HL Deb 06 February 1990 vol 515 cc782-827

8.28 p.m.

House again in Committee on Clause 3.

[Amendment No. 15 not moved.]

Lord Kilbracken moved Amendment No. 16: Page 2, line 16, leave out ("after the appearance of the primitive streak") and insert ("more than 14 days after the gametes are mixed, exclusive of any time during which the embryo is stored.").

The noble Lord said: I want to emphasise that this amendment, which should be read in conjunction with Amendment No. 23, is not concerned with any matter of principle but simply with a question of drafting, in the hope that several lines of the Bill can be deleted and at the same time the Bill can be made more intelligible.

Clause 3(3) at present states that a licence cannot authorise, keeping or using an embryo after the appearance of the primitive streak". Subsection (4) explains this but takes up four lines in doing so. The primitive streak is to be taken to have appeared, not later than the end of the period of 14 days". My feeling is that it would be clearer, briefer and better simply to say that a licence cannot authorise keeping or using an embryo, more than 14 days after the gametes are mixed, exclusive of any time during which the embryo is stored". That says precisely the same thing but avoids bringing this mysterious primitive streak into the matter and having to explain what is meant by "primitive streak".

Embryologists do not notice whether or not the primitive streak is there. They do not say, "Wait a moment, boys. There's a primitive streak here, we have to stop experimenting". They simply assume that 14 days after the gametes are mixed it has appeared, and experiments cannot go on after that period. Therefore I propose by way of Amendment No. 16 to insert certain words and by way of Amendment No. 23 to leave out subsection (4). I beg to move.

8.30 p.m.

The Lord Chancellor

As noble Lord, Lord Kilbracken, explained to the Committee, there is no question of policy or substance here; it is purely a drafting question. While I entirely sympathise with his intention to simplify the drafting of Clause 3(3) in seeking to remove the need for Clause 3(4) by deleting the reference in Clause 3(3)(a) to the "primitive streak", I think that it would be unfortunate if the amendment were accepted.

In fact, the primitive streak may occur earlier than 14 days after the process of fertilisation is complete. It is that point rather than the precise timing which is crucial because after the primitive streak appears it is clear that it may develop in a way which leads to a single or a multiple pregnancy. The primitive streak gives a clear sign for the cut-off point for embryo research which the Warnock Committee recommended and upon which Clause 3(3)(a) is based. I think that we should lose more than we would gain in simplified drafting by omitting any reference to it.

In the light of that explanation, I hope that the noble Lord will not wish to press the amendment.

Lord Kilbracken

I shall not press the amendment. However, I am not convinced by what the noble and learned Lord said. He pointed out that the appearance of the primitive streak may occur earlier than 14 days. Indeed, that may be so. But the point is that it does not matter whether it occurs earlier than 14 days. It does not matter if it occurs after 10 or 12 days. I say that because, for the purposes of the Bill, if we look at subsection (4) it simply states, the primitive streak is to be taken to have appeared in an embryo not later than the end of the period of 14 days". That is what really matters. We are not going by whether the primitive streak has actually appeared; we are simply going by the lapse of 14 days after the mixture of the gametes. Therefore what the noble and learned Lord said about the appearance of the primitive streak perhaps occurring earlier than 14 days seems to me to be irrelevant.

I do not know whether the noble and learned Lord would like to reconsider the matter. I am not, however, asking him for any kind of undertaking. I must say that I am not convinced by his reply but, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Elles moved Amendment No. 17: Page 2, line 18, leave out ("other species of animal") and insert ("non-human species").

The noble Baroness said: This amendment seeks to clarify the intention of the Government as regards this subsection. We have been told by my noble and learned friend the Lord Chancellor that the Bill is for ordinary people. But, apparently, in Clause 3(3)(b) we seem to have been reduced to a species of animal. It would greatly assist if we could have some clarification on the matter.

In Clause 3(3) there is no mention of humans as opposed to animals. Therefore, when it refers in paragraph (b) to, any other species of animal", one wonders which other species of animal and what it is to be compared with. It appears, therefore, that the subsection is not particularly clear. I do not wish to go into any philosophical or biological arguments as to genes and species—nor, indeed, are we playing the game of animal, vegetable or mineral —but the fact is that we must make clear what is proposed in the clause. I assume that it is the Government's intention to say that a licence cannot authorise the placing of an embryo in the womb of any species other than a human being —and, consequently, not an animal.

As my noble and learned friend will know only too well, in law the definition of an animal, and I quote from Halsbury, Volume 2, paragraph 201, is: The term animal includes all creatures not belonging to the human race". Therefore, I should have thought that in law my amendment would be perfectly justifiable in substitution for Clause 3(3)(b). I shall be most grateful for my noble and learned friend's consideration of my amendment. I beg to move.

Lord Kilbracken

I should like to say that I completely agree with the noble Baroness. I think that the wording she has proposed is greatly preferable. However, there is another point which I should like to draw to the noble and learned Lord's attention. Regardless of whether the noble Baroness's amendment is accepted or the present text remains, it is not possible to place an embryo in a species. That applies to both drafts. So far as I am aware, the embryo is placed in the womb of a member of a species. Therefore to talk about placing an embryo in a species is, if I may say so, nonsensical.

