HL Deb 06 February 1990 vol 515 cc739-68

5.20 p.m.

House again in Committee on Clause 1.

[Amendment No. 4 not moved.]

Clause 2 [Other terms]:

The Earl of Halsbury moved Amendment No. 5:

Page 1, line 19, at end insert — (" "experiment" means any procedure physical, chemical or biological whose outcome is not sufficiently certain as to make it unnecessary;").

The noble Earl said: I speak also to Amendment No. 6, which is grouped with the amendment. These are definitions that I gave at Second Reading as to what "experiment" and "project of research" meant to me. It seemed to me after that that it would be good to have them in the body of the Bill for reference. In that context perhaps I may appeal to the noble and learned Lord that the Bill be rearranged so that all the definitions appear in one place as an index, possibly with an asterisk as to their first occurrence. That would be a great help for anyone studying the Bill. It is complicated enough.

I await any comment from the noble and learned Lord or any of my scientific colleagues in the Committee as to whether or not they believe that I have drawn these definitions in acceptable terms. I have tried to draw them as widely as possible. For example, sticking a thermometer into something to tell the temperature when one does not know the temperature is an experiment of a kind. Another one —to which I can refer at a later stage of the Bill —is feeding an embryo with a little glucose and measuring its lactic acid output on the basis that the most active embryos are probably the most suitable for implantation. That again falls within my definition of "experiment". I beg to move.

The Deputy Chairman of Committees (The Earl of Listowel)

I beg the pardon of the Committee. I should have put the question first, That Clause 1 stand part of the Bill?

Clause 1 agreed to.

The Lord Chancellor

The Government have not included a definition of research in the Bill because they believe that for the purpose of the Bill it is not necessary and indeed is undesirable to do so. We have the feeling that the word "research" is probably as clear as any substitution for it. The same is true of "experiment".

It is not easy to deal with the matter in a very comprehensive way. However, I take one example. I read with great interest the definition of "experiment" that the noble Earl has put forward. Would it include growing up, for example? I refer to the ordinary process of a child becoming an adult. I am not sure. However, that is a test of the definition.

The "project of research" has as its main idea in the definition of the noble Earl, Lord Halsbury: any experiment or observation or sequence thereof designed to establish knowledge of the subject matter to which such experiments or observations are directed". It has been suggested to me that to establish knowledge may be one thing. One may also have a project of research intended to apply what one has discovered to some other situation. It is open to question whether, if one is seeking to apply the knowledge one has already discovered to a new situation, one is seeking some knowledge of that situation. We feel that the word "experiment" and the idea of "project of research" are sufficiently clear to make it unwise to define them further. It may not be easy to hit on definitions for either of these that are all-embracing and add to the clarity of the phrases themselves.

I know that the noble Earl may have a different idea. I put these matters forward for his consideration.

The Earl of Halsbury

I do not wish to fight this as a matter of principle. I am not an expert on the drafting of legislation. The noble and learned Lord is. If he tells me that it is unnecessary, I am prepared to accept that.

Knowledge covers how to do something, or to make something, or to understand something; and that is that. I do not know whether or not growing up is a procedure. The noble and learned Lord and I are at one on that. I beg leave to withdraw the amendment standing in my name.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

The Lord Chancellor moved Amendment No. 7: Page 1, line 24, after ("provided") insert ("to the public or a section of the public").

The noble and learned Lord said: This is a government amendment. The idea of the amendment is to make it clear that the Bill is not intended to apply to self-administered treatments. It has been suggested to us that Clause 4(1)(b), which prohibits the use of a man's sperm in the course of providing treatment services except in certain circumstances where a person is licensed to do so, would make self-administered treatment unlawful. By amending the definition of "treatment services", it is intended to make it clear that the treatment services to which the Bill applies are those that are provided to the public or a section of the public. That is what the Government seek to achieve by the amendment. I beg to move.

On Question, amendment agreed to.

Lord Ashbourne moved Amendment No. 8: Page 1, line 24, leave out ("women to carry children") and insert ("a specified woman to bear a child").

The noble Lord said: In moving the amendment my contention is that the present definition of "treatment services" is too broad. It could be interpreted to mean almost anything since many procedures could be said to help women in general to bear children. Crucially, it could be interpreted to include research on the human embryo, thus pre-empting the decision of the Committee on Clause 11 that we shall be discussing in due course.

As with other forms of infertility treatment covered by the Bill, such as AID (artificial insemination by donor), the amendment will ensure that treatment is treatment and not research. It is to everyone's advantage that research and treatment are clearly distinguished. Whichever way the decision on embryo research goes, we shall need to dstinguish between the two. In essence, it is a drafting amendment to avoid ambiguity rather than a matter of policy. I beg to move.

The Lord Chancellor

I understand the purpose for which my noble friend has moved the amendment, but, with great respect, I question whether it assists the definition of "treatment services" as, medical, surgical or obstetric services provided for the purpose of assisting women to carry children". The importance is to be given to the words provided for the purpose of assisting women to carry children". I believe that it is plain that research is distinguished from treatment by that aim. The objective of research is not to provide a particular service for the purpose of assisting women to carry children where the services are medical, surgical or obstetric.

If the intention is to make the scope of control as broad as possible within the limits of the general policy of the Bill, I believe that it is not wise to seek to limit the definition of treatment services, because that is the basis on which one aspect of the control is to be exercised.

In the light of these considerations, my noble friend may feel that the amendment does not exactly serve the purposes that he had in mind when putting it forward.

5.30 p.m.

Viscount Caldecote

I should like to support my noble friend's amendment. If the Bill is left as it is surely all the research into making more efficient the methods of IVF would come under the heading. It is to assist women to carry children. Surely my noble friend Lord Ashbourne is right in saying that the provision would include a large measure of work which we normally regard as research. My noble and learned friend the Lord Chancellor has made clear that such work is not intended to be covered by the subsection.

The Lord Chancellor

It is important to notice the emphasis on the words "provided for". The Bill states: medical, surgical or obstetric services provided for the purpose of assisting women to carry children". I believe that research, whatever it may be, would not be a service provided for the purpose of enabling or assisting women to carry children. The case may be that indicated in the definition put forward by the noble Earl, Lord Halsbury, which we have not yet incorporated; that is, some assertainment of knowledge, for example, in relation to what treatment services should be provided. The emphasis is on the object of the service as provided for the purpose of assisting women to carry children.

If the intention is to limit research, that would not be made clearer by the addition of the words "a specified woman to bear a child". It might be that the research would be directed to a particular woman. I do not believe that the amendment hits the mark which my noble friends are seeking. It is a difficult target and I believe that the matter may merit further consideration.

The Duke of Norfolk

I should like to make the matter more precise. The words were contained in the Unborn Children (Protection) Bill tabled by Enoch Powell in the other place. I more or less copied his Bill and brought it before your Lordships' House about a year ago. I had wide support on Second Reading but did not carry on with the Bill.

Such specification is required in order to draw a firm distinction between treatment and research. Treatment involves an embryo being produced to enable a specified woman to bear a child rather than for the purpose of enabling women in general to bear children. It could include research being carried out on the embryo which might enable other women at a later stage to bear children. We do not wish to see research carried out on embryos. If we define it as an embryo being created for a specified woman to bear a child, that embryo must be put into that woman.

Lord Milverton

I wish to support my noble friend Lord Ashbourne. As a result of the Bill one hopes to see what is lovely, noble, beautiful and true maintained. That is the reason why I support my noble friend and why I have great reservations about the issue. One wonders whether in the end what is noble, beautiful and of worth in a human being will be kept unless there is great spiritual insight among men and women.

Baroness Carnegy of Lour

In moving the amendment my noble friend said that it was important to make a distinction between treatment and research. If treatment is carried out in a certain place for a succession of couples, always in order to enable the specific woman in each case to carry a child, is properly recorded and the track record of the treatment through the years is observed, that becomes research. That has been pointed out to me by scientists who are doing that. A distinction cannot be made. Research does not begin and end in any one place; treatment is part of research. The amendment is confusing although I understand the intention of my noble friend.

