§ 2.55 p.m.
§ Read a third time.
§ Clause 1 [Parents not being married to have no effect in law on relationships]:
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, in calling Amendment No. 1, I think I must say from the Woolsack that if Amendment No. I were to be agreed I should not be able to call the noble Lord's Amendments Nos. 2 and 3.
Lord Kilbracken moved Amendment No. 1:
Page 2, line 4, leave out subsection (4).
§ The noble Lord said: My Lords. I hope that I shall not have to move my second and third amendments. As the noble and learned Lord has said, that will not be necessary if, by an extraordinary chance, my first amendment is carried.
§ Clause 1 (4) caused a great deal of difficulty to all of us at both Committee and Report stages. It was responsible for lengthy discussion on the meaning of the word "conception" and the precise moment at which human life starts, and raised considerations of the meaning of insemination, in vitro fertilisation and so on. After the Report stage I again took up the Bill to see whether there was a solution to the difficulties of the wording of subsection (4) and it came to me in a blinding flash that there was no need at all for the subsection and that I should follow the precept that I use when I am writing: "When in doubt, leave out". I shall now try to explain my reasoning to your Lordships.
Throughout this Bill when it refers to a person who used to be called illegitimate the words used are:
a person whose father and mother were not married to each other at the time of his birth".
That phrase occurs again and again throughout this Bill—about 12 times I think. I can see the problem which arose. The definition,
whose father and mother were not married … at the time of his birth
would apply to a child whose father had died during the course of that child's gestation. Of course such a person should not be included in the definition. The only reason that subsection (4) is included in the Bill is so that if a child's father dies during that child's gestation it is considered as one whose father and mother were married to each other at the time of its birth.
§ When one looks at the Bill one finds that on every occasion that there is a reference to a child whose father and mother were not married at the time of his birth, the provisions cannot possibly apply if the father is dead because in every case (and every conceivable case that could appear in the future) the provisions involve the father and if he is dead they will not apply.
If your Lordships look at the start of Clause 4, you will see that it states:
Where the father and mother of a child were not married to each other at the time of his birth, the court may …. order that he"-
shall have all the parental rights and duties".
But if the father is dead there is no question of that.
§ It is the father's position, after the child's birth, that is considered every time that phrase is used or is likely to be used in future legislation. If the father is dead he is out of the picture. I think I need say no more. The easy way out of that dilemma is to leave out Clause 4.
The final matter I must mention is that subsection (4) as it exists, after its recent amendment, does not say what the noble and learned Lord on the Woolsack wanted it to say. It starts by referring to:
the insemination resulting in his birth
and then in paragraph (b) it states:
where there was no such insemination, his conception".
§ We return to the question of conception. When in vitro fertilisation takes place—the noble and learned Lord has agreed that the Bill should cover in vitro fertilisation—the conception takes place in the hospital dish in vitro. There is no doubt that that is the moment of conception because that is when the ovum becomes a conceptus. Conception takes place in the hospital dish and the conceptus can then be deep frozen and may not be inserted into the mother's uterus for many years.
§ Under the present language, the period beginning with conception means the period beginning with the fertilisation in the hospital. There may be a period of 10 years between conception and birth. It cannot be the noble and learned Lord's intention that if the genetic parents of the child were married for any part of that ten-year period he should eventually be considered the legal—legitimate as we used to say—child of those parents. If we leave out the subsection, the whole controversy is avoided. I suggest that the subsection is otiose. I beg to move.
§ Lord Simon of Glaisdale
My Lords, I would go rather further. I wrote to my noble and learned friend on 27th January suggesting that we did not need 517 subsections (2), (3) and (4), subsection (4) being the subject of this amendment. I have not had an answer to that letter, although subsequently I had an answer to a letter I wrote on 26th December. I thought that it was altogether too big a matter for a probing amendment on Third Reading. However, I should like to have some remarks on the record so that, if there is anything in the point, the Bill can be greatly improved and streamlined in another place.