The Earl of Halsbury

It may be appropriate if I intervene here on this matter on the basis of advice given to me by a very skilled experimental embryologist. Trans-specific fertilisation is not possible: God has set his seal against it. The zona pellucida of the ovum and the tip of the sperm are species specific. In other words, you cannot have a trans-specific fertilisation. It is a nonsense. There are, however, certain exceptions to that rule. For example, very closely related species such as the horse and the donkey can interbreed. However, their offspring are not fertile jennets, they are mules.

However, there is one exception which has apparently been presented to us as a gift. I refer to the hamster. It does not have a zona pellucida and therefore can be penetrated by human sperm in order to assess the viability of the male who originally ejected the sperm. The hamster is the only animal known to science in which that can be done. From the standpoint of experimental embryology it is exactly like a piece of litmus paper, which turns pink on contact with acid and blue on contact with alkaline. The test indicates whether a sperm is viable.

As Members of the Committee are doubtless aware, the Australians are very sensitive about the implications of importing animals into their country. They had a plague of rabbits at one time. Australian scientists have been working very hard to try to find an alternative to the hamster. However, they have found it quite impossible to do so. Therefore, Australian embryologists now import frozen hamster ova. I think that that factor should be remembered when we are talking about trans-specific fertilisation. As I said, God has set his seal against it. It is only possible in very rare circumstances. Of course, you can interbreed a lion and a tiger to get a liger or a tigon, but, again, they are just big cats which differ somewhat in their markings but not by much more than that. In remotely related species this cannot be done.

Lord Kilbracken

My noble kinsman Lord Halsbury is almost always right. However, if he is right on this occasion I wonder whether he can explain paragraph 3(4) of Schedule 2, which reads: A licence under this paragraph may authorise fertilisation by mixing human sperm with the egg of another species of animal for the purpose of developing more effective techniques for determining the fertility of human sperm".

The Earl of Halsbury

The noble Lord is quite correct; indeed, that is exactly what I said.

Baroness Elles

As the noble Earl, Lord Halsbury, is giving us lessons in biology, can he confirm that one cannot, mix gametes with the live gametes of another species of animal", as referred to in Clause 4(1)(c)? It would be most helpful if the noble Earl would give us the benefit of his advice on the matter.

The Earl of Halsbury

I should say that Clause 4(1)(c) is otiose.

The Lord Chancellor

I do not think that we should pass this particular amendment for the moment. My noble friend has made a point upon which I should like to take the advice of parliamentary counsel. Moreover, the noble Lord, Lord Kilbracken, although he has no particular amendment on the matter, also appears to have a pretty good point which I should like to draw to the attention of the draftsman. I hope that my noble friend will give me the opportunity to do so.

Baroness Elles

I am most grateful to my noble and learned friend. On that undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Halsbury moved Amendment No. 18: Page 2, line 21, after first ("nucleus") insert ("or component of a nucleus").

The noble Earl said: I tabled the amendment at the suggestion of a skilled experimental embryologist, to cater for the possibility of genetic engineering in the human species. Micromanipulation in the hands of embryologists is becoming incredibly sophisticated and more and more powerful, if I may put it that way. The ability to manipulate microscopic elements of a living cell is fantastic if one goes into the detail of it. The two amendments are designed merely to include not only a nucleus but any component of a nucleus. I beg to move.

The Lord Chancellor

Clause 3 provides that a licence cannot authorise replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo or subsequent development of an embryo. This amendment would provide, in addition, that a licence could not authorise replacing a nucleus or component of a nucleus of a cell of an embryo with a nucleus or component of a nucleus taken from a cell of any person, embryo or subsequent development of an embryo.

I can appreciate the spirit in which the amendments are moved, but the Government believe that the purpose of the amendment is already provided for elsewhere in the Bill. Paragraph 1(4) of Schedule 2 prevents a licence for treatment being granted to authorise altering the genetic structure of any cell while it forms part of an embryo. Paragraph 3(3) of Schedule 2 prevents a licence for research, if Parliament decides to authorise such research, being granted to authorise altering the genetic structure of any cell while it forms part of an embryo except in circumstances provided for in regulations. Those regulations would require an affirmative resolution in both Houses of Parliament. That regulation-making power reflects the policy set out in paragraph 36 of the White Paper which indicated that there should be a power for Parliament itself, by affirmative resolution, to make exceptions to [the prohibited activities] if new developments made that appropriate". Replacing a nucleus or component of a nucleus of a cell of an embryo with a nucleus or component of a nucleus taken from a cell of any person, embryo or subsequent development of an embryo would also involve altering the genetic structure of any cell while it forms part of an embryo. Thus, except in circumstances provided for in regulations, the activities the amendment seeks to prevent are already prohibited by the provisions of Schedule 2 as it is at present drafted.

As the activities described in the amendments would involve altering the genetic structure of a cell while it forms part of an embryo, the Government are satisfied that they are already provided for in Schedule 2 and therefore oppose the amendments.

The noble Earl will appreciate, if I am right so far, that the power of Parliament to approve by affirmative resolution exceptions in the light of developments would be affected by the amendment if it were accepted. In the light of that explanation, I hope that the noble Earl will feel that, although the concern that he has expressed is a real one, it has been covered.

The Earl of Halsbury

On the basis of the assurance given to me by the noble and learned Lord, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Lord Kilbracken moved Amendment No 20: Page 2, line 22, leave out from ("from") to end of line 23 and insert ("any other cell.").

The noble Lord said: Once again, this is an amendment which seeks merely to shorten the Bill by about one line in Clause 3(3)(d), which at present provides: A licence cannot authorise—replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo or subsequent development of an embryo". I propose that that should simply read: replacing a nucleus of a cell of an embryo with a nucleus taken from any other cell". That is three words instead of a dozen. I beg to move.