Lord Somers

I have it on the highest authority that a professor of the Royal College of Physicians has laid down that, for example, in the case of cystic fibrosis, if one were to destroy every defective embryo holding a defective gene it would take 1,250 years to halve the incidence of the disease. In the case of other diseases it would take even longer. I believe that at present research on embryos is not of much use except for the purpose of enabling a woman to bear a child.

Lord Walton of Detchant

I support the view expressed by the noble and learned Lord the Lord Chancellor. However, Clause 8(8) provides that one of the functions of the authority would be to keep under review information about embryos and their subsequent development and the provision of treatment services. I understand why the amendment has been proposed but the term "treatment services" is extremely broad. It embraces a wide range of medical, surgical or obstetric services provided for the purpose of assisting women to carry children. That explanatory phrase does not refer to a form of treatment used for the benefit of a particular woman. It is a broad, inclusive term relating to services available to women in general.

The Lord Bishop of Manchester

I wish to add one further point. In trying to envisage how the provision will work in operation, I wonder whether it is true that if the amendment were passed one would have to hedge it around with further legislation to ensure that it did not become a farce. One can envisage that people may put forward the name of a specified woman in that way but with a wider purpose in their minds. I do not believe that the purposes behind the amendment can be achieved by the form of wording suggested.

Lord Stallard

I become more confused as the discussion goes on and I am trying hard to come to terms with some of the expressions and the points that are being made. However, I was not confused when I listened to the noble Lord, Lord Ashbourne, moving the amendment. It appears to be a reasonable attempt to tidy up an untidy provision.

The noble and learned Lord the Lord Chancellor confused me even further. He said that the provision was specific. However, I am worried about all experimentation on embryos and I believe that we must be specific. My fear is that the provision is not specific enough. If it was specific we may lose some of our fears in respect of other parts of the Bill. Therefore, to tidy up the matter at this stage appears to be a good idea.

It is a fair drafting point to say, "We should make this specific and enable a specified woman to bear a child". I believe that there is a difference between that and general research enabling any woman to bear any children. It ties it down. I assumed that that was what we were trying to do.

Also, as the right reverend Prelate suggests, I am assuming that all the people involved in this will be honourable. I know that that is perhaps not true at present in some places. However, I must assume that there will not be attempts to specify a woman's name for the purpose of an experiment in order to fiddle the books, as it were. I do not believe that that can happen; I hope that it will not happen and I certainly would not embark on a Bill with that in mind.

I believe that it is necessary if we are serious —and I am serious —about our fears as to experiments on embryos to be specific about what is to be specified as treatment and what is to be specified as research into more general treatment for wider application for women in general.

This amendment does not deal with what will happen to spare embryos; we shall come to that later on. That is another discussion. It can probably cover some of the aspects which we have missed in our discussions on this amendment. However, I thought that the amendment of the noble Lord, Lord Ashbourne, was perfectly reasonable and I support it.

Lord Kilbracken

Perhaps the noble and learned Lord could tell me when he comes to reply exactly what he sees as being covered by the phrase "carrying children" because it does not normally include either conception or childbirth although we have been talking as though bearing children is included in the phrase. Surely that is something quite different.

Lord Bridge of Harwich

Purely as a matter of drafting, it seems to me that the apprehension underlying the feelings of the movers of this amendment is quite unfounded. A court called upon to construe a definition section looks not only at the defining words but at the phrase to be defined. If a person who engaged in the kind of research which is thought to be offensive and at which in certain respects this Bill is directed sought to defend himself by saying, "Oh, I have only been engaged in providing treatment services provided to the public or a section of the public", he would never succeed.

Lord Brain

Is this not too restrictive? I understand that the process carried out in in vitro fertilisation requires the implantation of more than one embryo. If this amendment is carried, only one embryo may be implanted because a specified woman cannot be given more than one child. I suspect that the wording is defective.

5.45 p.m.

The Lord Chancellor

I am very sorry that my efforts to assist have only created more difficulty for the noble Lord, Lord Stallard. Perhaps I can have another try. He wants to make this specific. Of course there are different matters which one wants to make specific. I rather suspect that what is wanted by my noble friend who moved the amendment is something which makes it clear that treatment services will not enable research to be carried on, if research is prohibited, under the name of treatment. I believe that that is the point which my noble friend is making. I cannot see how it helps to specify in relation to a particular woman. That is the wrong kind of specification. The specification required should be directed at what is included in treatment. As I said earlier, that is why I believe that the phrase "provided for" is important.

This amendment was presented by my noble friend Lord Ashbourne as an amendment designed to deal with drafting. My noble friend the Duke of Norfolk referred to the Bill which he presented which bore somewhat of a resemblance to that presented by Mr. Enoch Powell in another place. There the policy would be described as rather different. There the idea was that a particular treatment would be licensed. The idea of this Bill is that the licensing authority will consider what it is that a particular clinic is doing and what the conditions should be and will grant the licence and then the clinic will deal with patients and treat them according to the licence.

If this amendment is passed the result will be that every licence must specify a particular person in respect of whom it is to be granted. That will do nothing to further the interests which were suggested as being behind the amendment of my noble friend Lord Ashbourne. It would create a quite needless and useless duplication, or indeed mutiplication, of bureaucracy.

I do not believe that I can make it any plainer than that. I can see that the more the matter is tied down, the more satisfactory it may be to some. However, one may be tying down the wrong thing. If it is tied down to a particular individual, that does not assist in tying down what may be done in respect of that individual, which is really the matter being aimed at. We rely on the phrase "provided for" for that purpose.

These are difficult issues. I do not seek to pretend that this is easy. However, I am trying to warn the Committee against taking a course in wishing to tie something down which has the effect of making matters worse.

Lord Ennals

If it is any reassurance to the noble and learned Lord, I agree with every word he said.

The Duke of Norfolk

I hope that it is not out of order for me to speak now. I see that the Chief Whip is nodding. That does not always happen. I obviously have not explained myself properly. We do not like to see any experiments carried out on any embryo. However, the pro-life group agrees that there should be therapeutic treatment for the benefit of that embryo. We regard the embryo as a born child or a grown-up. Treatment can only be carried out on that born child or grown-up for its own good. That cannot be so if it is carried out for the benefit of other people. We put in this amendment —and it was in the Enoch Powell Bill —to try to limit it so that only an embryo which will be inserted into a woman can be treated for the benefit of that embryo.

Lord Hailsham of Saint Marylebone

I wholly agree with my noble and learned friends the Lord Chancellor and Lord Bridge of Harwich. The amendment is shooting at the wrong target with the wrong weapons. One can only construe a definition in an Act of Parliament by looking at the context in which the phrase is used in other sections. If you look for a moment at Clauses 4, 11 and 13 you can find that if you tried to apply the definition proposed in the amendment to any of those clauses you arrive at nonsense.

Lady Saltoun of Abernethy

I ask the noble and learned Lord whether he really believes that the word "carry" is appropriate in that context. It seems to me that the word "carry" could mean to carry in one's arms. I wonder whether the word "bear" may not be better.

Lord Robertson of Oakridge

It was my understanding of this amendment that, in stipulating that treatment services covered by the Bill should be given to specified women, that did not mean that separate licences, as the noble and learned Lord the Lord Chancellor said, would be needed for each individual woman. My understanding is that one licence would be issued to cover the treatment services which could be given to any number of women whose names would have to be entered on the appropriate record.

My only other point is that where I think that this phrase and the definition of it is terribly important is in Schedule 2, paragraph 1(1), where it says: A licence under this paragraph may authorise any of the following in the course of providing treatment services". I understand that the choice we were to be given in the equivalent of Schedule 2, paragraph 1, subparagraphs (1) and (2), was between some research and no research. When we looked at the phrase "treatment services" and married it up with the definition which is the subject of the amendment of the noble Lord, Lord Ashbourne, we felt that Schedule 1 allowed an appreciable amount of research, and that is what was at the back of the worry which led to this amendment.

The Lord Chancellor

My noble friend the Duke of Norfolk made it plain that he wishes the test of research, or the test of something that is not research, to be the purpose of assisting either the embryo itself or its development. That is exactly the emphasis that this definition has; that the treatment services are to be provided for the purpose of assisting women and not for anything else. They are to assist women to carry children.

