificed merely to satisfy personal desires.
May I bring the debate back to the question: what is the reason for A.I.D.? There is only one reason. We may sympathise with it naturally and wholeheartedly, but that does not end the question. Out of all the married women who are childless and who really desire children, many—I suppose most—successfully come to terms with their disappointment. Some feel unable or unwilling to do that. They are torn by a longing, a psychological longing, to have what they cannot have within the terms of their wedlock, and they turn to medical science to resolve their conflict and secure the satisfaction, the noble satisfaction, for which they crave. We can understand and sympathise. But how many psychological longings there are which men and women have and which they have to learn to control and sublimate! If this particular longing is to be satisfied, it can be only at a great, and some of us think a disastrous, price. How great a price this debate has revealed. It cannot but destroy the integrity of marriage as ordinarily understood. It is incompatible with the Christian doctrine of marriage, in which soul and body, spiritual and physical, the act of conception and the mutual bonds of responsibility which precede and follow it, are inseparable and sacred.
But on the lower level of social order, if A.I.D. is accepted there are most unwelcome consequences. The law will have to decide whether for purposes of divorce it is a matrimonial offence or not, and I am sure that that could be decided at once. But every couple who, after a period of childlessness, have a child will have to bear the suspicion of their neighbours that the child has been born by A.I.D. I would repeat what I 1000 said nine years ago, and it is still true: that many nervous, adolescent children will have a haunting fear from time to time, as they do now, one which can never be resolved, that they do not belong to their supposed parents. If a child asks his father, to end the whole atmosphere of doubt, the father will have to reply with the truth or a lie; and I cannot think that the father will lie to his own supposed son.
The strange thing in the whole of this matter, to my mind, is that the medical profession should have been content that some of its members, on their own individual authority, should take the law out of the hands of Church and State into their own hands and should act in a conspiracy of secrecy in a matter of such far-reaching spiritual, moral, legal and social import. I should suppose that the medical profession itself would desire authoritative clarification of what may or may not lawfully be done in this matter. For that reason alone I think that the Government ought to act. If, as I trust, the Government recognise that they must take some action, there are three possible, courses.
I put first that which I believe to be the only impregnable one: that, if all that we have heard to-day of the complications and perils and risks of A.I.D. is true, it should be forbidden by law. If the social welfare requires it, I cannot see why this should not be done. And I have a feeling that throughout the country as a whole there would be a great relief if the people knew that, clearly and definitely, it had been decided by Parliament that this matrimonial offence should be in itself even more illegal than it appears to be now; for I gather from the noble and learned Lords who have spoken that it is already against the law. Well, let us make it finally against the law before it is too late.
As I listened to some of the speeches, I could not but feel that this would cut away an immense amount of the confusion and complexity which it is unfair to ask the medical profession and the country to bear. As I listened to the noble Lord. Lord Chorley, and to my brother of Exeter, I found them involving themselves in more and more complicated issues about what to do to make A.I.D. possible in the social environment. At least my brother of Exeter all 1001 the time said that it ought not to be there at all, and the logic of the right reverend Prelate's argument to me was that the sensible thing was to put an end to it altogether. But I have learned by hard experience that what is right, obvious and sensible is not always done in this world, and I can quite believe that the noble and learned Viscount on the Woolsack will not feel it possible at this moment to commit the Government to such action.
Is there any other action to which he can commit the Government at once? I should have thought that after this debate he could without hesitation commit them to some form of registration—still to be worked out in detail, no doubt, but certainly to be accepted as the cardinal principle. The noble and learned Lord, Lord Merriman, made, as I thought, a quite convincing case for the necessity of registration; and, indeed, if the use of A.I.D. is to be a matrimonial offence, quotable for the purposes of divorce, it must be registered somewhere. That fact alone demands it. I hope that the recommendation of the Royal Commission will be accepted; and that with it will go some form of registration. The right reverend Prelate, the Lord Bishop of Exeter, amplified the idea, and gave many more details, but the object is that there should be no secrecy; there is an official record, which, as the noble and learned Lord said, should be accessible only on an order of the court.