The Lord Chancellor

The prohibition in Clause 3(3)(d) is designed to prevent cloning using human embryos. The reference which the amendment seeks to take out to replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo of subsequent development of an embryo is designed to specify the circumstances in which those activities are to be prohibited. Although the amendment is superficially attractive in that it may have the same effect as the current drafting, this provision is an important one and it would be unfortunate if there were any loss of clarity. We believe the emphasis on the circumstances to be important.

Lord Kilbracken

I am sorry that the noble and learned Lord found that my proposal was only superficially attractive. I thought that it was perfectly attractive. "Any other cell" clearly includes all the cells already enumerated in the Bill. However, if for those obscure legal reasons the wording that he already has is indispensable, I shall of course beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lady Saltoun of Abernethy moved Amendment No. 21: Page 2, line 23, at end insert — ("(e) placing an embryo in an unmarried woman.").

The noble Lady said: I should like to speak also to Amendments Nos. 26 and 33A. The amendments form a package. The object of the amendment is to prohibit the provision of AID to unmarried women, lesbian couples or unmarried couples. It is true that many single women have succeeded in giving their child a good home and upbringing, and that their children are wanted and very much loved. No one would deny that; but their children must, in the nature of things, suffer some disadvantage from the lack of a father, if only that they have only one parent who loves them and belongs to them instead of two.

It does not end there. Children learn primarily from example, by copying what they see. It is by example that a boy learns how to be a responsible husband and father and how to treat his own children in turn. It is by example that a girl learns how to be a wife, from seeing how her mother cares for her father. So the father is enormously important, if only as a role model. Most widows who have had, through no fault of their own, to bring up their children single-handed will agree with what I have just said.

It is for similar reasons (the role model reasons) that the Committee may consider that lesbian couples should not be eligible to receive AID or in vitro fertilisation services. Some people argue that since it is legal, and often desirable, for single women, and even men, to adopt children, it should also be legal for them to have AID, but there is a great difference between placing a child who already exists with a single person when that child would otherwise be brought up in an institution, and deliberately creating a child to be brought up in circumstances which must be less than ideal.

There is also the question of whether in vitro techniques should be made available to couples who are not legally married. Many people believe that it is all right to make such services available to unmarried couples who are in what is called "a stable relationship", but if the relationship is really so stable why will they not get married? Until April of this year there has been and will be the fiscal reason: that as long as husbands and wives were taxed together they would be worse off financially, and there were also disadvantages as regards mortgages. But that excuse for not marrying will have vanished on, I think, 6th April this year, before this Bill can become law.

In most cases the only real reason for a cohabiting couple not marrying is that one party, or both parties, want to feel free to break up the partnership should they wish to do so without the expense, delay and inconvenience of a divorce. There are exceptions. There may be somebody whose marriage has failed miserably and whose husband, or wife, will not divorce them, and who does form a stable relationship with another man, or woman. Those may be the exceptions, but otherwise I must say that I think that the relationship is not really as stable as it sounds, and a child of it may very well end up with only one parent.

Most doctors who provide these services are very careful and responsible as to whom they will treat with what is, at present, a scarce and expensive form of treatment. But there have been cases where IVF treatment has been given to unmarried women, or unmarried couples. Whether it is in this country or not I am uncertain. Surely, therefore, some prohibition of this should appear on the face of the Bill. It should appear not in regulations, which can be altered, possibly by negative resolution at the whim of a future Secretary of State; nor in regulations made by the licensing authority, to be altered at the whim of the licensing authority; but on the face of the Bill, where an Act of Parliament will be required to change it.

Surely too the dictum of the United States Declaration of the Rights of the Child 1959, Principle 2, should be our guiding principle throughout this Bill. That is: The child shall enjoy special protection and shall be given opportunities and facilities by law and by other means to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner, and in conditions of freedom and dignity. In the enactment of laws for this purpose the best interests of the child shall be the paramount considerations. That was the guiding principle of the recent Children Act, and all through our deliberations on that Bill last year the noble and learned Lord the Lord Chancellor kept reminding us of that fact.

Much as we all sympathise with the plight of childless women who may not have the good fortune to be happily and legally married, their best interests are not necessarily the best interests of such children as AID and in vitro fertilisation techniques may enable them to bear. There would seem to be a conflict of interest here. The interests of those who cannot have children in the normal way and want them, and the interests of the children they may have are not necessarily compatible. Under these circumstances, surely the best interests of the children must be the paramount consideration. I beg to move.

Lord Ennals

I appreciate what lies behind the amendment moved by the noble Lady, but I am very unhappy and I hope that the Committee will not go down what I think is a disturbing road. I believe myself to be a family man, sharing family values. I do not think it is my responsibility to tell other people what they should do. Having children is a private area of human affairs. I believe that it is really not for the state to decide who should or should not be allowed to bear children.

I ask, who are we to decide? The noble Lady gave some examples, and suggested that if any woman does not get married, it is for some particular reason. Well, I think she must decide for herself. It is not for us to decide for her, or on her behalf, why she did not get married. Parenting, in any case, is a high-risk activity. It may be by conclusion that there are some women, or some couples, who are likely to be good mothers and parents and some who are not. That judgment may be affected by all sorts of factors such as age, temperament, mental and physical health, and quality of housing, etc. The question of whether a couple has gone through a form of marriage vows is hardly relevant to the quality of parenthood.