The noble Lady, Lady Saltoun, asked whether the word "carry" is appropriate. I suggest that it is appropriate. The object is to create conditions under which an implanted embryo is in the uterus of a woman and it is to that purpose treatment services are directed.

With regard to what was said by the noble Lord, Lord Robertson of Oakridge, I can see that what is covered in paragraph 1 of Schedule 2 may require to be looked at. I can understand that he may have some questions about that, but I do not understand how putting the name of the specific woman into the definition would assist in that in the slightest. That is the problem. Naming the woman is perhaps the best way to simplify the amendment —it insists on naming the specific woman. How does that of itself restrict what can be done with embryos in connection with that woman? The answer is that it does not. It only creates unnecessary complications in licensing and has no bearing whatever on the list in paragraph 1 of Schedule 2.

The Earl of Perth

I have listened to the debate on this amendment and it seems to me that there is a very genuine worry on the part of those who tabled the amendment and those who have spoken in its support; that is, the question of the meaning of the word "treatment".

The noble and learned Lord the Lord Chancellor said that it means "to assist" and does not allow research. That may be, but I ask whether he will look at this matter again, not in any way to say that he accepts the amendment but to see whether the genuine fears of those who have spoken cannot in some way or other be allayed by a form of drafting of that sentence which refers to "treatment services".

The Lord Chancellor

I should like to make clear from the outset that I shall listen to everything that is said, take account of concerns and seek to meet them. All I seek to point out at this stage is that the suggestion made in this amendment does not appear to be directed effectively to meeting the concerns which prompted it. I shall certainly consider whether those concerns can be met in some other way as we proceed. I am not sure that this discussion has so far suggested a way forward in that regard, but that is the situation.

Lord Ashbourne

May I say how grateful I am to all noble Lords for taking part in the debate on this amendment, and particularly to the Lord Chancellor for explaining the views of the Government so cogently.

I am not very happy because it seems to me —I am a simple man —that any amendment which is set to remove ambiguity must be a good amendment. I cannot see that allowing ambiguity into legislation can ever be helpful or useful. However, I shall read very carefully what has been said, and the Lord Chancellor has indicated he will look at the matter. I may come back at Report stage, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Duke of Norfolk moved Amendment No. 9: Page 2, line 2, after ("cryopreservation") insert ("and any other method of suspending animation")

The noble Duke said: At present embryos, sperm and to a lesser extent eggs are stored by cryopreservation —however that is pronounced; my attempt at pronouncing Greek is not good. I took Greek for six weeks; the class was cut in two and I was in the half that did not go on.

The Bill enacts time limits for the storage of gametes and embryos and also specifies that for the purpose of a time limit on experimentation, storage does not count. No other technique of storage is possible at present. However, such techniques may be developed in the future. It is advisable, therefore, to allow for this. This amendment allows for any other methods of suspending animation —that is, temporarily suspending the life process, growth and development —to be counted as storage for the purposes of this Bill. I beg to move.

The Lord Chancellor

When this Bill was drafted our information was exactly the same as that of my noble friend the Duke of Norfolk; namely, that cryopreservation was the only method of "keeping" that was available. We have used the word "keeping" in the Bill to accommodate any development of other methods of keeping that might arise. We want to make clear that the only one we knew of was cryopreservation. However, no harm is done by making clear the intention that any other method of keeping is covered. It is entirely in line with the spirit of Clause 2(2) and therefore, as my noble friend has put forward this point, I undertake to consider it and will seek to bring forward an amendment on Report on the lines he suggested.

The Duke of Norfolk

I thank the noble and learned Lord and I withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Lord Kennet moved Amendment No. 9A:

Page 2, line 5, at end insert — ("( ) For the avoidance of doubt it is hereby declared that an embryo shall have the legal status of a person.")

The noble Lord said: I apologise for putting Amendments Nos. 9A and 9B down so late in the day —only this morning. I will not weary the Committee by reciting the reasons, but I apologise in the interests of getting on. I have been advised by the Public Bill Office that the right place to put these amendments is at the end of the definition clause, where they are.

The Bill as introduced does not say whether an embryo is a person or a chattel in law, or indeed any other sort of thing in law. It was represented to me that this is a bad plan because to leave it undefined is likely to leave it to the definition of the courts at a later date. We cannot know what courts and in what context. It has been put forward that it is the duty of Parliament to tackle great moral and legal difficulties like this directly, in the first place, by primary legislation.

What might happen? People fall out and when they fall out they go to court. When they fall out about stored embryos it seems very likely that they will fall out as grievously as they do about divorce, about the care of children after divorce and all that tangle of very intimate emotional questions.

In the United States and Australian courts—these are two countries well up in the league of technology, as we are in this country —there have already been cases which have come to contradictory conclusions on this point. I wish to take a moment to tell the Committee what they are.

As long ago as 1978, in the case of Del Zio v. Presbyterian Hospital, in New York State, the court appeared to decide that an embryo was a chattel. Later, for legal reasons, it was found that it had not so decided though that was the opinion when the court considered the matter. More recently, in September of last year, in the case of Davis v. Davis heard in the Tennessee Circuit Court, the court decided fairly and squarely that an embryo is a person.

I turn now to Australia and the case of Rios —concerned with stored embryos. The parents were killed in an air crash. Litigation ensued and the relevant expert committee; namely, the Waller Committee —I do not know whether it corresponded exactly with the Warnock Committee —advised that the embryos should be destroyed. After pressure it was decided that the embryos should be set aside and allowed to die. The state government of Victoria then introduced a new section in statute law providing that the Minister has to direct the court what to do in certain circumstances. General confusion has ensued out of that case because of the uncertainty whether the embryos were persons or chattels.

A further case is pending in a United States Federal Court concerning stored frozen embryos. The owners or donors wished to transfer them from Virginia to California. That, if you please, has been caught up in the law of interstate commerce which clearly points to the conclusion that an embryo is a chattel and not a person. So the issue is facing every which way in those two countries.

One can imagine the contexts in which litigation might ensue if an embryo is not decided by Parliament to be either a person or a chattel. Divorce proceedings are obvious. Proceedings between or concerning unmarried people may become tied up with opinion concerning the suitability of one parent or the other to bring up the embryo or to dispose of it. In testamentary proceedings can one bequeath an embryo to others? Can one bequeath anything to an embryo? These questions would be settled differently if the embryo were a chattel from how they would be settled if the embryo were a person.

As regards immigration proceedings, couples may seek to enter the country bringing frozen embryos with them. Here we begin to touch on criminal law. One can even imagine customs proceedings. It would be one thing if an embryo were an object which could be brought into the country. But theft is a very likely issue. An embryo made here by IVF may be stolen and taken into a country with tighter laws than ours. For example, an embryo may be taken to a country which has decided that an embryo was a person.

Lastly, there will be a black market in embryos whatever the law is. There is always a black market in regulated products. It is worth noting that in the existing black market for children for adoption —we know that this country is not a centre for that traffic—children with fair hair and blue eyes fetch a higher price than others. It may also be assumed that chattels which are expected to have fair hair and blue eyes will fetch higher prices than chattels that are not expected to.

A good many different branches of law will be concerned with this question, and there are many levels and types of court which may be seized of the cases when they crop up. I believe that it would be a great neglect of parliamentary duty if this Bill did not settle by a simple declaration the status of the embryo in law for the later avoidance of unnecessary and confusing litigation.

As to the form of the two amendments which, as Members of the Committee will see at once, are mutually contradictory, I have taken a leaf from the Government's book and tabled them so that the Committee can adopt either if it wishes. I say at this point that if anyone can think of another status in law for frozen embryos I would not regard my two alternatives as exclusive of all others. It may be interesting to discuss whether, first, the status of an embryo needs greater description in the Bill than it has now. Secondly, if that is so, the question is what that description should be.

It is possible that this debate will not be the last on this topic as the Bill proceeds through this House. I look forward to learning a great deal, as I am sure that all Members of the Committee will, from the lawyers among us of whom I am not one. I beg to move.

