§ 3.17 p.m.
§ Report received.
§ Clause 1 [Parents not being married to have no effect in law on relationships]:
§
The Lord Chancellor (Lord Hailsham of Saint Marylebone) moved Amendment No. 1:
Page 1, line 11, leave out from ("appears") to ("who") in line 15 and insert ("—
references to any person to whom subsection (2A) below applies, and cognate references shall be construed accordingly.(2A) This subsection applies to any person").
§ The noble and learned Lord said: My Lords, perhaps I may speak to this and the following amendment together. They arise out of a suggestion made by my noble and learned friend Lord Brightman from the Cross-Benches when we discussed the clause in Committee. The amendments split the present Clause 1(2) into two separate provisions. In no way, I am advised, do they alter the effect of the subsection but they may make it easier to comprehend. I beg to move.
§ Lord KilbrackenMy Lords, I feel that this amendment is an improvement on the existing subsection because it makes it easier to understand. I should like to take the opportunity to point out that in my opinion it has a couple of defects which were already in the Bill and which it has not eliminated. As I understand it, this subsection is operational only if the father of the child dies before birth takes place.
The two points I want to make are these. First, if we look at subsection (3), either as it is now or as it would be if Amendment No. 3 were agreed, we see that references to the time of a person's birth are to be taken to include any time during the relevant gestation. However, this extension of meaning must be taken into account not only when the time of birth is 636 mentioned in paragraph (a) but also when it is mentioned in paragraph (b). I am sorry; I should not have referred to paragraphs (a) and (b) but should have said in,
references to a person whose father and mother were married to each other",and,references to a person whose father and mother were not married to each other.In the former case this clearly means that a couple who married at any time during the gestation are to be regarded, if the father dies before the child is born, as having been married at the time of the child's birth. But by precisely the same token, if we apply the extension of meaning required by subsection (2) to the,references to a person whose father and mother were not married to each other at the time of his birthwe find that the same couple are to be regarded as not having been married at the time of birth because they were not married for that part of the gestation that preceded their marriage, however long or short it may have been.That is because under subsection (3) the time of birth is taken to include any time during the part of the gestation when they were unmarried as well as the remaining gestation when they were married. They must therefore be considered to have been both married and unmarried at the same time.
My second point is that subsection (3), in both versions, is said to be solely and specifically for the purpose of construing references falling within subsection (2). However, it will be seen that subsection (2) relates only to the position under the Bill, and future enactments, of legitimated or adopted persons who are, incidentally, most unlikely to have been affected by the death of the father during gestation. On my reading of it, therefore, subsection (3) does not extend the meaning of the words "the time of his birth" in all the many other passages where they occur in the Bill; and surely they are intended to.
§ The Lord ChancellorMy Lords, I was given no advance notice of this matter. I am instructed, and believe, that the amendment to which I am speaking does not alter the sense of the Bill as it stands. I will look into what the noble Lord said and see the draftsman's comments on it. That is the best I can do in the circumstances.
§ Lord KilbrackenMy Lords, before the noble and learned Lord sits down, may I say that about 10 days ago I gave notice of this matter to an official in his department.
§ The Lord ChancellorMy Lords, I can only say that I am rather puzzled, but I will do as I promised to do.
§ On Question, amendment agreed to.
§
The Lord Chancellor moved Amendment No. 2:
Page 1, leave out line 23.
§ The noble and learned Lord said: My Lords, this is part of the same subject, and I therefore beg to move.
§ On Question, amendment agreed to.
637
§
The Lord Chancellor moved Amendment No. 3:
Page 2, line 3, leave out from ("period") to end of line 5 and insert ("beginning with—
§ The noble and learned Lord said: My Lords, again, this is basically a drafting amendment and does not alter the effect of Clause 1(3). It is intended to meet two criticisms of the drafting made in Committee.
§ The first criticism, voiced on the Cross-Benches by my noble and learned friend Lord Simon, was that it is uncertain whether the provision covered the case of fertilisation in vitro. Such a case was intended to be covered and the amendment makes the position clear because as it is now drafted conception without insemination can only refer to the creation in a test tube. The second criticism was that the period of time referred to in Clause 1(3) should be framed in chronological order; that is, in time beginning with the moment of insemination and ending with the child's birth. That is effected by the amendment and I ask your Lordships to accept the amendment for those reasons. I beg to move.
§ Lord KilbrackenMy Lords, your Lordships will
notice that my Amendment No. 4 seeks to amend the same passage as would be amended by Amendment No. 3. I should therefore like to consider both amendments together with Amendment No. 5, which goes hand in glove with Amendment No. 4, in the hope that I will convince your Lordships, however optimistic that might be, that my own amendment is preferable.