I know, and I am sure that the noble Lady knows, of some marriages that have hopelessly broken down. She knows that a high proportion of our marriages break down. There are some homes where there is a marriage vow, but my God there is no love within those families. Yet, on the other hand, I know very well a young woman who had two children outside wedlock, and 10 years later, now married, has a third child. She was no less a good mother before getting married than she is now. She has always been a good mother.

I find these amendments most unfortunate. In a sense if we were to pass them we would be bossy, judgmental, and interfering. We must respect the right of a woman, after appropriate counselling —and I emphasise the importance of counselling in so many aspects of this Bill —to make her own decision. Marriage is no indication necessarily of a serious commitment to creating a loving home.

Other medical treatments are not denied to unmarried women. There is no suggestion that the National Health Service should not offer its services, or should offer less services, to unmarried women than to married women and married couples. There is no suggestion that social benefits should be denied to cohabiting couples. There is no discrimination on these grounds in the field of education, of schooling. It is a fact that between one in three and one in five families with school-aged children have only one parent. There are many more families where there have been changes in who takes responsibility for the parenting, so that the child is, for instance, living with the mother and a stepfather.

There are a number of other factors. At least one in eight couples in this country are thought to have an infertility problem at some time. Many seek a solution through reproductive technologies such as in vitro fertilisation. In comparison, the number of single women using these technologies is on a tiny scale. We are not dealing with something huge. I was told that the British Pregnancy Advisory Service has eight infertility clinics, and fewer than 200 single women have become pregnant in the 12 years of the donor insemination service.

Some believe it wrong deliberately to bring children into a single-parent family though, as the noble Lady said, adoption agencies now accept single women and single men as adoptive parents. They must have done it on the basis of sound judgment.

Lady Saltoun of Abernethy

Would the noble Lord give way: I said that I thought that that was a different situation altogether. The child already existed. It was not being created for the purpose of going into a one-parent family.

9 p.m.

Lord Ennals

The noble Lady made that point but I was not quite certain of the significance of that statement. Often a couple who are living together, not necessarily in wedlock but cohabiting, have as great a need for children to bind them together and create a family as an adoptive family. Many of the judgments that have been made support that view. In any case, there is no reason why a single mother should not subsequently marry and allow her child to gain a father, whereas if she delays having a child until she has found her lifelong partner it may be biologically too late for her to have a child.

There are also difficulties as regards enforcement of the law. If a marriage certificate had to be produced, a clinic would have to prove that a woman was not separated, divorced or widowed. Such a law would encourage marriages of convenience. We also have to consider whether this kind of restriction would be in breach of the European Convention on Human Rights. The convention recognises and guarantees the right of every individual to found a family and to have his or her private and family life respected. Thus it preserves for the individual an area of strictly private morality in which the state may not intervene. I hope, for those and other reasons which will no doubt be presented, that this amendment will not go further this evening.

Lord Hailsham of Saint Marylebone

I do not wish to impugn in any way the sincerity of the motives which led the noble Lady to promote this amendment. However, I think it is a misuse of the Bill. The Bill is designed to control, more or less on the lines of the report of the noble Baroness, Lady Warnock, the subject of in vitro fertilisation and research into embryology.

One must consider the legal consequences of this amendment, if it were passed. If a woman is living apart from her husband she may, if the amendment is passed, quite legitimately, though married, have an AID offspring. Nothing will happen to prevent that. If on the other hand she is unmarried she will be liable, as will the donor if he acts knowingly, to a penalty of imprisonment. I wonder whether there is much sense in that.

I am sorry to say that there will always be an intelligent minority who prefers what I might call the good old-fashioned version of procreation. If those people choose to produce an unmarried parentage together by the good old methods of procreation, whether living together or not, they are not touched by this amendment. If they are not living together the absence of a father will be just the same whether the child was produced by ordinary sexual intercourse or by AID. There is a total anomaly about trying to prohibit AID by the methods of this Bill, with criminal sanctions, while refusing to go the whole hog —I hope that that expression will not cause offence to anyone —in prohibiting, as the Puritans did in the 17th century, both adultery and fornication. Fornication and adultery were prohibited by the Puritans but that measure proved to be disappointingly unpopular. The Restoration brought in Charles II and jolly Nell Gwynn.

I hope I am not being unduly frivolous about what is a serious subject. However, I do not think we should make asses of ourselves. This kind of amendment, which is designed to prevent AID because it is AID, but to a limited extent, while allowing every other kind of sexual aberration without criminal sanctions, would make asses of us.

Baroness Elles

We are talking about IVF. Therefore, we are not talking about AID. The proposal by the noble Lady, Lady Saltoun, is to exclude from the provision single unmarried women who presumably are not necessarily infertile —I understood IVF was for infertile couples —and who do not form part of a couple. Will the noble and learned Lord address himself to that aspect of the matter? I believe his remarks did not touch on that.

Lord Hailsham of Saint Marylebone

I must apologise to my noble friend for my terminological inexactitude. The point is valid whatever name one gives to the process. When I was still single I received a telephone call from a totally unknown woman asking me to become the father of her child. In those days AID had not been invented. I had certainly not heard of AIF or any of the other alternatives. I had only heard of fornication. At any rate I treated the request as a compliment, but I respectfully declined the invitation. But I do not believe the morals of such situations affect the validity or otherwise of this amendment.

Lord McIntosh of Haringey

The noble and learned Lord must not keep us in suspense. What did he do?