Lord Hailsham of Saint Marylebone

I rise to oppose this amendment and its ugly sister which immediately follows. An embryo is not a chattel, and to destroy it if it were would be trespass to somebody else's property. A human entity which is living is not a chattel and neither is it a person in any ordinary sense. Most extraordinary results would occur if it were. Could it bring an action by its next friend? I suppose that its name would be A N Embryo by its next friend, Mrs. Smith. It would be able to bring an action for personal injury if it were damaged. I suppose the loss of expectation of life might be among the general effects for which general damages could be awarded.

It is wrong to try to define a human embryo in terms of established legal definitions which are plainly inapplicable to human embryos. Why must an embryo be one or the other? Why cannot it be just an embryo? This question is like Achilles and the tortoise, the old Stoics and Epicureans and the Greek philosophers who invented puzzles in order to make them unanswerable. It is far better not to attempt to define these matters.

If the present amendment is allowed it would have the curious effect of rendering it murder to destroy an embryo in a way which is certainly the case if any form of experimentation were allowed. It is far better not to go down this road at all and to let an embryo be an embryo, and nothing else.

Lord Somers

I do not normally have the impertinence to differ from the noble and learned Lord, Lord Hailsham, but on this occasion I am going to. I believe that an embryo should definitely be a person. It is an instance of human life. If it is that, who is going to say when it ceases to be just an embryo and becomes a person? There are a few differences because it does not have to pay income tax.

Noble Lords

Or the poll tax!

Lord Somers

Apart from that it is definitely a person.

The Lord Chancellor

I am rather surprised that there seems to have been a pause in the discussion. As my noble and learned friend Lord Hailsham said, the categories of the existing law were developed by analysis of relationships with which our system had to deal. One of the matters with which it did not have to deal at the time the categories were developed was the embryo. The noble Baroness, Lady Warnock, and her committee had to consider this matter. I can do no better than quote from paragraph 10.11 of their report: Until now the law has never had to consider the existence of embryos outside the mother's uterus. The existence of such embryos raises potentially difficult problems as to ownership. The concept of ownership of human embryos seems to us to be undesirable. We recommend that legislation be enacted to ensure there is no right of ownership in a human embryo. Nevertheless, the couple who have stored an embryo for their use should be recognised as having rights to the use and disposal of the embryo, although these rights ought to be subject to limitation. The precise nature of that limitation will obviously require careful consideration. We hope the couple will recognise that they have a responsibility to make a firm decision as to the disposal and use of the embryo". Although there is no specific provision in the Bill to say in terms that there is no right of ownership of a human embryo, the policy in the Bill is very much based on the Warnock Report's recommendations on this aspect. It is fair to say that few comments were received about these matters during the two rounds of consultation which preceded the publication of the White Paper in November 1987.

Schedule 3 to the Bill, which sets out a detailed scheme of consent, follows the spirit of the recommendations of the Warnock Committee. I am sure that we are right not to seek to define ownership as in these amendments. The scheme of Schedule 3 requires that an embryo once created is to be used only in accordance with an effective consent given by those from whom it has been created. The ultimate sanction, as it were, is that any embryo in respect for which there is no longer an effective consent for use or storage is to be allowed to perish. This appears to be the best way forward at this juncture.

The various cases to which the noble Lord, Lord Kennet, referred illustrate how difficult it is for lawyers to cope with the kind of problems with which his amendments deal. They come to contradictory conclusions, as he pointed out, even though they may start off, so far as the law is concerned, from somewhat similar concepts. The real difficulty is that the concepts in the existing law of person, the rights of persons, the concept of chattel and so on do not fit the embryo. I should have thought that my noble and learned friend Lord Hailsham must be right. We should leave "embryo" as "embryo" and seek to deal with the conditions which affect it after the manner of Schedule 3. Noble Lords may have different views about that. There is room for difference of treatment in detail of these matters. This seems to be a fair way to take the matter forward. To go down the road of the amendments would be to pose conundrums which might be fascinating for lawyers to discuss but which would not really deal with the fundamental problems.

Lord Prys-Davies

Although I speak from the Front Bench I do so in a personal capacity. I do not find the amendments helpful. There are difficulties about the status of a person. Is it to be the status of a child; is it to be the status of a fetus, or what: There are difficulties also over the status of a chattel. The term is used in legislation —for example, in the Sale of Goods Act —but none of us would dream of using the term chattel in the sense that it is used in the Sale of Goods Act. I do not think the amendments are helpful and they should not be pushed any further.

6.15 p.m.

Lord Kennet

This has been a shorter debate than I expected. Perhaps we can have a longer one later. I fully took the force of the points made by the noble and learned Lord, Lord Hailsham. Nobody knows what an embryo is in law. It was to start the process of helping our society to make up its mind that I introduced the amendments. I was surprised that the noble and learned Lord did not refer to any of the four cases which simply illustrate the confusion which the good Americans and good Australians have fallen into for lack of a statutory definition when they come to deal with the nitty-gritty of everyday life between people who are at odds.

Lord Hailsham of Saint Marylebone

I rise only to answer the noble Lord's question. My experience of quoting American cases is like swimming in treacle; they ask themselves a silly question and then they give a foolish answer.

Lord Kennet

I have little doubt that the present state of British law in this matter is inadequate to cope with this new technology. Whether to propose a remedy to that is itself a foolish activity or whether it is only my answers that are foolish I am not sure. However, I do not believe that the Americans are much more foolish than we are.

The noble and learned Lord the Lord Chancellor remarked how difficult it was for lawyers to cope with this problem and how likely it was that they would come to contradictory conclusions. That is exactly my point. I introduced these imperfect amendments with the idea that it was the duty of Parliament to help them to come to conclusions and to forestall those contradictions with something which, in the judgment of Parliament, was just and sensible. Obviously we do not have it. These amendments do not contain it.

However, I do believe that even this tiny debate demonstrates an underlying schizophrenia, using the word in the layman's sense, which exists about the embryo. Is it a thing with which we are allowed to do what we want, or is it a very small human being, which it would indeed be murder to destroy? We cannot make up our minds and we have great difficulty in finding any meaningful words which lie between those two positions. That underlies the whole Bill and will continue to do so.

I should like to invite any noble Lord who shares my perplexity about the matter of definition to be in touch with me between now and the next stage of the Bill. I hope that, although he has not said so, the intention of the noble and learned Lord the Lord Chancellor may be that the Government will not shut their mind entirely to any helpful proposals on the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9B not moved.]

Lord Kilbracken moved Amendment No. 10: Page 2, line 6, after ("has") insert ("become").

The noble Lord said: I tabled this amendment because I was absolutely certain that the verb "to implant" could not be used intransitively as it is here in Clause 2(3) of the Bill which reads: until the embryo has implanted". I felt completely confident about the matter because I looked it up in the Shorter Oxford English Dictionary. I found that there was no example of it having been so used over the past 250 years covered by that dictionary. However, during the last hour I took the precaution of referring to the Oxford English Dictionary which is the longer version, where I found that in embryology —but only in embryology —it has been used intransitively since 1955. Therefore I do not intend to press the amendment. However, it may be that the noble and learned Lord will wish to comment on the matter. I beg to move.

The Lord Chancellor

The noble Lord is absolutely right. The general usage is a transitive one but embryology uses it intransitively. However, the Bill is not meant for embryologists; it is meant for ordinary people. Therefore, although the Bill as drafted takes —not surprisingly —the usage of the embryologist, because it was working in that particular area of science, when we saw the noble Lord's amendment we recollected that it did properly reflect the more general practice. Therefore, I thought it wise to accept the amendment. Accordingly, I propose to recommend that Members of the Committee do likewise.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 [Prohibitions in connection with embryos]:

Lord Somers moved Amendment No. 11: Page 2, leave out line 9.

The noble Lord said: This is purely a probing amendment and is not of any great importance. However, it occurred to me that any married couple who proceed in the normal way of married couples will be creating an embryo. Therefore it seems a little unnecessary that they should have to get a licence in order to do so. Of course, I am not sure whether the marriage licence could be used as a substitute in this respect. I beg to move.