Supposing that the Lord Chancellor, in his wisdom, says: "I dare not commit the Government so far as that," what remains? For myself, I am sure that it ought to be either prevention or registration. But whichever it be, I would add that we need not really be afraid that the law will be unworkable. For the whole medical profession will accept scrupulously, as a matter of professional honour, as it always does, what the law decrees. Let this practice be driven underground, as abortion is, and no responsible doctor would practise it; it would have the ignominy that it deserves. For myself, I should expect the medical profession to welcome a step which would relieve them of a spiritual, moral and social responsibility which does not belong to the medical profession alone. That is what I feel most deeply about in the whole matter: that, while we 1002 honour and respect the medical profession beyond expression, they must not arrogate to themselves—and only a few of them do—the right to settle a matter of such profound spiritual and moral significance. I think it is the fact that the majority of the medical profession, and its leaders, will not touch this method. That itself is, I think, an indication that they need the support of a clear guidance to deliver them from it.
The responsibility now rests firmly on the shoulders of the Government, and demands some kind of action. If the Government feel that they dare not commit themselves to anything more positive than an inquiry, then all I can do is to quote the final words of the speech which I made nine years ago, when I said [OFFICIAL REPORT, Vol. 161, col. 409]:… if nothing else can be done there should be a full official investigation.…My Lords, I have the hope that, after nine years, there might at least be an affirmative answer to that question.
§ 7.5 p.m.
§ VISCOUNT ASTOR
My Lords, I rise to speak for only two or three minutes, because I should not like it to be thought that the point of view put forward by the noble Lords, Lord Amulree and Lord Chorley, has not some sympathy on this side of the House. If one thing is clear from this debate, it is that the House is unanimous in thinking that A.I.D. without the husband's consent should be a ground for divorce; that the Scottish ruling should not be followed in England. I am sure that, whatever our views or religious beliefs might be, we should support the Government in that respect. On the other hand, I think it would split the country deeply if A.I.D. was to be made a matter of a legal crime, rather than a matter of personal morals. What we want to-day is not a priori arguments, but an investigation. We have had a priori arguments which might equally well have been directed against the adoption of children. We have had a priori arguments which should be put to the test of careful, scientific investigation. A.I.D. has been practised, and as a result many children have been born. It is possible now to have a careful scientific inquiry to find out what have been the social, personal and family effects of what has been done for a long time. I hope that, before we are asked to make up our 1003 minds on the general principle, the Government will undertake such a careful inquiry to try to produce the facts showing what has happened in these cases.
§ 7.7 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, before I disclose what degree of satisfaction I can give to the most reverend Primate the Lord Archbishop of Canterbury, and to others who have asked for it, I am sure your Lordships would like me to say, in winding up the debate, that we all desire to express our thanks in no small measure to my noble friend Lord Blackford for initiating this debate; and indeed, I believe that those outside the House will feel gratitude to everyone who has spoken in the course of this afternoon, from so many different points of view, on this delicate and difficult subject.
We have had evidence to-day of the strength of feeling that exists in this House on this matter, as it must, I am sure, exist in the country as a whole, on one side or other of this controversy; and that must be so in a controversy which touches the most intimate aspects of private life. We have heard of the variety of important problems with which society is confronted by the practice of artificial insemination as it affects the wife, the husband, the child, and family life generally. I think this has become clear: that we have been made aware that after all the controversy of recent weeks, there remains a great deal about the practice itself, and about its effects, which is still largely unknown, except to the few who have been closely associated with it. On that point, I agree with what my noble friend Lord Astor has just said.
It is inevitable that we should to-day have turned our minds back to the last occasion on which this subject was discussed in this House, in March, 1949, when my noble friends Lord Reading and Lord Brabazon of Tara put the Motions before the House. I think at the end of that debate there was a fairly clear indication that some sort of inquiry on the part of the Government was necessary. Again, much reference has been made to the fact that a year before that debate the Commission appointed by the most reverend Primate the Lord Archbishop of 1004 Canterbury had already produced a Report on this subject; I have recently devoted further study to the Commission's Report, and I should like to add my tribute to those that have already been paid for a remarkable document. Whether or not one supports its conclusions, one cannot but admire the lucidity of its arguments and the scrupulous exposition of both points of view throughout the Report. I am glad to see that the right reverend Prelate the Lord Bishop of Exeter is here, and I hope that he will take that comment as a most sincere reaction of mine when I studied the Report carefully before this debate.