Lord Hailsham of Saint Marylebone

I respectfully declined the offer, while thanking the young lady for her courtesy in offering me the first chance, if it was the first chance.

Lord McGregor of Durris

I share many of the anxieties of the noble Lord, Lord Ennals, about these amendments. In the first place they will introduce a new form of discrimination against women. The Bill as amended would exclude unmarried, infertile women from certain treatments involving embryo research, but would give unmarried men who can benefit from such treatments access to all the facilities.

Further, I do not think that the noble Lady has allowed sufficiently for the very large numbers of women who would be affected by their exclusion from these services. Statistical data recently available for the first time, published in a valuable article by John Haskey and Kathleen Kiernan in the last number of Population Trends, show that in 1987, 900,000 couples were cohabiting and living as families with their 400,000 dependent children. Two-thirds of those couples were single people who had never married. That is a very large number. Half of them were under 30. The number of never-married women aged between 18 and 49 cohabiting trebled in the eight years between 1979 and 1987.

Those are families. Their stability is suggested by the fact that more than half of all the men and women who married in 1987 had cohabited for less than two years previously. For a very significant proportion of those 900,000 couples we are seeing the transformation of families into marriages.

Under the amendments, those of such couples who are infertile —and between 12 per cent. and 15 per cent. of them will be in that situation —will be unable to say, as their 18th century forebears would have said, "Let us get married when you are pregnant". It may very well be that we should distinguish between cohabitation and a family with marriage and with children.

I also share the difficulties of the noble Lord, Lord Ennals, as to how the noble Lady's amendments will be enforced. Will women patients be required to present themselves at clinics for treatment carrying their marriage lines? Will a Woolworth's ring serve, as it did for lay workers like myself at local Family Planning Association clinics in the 1950s which would only give contraceptive advice to the married? Would not such inquisitions be regarded by the married and unmarried alike as gross violations of the privacy of their intimate relations and lives? Those are interferences which in this country we have resolutely declined to make in the past.

The noble Lady's amendments make no provision for the inevitable hard cases which would arise. For example, a married couple who have been trying for a child for 12 years reach the point of going to a clinic for an embryo to be placed in the woman. Going up the clinic steps the husband slips and breaks his neck. What will happen then to that unmarried woman? As a widow she will be unmarried. If we are to enact such provisions we must take very much more elaborate arrangements for the difficulties than the amendments propose.

I respect and understand the reasons why the noble Lady, Lady Saltoun, has moved the amendments. However, I do not believe that they accord with prevalent attitudes towards women or to the family or sexual and reproductive behaviour. However we define morality in these areas, we shall never be able to enforce it by law. We may recall one of the more extreme examples of such an attempt. In Scotland in 1563 adultery was made an offence punishable by death. There is still dispute among Scots historians as to whether or not anyone was hanged.

There are multiple causes of single parenthood. The numbers that would be affected by the Bill are very small indeed. It is in no sense a Bill which justifies the description of the noble Lord, Lord Ashbourne, of a Bill bringing in fatherless children from all sides. We have a million and a half of them already. Many of us are extremely anxious about the consequences of the break-up of families upon divorce, a subject which was explored in lengthy discussion by noble Lords in a debate initiated by the noble Baroness, Lady Ewart-Biggs.

These are genuine problems. I do not suggest that they are not serious and genuine problems, but we cannot tackle them and should not attempt to tackle them through a Bill which, as the noble and learned Lord, Lord Hailsham, pointed out, is directed to a wholly different purpose. Let us tackle the problems in relevant ways, not in this kind of amendment.

9.15 p.m.

The Earl of Lauderdale

The noble Lord has invited us to tackle the Bill in relevant ways within seconds of telling us that there are a million and a half fatherless children in this country. If that is not relevant to the Bill, I do not know what is. He has told us, as has the noble Lord, Lord Ennals, that it is preposterous that we should try in a Bill to interfere with private judgment on private matters. But what do we do as legislators every day of the week?

Legislation is about human behaviour, like it or not. It is about imposing restraints on the one hand and releases on the other so that we can live together sensibly, humanely and in a civilised fashion. To say that it is impossible in principle to legislate about private matters makes nonsense of our procedures from Monday to Thursday in this House. We discuss it all the time in one way or another, directly or indirectly, whether we are discussing crime, schooling, drugs or a million other subjects, even energy policy and the kind of cooker that one uses. The whole matter is always related to private decisions by private people. Surely the function of legislators is to put into a usable form the feelings and consensus of society as a whole.

That is where I find the amendment of the noble Lady, Lady Saltoun, relevant. The noble Lord, Lord McGregor of Durris, is always plausible. Alas, one cannot help but listen to him. I am spellbound every time he speaks. I wish that he did not do so because I am often nearly convinced. We are discussing all the time how human behaviour can be made compatible, if I may put it that way. It relates all the time to private decisions in the secrecy of our hearts. That is what we are about. Thus, to say that this or that aspect should not be considered in the Bill because it is private is absolute rubbish.

Baroness Ewart-Biggs

Perhaps I may briefly express my concerns about the amendments. The noble Lady, Lady Saltoun, quite rightly said that fathers are important. No one would disagree that fathers are of great importance to children. However, the noble Lady also said that it was wrong per se to bring children into single-parent families. Perhaps the noble Lady will explain later what she meant by that. I believe that it is no justification for her amendments.