The first point to which I draw your Lordships' attention is the use of the word "insemination" in the amendment tabled by the noble and learned Lord. It is true that "insemination" means the injection of semen or seed and therefore it is perfectly correct to talk about the normal act of intercourse that takes place between a husband and wife—unless the husband is fashionable and wears a condom—as an insemination.
However, I have searched the statutes via Lexis in the Library and I find that there is no previous use in any statute of the word "insemination" in this instance. The word frequently occurs when it is "artificial insemination" and usually refers to cattle and pigs. If "insemination" is used without the word "artificial" it is because someone has been careless and left it out. When I first read the amendment I thought that the noble and learned Lord was actually referring to artificial insemination, and of course that did not make much sense. I find that the use here of the word "insemination", however correct technically, is a little misleading.
Secondly, it is clear that this amendment is intended to cover cases of in vitro fertilisation. I agree with the noble and learned Lord the Lord Chancellor that it is desirable that cases where fertilisation takes place in vitro should be considered in this Bill without waiting for the Warnock Report because there will be a time-lag between consideration of the report and subsequent legislation. In the meantime, the provisions as laid down by this Bill, however they may he interpreted, are the ones that will be operative.
638 The important thing to bear in mind with in vitro fertilisation, and what makes it different from any kind of impregnation, is that theoretically there may be an indefinite delay of many years between the fertilisation of the ova in vitro—that is, in the dish in the hospital—and their subsequent implantation in the womb. The fertilised ova may be put in the deep freeze and removed from it at any future date and inserted in the uterus of the woman. In the interval between conception (because conception takes place in the dish at the moment when the egg is fertilised) and birth, the husband who provided the semen may have died and the wife who may have remarried and have had several children by her second husband may well think, "Well, Tom was not such a bad old fellow and I think I shall now have another of his children". So she has the frozen ova thawed, and whether or not her second marriage is still continuing she can have herself implanted with ova that were fertilised by her first, long dead husband.
Under the amendment of the noble and learned Lord the Lord Chancellor the child resulting from such an implantation would still be regarded as one whose biological father and mother (the first husband and the wife) were married to each other at the time of its birth because conception took place in vitro at the time they were married all those years before. Yet the father is long since dead and buried and the mother may be married to someone else and perhaps has children by him. I suggest that my amendments will avoid those problems.
Amendment No. 4 is the same amendment that I tabled at Committee stage. It would cut out all the details in Amendment No. 3 and simply substitute:
between his conception and birth".That amendment was not accepted by the noble and learned Lord, the Lord Chancellor, the only reason being a suggestion of the possibility that the father dies between the time of intercourse and the time of conception. There is always a short delay, and there may be a delay of two or three days between intercourse and conception. This, if I may so maintain, is a completely irrelevant objection. One cannot imagine any circumstance in which, should a child be born a certain length of time after the father's death, anyone could possibly know, or would ever think of suggesting, that the father had died before conception had taken place. There is no way in which that could be established except perhaps under laboratory conditions and no one would ever dream of suggesting it. If the child were a couple of days late it would just be said, "Well, the gestatory period was a couple of days longer than usual." It would never be suggested that there were a couple of days' delay before the child was conceived.I would therefore maintain that, in this case, it is only necessary to have the simple words:
between his conception and birth".That is why I shall he moving my amendment as an alternative to the amendment of the noble and learned Lord.
§ 3.30 p.m.
§ Lord RentonMy Lords, I welcome Amendment No. 3. I think that I was the first to suggest that we 639 should not have things in the wrong chronological order. The amendment of the noble and learned Lord the Lord Chancellor has put the matter right in that respect. However, it is significant that he has not referred again to "intercourse" but has preferred to use the word "insemination". I am sure that that word is appropriate, although, as I understand the matter, there could be intercourse without insemination. However, it is insemination that matters, and therefore the amendment seems to me to be right.
I shall not speak to the amendment to which the noble Lord, Lord Kilbracken, has referred, although I shall be interested to hear what the noble and learned Lord the Lord Chancellor has to say about it. Because of the manner in which the noble and learned Lord kept me informed, I believe that the House should be grateful to him. He has taken an immense amount of trouble to try to get this rather complicated Bill right. Even if one finds it difficult to follow some of the abstruse scientific factors which arise, nevertheless we should be grateful to him.