I hope that the right reverend Prelate agrees—this is the impression that I got—that the Commission seem to have recognised that many aspects of the problem required fuller examination than they were able to give them, with the necessarily limited information they had at their disposal. It is now over twelve years since the members of the Commission were appointed, and over ten years since they produced their Report. It is reasonable to suppose that there is to-day a good deal more information than was available in 1948 about the practice of artificial insemination and its effects, although I agree that it is bound to be hard to come by, when one bears in mind the delicacy of the subject and the natural reluctance of those concerned to discuss these intimate, personal problems. But as I understood both my noble friend Lord Blackford, and the most reverend Primate the Lord Archbishop of York, it appeared to me that they seemed to accept that more information was available. I think that is an important point. Also, if I may draw the threads together, since the debate nine years ago we have had, as my noble and learned friend Lord Merriman, and, indeed, the noble and learned Lord, Lord Morton of Henryton, reminded us, the Report of the Royal Commission, presided over by Lord Morton of Henryton, who were concerned with artificial insemination as it affected the law relating to marriage and divorce. I hope your Lordships will confirm that, among all the aspects of the subject on which there have been divergencies, there is no divergency and nothing but support from your Lordships' House on both the recommendations which the Morton Commission put forward.
1005 May I remind your Lordships that the Commission recommended unanimously that artificial insemination by a donor without the consent of the husband should be a ground for divorce or for judicial separation. They also recommended that artificial insemination with the husband's consent should be a bat to proceedings for nullity on the ground of impotence. I am taking it that I can go back to my colleagues after this debate and say that both these proposals of the Morton Commission have the approval of this House, and that we should operate on that basis. It was not within the Royal Commission's terms of reference to consider the wider implications of the problem, as appeared from the actual words which my noble and learned friend Lord Merriman quoted to the House.
Our debate owes its origin, as my noble friend Lord Blackford has reminded us, to the enormous public interest in this subject that has been aroused during the last few weeks by the decision of the learned Judge, Lord Wheatley, in the Court of Session, that artificial insemination of a woman without the consent of the husband does not constitute adultery, and, if he will allow me to say so, by the speech made to the Convocation of the Province of Canterbury by the most reverend Primate. I find it difficult to remember a topic which in so short a space of time has aroused as much interest in the newspapers, on the radio and, indeed, among men and women with (if I may put it that way) the quietest and most reflective minds when they meet. I want to make this point, and I hope the most reverend Primate the Lord Archbishop of Canterbury will consider it a fair one. This is due partly to the novelty of the subject to many people, because it has hitherto been rarely discussed, at infrequent intervals; and partly, as I have said, to the fact that it concerns so intimate and private a matter of human life.
My noble friend Lord Blackford has concentrated his Motion on the legal aspects of the subject, and of course that is the direct issue. I hope he will not take it amiss if, before I come to these—and I promise him that I shall do my best to deal with the legal aspects—in deference to the fact that the debate has dealt with wider aspects of the matter, I first say a word about these wider aspects. Wherever Christianity and Western civili- 1006 sation have spread, the family has been the basis of the structure of society. Whether that basis should be changed can be argued about like any other subject in the world. Some—and a powerful supporter of this view was the Dean of St. Paul's in the Minority Report of the Archbishop's Commission—would say that we take it too much for granted. Others would go further and would substitute some kind of institutionalised society. Others regard the family as sacrosanct. But whatever our personal views, we must all agree that in fact today the family is the basis of our society; and before welcoming any process which may upset that basis we must give that process the most careful examination.
I should like to put the balance, I hope fairly, from the two points in this regard. Artificial insemination by a donor, like divorce, may work a startling change in the relationship of husband and wife, parent and child. We cannot calculate what psychological disturbances may be caused, after the child is born, by doubts, suspicion and resentment. There is the difficult question, which has been in all our minds to-day, of whether one should tell or whether one should keep the matter secret. If the child is told, he will know that he is not his apparent father's child, but he can neither know nor be able to find out whose child he is, and who are his half-brothers and sisters. If he is not told, there will be a permanent cloak of deception about his life which may at any time be accidentally or deliberately pierced.