Lord Hailsham of Saint Marylebone

It seems to me that the noble Lord has not read Clause 1(2) of the Bill. The creation has to be "outside the human body". I should point out that, at any rate, none of my children was born that way.

The Lord Chancellor

Perhaps I should confirm to the noble Lord, Lord Somers, that one of the purposes of Clause 1(2) is to try to deal with the matter and make it clear that we are not dealing with the ordinary procedures to which he referred but the rather extraordinary procedures which require regulation under the Bill.

There is a possible problem which may arise in another connection about whether there is any need to regulate any treatments which are somewhat abnormal; that is, other than those which are out with the body. However, so far as concerns this particular problem, I think that Clause 1(2) is the answer.

Lord Somers

In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kilbracken moved Amendment No. 12: Page 2, line 13, leave out ("a live") and insert ("an").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 14. I should like to maintain the general hilarity which currently exists in the Committee, but I do not see much possibility of that as regards this particular amendment. I draw the attention of noble Lords to the extraordinary inclusion of the word "live" in Clause 3(2)(a) and (b). The passage reads: (2) No person shall place in a woman —

  1. (a) a live embryo other than a human embryo, or
  2. (b) any live gametes other than human gametes.
The inclusion of that word is doubly unnecessary: first, because surely no one will suggest placing a dead embryo or dead gametes into a woman; and, secondly, because in Clause 1(1) we already know that references to an embryo, are to a live human embryo". Moreover, Clause 1(3) reads: References in this Act to gametes, eggs or sperm, except where otherwise stated, are to live human gametes, eggs or sperm". Therefore, from both those points of view, the inclusion of the word is unnecessary. I propose that the passage should be amended to read: No person shall place in a woman —
  1. (a) an embryo other than a human embryo, or
  2. (b) gametes other than human gametes".

I beg to move.

The Lord Chancellor

Perhaps I may deal with the noble Lord's second point first. The definition imports the idea of "live" so far as concerns human embryos. Therefore the definition clause does not import the word "live" where it is another embryo that is in question. It takes us back to the argument as regards the original amendment with which the noble Lord started the proceedings.

The second point is perhaps more difficult. As understand it, the situation is that, however macabre it may be to seek to put a dead embryo or dead gametes into woman's body, it would have no genetic or physical consequence. The mischief which is being attacked here is that of doing anything which may lead to the creation of hybrids. It is the idea of a genetic development by use of a non-human embryo in a woman's body that is in question.

Therefore, although the removal of the word "live" would not do any harm, because what would remain would include live as well as dead embryos, the intention is to focus upon what is the real difficulty or mischief which we are seeking to address. Keeping the word "live" in the Bill makes that fact plain and distinguishes it from other procedures, however macabre they may be, which are not in contemplation. I must confess that it never occurred to me to think of anything other than a live embryo in this context. It is only right to make that emphasis so that the reader may fully understand.

Lord Kennet

I rise to say briefly that I agree with the noble Lord, Lord Kilbracken. Having considered all that has been said, in my view there can be no objection to removing the word. Indeed, it would achieve the same purpose. Now that such a situation has been imagined —and I would not like to judge whether the noble Lord's imagination is macabre —why should we not remove the word?

Lord Kilbracken

For my part, I never imagined that anyone would even consider the possibility of putting a dead embryo or gamete into a woman's body. Indeed, I should say that the idea is macabre. Surely we do not have to put a provision into the Bill which stipulates such a thing is not permitted. No one would try to do this. In any case, if the word "live" is left out it still prohibits the use of a dead embryo. It seems to me to be completely grotesque. However, in the light of the lack of support I have received, apart from that expressed by the noble Lord, Lord Kennet, I am not inclined to insist upon the amendment. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Lord Ashbourne moved Amendment No. 13:

Page 2, line 13, after second ("embryo") insert ("the creation of which was brought about using the eggs of that woman and the sperm of her husband").

The noble Lord said: With the leave of the Committee I shall speak also to Amendments Nos. 25 and 29. In a nutshell these amendments would limit treatment to married couples using their own gametes or, put more simply, AIH (artificial insemination by husband) would be permissible but AID (artificial insemination by donor) would not.

It might be helpful if I were to run over the underlying thinking behind the amendments. The first premise is that children need to be born into a stable union of two people committed to each other. Marriage is a public sign of that commitment. Couples who cohabit, or live in sin as we would have said 10 years ago, usually do so because they do not wish to make a long-term commitment to each other. Is that a sound environment for bringing children into the world?

The amendments are supportive of the family, the fundamental unit of society. The noble Baroness, Lady Ewart-Biggs, initiated a debate on the family on 29th November in which many of your Lordships took part. It is good to see the noble Baroness in her place. The underlying groundswell of opinion during that debate was that the family needed to be buttressed. It needed to be supported. It needed to be built up. I wish to quote from the right honourable Member for Finchley who said on 25th May 1988: We must strengthen the family. Unless we do so, we will be faced with heartrending social problems which no government could possibly cure or perhaps even cope with". More recently, I should like to quote the right honourable Member for Mole Valley, Mr. Kenneth Baker, the chairman of the Conservative Party, who said: But it is indeed a pity that we have to rely so heavily on the resourcefulness of single parents in coping with the task of raising children which nature intended to be the work of two people. The theorists of the permissive society claimed that the interests of the parent and the interests of children always went hand in hand; but what more people now recognise is that parents have duties to children that involve sacrificing some of their own wants for their children. Having children creates duties and obligations". As the father of a handicapped child, I assure the Committee that I strongly endorse that quotation.

To return to the right honourable Member for Finchley: on 17th January she made a widely reported speech at the National Children's Home, in which she addressed the complex issue of maintenance payments by absentee fathers. Yet Clauses 3 and 4 still allow women who are neither married nor cohabiting to become parents through AID. The full impact of the clauses is that national resources may be used legally to encourage single parenthood and that children born to single women would obviously have no statutory father.

It is indeed sad that Her Majesty's Government cannot see the financial and moral inconsistency of that aspect of the Bill. I challenge the noble and learned Lord to explain that inconsistency in the clearest possible terms if the Government are not minded to support the central amendments.

We know nothing of the long-term psychological and emotional effects of AID. Is it not a dangerous path to tread, creating as it does, a Pandora's box of legal, medical and psychological problems? I am going to ask your Lordships to close your eyes and to try to imagine that your mother had told you today that you had been born by AID and that the man you had called your father all your life was not in fact your father. How would you feel about the man, perhaps a medical student, who had so glibly given his sperm? What feelings would you have towards him and his possible motives? And what feelings towards your mother who had deceived you for so long?

I can speak only for myself, but I suspect that I might have feelings of anger and frustration and a sense that I had been deceived. We are talking about the sanctity of human life. Is it right to treat human life so lightly?

On a more down to earth note, if the Committee were to make today a firm decision to ban AID by supporting the amendments, we could delete Clause 26, the "Meaning of 'Mother'", Clause 27, the "Meaning of 'Father'", and Clauses 28, 29 and 30 which seek to regulate the problems created by AID. I know that some Members of the Committee may feel that the amendments lack compassion and it is true that if one partner has faulty gametes and requests donation, the amendment would prevent such help. It does not of course in any way affect adoption.

The Committee might at this juncture like to reflect upon the detailed screening process through which prospective parents who wish to adopt have to go before they are accepted as suitable to adopt a child, in contrast to the negative screening which goes on to have a child by AID. If the Committee feels that there may not be enough babies to meet the needs of those seeking to adopt, it will have an admirable opportunity to amend the Abortion (Amendment) Bill, to be introduced by the noble Lord, Lord Houghton, on 21st February, to tighten up the gaping holes in that piece of legislation.

I am asking for the Bill to follow the truth. Here scripture is relevant. In John, Chapter 8, verse 32, Jesus says: If' you continue in my word you will know the truth, and the truth will set you free". The amendments present the simplest, most honest and yet workable format for improving the Bill with regard to artifical insemination. It avoids the pretence of calling someone else father, and children will know that, although artificial means may have been used in their conception, at least their parents are their parents. I commend the amendments to the Committee. I beg to move.