§ Lord Campbell of AllowayMy Lords, I should—
§ Lord Simon of GlaisdaleMy Lords, I apologise to the noble Lord for interrupting, but he was on my blind side. Perhaps I may be allowed to make four points. The first, of course, is to thank my noble and learned friend on the Woolsack for meeting the point to which I have drawn attention. It was certainly in doubt as to whether fertilisation. in vitro was covered. Anyone reading the original draft would probably have concluded that it was not covered.
My second point concerns a purely typographical matter. The last words:
and (in either case) ending with his birthare typographically in the wrong place. They were in the right place in the letter that was written on behalf of my noble and learned friend to the noble Lord, Lord Kilbracken, a copy of which was courteously sent to me. It is a matter that the draftsman himself puts right automatically before the next printing, and I merely draw attention to it for that purpose.As to specific terms, we have not heard from my noble and learned friend on Amendments Nos. 4 and 5 of the noble Lord, Lord Kilbracken. But, subject to what he has to say, I must confess that I prefer the way in which the noble Lord, Lord Kilbracken, deals with the matter to Amendment No. 3. The short reason is that Amendment No. 3 uses the words "insemination" and "conception" in a way in which they are not generally used. The word "insemination" is normally limited to artificial insemination, but in paragraph (a) it is obviously intended to cover both artificial insemination and normal intercourse. It is because it does so that "conception" covers fertilisation in vitro.
Of course, when one talks of conception, the normal sense is that of conception in the womb—fertilisation in the womb. That is the way the dictionaries deal with the word and it has a strong and beautiful Biblical overtone. So, although I certainly do not oppose this amendment, I hope that my noble and learned friend will keep an open mind about the drafting. As I said, subject to what he has to say, I prefer Amendments Nos. 4 and 5.
640 My last point is that on the Motion in Committee that the clause should stand part of the Bill, the noble Lord, Lord Renton, drew attention to the fact that Clause 1(1) carried out an intention of the Renton Committee that there should be drafting in general terms. When I came to speak in the debate I drew attention to the evidence that had been submitted to the Renton Committee by my noble and learned friend the Lord President of the Court of Session and my noble and learned friend Lord Wheatley, who was then Lord Justice Clerk. It provides a good example of what they pointed out and it was endorsed by the Renton Report, paragraph 6.5 of which states:
Most of the problems encountered by the courts flow directly from the tendency of Parliament to ignore the virtue of enacting broad general rules in which the principle and overriding intention can be readily seen, and to try to legislate in principle for particular aspects of mischief which presumably the statute is intended to curb. It is an eternal truth"—say my two noble and learned friends—that one can seldom foresee every combination of circumstances which may arise".My feeling is that the draftsman did not envisage sufficiently fertilisation in vitro. That demonstrates the advantage of taking the advice of the Renton Committee which is so constantly flouted; namely, instead of trying to deal with a number of particular foreseen instances, to draft in broad terms.
§ Lord Campbell of AllowayMy Lords, I wholly support Amendment No. 3, paragraph (a),
insemination resulting in his birth".I am puzzled and, with respect, seek some clarification, in the meaning of "conception" in paragraph (b). In this I would wish to share in the tribute already paid to the noble Lord, Lord Kilbracken, and to share some of the misgivings of the noble and learned Lord, Lord Simon of Glaisdale.I hope that it is in order to speak to Amendment No. 5 which has been spoken to and which is clearly affected by this amendment. As I understand the position, under the Legitimacy Act a child may not be legitimised if both parents knew at the time of intercourse that the marriage was void. That relates to the intercourse resulting in birth. The Legitimacy Act obviously did not take on board the question of in vitro fertilisation.
It appears again, with the qualification, as I understand the position, that ova are fertilised in vitro; that they may be put in a type of freezer and then subsequently implanted in the womb. Your Lordships may well think that the crucial point is the time when such implant results in birth. That is the relevant concept, and is, I think, with respect to the noble and learned Lord the Lord Chancellor, the meaning of "insemination" in paragraph (b).
It is at such time—the time of the implant—that knowledge of either parent that the marriage is void should prevent legitimacy under the Legitimacy Act, because there may be years between conception in vitro—in the dish, or whatever it is—and the time of the implant. Neither parent may know that the marriage is void at the time of conception in the dish but they may well so know years later at the time of the implant which results in birth.
641 I therefore genuinely seek clarification and assistance on that point. I support the spirit of the amendment moved by the noble Lord, Lord Kilbracken, as I understand it, because it seems to take into account the crucial point of in vitro fertilisation with reference to the relevant time without any ambiguity, a matter with which the 1976 Act was not concerned but with which your Lordships are now concerned.