As has been pointed out, and as I fully accept, quite apart from the legal position, there are the moral aspects of that deception. One must face, as the right reverend Prelate the Lord Bishop of Exeter asked us to face, that A.I.D. is the final step in the depersonalisation of sex. It is more than a technical process; it removes procreation entirely from the nexus of personal relationships, whether inside or outside marriage, when there is not even the most fleeting contact between the man and the woman. That is a side which we must all face, and I hope that I have put it fairly; I have certainly tried to do so.
But, my Lords, look at the other side. We all know of many women whose lives are made miserable because they 1007 are denied the opportunity of bearing children. We cannot be unsympathetic to those women. Nor is that the only facet that we must consider. We must consider the husband who, through no fault of his own, has placed and is placing the woman in this position. We must consider that those two people are married, if your Lordships like to consider it that way, husband and wife in the sight of God, and there is that precious relationship which, it is urged, the use of this practice can do much to make beautiful and to continue to exist in the world. Again I hope your Lordships will not think that unfair—I think it is a fair way of presenting it. There is evidence that in some cases A.I.D. has made an enormous difference to the success of marriages that were in that parlous state. The reasons, I think, again require greater consideration. They could not be put more forcibly or clearly than they are in the Report of this Commission, even by the majority who disagree with the practice. But it must be read with the Minority Report which the Dean of St. Paul's put in. That, I think, makes a very formidable problem, apart from the legal position. I will be as short as I can, but I think my noble friend Lord Kinnaird, and others, indicated that they would be helped if I gave your Lordships the legal position as I see it. As I say, I will do it as briefly as I can. I thought that I ought to mention those more general points in order to make clear to your Lordships that Her Majesty's Government are fully alive to the possible far-reaching consequences of lie practice.
May I turn now to the legal aspects of the matter? The word "adultery" has been used, and I think that, as the debate has gone on, the importance of the actual use of this word has steadily declined, not with any idea of saying that adultery is an unimportant thing, but because in this context the label is not, I think, of great importance. I agree with those who have said so. But the first question is: Should A.I.D. be labelled—I put "labelled" in inverted commas—adultery? That is, does it now, in law, already have the same consequences as normal extra-marital intercourse? That is to say, if there is no consent by the husband, is it already a ground for divorce; and if there is consent, is it 1008 tantamount to adultery which has been connived at? I think that is the first point. The second point is whether, if it is not now adultery in law, it should be a ground for divorce. And the third point is whether it should not only be a ground for divorce but should be prohibited.
Noble Lords who have read the Report of the most reverend Primate's Commission will have seen that there is authority there for the proposition that A.I.D. is adultery. Both Mr. Justice Vaisey and Sir Henry Willink, who were members of that Commission, took that view. There is the obiter dictum in the Canadian case of Orford v. Orford (1921, 58 D.L.R., 251); and there is a very serious addition to that weight of authority in the speech of my noble and learned friend Lord Denning to-day. But the dictum of Lord Dunedin in Russell's case, on which Mr. Justice Vaisey and Sir Henry Willink also relied, does not in my view really support that proposition. On the other hand, there is the highly persuasive authority of my noble and learned friend Lord Merriman, who has spoken to-day, and then there is the judgment of Lord Wheatley in the Court of Session.
I do not wish the House to think that I am pronouncing a considered judgment when I say that, for my part, I am most impressed by Lord Wheatley's reasoning. I should certainly not be disposed without much more argument to endorse the confident view of the most reverend Primate's Commission that A.I.D. is adultery at the present moment, either in English or in Scottish law. Somebody raised the interesting point of whether it could be cruelty. That is a matter which might well be considered, but it is off the general line of our discussion to-day and I will not pursue it now.
My Lords, we come to the second point, and that is about A.I.D. as a ground for divorce. As I have reminded your Lordships, the Royal Commission of which my noble and learned friend, Lord Morton of Henryton, was the Chairman made a unanimous recommendation that A.I.D. without the husband's consent should be a ground for divorce. Your Lordships may have noticed, and my noble friend. Lord Blackford, who read the judgment so 1009 carefully, may have seen, that Lord Wheatley said that it constitutes a grave marital offence. From what has been said to-day, I have no doubt that all noble Lords agree. I can assure the House that Her Majesty's Government are impressed by the force of the arguments adduced in support of this proposal, and they will be all the more impressed by what has been said to-day. On the actual timing of legislation there are a number of considerations that I should like to consider, including my proposal for dealing with other aspects of the subject to which I will come in a moment.