Subsection (4) is infelicitous because it uses the word "insemination" to include normal intercourse. In contrast, it uses the word "conception" to mean any form of fertilisation other than in the mother's body. In other words, both terms are being used in a highly unusual sense. One can puzzle out what the draftsman was trying to do; namely, to see that in vitro fertilisation, which was not covered at the beginning, is now covered. On Report I said that he had done that, although in an odd way. If we can leave out subsection (4), so much the better.
Subsection (4) refers back to subsection (2). I think the draftsman is anxious that anything done by the Bill will not cast doubt on persons who have been legitimated under a statute or under a rule of law invoked by statute or regarded as legitimate or legitimated. Two cases were put. The first seemed to your Lordships to be an unlikely scenario. It was discovered, or so we are told, that an interval of 72 hours can take place between sexual intercourse and conception. I ventured to point out that a child who is horn three days late would unquestionably be regarded as being born in wedlock and so there is nothing in that point. I think that that was accepted by my noble and learned friend.
An even more unlikely scenario was painted. According to the scientists, there is a lapse of hours between sexual intercourse and conception. That is the minimum. The picture that was painted was of a man coming home having an isolated act of sexual intercourse with his wife and then dying. It was said that, after an inquest, that child would be deemed to be illegitimate. That seems pretty unlikely and far-fetched; but it is even more farfetched when one sees that it is invoked in order to save the legitimation under subsection (3). If one subtracts adoption in paragraph (c) and the legitimated person in paragraph (d), all one is left with is the person who is legitimated by being born in a void marriage where one or both of the parents believe the marriage to be valid.
That unlikely situation has to be added to the situation where the man comes back, has an isolated act of sexual intercourse, and dies. That would rule out the adoption or legitimation by the subsequent marriage of the parents. We are left with only one type of legitimation. That was the point that I put to my noble and learned friend on the Woolsack. I do not expect an answer on the spot. I want to put on the record what I have suggested so that it can be considered in another place. We can do without not only subsection (4) but also subsections (2) and (3) as well, to the vast improvement of the Bill.
§ The Lord Chancellor
My Lords, may I deal with the two speeches in reverse order? My noble and learned friend on the Cross-Benches has written to me twice, 518 on 27th January and 5th February. Unless something has happened to my reply, he has had an answer to both in a single letter of three pages of foolscap. I note that he does not expect a reply from me now. I shall ask those advising me to consider very carefully what he has said and whether it is already covered by my three-foolscap-page reply. However, I hope that the noble and learned Lord will take that as a promise, and I shall write him a further letter on the points that he has raised if they contain anything which is not in my previous reply. I can only apologise to the noble and learned Lord if it has not yet reached him.
The noble Lord, Lord Kilbracken, said that we had all had a great deal of difficulty over this clause. I do not think that the difficulty was of my creation. The noble Lord says that the conception of Amendment No. 1 came to him in a blinding flash, but I think that it was perhaps more blinding than a flash. In fact the amendment is based upon a false premise. The false premise is that Clause 1(4) is otiose and unnecessary. His object is to omit it. When in doubt, says he, leave it out. But it is a false premise. Clause 1(4) is necessary. For that reason it should remain in the Bill.
Subsections (2) and (3) of Clause 1 when read together define the status of legitimacy by reference to the time of a person's birth and whether or not a person's parents were married to each other at the time. Subsection (4) defines what is meant by the time of a person's birth. That time is specified to include any moment between either the act of insemination—whether natural insemination or artificial insemination—or, in the absence of any such act, the moment of conception, whether in vitro or by some other means outside the mother's body, and the moment of birth itself. Subsection (4) therefore ensures that a child whose father dies or whose parents divorce between such points in time is nevertheless born legitimate. That is the present law and it is important to preserve it. Without subsection (4) it would not do so. For that reason I ask the House not to accept Amendment No. 1.