The use of the word "conception" where there is no act of intercourse, as appears in paragraph (b), may not be—I say this guardedly—wholly satisfactory, as it is understood that medically and technically conception takes place when the ova are fertilised in vitro and not when the implant in the womb which results in birth is made.
§ The Lord Bishop of BirminghamMy Lords, before the noble Lord sits down, may I ask him whether he is aware of the new technique commonly known as GIFT, whereby an ovum is fertilized in the fallopian tube and not in vitro? That is a technique which is rapidly gaining ground, and it would not therefore be fully correct to speak of the embryo in cases of assisted insemination always being formed in vitro.
§ Lord Campbell of AllowayMy Lords, with the leave of the House, may I admit that I was unaware of that matter? I am most grateful to the right reverend Prelate for having drawn it to my attention. I do not think that it wholly disposes of the problem on which I was seeking some clarification. I agree that it is another aspect of the matter. As I understand the position—this is an overall qualification because I am no expert—I do not think that it disposes of it.
§ 3.45 p.m.
§ Lord KilbrackenMy Lords, before the noble Lord finally resumes his seat, may I ask him whether he is aware that I have not yet spoken, or do not regard myself as having spoken, to Amendment No. 5 on the meaning of the word "conception", and that I intend to do so when that amendment is called?
§ Lord HyltonMy Lords, it seems clear that we are trying to navigate in deep and complicated waters. Modern technology has opened up possibilities which fly in the face of received ideas of family life. Reference has already been made to cold storage. All those things point us forward along the list of amendments to Amendment No. 20 in the name of the noble and learned Lord, Lord Denning, and Amendment No. 22 in the name of the right reverend Prelate the Bishop of Birmingham.
§ The Lord ChancellorMy Lords, if noble Lords have all quite finished I shall do my best to deal with the points that have been raised. First, I was going to deal with the rather complicated point raised by my noble friend Lord Campbell of Alloway when we came to Amendment No. 23, when I hope to give him and possibly even the noble Lord, Lord Kilbracken, satisfaction. I was going to say, if the House will permit me to do so, that there is now a defect in Clause 28. If when he comes to move Amendment No. 23 the noble Lord were to withdraw it at my request, I will put right 642 that point on Third Reading. It is a rather technical point. On the whole, I should prefer to deal with it in that way.
I do not know that I followed everything that the noble Lord, Lord Kilbracken, was saying. However, I am advised by my noble friend who sits quietly on the Bishops' Bench, at the moment below the right reverend Prelate the Bishop of Birmingham, that if I succeed in persuading your Lordships for the time being to accept Amendment No. 3 I shall not be able to call Amendment No. 4. But there is a basic objection to Amendment No. 4 when and if it were to be considered. That is that when we debated precisely the same amendment in Committee the argument revolved, possibly naturally at that time, around the maximum time between the relevant act of intercourse in what I might call the good old-fashioned way of engendering children and the actual moment at which the two gametes come together. I was then able to tell noble Lords that the maximum time might be as much as 48 hours and, in extreme cases, even 72 hours. This was a matter with which all your Lordships except me were already familiar.
§ Lord Simon of GlaisdaleMy Lords, would the noble and learned Lord allow me—
§ The Lord ChancellorMy Lords, no, not at this moment. Let me finish a sentence.
§ Lord Simon of GlaisdaleMy Lords, I am sorry.
§ The Lord ChancellorMy Lords, let me finish a sentence and then I shall give way because I have to explain a rather difficult point and I cannot take more than one at a time. I am sorry to be so firm with my noble and learned friend.
Unfortunately I have discovered yet a further fact about these matters, and I confine myself at the moment to what I have called the old-fashioned way of engendering children. To my astonishment—and as I grow older, as the poet Solon said, I learn more and more—there is a minimum time between the act of intercourse before which conception cannot take place—I can see that the right reverend Prelate is better informed than I was until I read my brief yesterday—which is about six hours from the act of intercourse.
If I were to accept Amendment No. 4 on its merits a situation might arise which does not apply in the rather complicated cold-storage system which the noble Lord has unveiled to the House but in the ordinary course. There is a minimum time of six hours between intercourse and conception. Suppose that a husband dies in that minimum time. The child would be rendered illegitimate if Amendment No. 4 were accepted. This is a fatal objection to that form of words.