Lady Saltoun of Abernethy

It might possibly be of assistance if I said a word or two at this stage. The amendment moved by the noble Lord, Lord Ashbourne, is designed to prohibit all gamete donations. I have enormous sympathy with the amendments. There was a time when I would have supported them because I find the whole idea of gamete donation repellent. However, after lengthy reflection, and it has been lengthy because I first raised the subject in this place six and a half years ago, I have come to the conclusion that in an intensely personal matter of this kind it is not for me to impose my views upon others.

I think that to have, or not to have, a donor child is perhaps a personal decision for the couple concerned. Having said that, I absolutely appreciate Lord Ashbourne's point about a donor child discovering later in life that he or she, is a donor child. I shall return to that subject when I move amendments to Clauses 26 and 27.

I have therefore decided to oppose these amendments, and later this evening shall be moving amendments of my own to prohibit, in the interests of resultant children, the provision of AID and in vitro techniques and services to unmarried women. If the noble Lords, Lord Ashbourne, Lord Robertson of Oakridge, and Lord Milverton, and the noble Earl, Lord Lauderdale, press these amendments and win I understand that it is likely that they will be reversed when the Bill goes to another place, and then it will be too late to introduce my amendments, for when a Bill returns from another place we can only agree or disagree with their amendments. We cannot at that stage introduce fresh amendments of our own.

I therefore implore those noble Lords not to press their amendments, but if they do I hope that the Committee might reject them and support my amendments, on the basis that the interests of the children are of paramount importance, and that it is crucial to have that half loaf instead of going all out for a whole loaf and ending up with nothing. Incidentally, I wonder whether or not the amendments outlawing gamete donation are possibly defective, since Section 27 of the Family Law Act 1986 apparently regards AID as legal.

Lord Hailsham of Saint Marylebone

I do not of course doubt for a moment the sincerity of my noble friend behind me in proposing this amendment. Nor do I suppose for a second that he is lacking in compassion. However, I suggest that this amendment is wholly lacking in common sense. Let us look at what it says. It says that a married couple who employ AID will be punishable under Section 36(6) by six months' imprisonment. That is what my noble friend proposes.

A woman who lives with a man, or with men, promiscuously, and produces a number of illegitimate children is totally immune from process under this amendment and will continue to be the mother of illegitimate children. How, in those circumstances, this amendment is supposed to preserve the sanctity of the family absolutely baffles any kind of description.

If an unmarried couple use AID, the penalty is six months' imprisonment under the amendment. But I have known cases —and I daresay noble Lords have known cases, or read about them in our social history —where a married couple have in fact been unfaithful to one another and the husband of that married couple has brought up the child as his own, and the child has remained under the belief that it is a child of the family. I regard that as a highly moral action on the part of the husband, but if it had been done by AID the husband would have been a criminal. I think that this is nonsense.

I hope that my noble friend will believe that I am just as sincere a Christian as he is. I happen to believe that sexual intercourse outside marriage is a sin, but I would not punish it by six months' imprisonment, nor would I punish fornication in the same way. Whatever can be said about adultery or fornication, they are a good deal more pleasant than AID would be, and I do not really see why AID should have an added punishment.

The Duke of Somerset

In the scenario painted by the noble Lord, Lord Ashbourne, if I had just been told by my mother about AID I would consider how good it was to be alive, because if it was not for the donor I should not even exist.

6.45 p.m.

The Earl of Cork and Orrery

I wonder whether I have completely misunderstood the argument which has been presented so far, or whether my noble friend Lord Ashbourne has not very much overstated his own case. He has presented the case for the amendment apparently taking as his base the alleged fact that in vitro fertilisation and AID are synonymous. However, they are not.

The noble Lord's amendment proposes to make it illegal to place in a woman "a live embryo other than a human embryo" and so on. AID does not place any live embryo anywhere, as I understand the meaning of the words. It is simply the introduction of a male sperm into a woman. There is no question of any glass dish involved in this at all. I would personally support the amendment if only my noble friend could make it clear that AID does not come into the argument at all.

The Earl of Halsbury

My views are identical with those of the noble Lord, Lord Ashbourne, so far as my personal behaviour is concerned. I would never under any circumstances allow a child of my loins to be brought up by other people. But I am in the difficulty, as so often we all are, that I am a Christian legislator in a secular community, and my personal views are not those that I must necessarily impose on others.

In that community AID is now a fairly established practice, and it would be unwise to use this Bill to disestablish it. Therefore, if my noble friend Lady Saltoun expresses herself "Not Content" when the voices are collected, I shall say the same and follow her into the Division Lobby.

Lord Prys-Davies

I very much respect the sincerity of the noble Lord, Lord Ashbourne, but this amendment is a worrying amendment. It really represents the most restricted and constrained approach towards the treatment that would otherwise be available under the Bill. It is restrictive —and we must emphasise this —in two ways. First, because the treatment is restricted to parties of a marriage whose union has been formalised either by a civil or a religious ceremony, and the treatment would not be available to cohabiting couples or to a single woman. I do not want to anticipate the debates that will be coming up later on the amendment in the name of the noble Lady, Lady Saltoun, but we are entitled to ask: why should treatment depend on marital status, and why should the law discriminate against cohabiting couples or even single women?

Then there is the second restriction. The noble and learned Lord, Lord Hailsham, has referred to this. The amendment restricts the treatment even within marriage to an embryo that has been brought about by the eggs of the woman who receives the embryo, and the sperm of her husband. That rules out sperm donation; it rules out egg donation. Currently, as we know, both the eggs and the sperm may be donated. That is being resorted to because couples who desperately wish to raise a family may be sterile, or, alternatively, one of them may be a carrier of a serious hereditary disease. While accepting the sincerity of the mover of this amendment, it is our submission that one cannot justify the banning of the egg or sperm donation without being pretty indifferent to the needs and hopes of very ordinary people in our country.

The Lord Bishop of Southwark

I have listened to the discussion on the amendment with great interest. I am clear that the amendment as it now stands will not achieve what the movers clearly wish it to achieve. It will certainly not achieve the statement about a concern which they have. I was a little surprised to hear the noble Lord, Lord Ashbourne, use the phrase, "legal, medical and psychological problems" when I suspect that as much as anything he is concerned about a moral issue. It is important to state before the discussion ends that many of us are concerned with the fact that marriage is something which binds together the whole question of sexual relationships and parenthood. That is something that we do not wish to see undermined by legislation. Anything which legislation seems to do in that way always leaves many of us concerned. On the other hand, as the noble Earl, Lord Halsbury, said, there is a place for a sense of reality about what is possible in our present day society.

I wish to make two points on this matter. The first is that any form of assistance from an outside donor, a third party, violates in some sense the exclusive union that exists between a husband and wife in a way that adoption does not. What has happened is that a third person has been involved in the creation of that child. We may recognise that that is not adultery in the normal sense —I am quite clear that it is not as it has a much more deliberate and almost clinical quality than adultery —but, nevertheless, there is an invasion of the union. We do not yet know enough to know what the consequences will be for many marriages where this has happened in terms of how people handle the matter later on.

My second point has already been raised. It is that anonymity in this area is something that we need to avoid as far as possible when the children are growing up. The interests of the child must be paramount; that is to say, they must take precedence over the needs of the parents, especially those of the mother to find fulfilment in the bearing of a child. The concern that has grown over the past few years about helping children who have been adopted to know something of their roots must have a parallel in this matter. I hope that that issue will be addressed carefully as we work our way through the legislation, if we are to allow the development of donor intervention to take place.

The Earl of Lauderdale

The Committee will be grateful to my noble friend Lord Ashbourne for saying what he has said in the way he said it. I believe that that is so whatever point of view individual Members of the Committee may hold. My noble friend drew attention to the context in which this whole Bill has been brought before us which is the context of family life. Unless the Bill has been brought before us in the context of family life its context must be that of treating people like cattle. It is one or the other. I do not wish to raise the temperature of the debate as I know we have all been busy trying to keep the temperature down. However, that comparison must be made. This whole matter must be treated either within the context of the family or of the farmyard. Having said that, I was much impressed by what the noble Lady, Lady Saltoun, said. If we were to press this amendment now and therefore prevent the discussion and the proper handling of her amendments which also relate to the context of family life, we would be doing a disservice to society, to the Bill and to ourselves.