Lady Saltoun of Abernethy

Perhaps I may explain at this stage what I meant. I think that it is wrong to bring children into single-parent families by artificial means. We all know that children often occur in single-parent families. That is in the nature of things, but I cannot believe that it is right deliberately to bring a child into a one-parent family by artificial and possible expensive means.

Baroness Ewart-Biggs

The noble Lady implies that a single-parent mother is under a disadvantage, but that is not acceptable.

As the debate on the family which I introduced some time ago has been mentioned, perhaps I could briefly reiterate the major force of what I said then. Although I too would always favour a nuclear family as the right setting in which to bring up children, today's facts and statistics mean that we must support the family in whatever structure. That was in the interests of the children. There was general agreement in that debate that this was the major priority today. While supporting the nuclear family we must also support the family as it exists. Research shows that many young people quite deliberately do not go through the formalities of a marriage but have a stable relationship. They themselves have perhaps come from divorced parents and suffered all the anguish that is certainly experienced by children of divorced parents.

I should like briefly to support the observations of my noble friend Lord Ennals. First, from the point of view of discrimination I believe that to restrict a single woman from conceiving by any means that she chooses is clearly an overt form of discrimination on the basis of her marital status. My noble friend Lord Ennals spoke about the European Convention on Human Rights recognising and guaranteeing the rights of every individual to found a family and have his or her private and family life protected. That was based on the European convention. Perhaps the noble Lord who spoke critically of my noble friend on that point will agree that it is the European convention which lays down that particular right.

Another point is that the Pregnancy Advisory Service has said that it would not be prepared to operate a partial DI service. So why should some women be penalised for choosing to attend a safe and reliable clinic rather than face possible risks by either self-insemination or, indeed, casual sex? Surely, as the noble Lord said, the intention of the Bill is to provide a safe treatment service by a system of public regulation. These amendments would go right against that intention.

The amendments have caused great concern to many organisations. I am sure that many of us have heard about their anxieties. I certainly have received many letters. It has also been pointed out that many children have already been born by donor insemination. If this amendment were carried it would attach a retrospective stigma of criminality to the circumstances of their birth.

I find these amendments very worrying for the reasons that I have given and the reasons given by my noble friend and the noble Lord, Lord McGregor.

Lord Ashbourne

I apologise to the noble Baroness for having risen a little too speedily. I commend these amendments to the Committee. In my opinion they are both moderate and balanced. Personally, I would have preferred them to have gone further but I do not think that the Committee need have any worries in supporting them. There is a tide in the affairs of men, Which, taken at the flood, leads on to fortune; Omitted, all the voyage of their life Is bound in shallows and in miseries". If the Members of the Committee do not feel in their hearts able to support these amendments, I suspect that they may find that the voyage of life is indeed bound in shallows and miseries.

The Earl of Halsbury

Having failed to support the noble Lord, Lord Ashbourne, and the noble Earl, Lord Lauderdale, I thoroughly endorse the amendments of the noble Lady, Lady Saltoun.

We have to put up with situations that are less than ideal: broken marriages, couples living together, one of whom may be deserted by a lover who leaves her pregnant, children rendered fatherless by the death of the father and so on. However, we do not have to encourage such situations. The reason that I support the noble Lady is simply because I want to see the seal of parliamentary disapproval set upon the machinations of the permissive society, which has been a disaster for this country. For that reason, if the noble Lady chooses to divide the Committee, I shall follow her into the Division Lobby.

Lord Gisborough

I should like to support the amendment of the noble Lady, Lady Saltoun. I find it bizarre that artificial means should be suggested to encourage lesbian couples to have children. We are told of a group of single, mainly homosexual, men who are campaigning for the right to bring up a child. I find it beyond comprehension. It takes me back to the 1960s, when licence was given which, in my view, has done immense damage to this country. The question has been asked, how could such licence be controlled? If one wishes to adopt a child one has to go through a certain process of screening. A similar process could be adopted. There is always the family's own GP who is in a position to recommend that somebody either goes to hospital for the treatment or does not.

Finally, the cost to the NHS is soaring with all the new possibilities of treatment. To saddle it with this extra cost of treatment, as is suggested, for lesbians and single women is to my mind absolute nonsense.

Lord Robertson of Oakridge

I should like to comment on one point. It has been implied that people who underwent unauthorised treatment would be involved in criminality. But that is not what the Bill states. If the amendment were passed, the Bill would provide that a licence cannot authorise placing an embryo in an unmarried woman. On that basis it would be an offence to issue a licence authorising treatment which is banned by the Bill, or it would be an offence to carry out the treatment —that is, the placing of an embryo in an unmarried woman —without a licence, which would not be obtained. But the people undergoing the treatment would not be committing an offence.

I should like to support the amendment. Perhaps I may say that I was appalled at the view of marriage of the noble Lord Lord Ennals. If that is the message that we shall send out from this Chamber tonight, we shall strike a heavy blow against the family.

Lord Hylton

I have the greatest possible sympathy for the values and principles that have moved my noble friend and kinswoman to put forward the amendment. I entirely agree that it is highly desirable that all children should have two parents if that is at all possible. However, the weakness of the amendment is that it seems to discriminate against the infertile unmarried woman or couple because those who are fortunate enough to be fertile will simply go ahead in the normal way.

Lord Swinfen

I should like to support the amendment of the noble Lady, Lady Saltoun. I believe that there is one aspect that needs a little improvement. As we all know, there are couples who live together throughout their lives although unmarried for one reason or another. It does not matter what the reasons are. They are living together as a married couple. That would be a marriage that was made not by any formal ceremony on this earth but a marriage nonetheless, in my view, although not recognised by law. Surely it would be possible for couples in such a position to enter into a contract that they would live together and bring up their children as a family.