The fact of the matter is that on these rather recondite matters I am a relatively simple person. I do not think that we need worry too much about the situation which might arise if the united cells were put in cold storage for a number of years. I think that perhaps that is too unlikely a set of circumstances to envisage. We have to get this as right as we can at the present time. At a later stage there will certainly be 643 further time to consider the situation. I shall of course consider everything that my noble and learned friend and other noble Lords have said. However, at the moment I am sticking to Amendment No. 3 as the best way through the maze at the present stage, with the promise which I have contingently given of a change to Clause 28 when Amendment No. 23 comes up for consideration.
I am afraid that I took more than one sentence to say all that. I now very willingly give way to my noble and learned friend on the Cross-Benches, who had a separate point to make.
§ Lord Simon of GlaisdaleMy Lords, I must apologise to my noble and learned friend for interrupting him when he was in full flow. The point I wanted to raise at the time was on his argument about the delay in fertilisation between the act of intercourse and the fertilisation of the egg. My noble and learned friend said that it might be 48 hours. He said in Committee that it might even be 72 hours. Would that not merely mean that the child was three days late and the law would unhesitatingly presume it to have been conceived in wedlock?
§ The Lord ChancellorMy Lords, my noble and learned friend with his special experience is almost certainly right, but I referred to the possibility of 72 hours again a moment ago. I was pointing out that there is not only a maximum period after the act of intercourse; there is also a minimum period. This was what rendered the prospective Amendment No. 4 an unsuitable vehicle for changing the Bill.
I suggest that the best plan is for me to reflect upon the various rather complicated sets of circumstances which have been put forward by those who are better informed than me and to see whether any change in the Bill is recommended as a result. In the meantime, I am sticking to Amendment No. 3. It does two things which seem to me to be very much needed and no one has really challenged that it makes these provisions. First, it makes it clear that the Bill is intended to cover in vitro fertilisation. Secondly, it puts right the defect in draftsmanship to which my noble friend Lord Renton drew attention in Committee. I think therefore that the House could be quite safe in accepting this, subject to my undertaking, first, to alter Clause 28 when we come to Amendment No. 23, if we do, and also subject to further consideration of the rather complicated methods of engendering children to which we are being introduced stage by stage.
§ Lord KilbrackenMy Lords, before the noble and learned Lord sits down—I have to put it in that way—may I ask him this? Will he agree, in view of the fact that I do not have the right to speak now—and quite a lot has been said about my Amendments Nos. 4 and 5—that if his amendment is agreed I shall be able to speak again briefly to my Amendments Nos. 4 and 5 when they are called after the acceptance of his amendment?
§ The Lord ChancellorMy Lords, if my Amendment No. 3 is accepted the noble Lord will not be able to talk on Amendment No 4. It is not possible—so my noble 644 friend advises me—to call Amendment No. 4 if Amendment No. 3 is accepted. Amendment No. 5 is only another way of putting the provisions in Amendment No. 3. I fancy that the same applies to that, and I am so advised.
I think that the best plan is to let Amendment No. 3 go through. I have been as accommodating as I can. It provides what I was asked to do in Committee. I shall consider the rather more complicated situations which have been envisaged in the light of better informed scientific opinion than I am at the moment able to command from my own mind. In those events, I beg to move.
§ Lord KilbrackenI do not know whether I can raise a point of order.
§ The Lord ChancellorThis is not Committee.
§ Lord KilbrackenMy Lords, that is why I raised it as a point of order; otherwise I would simply get up and speak. My point is that I have not spoken to Amendment No. 5. I feel that the amendment is necessary as a definition of conception which will appear in the noble and learned Lord's own amendment to the Bill. It is therefore still necessary and I should be able to move it.
§ Lord Elwyn-Jones My Lords, perhaps I may intervene; I hope to be helpful. My noble friend Lord Kilbracken can move an amendment at the next stage of these proceedings, but not today.
§ The Lord ChancellorMy Lords, I am very much obliged to the noble and learned Lord. I was going to say much the same myself, but he is obviously right. I cannot call Amendments Nos. 4 and 5 if Amendment No. 3 is passed. But I am not going to withdraw it. I see that I was wrong—I can call Amendment No. 5, but not Amendment No. 4. If I can, I shall call Amendment No. 5. I am advised quite confidently that I cannot call Amendment No. 4. If I therefore call Amendment No. 5 the noble Lord can speak to it; if I cannot, then he cannot.
§ On Question, amendment agreed to.
§ The Lord ChancellorMy Lords, I am advised that I cannot call Amendment No. 4. I shall call Amendment No. 5, but only after my noble friend—who I see is getting restive on the Front Bench—has made his Statement about Guinness.