§ Lord Kilbracken
My Lords, I am completely unconvinced by what the noble and learned Lord on the Woolsack has said. I am quite aware that the purpose of subsection (4) is to change what is meant when there are references in the Bill to the time of a person's birth. But if we take the time of the person's birth as meaning quite simply the time at which he is actually born—I did not hear the noble and learned Lord's interjection; I nearly heard it—then there are no circumstances under which the outcome will be any different from what it will be if subsection (4) is omitted. I thought I had made it clear in my opening remarks, the meaning of which I do not seem to have been able to get across to the noble and learned Lord on the Woolsack. Clearly there is no point in pressing the amendment. I hope that what I have said may be considered before this Bill goes to another place and that on reflection it may be found that I am right and that the subsection can be left out. Although I do not intend to press the amendment, neither do I feel inclined to withdraw it.
§ On Question, amendment negatived.519
§ 3.15 p.m.
Lord Kilbracken moved Amendment No. 2:
Page 2, line 7, leave out ("resulting") and insert ("whether natural or artificial that resulted").
The noble Lord said: My Lords, in subsection (4)(a), which was inserted at an earlier stage, your Lordships will notice that the words used are:
the insemination resulting in his birth".
The noble and learned Lord, Lord Simon of Glaisdale, has already pointed out that it is a most unusual use of the word "insemination". Insemination simply means the injection of semen into. As we all should know already, it means what quite often happens whenever any couple has full sexual intercourse: the man inseminates the woman. But it is virtually never used in that sense. I have not been able to find a single earlier occasion when it is described as "insemination" except where it is artificial insemination, when it is so described as "artificial insemination".
The only purpose of this amendment is to make it clear that the paragraph in question means either natural insemination or artificial insemination. As soon as I saw this new paragraph (a),
the insemination resulting in his birth",
I assumed that it meant artificial insemination. When "insemination" is used previously, without qualification, it is used carelessly to mean artificial insemination.
§ I am getting used to my amendments being turned down on most, but not quite all, occasions. However, I feel strongly that to insert the words, "whether natural or artificial", make it quite clear to anyone reading that passage in the Bill that it refers to both those forms. I beg to move.
§ The Lord Chancellor
My Lords, I have naturally taken advice about this second amendment. I am advised that it is unnecessary. I am convinced, and I am advised that on this occasion I am correct, that the word "insemination" in Clause 1(4) is apt to cover all cases in which fertilisation of the ovum takes place within the woman's body. Such insemination will of course most often be effected by an act of normal intercourse but it will also cover artificial insemination. For that reason the words of the amendment are unnecessary, and I would advise the noble Lord, Lord Kilbracken, to follow his own precept: when in doubt leave it out.
§ Lord Kilbracken
My Lords, it is not necessary for me to say anything further. Of course the words are unnecessary in that paragraph (a) makes perfect sense as it stands. But I feel that it is far clearer and better to insert these words. In view of the customary attitude towards my amendments taken by the noble and learned Lord, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Kilbracken moved Amendment No. 3:
Page 2, line 8, leave out ("his conception") and insert ("the insertion of a conceptus that so resulted").
The noble Lord said: My Lords, I have already referred to this to some extent when speaking to my first amendment but I have to do so again. Your
Lordships will see that in subsection 4(b) there is reference to,
where there was no such insemination, his conception, and (in either case) ending with his birth".
I have already pointed out that when in vitro fertilisation takes place the conception occurs when ovum and spermatozoa are put together in vitro, in the dish.
§ I have pointed out that it may be as many as 10 or 20 years before the child that results from that conception is born. It is therefore clear that when the amendment was drafted at the Report stage it was drafted with the idea that in vitro fertilisation should be included. It cannot have been realised that there can be and frequently is a very long delay between conception and birth. If the woman's husband dies and she remarries, has two or three children by her second husband and then decides—and she may do so of her own volition—"I am now going to have another baby by my first husband from the concepti'"—
§ Lord Kilbracken
My Lords, I wonder whether it is. I assumed that the word conceptus was the past participle of the word concipio. Can the noble and learned Lord be learned enough to tell me about that?