If such a contract were entered into then it would be possible to allow in vitro fertilisation for the woman who was unable to bear a child in any other way. For instance, it would cover the situation in which one of the partners had been married but for one reason or another was unable to obtain a divorce. They would be living together although not married in the name of the law. However, if they have entered into a contract to bring up the children as a family they should not be denied the right.

The noble Lord, Lord Ennals, gave as an example a couple who had been living together, had two children, were then married and had another child. That example was totally irrelevant; they did not need in vitro fertilisation because they had proved themselves in the normal and natural way. The noble Lord, Lord McGregor of Durris, gave as an example an unmarried couple who visited the surgery but the male partner tripped on the steps and fell down dead. Exactly the same thing would be happening at home if they were going up to bed and he fell down the stairs. It is a fallacious argument.

9.30 p.m.

Lord Ennals

Does the noble Lord agree that all the arguments he has put forward are arguments against the amendment?

Lord Swinfen


Viscount Caldecote

The extraordinary aspect of the debate is that we all profess our keenness to help the stability of family life and marriages. Yet every time we debate an amendment that is intended to do so we shy away from it on the grounds that it is interference with individual liberty. That is a totally unconvincing argument, as my noble friend Lord Lauderdale has clearly put before us.

It is a nonsense and goes against experience to believe that giving everyone complete freedom to do exactly as they wish increases the strength of the family and human happiness. As we have seen in the cases of free and easy divorce and abortion, the pendulum swung too far in the direction of freedom. We are in grave danger of not making a contribution towards returning the pendulum to a more reasonable position when dealing with the Bill now before us.

It may be that the amendment put forward so eloquently by the noble Lady, Lady Saltoun, is not the best way of achieving the objective. However, can we not accept that the principle behind it is right? If there is a detailed way in which it can be improved in order to overcome the difficulties, we must find it. It is no good constantly putting forward difficulties. We must find a way of strengthening family life, which we all agree to be important. I support the noble Lady's amendment, but if there is a better way of achieving the principle we should try to find it.

Lord Hailsham of Saint Marylebone

I shall be only too glad to be corrected if I am wrong, but I believe that the noble Lord, Lord Robertson of Oakridge, ventured to say that there would not be a criminal offence if the amendment were passed and breached. Will my noble and learned friend read carefully Clause 3(1) and Clause 36? I also wonder whether the noble Lord, who I do not believe has done so, would care to do the same.

Lord Robertson of Oakridge

I had done so. Clause 36 states: A person who contravenes section 3(2) or 4(1)(c) of this Act, or does anything which, by virtue of section 3(3) of this Act, cannot be authorised by a licence, is guilty of an offence". If the amendment is passed that guilty person is not the one who undergoes treatment but the one who places the embryo in an unmarried woman.

Lord Hailsham of Saint Marylebone

Perhaps the noble Lord will read Clause 3(1) and no other, and then read it with Clause 36.

Lord Prys-Davies

Perhaps I may remind the Committee of a point made by the noble Lord, Lord Winstanley, in response to an earlier debate today. He made the very good point that the single woman who will seek treatment under the provisions of this Bill will have thought deeply over the issue before deciding to receive treatment. Under the Bill she will receive counselling and will have satisfied herself that she is adequately prepared for parenthood and all its implications. That point should not be overlooked.

Baroness Robson of Kiddington

She will not only have satisfied herself that she is ready for parenthood but she is also facing, in the case of Amendment No. 21, a most unpleasant experience. In vitro fertilisation is not a pleasurable experience. I know many women who have undergone the procedure, and I believe that any woman who is convinced enough to go through that will love her child.

Lord Kilbracken

There seems to be this extraordinary opinion that if a child is born to a married couple he will automatically be brought up in conditions of perfect stability and happiness. That is an absolute fantasy. Life is simply not like that at all. It was not like that for me in my childhood and, unfortunately, it was not like that for my children in their childhood. If it was suggested that couples must enter into a contract that the children should be brought up against a stable background, I wonder how many married parents would be prepared to sign a contract of that kind.

Baroness Elles

I just want to intervene on one aspect of this matter. The noble Lord, Lord Kilbracken, spoke about children not necessarily being happy in an ordinary family. Those of us who have done social work for many years, particularly dealing with one-parent families, will know of the enormous unhappiness and financial difficulties, desertion and isolation which women particularly feel, and even more so if they have children. You cannot equate happiness with being a member of a family and you certainly cannot equate it with a child being left with one single mother wherever it is in the United Kingdom, because one sees all too often the intense poverty, isolation and unhappiness of those people. I strongly support the amendment in order to discourage people from having children if they do not at least have the family structure and financial support which they need in those circumstances.

Lord Houghton of Sowerby

I wonder whether Members of the Committee realise that the speeches we are hearing in favour of this amendment are going absolutely against what is now public policy in this country; that is, the policy of non-discrimination. It is that issue of principle which will be taken as the judgment for what Members of the Committee are asking us to do. We have the Equal Opportunities Commission to support a non-discrimination Act and to persuade all concerned in all circumstances that they must not take marital status into account.