One matter has been raised which will no doubt come up again. We have heard some Members of the Committee on the other side of the Chamber saying that it does not really matter whether children are born of a formally married couple or what is commonly called a stable, but what more often proves to be an unstable, relationship. Whatever our views on theology or sociology may be, we all know very well that much delinquency derives from broken families, broken homes or from children who have been driven out of their homes because their mother has found a new partner who cannot stick her children. Many of the children on the streets of London are the product of that situation. I beg the Committee to give its mind to that context when progressing through every stage of the Bill.

I put my name down to this amendment readily and perhaps not with sufficient thought because I never think of the legal consequences, unlike my noble and learned friend Lord Hailsham. I never thought of a six months' gaol term and other such matters. However, I feel that there is an important distinction to be made in all our minds here between AID and AIH. That is so whatever position we hold on a moral, theological, philosophical, social or political viewpoint. AID is the farmyard, like it or not, but AIH is the home. That is why I support the amendment in principle.

I believe that my noble friend may wish to consider withdrawing the amendment and returning to it at a later stage when we have had a chance to consider the amendments of the noble Lady, Lady Saltoun. In the meantime, I beg the Committee to look at this whole matter in the context of the family and not of the farmyard.

Lord Winstanley

I should mention one point which is perhaps related to what the noble Earl has said to us. Surely he would accept that a child born to a loving married couple as a result of AID is a wanted child. That situation has occurred. However, does the noble Earl accept that many children are born every day who are not wanted by anyone at all although they are born to properly married couples?

The Earl of Lauderdale

I accept that there are unwanted children. We all know of such children and of the sadness they feel when they discover they are unwanted. However, that does not disprove the value, merit or ideal of family life and its stability and coherence. Nor does it disprove the respect for the traditional values with which society has endowed family life down the centuries, irrespective of Christianity. That is the point I am trying to make. Whatever our position in terms of religion, science, philosophy or agnosticism, the family is a natural unit and it is in all our interests to develop and protect it. That is the context in which I ask the Committee to study this matter.

Lord Houghton of Sowerby

I do not think that the noble Earl should suggest that this amendment can be taken away for its merits to be reconsidered because it does not have any. It is highly discriminatory. When one considers this matter in relation to present social trends, sexual relationships and the matter of non-discrimination between men and women, the whole idea is Victorian. We have to avoid legislating in Victorian terms on a forward looking Bill of this great importance and imagination. We do not discriminate in abortions. We are about to stop discriminating as regards taxation. We provide state services to women; therefore women are entitled to be considered by reference to their status in relation to those services and not solely in relation to the legalised married state. That theory has been tested on 1,000 women. They were all against the discriminatory idea that these services should be available only to married couples. Some single people can make perfectly good parents. If one examines the social aspect of this matter, one can become a little confused about the blessings of family life, or indeed the confidence that many young people have in it. In those circumstances we must deal with this matter as relating to the rights of women and in response to the social trends of the day.

The Earl of Lauderdale

The only discrimination in which I shall indulge is as regards not responding to the noble Lord, Lord Houghton. I have long since learnt that that is a very dangerous thing to do as we then continue all night. Therefore I shall discriminate against my taste to reply to the noble Lord.

7 p.m.

Baroness Phillips

I should like to support the noble Earl and the right reverend Prelate. I am afraid that I shall take issue with my noble friend on this side of the Committee. Of course he mentioned society. What kind of society do we have? What do we have to be proud of? There are thousands of cases of child cruelty every year, child murder and child rape. The cases invariably involve someone who is described by the strange term "live-in lover". That is a revolting description of a strange condition. We all know that a man will not care greatly for a child of which he is not the father. In some unusual cases they care for the children, but it is not the instinctive feeling that a man has for a child of his own. We have to consider that point.

I find the Bill totally repugnant. Some of the more frivolous amendments are a relief. I had to go out for a cup of tea before we considered again the business of bits in a dish. To me that is not what human life is about. Human life has dignity. It is the result of an act of two people who love each other and want to have a child. It is not this cold-blooded business.

Yesterday we had to listen to legal definitions which confused us; today we have the scientists and the embryologists. I have never heard of some of the things that have been mentioned. I had heard of an embryo, but I did not even know that I had had the benefit of all those other things before my children were born.

I am very grateful to the noble Lords who introduced the amendment. We take the point of the noble and learned Lord, Lord Hailsham, that they had not thought out the question of the penalty. However, that does not in any way militate against the value of the amendment. Perhaps we can return to the matter at a later stage of the Bill.

Lord Milverton

I have no shame about having put my name to the amendment of my noble friend Lord Ashbourne. I am grateful to the right reverend Prelate because his remarks were very much on the nail. They reflect the reason why I put my name to the amendment and why I have in a sense come full circle and have come to have a very strong feeling of distaste for the Bill as the noble Baroness, Lady Phillips, has.

As the right reverend Prelate said, we are not helping marriage. We are not helping young people to love and treasure marriage where it is truly compassionate, a man and woman giving themselves to each other. As the right reverend Prelate said, we are drawing a line which will not help marriage but in the end —and I hope that I am wrong —make it a haphazard affair. Those of us who feel strongly about marriage are in a minority. I prefer to be in that minority rather than be party to the "Let's do everything with it" attitude of the time.

Lord Robertson of Oakridge

As I put my name to the amendment I believe that I ought to say a few words. It is a pity that two important points have been combined in the one amendment. One is the provision of treatment to unmarried women and the other is the question of AID and egg donation.

All that I should like to say on those two points is that we have heard a very good speech from the right reverend Prelate the Bishop of Southwark, which has made the debate and the time we have spent on it worth while. I shall read that speech with great interest.

As to the question of providing treatment to unmarried women, we shall have another opportunity to debate that matter under the amendment of the noble Lady, Lady Saltoun. I look forward to that.

The Lord Chancellor

All members of the Committee will agree that this has been a very important debate and one on which we face very important issues. I should like to say, first, in answer to the noble Lord, Lord Milverton, who expressed a distaste for the Bill, that if he believes that such matters ought to be regulated then a Bill such as this is essential. I do not believe that any of us relishes the difficult task which is involved in coming to decisions in these areas. However, I believe that we have a duty as legislators to seek to achieve a regulation of the matters in our nation which will last.

That brings me to underline the point made by the noble Earl, Lord Halsbury. As a devout Christian, as he undoubtedly is and as he manifested to us, he has to take account of the fact that he is legislating for a number of people, some of whom at least do not share his convictions. It is necessary that we take account of that also. The difficulty is to know how far one can go in accommodating those differences of view and still produce a satisfactory regulatory system.

In my third point I take up the quotations of my noble friend Lord Ashbourne from my right honourable friend the Prime Minister and my right honourable friend the Chancellor of the Duchy of Lancaster. The Government are committed, as I am, to the family as an important institution in our country. I know that the noble Lord, Lord Houghton of Sowerby, has expressed himself differently. However, for my part —and I speak on this matter on behalf of Her Majesty's Government —I believe that the family is a vital institution in a healthy society. I should not like to see anything allowed to undermine that.

As has been pointed out, there are two aspects to the amendment. The first is that treatment of that kind would be available only to parties to a marriage. That is the position that the noble Lady, Lady Saltoun, takes up in her amendment, to which we shall come later. The second point is that the amendment restricts the use of gametes to the gametes of those who are parties to the marriage. In other words, if the difficulty in fertility lies with the husband or there is some other problem of a genetic character regarding his powers to produce children, the parties to the marriage will not be allowed, if the amendment is carried, to accept donation from anyone else. That is what distinguishes the amendment from the amendment proposed by the noble Lady.