§ Lord Kilbracken
My Lords, I think it does make a difference, because if it is the fourth declension it is a noun and the plural form is conceptus. However, if it is a masculine past participle of the Latin word concipio, meaning "I conceive", conceptus means a being who has been conceived and, as I have said, the plural form is "concepti".
However that may be, conceptus is the word used in the First Report of the Voluntary Licensing Authority for Human In Vitro Fertilisation. If your Lordships wish me to define it further, the ovum is put into the dish; it is then fertilised and from the moment that the cells begin to divide it becomes the conceptus or a pre-embryo. It is sometimes known as a zygote. That is then inserted into the woman as a pre-embryo. When the implantation in the womb is completed it becomes an embryo which develops into a foetus.
In order for this to have the effect that the Government and the noble and learned Lord want, we have to refer not to the moment of conception in subsection (4)(b) but to the moment when the conceptus, the pre-embryo or the zygote—whichever term one wants to use—is inserted into the uterus of the woman. The point which matters is the moment when the zygote or conceptus is inserted in the uterus. It is to bring that about that I have put down this amendment. I beg to move.
§ The Lord Chancellor
My Lords, this amendment shares the disadvantages of being both unnecessary and undesirable. Its defects are also shared by the coming amendment to Clause 28, also in the name of the noble Lord. It is quite clear that the reference to conception in Clause 1(4), in cases where there has 521 been no insemination, includes all methods of creating life outside a woman's body, whether in vitro or by some other means. If the parents are married at this time, the resulting child is to be legitimate under Clause 1. That is the present law and, as I have already explained, that is what the Bill seeks to preserve.
I assume that by the expression "conceptus" the noble Lord means "embryo". Why he does not exactly use that word is not yet apparent to me. I do not understand why he should have used an obscure synonym in a kind of Latin instead of the well-known English word which describes the same thing.
However, I take greater exception to the policy of the amendment than to the Latin. It would alter the ambit of the present status of legitimacy with which this Bill is not concerned and which the Law Commission did not consider in its reports. There has therefore been no consultation of any kind on this matter and it would be entirely premature to embark on any reform of the scope of the status of legitimacy in the way proposed by the noble Lord. This Bill is concerned only with the consequences for an illegitimate child which presently flow from the staus of legitimacy. This was the only matter investigated by the Law Commission in its two reports and therefore the only matter with which this Bill should be concerned. Therefore I ask the noble Lord not to press the amendment.
§ Lord Kilbracken
My Lords, I am sorry, but the noble and learned Lord has got it wrong. I hold in my hand the First Report of the Voluntary Licensing Authority for Human In Vitro Fertilisation. I think that he will probably agree that the authors of this report, which is a standard work on the subject, have more knowledge of in vitro fertilisation than either the noble and learned Lord or his advisers.
I draw your Lordships' attention to paragraph 3 of the report. It is headed "Guidelines":Some aspects of these guidelines are worth highlighting … (b) Terminology: Much thought and discussion was devoted to the appropriate term to be used for the early stages of cell division following fertilisation. This was important since 'embryo' is not the correct term for this stage in development, although it has been widely used. The cluster of cells that develops following fertilisation does not always form an embryo and when it does, only a small portion of the entire cluster is involved. The embryo forms about 14–16 days after fertilisation, and it is then clearly destined to become a fetus. To describe the entire initial cell cluster, members preferred the term 'pre-embryo', as it was hoped that this term would be more easily understood than the equally correct terms 'conceptus' or 'zygote' ".When the noble and learned Lord referred to "embryo" as being synonymous with "conceptus", he was mistaken. I did not use the word in this amendment because I did not mean to refer to the embryo, which does not exist until 14 to 16 days after the conceptus is inserted.
Therefore, as the noble and learned Lord was completely wrong in his opposition to the amendment, I must point out once again that if the present wording stands, and if a woman's ova are fertilised and frozen and the husband dies and she remarries, then over the next 10 years she could have alternate babies by each of her two husbands: first by her dead husband and then by her present husband, who cannot stop her because she can do that of her own volition. If she does 522 that, then every child who is born will be considered to be the child of the mother and the genetic father. They will be legitimate children. Therefore those children in whose case impregnation takes place after their father's death will still be the legal children of that father. It is a nonsense and I do not intend to withdraw the amendment.