That was A.I.D. without consent. Whether the same result should ensue if the husband consents is a very different question. I think your Lordships would agree that it is on an entirely different footing. The Royal Commission did not recommend that it should be a ground for divorce, and it would be difficult to regard it—that is, artificial insemination with the consent of the husband—as a more serious marital offence than adultery connived at by the husband. I do not know whether the most reverend Primate actually formulated it as I have done. I rather thought he was approaching that at the time he used the word "connivance" in his speech. There obviously is all the difference in the world between A.I.D. with consent and A.I.D. without consent, from the point of view I am considering at the moment.
Now, my Lords, I come to the question which the most reverend Primate the Lord Archbishop of Canterbury has put to us again to-day, that really the most satisfactory solution would be to make A.I.D.—think he means without consent—a criminal offence. I understand that I am right.
§ THE LORD CHANCELLOR
In fairness, I ought to remind the House that the most reverend Primate's Commission, with one exception, again the Dean of St. Paul's, thought that A.I.D. should be made a criminal offence, though I am glad to think, in view of what I am about to say, and if I understood him correctly, that the right reverend Prelate the Lord Bishop of Exeter said that he would not have signed that part of the Report as he is informed to-day. The last thing in the 1010 world I want to make is a debating point, but I think that emphasises the general argument I am trying to make—that this is a subject on which there is much that has happened in the last ten years that: can be learned and applied before the mind is made up. I say nothing further than that, and I hope that that is not unfair. A.I.D. is certainly not a criminal offence now.
The most reverend Primate, in relation to the Wolfenden Report, discussed the rightness of existing and, indeed, long-established and accepted law encroaching on the field of private morality. Whatever our views are on that subject, I should have thought that everyone would have agreed that great care must be exercised before new law creating fresh criminal offences is enacted in that field. I have not forgotten the other aspects of the matter. I will consider most carefully what my noble and learned friend Lord Denning has said about the general conspiracies. I think he would agree that although the law on conspiracy is perhaps one of the most complicated sections of our law, one must in the end come to consider what was the agreement made between the parties at the time: and then one must consider, was that an agreement to do something that was criminal, or to use criminal methods in achieving that end? I have also not forgotten, I want to say at once, that there may be, but need not be, a consequential offence in making a false entry in the Register.
May I say one word on the point that was raised by the noble Lord, Lord Pakenham, after a most admirable and full account of the position of his own Church in this matter? He raised the question of regulation or licensing. Lord Amulree also came to that point from another point of view, and the right reverend Prelate also approached it; and, indeed, the most reverend Primate, the Archbishop, put it to me as number two of his heart's desires. I want to say only this. Lord Pakenham argued that regulation would amount to approbation, and of course that is an argument with which we are familiar in regard to betting and gambling and prostitution. I take that point because it is one I have often had to consider.
But before the question of regulation can arise, the Government and Parliament will have to make up their minds 1011 on the more fundamental question: is the practice of artificial insemination generally so harmful that it must be suppressed, as the most reverend Primate desires; or, though harmless in some cases (for example, artificial insemination by the husband gained the most reverend Primate's support) harmful and to be prohibited in others (for example, A.I.D. without consent, or of a single woman); or—and this might arise—is it generally harmless, but in practice either physically dangerous or liable to abuse if practised by unscrupulous or undesirable persons? In this case regulation might be necessary. My Lords, if one considers that point, which has been posed as a secondary point, both by the noble Lord, Lord Pakenham, and by the most reverend Primate, I suggest to your Lordships that there is not sufficient information, either as to the extent of the practice or its consequences, nor is sufficient Parliamentary or public opinion yet formed, to enable this fundamental, prior question to be answered.
I should like to deal for a moment with the question of legitimacy and legitimation, because I think that that is an important facet of the matter. It seems to me difficult to deny that the children of artificial insemination are, for purposes of legitimacy and legitimation, in the same position as if they were conceived in the normal way. That, I think, is what my noble and learned friend Lord Denning expressed as his view earlier in this debate. I cannot say, and I do not think my noble and learned friend would claim to say, with absolute certainty that this is the law, because there is no decided case that absolutely covers all possible variations of the matter, and it has not been to the House of Lords. But I think a particularly difficult case, from the point of view of proof, is that of the child born by A.I.D. with the husband's consent—I say "from the point of view of proof," because clearly in these circumstances it is difficult to imagine how the proof would be forthcoming. That is a point that we have to recognise. Then there is the completely different question of whether these children should be, as opposed to whether they are, legitimate.