The question is whether the interests of preserving the family go as far as the amendment. If I was speaking entirely for myself I might well reach a different view, but in seeking to establish a legislative framework which will regulate the matter for the country as a whole I have to ask my noble friend whether it is wise to go thus far. I understand and accept that so far as he is concerned his conscientious conviction would prevent him and like-minded people from adopting the course of using the gametes of anyone outside the marriage to assist in overcoming that type of problem. I accept that and I share the convictions very strongly. However, as has been said, we must accept the fact that that practice has been going on in this country for some considerable time. Until now, no attempt has been made by the Government of the day, at least on a concerted scale, to legislate to prevent it. It may not therefore be wise to press that aspect of the amendment.

The noble Lord, Lord Houghton of Sowerby, referred to the rights of women and to discrimination. I understand his point of view. I also understand and draw attention to the point made by the noble Lord, Lord Winstanley; namely, that the child conceived by a donor in the circumstances that we contemplate is probably very much wanted and will be born into an affectionate and stable relationship. As the noble Duke, the Duke of Somerset, said, that child has the benefit of being born and of having life in consequence of that.

As I indicated, my personal conviction would go along with what the right reverend Prelate the Bishop of Southwark said on the matter. However, with regard to the practicalities of legislation, I wonder whether my noble friend is right to press the amendment, given that another amendment of a more limited kind will be proposed shortly.

My noble and learned friend Lord Hailsham drew attention to the contrast between that kind of situation and the situation, as it were, open in nature, and to the effect of the amendment with regard to criminal sanctions. Another point must be taken into account: it would not only be a criminal sanction. If the amendment were to be passed, it would be the understanding of my noble friend that this option would at least not be lawfully available. The practical effect of his amendment would be not so much that people would land up in prison, but that the option of that method of procreation would not be available. I believe that is the effect that my noble friend has in mind. I hope that, in the light of all those considerations, he will feel able to take an appropriate course in respect of the amendment.

Lord Kilbracken

Perhaps the noble and learned Lord will comment on the important point raised by the noble Earl, Lord Cork and Orrery. Surely in all this legislation we are talking only about in vitro fertilisation; namely, that which takes place in the dish outside the human body. Nothing in the legislation relates to AID or AIH, and both would still be available even if the amendment were agreed.

7.15 p.m.

The Lord Chancellor

Yes, that may well be true as matters stand. There is a suggestion that it might be wise to legislate to cover those treatments too. However, the Bill states: This Act, so far as it governs bringing about the creation of an embryo or the keeping or use of an embryo, applies to bringing about the creation of an embryo outside the human body or keeping or using an embryo outside the human body". The treatments which are possible in relation to the Bill include, medical, surgical or obstetric services provided for the purpose of assisting women to carry children". That provision is not restricted to bringing about the creation of an embryo.

Lord Kilbracken

An unmarried couple would still be able to make use of AID or AIH.

Lord Hailsham of Saint Marylebone

Not AIH.

Lord Kilbracken

No, not AIH.

Lord Ashbourne

I am extremely grateful to all noble Lords, particularly my noble and learned friend the Lord Chancellor, for taking part in the discussion which seems to be central to the Bill. I am extremely glad that Her Majesty's Government are committed to the family. I suspect that the noble Baroness, Lady Ewart-Biggs, who recently introduced a debate on the subject, will also be glad to hear that

I can only say, and I say this with great regret, that senior Ministers in the Government —the Prime Minister and the former Home Secretary, possibly the two most senior members of the Government concerned with those matters—frequently make speeches with which I wholly agree, but unfortunately there seems to be a serious communication gap somewhere down the line. Many noble Lords are far more experienced than I am in the process of government. We have heard those positive statements by the Prime Minister. She makes them quite frequently. I go along with them 100 per cent. and think, "Good-oh, we must be getting on track at last". Yet, having heard those mighty pronouncements from the top members of the Cabinet and the Government, we find those gaping holes in legislation where artificial insemination by donor is encouraged, fatherless children come into the world on every side and the Government try to cut down expenses and not make payments. It amazes me. The Broadcasting Bill which is going though another place contains the most appalling anti-Christian legislation. I find it difficult to see how such legislation can come about.

I was grateful to my noble and learned friend Lord Hailsham for pointing out the possible effects of the amendment. I had not fully appreciated the impact of that side of the matter. The noble Lord, Lord Houghton, appeared to say that, as a great many things are happening in this country, we should go along with them and not accept my amendments. It seems to me that, because those things are happening in this country, we have the highest divorce rate in Europe, we are equal first with Germany in the abortion table, there is appalling child abuse and prisons are fuller than in any other country, both in absolute and relative terms. Is that the kind of thing of which we can be proud?

We must get down to basics and this matter is one of the basics. I entirely endorsed that groundswell of opinion in the recent debate on the family. If we get the family right, all those other things will come right as a spin-off effect. Our prisons will not be bursting; our rate of abortions will not be higher than anywhere else; marriages will not break down; and divorce will not be higher than anywhere else. The cause of the problem is that marriages go wrong. I recommend that the Government focus on the cause of the problem and do not spend their life trying to shore up holes in the dyke as they occur.

I am grateful to the noble Lady, Lady Saltoun, for her amendments with which we shall deal shortly. In the circumstances, I shall not press my amendment to a vote, but I may well return to the matter on Report. I shall certainly consider carefully the noble Lady's amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kilbracken moved Amendment No. 14: Page 2, line 14, leave out ("any live").

The noble Lord said: When the noble and learned Lord resisted my Amendment No. 12, I decided that I would not move Amendment No. 14 and slipped away to the Bishops' Bar. While there I looked at it again and I wondered what it was that we were saying. I realised that I would have this opportunity I to take another bite at the cherry. The spectre that he held up was of a dead embryo being placed in a womb, and that was his main reason, as I understood it, for resisting my amendment.

But if my amendment does not go in and the word "live" remains at subsection (2)(a) — No person shall place in a woman … a live embryo … or… any live gametes"— that has exactly the opposite effect. That makes it perfectly legal and perfectly all right to put a dead embryo in a woman or to put dead gametes in a woman. Therefore I feel that he, unlikely as it might seem, must have got it the wrong way round. Therefore, I beg to move.

The Lord Chancellor

It is absolutely true that the Bill as it stands does not prohibit, as it were, the implantation in a woman of dead, non-human gametes. That is absolutely plain. But the point is that the mischief with which this provision is designed to deal is the mischief of inserting live, non-human gametes in a woman. The potential harm of that is very great indeed.

The real point of the drafting phraseology is that it emphasises the nature of the mischief at which this provision is directed. To make it more general and include something which nobody thinks is likely to happen but, if it did happen would have no particular effect other than to be macabre, is to deaden and dilute the emphasis of the Bill as drafted.

I hope that the noble Lord will feel that the second attempt perhaps enables me to emphasise, more clearly obviously than I did before he resorted to the place of refreshment, that the particular point that he makes in this amendment is not a good one.

Lord Stallard

The noble and learned Lord the Lord Chancellor has explained the point quite adequately. However, what becomes the Act and the statute are the words in the Bill and not his explanation. It seems to me that if he accepts the point made by my noble friend Lord Kilbracken, then that word should be in the Bill. No one will read the noble and learned Lord's explanation. People will read the Bill. If the Bill is wrong and allows this malpractice, then the Bill should be altered.

The Lord Chancellor

The Bill is right. I do not for one minute believe that many people will want to read a Lord Chancellor's explanation, but when they read the Bill they will see that the evil with which we are trying to deal is that of seeking to implant in a woman live, non-human gametes. That is what we are aiming at.

It damages the thrust of that provision to try to aim widely. Instead of directing one's shot at the proper target, it may be thought better to have a great dispersal of shot, as if one does not know what one is trying to hit. But the force of this drafting means that it is directed precisely to the evil that we are trying to combat. That appears without any explanation from the Lord Chancellor if one just reads the Bill quietly and calmly. That is all that I am saying to the noble Lord.

Lord Kilbracken

As I read this Bill, I see that it says that: No person shall place in a woman … a live embryo other than … or … any live gametes". My automatic reaction is to say, "Okay, then it is perfectly all right to insert a dead embryo; otherwise why specify a live embryo or any live gametes?"

However, I do not wish to labour this point any further and I accept what the noble and learned Lord said. I feel that I have made my point. I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

The Earl of Strathmore and Kinghorne

I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage of this Bill should begin again at 25 minutes past eight.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.