§ On Question, amendment negatived.
§ 3.30 p.m.
§ Lord Denning moved Amendment No. 4:
Page 2, line 9, at end insert—
("( ) In this Act, unless the contrary intention appears—
father" means the biological father, that is to say, the man by the use of whose semen insemination took place either naturally or artificially, or conception took place by the embryo insertion that resulted in the birth of the child;
mother" means the carrying mother, that is to say, the woman who begins to carry the child at the time of the insemination, or, as the case may be, embryo insertion that results in her carrying the child.").
§ The noble and learned Lord said: My Lords, I put down this amendment because I think it is important in this legislation that we should know what is meant by "father" and by "mother" in view of modern developments for treating infertility.
§ The first case I would put is of artificial insemination by a donor, not the woman's husband but another man whose sperm is injected into her body, and a child is born. Who is the father? Most people would say it is not the husband; it is the man who donated the sperm. Then I would take the case of the mother with in vitro fertilisation; that is, another woman's egg or ovum is mixed with a man's sperm and injected into the mother's body. That is called embryo fertilisation. Who is the mother in such a case? Is it the woman who provided the egg or is it the mother who carried the child from the beginning to the end?
§ It is for that reason that I have suggested—and I feel it may well be right even in law without addition, but it ought to be said—that "father" means the biological father; that is to say, the man by the use of whose semen insemination took place, either naturally or artificially, or conception took place by the embryo insertion that resulted in the birth of the child. That is saying the father is the man whose semen gave the result of a child. The mother—this is more controversial—means the carrying mother; that is to say, the woman who begins to carry the child at the time of insemination or, as the case may be, embryo insertion that results in her carrying the child.
Let me give an illustration of the importance of those definitions. I go to Clause 4:
Where the father and mother of a child were not married to each other at the time of his birth, the court may, on the application of the father, order that he shall have all the parental rights and duties with respect to the child".
Who is the father there referred to? Is it the donor, the man who provided the semen, or not? This must be cleared up.
§ To carry my argument further, I looked up the definitions in the Shorter Oxford Dictionary. They gave no help. "Father" means one who has begotten a child, a male parent. "Mother" is a woman who has given birth to a child, a female parent. "Parent" is a person who has begotten or borne a child as a father or mother. So the dictionary gives no help.523
In the Law Commission's first report it is said that the father is the donor of the semen. Paragraph 12.1 of the first report says:
A child conceived as a result of artificial insemination of the mother with sperm provided by a third party donor (AID) is, as the law now stands, illegitimate; it is immaterial that the mother's husband has consented to the insemination. The status of the child is in law the same as that of a child conceived in adultery. Likewise the donor, not the mother's husband, is the legal father of an AID child".
In the Warnock Report (paragraph 4.9) it is said:
In theory the husband of the woman who bears an AID child has no parental rights and duties in law with regard to the child; these in principle lie with the donor, who could be made liable to pay maintenance, and who could apply to a court for access or custody".
§ As to the mother, that is much more difficult. Is it the carrying mother in the case of surrogacy, or is it the commissioning mother who asks for the baby to be born and pays for it, or is it the biological mother who provided the egg?
§ All I suggest is that these matters should be cleared up in this statute. I believe the definitions which I have given are the correct definitions as they would be held to be by a court of law now, but I think it would be much better to set them out in this statute. I beg to move.
§ Lord Meston
My Lords, with all respect to the noble and learned Lord, I question what his amendment adds. He prefaces the amendment with the expression "unless the contrary intention appears". A contrary intention does appear in Clause 27, which deals with AID cases. Clause 27 deems the consenting husband of the mother to be the lawful father of the child produced by the process of artificial insemination by third party donor. In most of those cases the natural father will be an unknown donor.