Again, I think the last mentioned case—that of a child born by A.I.D. with the husband's consent—is the most difficult. 1012 But it is an important question because, apart from the general matters that I mentioned earlier in my speech, on legitimacy depend many gifts of property, the rights on intestacy, as we have heard, and, of course, inheritable honours of which we have spoken. The right reverend Prelate the Lord Bishop of Norwich dealt with that aspect of the matter. Then, lastly but not least—I do not want the right reverend Prelate to think that there is any least about it—there is the important question of falsifying the Register and thereby committing an offence under the Perjury Act.
But that is not an end to the matter. There is a more general point which may be difficult. As your Lordships can well imagine, many Statutes refer to "father", "son", "daughter" and "parent". Are these expressions apt to describe the donor-child relationship? It is a question of real importance. May I give the House two obvious examples. One is the Punishment of Incest Act, and the implications there are obvious. Then there are the Bastardy Acts, where there are difficult questions as to whether a single woman who has a child by A.I.D. could or should be able to claim maintenance from the donor if he could be identified. I hope that those two examples are enough to show how really complex the problem is and. I hope, to dispose of any possible lingering impression in your Lordships' minds that I am merely making a debating point, because I am not.
May I say a word about nullity? May I remind your Lordships that it is not only A.I.D. that causes difficulties. In 1949 the attention of this House was drawn by my noble and learned friend Lord Reading (who has told me that he has to go to an urgent engagement) to a decision of the High Court in that year. It was held by the court that the birth of a child by A.I.H. was not necessarily a bar to a petition for nullity on the ground of impotence, and the question there is whether the parties have approbated the marriage. But I would remind your Lordships (though the law was different before 1949) that even if the marriage is annulled, the child in such a case is now deemed to be legitimate by reason of the amending legislation of Section 4 of the Law Reform Act, 1949, which is now the 1013 Matrimonial Causes Act. But that legislation was not retrospective and the new principle did not apply to a decree of nullity before December, 1949. That was the position with a form of artificial insemination which has not been animadverted against. The wife got a decree of nullity, and in all cases before December 16, 1949, the child was illegitimate. We have improved that for the future.
§ LORD MERRIMAN
My Lords, would the noble and learned Viscount allow me to remind him that a judgment was given by Mr. Justice Pearce (as he then was) and that he was party to the unanimous decision that artificial insemination, whether by husband or a donor, so long as it was with the consent of the husband, should be approbation of the marriage? That is in paragraph 287 of the Report.
§ THE LORD CHANCELLOR
My Lords, I am grateful to the noble Lord, and as he has been so modest I will remind the House that if the advice of my noble and learned friend Lord Merriman had been taken with regard to a Bill twenty years ago the problem and the injustices which I have mentioned would not have arisen. I am glad to recognise that again. I was reminding the House that the Royal Commission made a recommendation on that point, and I am taking it that the House approves of that recommendation; and I shall carry that back to my colleagues as well.
So far as the scale of the problem is concerned, I am afraid I cannot help your Lordships any further because this is a subject on which it is so difficult to get information. There was a difference between the figures given by the noble Lords, Lord Blackford and Lord Amtilree—2,500 to 7,500—but they are still small figures, and my information is the same as that of the noble Lord, Lord Blackford: that a small number of doctors only are dealing with this matter. I have tried to show that that is so. Also there is the fact, which one must face, that for a woman artificial insemination is the last resort. Nobody is going to suggest that any woman will employ artificial insemination unless she is compelled to do so. I believe that both those facts show that the practice is within a small compass. I have tried to show 1014 your Lordships that that is not the end of the matter. After all, our information as to the potential acceleration may be faulty, and in any case the importance of the issues is beyond argument.
Perhaps I may summarise those issues to your Lordships. There is the Divorce Law and the effect on the parties themselves. There is the legal position of donor and child through the possible consequential effects on many existing Statutes and branches of the law. In addition, views expressed in this debate have shown concern for the future of the family and the structure of society. Then we have the acute divergence on religion and morals disclosed by the views expressed by the noble Lord, Lord Pakenham, and the most reverend Primate, on the one side, and the Minority Report of the Dean of St. Paul's on the other. Were it not so late I would read to your Lordships the two passages, one on page 58 where the Majority summarise their views, and one on page 62, where the Dean of St. Paul's replies. I shall not trouble your Lordships with those. But is it unreasonable in a situation such as that for my noble friend Lord Reading, the noble Lords, Lord Chorley and Lord Astor, and many others, to ask for an inquiry?
I do not think Her Majesty's Government would be expected to-day to give a final view on all these matters at once. The factual information that we have is by no means sufficient. This practice is still novel and those concerned are unwilling to disclose information; and we are conscious that we cannot yet know what the long-term effects are likely to be. But, as the noble Lords, Lord Blackford and Lord Amulree, emphasised, we now have the advantage of more information and discussion than we had in 1949, and I should like to see those who have spoken with great force on the general problem address their minds to the more particular problems arising from the effects on the citizen and the law. The differences of opinion between those best qualified to judge show that there are no obvious answers. I recall the conflicting views of men of great authority as to whether A.I.D. is adultery from the legal viewpoint. I recall the conflicting views on the moral and theological side. From its novelty, and because of the difficulty of at once perceiving the repercussions in so many 1015 spheres, this whole question causes these most acute differences of opinion, and I feel that we should be well advised to look at the matter most carefully before deciding what action to take.
In view of the interest in this subject, and the many difficult and controversial questions to which it gives rise, Her Majesty's Government have come to the conclusion that the right course is to appoint a small Inter-Departmental Committee to inquire into it and make recommendations. I say a "small" Committee, because I think that meets the point made by the noble Lord, Lord Blackford—and Lord Reading emphasised it—that a Royal Commission is apt to take too long, and a small Inter-Department Committee can really get on with the matter. And I hope my noble friend Lord Blackford, from his great experience in both Houses, will appreciate that there is a real difference in the potential results. The precise terms of reference of the Committee have still to be decided—for a very good reason: I did not want to decide the terms of reference and then find, after listening to this debate, something in it which would make me change them. Naturally, before their final form was reached the Government wanted to consider everything that had been said in this debate. I want to make it clear that in my view it would obviously be necessary for the Committee to investigate what the existing practice is, and what are and what should be its legal consequences. I am quite sure that not only Her Majesty's Government in considering the final form of the terms of reference, but also the Committee when, as I hope, they come to consider this matter, will be greatly helped by what has been said in this House to-day. We have heard a wealth of argument applied to very difficult points, and I am sure that it will be of the utmost help to those who have to give the next consideration.
The appointment of the Committee means a Report, and the Report of the 1016 Committee means that the Government can be challenged as to whether they are not taking action. From the point of view of Parliamentary procedure, it would be difficult to get these Bills in during this Session, as I have mentioned, even if we wanted to. I should like to consider whether it would not be a good thing to have the subject considered before we introduce the Bills. My Lords, I have given the undertaking to appoint a Committee, and I hope that, from that and from the way I have approached his arguments, my noble friend Lord Blackford will not wish to press his Motion tonight.
§ 7.52 p.m.
My Lords, my object in putting down a month ago my Motion for consideration to-day was to rectify the absence of justice in the case of Maclennan v. Maclennan. I think that every noble Lord who has taken part in the debate feels that that injustice should be put right. My second objective was to use the Motion as a peg on which to hang a full debate on A.I.D. I feel that both those objectives have been achieved. We have had a very powerful debate, and an exceedingly interesting one, and the experts have all spoken up in fine style. I feel that I owe an apology to the Church, because I said that they wanted to make A.I.D. a criminal offence. It is evident that the Church has changed its mind—certainly the right reverend Prelate the Lord Bishop of Exeter has changed his mind. I doubt very much whether the most reverend Primate has changed his mind. I gathered from his speech a feeling of, "If only I could make it a criminal offence I would do so, but I have got to move with changing thought and make the best of the situation as it presents itself to-day." My Lords, I have nothing more to say but to thank all those noble Lords who have taken part in the debate, and to beg leave to withdraw the Motion.
§ Motion, by leave, withdrawn.