Assuming that Clause 27 survives—I should remind your Lordships that it has survived two attacks in the course of this Bill's progress through your Lordships' House—the addition which is proposed in this amendment will not help. However, if Clause 27 were to go, and this amendment were allowed, as I understand it the effect would be that the poor child would be left, both practically and legally, fatherless. I submit that this amendment adds absolutely nothing.
§ Lord Kilbracken
My Lords, perhaps it would be convenient for the House if I came in here because your Lordships will see that the noble and learned Lord, Lord Denning, and I both came to the conclusion quite independently of each other that definitions of "father" and "mother" were required in this Bill. He put down his definitions in Amendment No. 4, and I put down my definitions in Amendment No. 5.
I strongly agree with the noble and learned Lord, Lord Denning, that some definition of these words is required because all the way through the Bill the words "father" and "mother" are used without any qualification and without any definition. Thus we have no way of knowing the person to whom they are intended to refer. Nothing could show this more clearly than the fact that both the noble and learned Lord, Lord Denning, and I have put down amendments, and they indicate in some cases different 524 people because we cannot tell what the Government's intention is.
When it is a question of a married couple having a child in the ordinary way it is very simple, but when the child results from some other union or lack of union a definition is required. It is quite true, as the noble Lord, Lord Meston, said, that in the case of AID the position is clarified by Clause 27, but that is not so in other cases. There used to be somebody called "the adulterous wife". She is now called "the woman who has a meaningful relationship with another man".
If she has this meaningful relationship and a baby results from it, under the amendment of the noble and learned Lord, Lord Denning, for the purposes of this Bill the father is the third party. Under my amendment he is the husband. I do not particularly feel that the husband whose unfaithful wife has been living with another man for 10 years ought to be the father. What I am trying to do in this Bill is to put down a definition that will make the father the person who is at present in law the father, and whom the Government presumably want to continue being the father.
I have already mentioned the case where the conceptus fertilised by the previous late husband is used. Who is the father—the person who provided the semen to produce the conceptus, or the man she is married to? In the case of the mother, there are several different cases which have already been mentioned by the noble and learned Lord on the Cross-Benches. In particular, the case of the surrogate mother was mentioned. Who is to be considered the mother in this Bill in the case of surrogacy or when a donated ovum is used, or when a donated conceptus is used? If either of these definitions is employed it will be perfectly clear. There can be no dispute about who is meant by "father" and "mother".
I find that the definition of "mother" does not present too much difficulty because I regard the mother of a child as being the mother who gave birth to it. Even if she is a surrogate mother she is the mother, and should be considered as the person referred to as the mother in the Bill.
In the case of the father, if there was a subsisting marriage at the time of birth then the husband of the mother (whom we have defined) should be the father. In all other cases when there is not a subsisting marriage, the father should mean the genetic father; in other words, the person who provided the semen. I prefer that definition to that of the noble and learned Lord on the Cross-Benches. But I think that either definition would be better than nothing.
§ The Lord Chancellor
My Lords, the noble Lord, Lord Kilbracken, is certainly right that quite independently of one another my noble and learned friend and he have put down attempted definitions of the rather well-known words "father" and "mother". He was also perfectly right—and I endorse it—that the two definitions they have put down are totally inconsistent with one another.
I am dealing only with Amendment No. 4. When we come to Amendment No. 5 (which I assume we shall do sooner or later) I will deal with it. I agree with the noble Lord sitting very close to me (but not in 525 anything but a technical sense) and who in a professional sense is my learned friend, that on the whole the definition is not necessary. In the great majority of cases the courts will correctly equate the term "father" at least with the biological father.
The definition of "father" attempted by my noble and learned friend on the Cross-Benches may be criticised on three grounds. The first ground I have already given—that it is unnecessary to define such a person as meaning the biological father in the terms specified. But unfortunately it is also defective because it does not include an adoptive father. It is vital that it should. It would include an adoptive father without the amendment of my noble and learned friend. It will not do so if my noble and learned friend's amendment is accepted.
Thirdly, there is the reason given by the noble Lord, Lord Meston, when he pointed out that the amendment does not include a father within the meaning of Clause 27. The amendment states:unless the contrary intention appears"—whatever that may mean.
The intention of the Bill is that the father should include the consenting husband in the case of a child engendered by artificial insemination. As I think one noble Lord said, that matter has been thoroughly investigated on Second Reading, in Committee and on Report; and they work in with the Surrogacy Act which has been mentioned. I am not going to press the attempted by Amendment No. 4. I ask my noble and learned friend not to press his amendment.
§ 3.45 p.m.
§ Lord Denning
My Lords, I am not going to press the amendment. I am sorry that is has not been accepted. All I would say is that the definitions which I have stated and put down there are in conformity with the views of the Law Commission in its first report. They are in conformity with the views of the Warnock Report; and they work in with the Surrogacy Act which has been mentioned. I am not going to press the amendment to a Division because I am quite sure that if the matter comes to the courts of law they will accept the definition which I have already put down. In the circumstances, I am not going to press this amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor
My Lords, I understand that the Statement has been cleared in the other place, but it would possibly be convenient if we dealt rather shortly with the noble Lord's Amendment No. 5, which is very closely connected with the last amendment. I shall be guided by the House in this matter.
§ Lord Kilbracken moved Amendment No. 5:
Page 2, line 9, at end insert—
("( ) In this Act—
§ The noble Lord said: My Lords, I shall go on speaking until the noble Lord, Lord Skelmersdale, arrives. I had not intended to speak to this amendment any more than I had in the course of the amendment moved by the noble and learned Lord. In replying to the noble and learned Lord's amendment, the noble and learned Lord the Lord Chancellor said that it was defective on the grounds that it did not cover an adoptive parent. My amendment does not cover adoptive parents either.
§ I must point out that one of the problems about this Bill is that there is no reference anywhere to an adoptive parent. For example, if your Lordships were to turn to Clause 9, which deals with consents to marriages, you will find that throughout the whole of that clause there are references to the mother and father, which covers the adoptive mother and the adoptive father. It is assumed that an adoptive mother and an adoptive father are in precisely the same position as the legal father and there is no need to include that. Therefore the definition is not defective either in the amendment of the noble and learned Lord on the Cross-Benches or in my own amendment because there is no reference to adoption. I beg to move.
§ The Lord Chancellor
My Lords, I have already dealt with the omission of the case of the adoptive father and I will not add to what I said in answer to my noble and learned friend. But the noble Lord's amendment has an even worse defect, which is that it would provide (if it were accepted) that where a woman conceives and gives birth as a result of an adulterous relationship her husband is to be taken as the father of the child. As well as its being objectionable in principle, I dare say that many fathers would object to this provision. So would I in the circumstances, though at the age of 79 the possibility is less likely than in the case of some your Lordships. At any rate, if I did find myself in that position and wished the child to be treated as a child of the marriage, I would adopt it.
§ Lord Kilbracken
My Lords, it is not the 79 years of the noble and learned Lord that would matter. It is the age of his wife that would be relevant rather than the age of the noble and learned Lord, if I may say so; and I do not know what that is.
The noble and learned Lord has made a rather interesting statement, as he so often does. He said that in the case of a so-called adulterous wife the husband is not the legal father. Those of your Lordships who have rather flighty wives will no doubt be pleased to hear this. I am sure that we all will. I have always understood—I may be quite wrong—that if a child is 527 born and everybody, including the husband, knows that it is not the husband's child but someone else's, the child is nonetheless the legal child of the husband. As far as I know, that is the idea. Yet the fact was given by the noble and learned Lord as a reason why the amendment could not be accepted.
If we are to understand—it is quite a momentous occasion—that, in the event of a wife having a child by her adulterous lover or the person with whom she has a stable relationship, then that man is the legal father (which is what we have just been told from the Woolsack) some of us will heave a sigh of relief.
§ I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.