That is public policy. I believe that it will be a grave mistake if Members of the Committee think that they can go against that without the Government having to reconsider their position in this regard because that will be extremely difficult to justify. It is not so much the argument as to whether people will do this or that or will treat their children better than others or whether the family is the circle best calculated to produce the young people we want. What is at stake here is the gesture, the conflict with principle which women have fought for a generation to establish. Those women say, "Our marital status is our business. We will not have it quoted for us or against us. We will choose our way within the law and the law does not forbid us from producing families if we are not married. The law does not interfere". The law permits the NHS to produce for a woman who already has three children the fertility drug and she then produces another seven. That is permitted under our Naional Health Service on the ground that we must not dictate to people what they shall do in that particular aspect of private life.

That is the situation we have here, I am afraid. It is very late at night and we might run away with our emotional response to this situation, but I beg the Committee to consider whether it would be wise to go against public policy in this serious matter tonight.

The Lord Chancellor

We have had a very important debate on an extremely difficult subject. I shall seek first of all to deal with the effect of the amendment on Clause 3. It would deny unmarried women access to in vitro fertilisation treatment. The amendments to Clause 4 would prevent them from receiving donor insemination from licensed treatment centres.

I have looked carefully at the question raised by my noble and learned friend Lord Hailsham and the noble Lord, Lord Robertson of Oakridge. I think the practical answer is that if the amendment of the noble Lady, Lady Saltoun, is agreed to, it would not be possible to grant a licence to authorise in vitro fertilisation for people who are not married. The person providing the treatment, if the amendment were to be passed, would commit the offence of doing something which could not be authorised by a licence under Clause 36(1)(b). However, the person receiving the treatment would probably not be committing an offence. That is the advice I have received and it is my own reading of the provisions. Obviously it is subject to fuller consideration if there is any question about it.

The second general matter that I should mention is my understanding of the European convention in relation to human rights and fundamental freedoms. Article 12 of the convention provides that men and women of marriageable age have a right to marry and found a family according to national laws. The advice I have received is that, if the amendments of the noble Lady, Lady Saltoun, were passed, these would not prevent women from marrying, obviously, and therefore the relevant article of the convention would not be breached.

The matters which have been raised are certainly difficult. It is plain that the principles underlying the amendment are of widespread application and are attracting a great deal of support. I speak for the Government in saying that I share the desire of the noble Lady, Lady Saltoun, that the sanctity of the family unit should not be lost sight of in the wish to help childless couples have the children they can so fervently desire.

It is important to keep the issue in perspective. The number of patients receiving the treatments to be licensed by the Bill is very small when compared with the number of births. Within that small number experience suggests that the proportion of children born to unmarried women is tiny. Moreover, one has to consider, as has been pointed out, the situation with regard to natural methods of procreation.

I intend now to mention some of the issues which will need to be considered before reaching a view on these amendments. It is certainly very difficult to decide whether it is right that the law should specify that the treatments to be licensed under the Bill should be confined to married couples. The availability of infertility treatments to particular patients is normally a matter for individual clinical decision by the doctor, by the person who wishes to obtain the treatments and by the partner, if one is involved.

In the case of artificial insemination by donor, in practice there would be some difficulty about prohibiting the artificial insemination of an unmarried woman. The technique is straightforward. I understand that self-insemination can be readily achieved without clinical assistance. I gather that advice in this connection is easily available, but concern as regards the risk of contracting HIV from unscreened donors in recent years has resulted in more would-be single mothers turning to clinically supervised sperm banks.

However, it would clearly be unfortunate if this Bill was seen in any way to be conflicting with the importance we attach to family values. As the Bill stands, apart from these amendments, the authority has to prepare a code of practice which Ministers will approve before publication. It will need to give general guidance to clinics on this sensitive aspect of their work. In particular, we would expect the code of practice to highlight the importance of the welfare situation of any child to be born as a result of the treatments. Attention has already been directed to the requirement of counselling concerning these treatments.

It is important that counselling should take account of the aspects of welfare of any child to be born as a result of the union or the treatments. There may be situations in which a person would not at first sight be willing to accede to the principle of these amendments. Yet on fuller consideration of the issues, if the person came to the clinic and received counselling, that person might see that, after all, the principle was a good one and should be given effect to. One must not leave out of account the possible effect of counselling on the attitude of the person concerned as regards the possible result of treatments.

The idea of highlighting the aspect of the possible child's welfare would be entirely in line with the policy that lies behind the legislation on children, including the Children Act of last year, which has already been referred to and which started its parliamentary course in your Lordships' House. The issues raised by these amendments are complex and touch on personal values and opinions which I feel sure each of us holds dear.

In effect it is an issue of conscience. It is on that basis that I urge the Committee to make up its own mind on this matter. In reaching a decision it is clearly important that full account is taken of the future welfare of any child.

9.45 p.m.

Lady Saltoun of Abernethy

We have had a very interesting and far-reaching debate on these amendments. I am most grateful to all Members of the Committee who have taken part and put their views, whether or not they agreed with me. Many of them did not. Perhaps I may comment on one or two of the views expressed. I am sure that the young mother referred to by the noble Lord, Lord Ennals, was a good mother. I did say that many single women were good mothers. But she could not offer the child the inestimable benefit of a father's loving care.

All the arguments I have heard against my amendments put the interests of the woman concerned before those of the child. I say to the noble Lord, Lord McGregor of Durris, that I do not think that the number of women affected is relevant. Neither is it relevant that the number of cohabiting couples increased by a multiple of three between 1979 and 1987. It might interest some noble Lords to know that in the old days in country districts in the part of Scotland where I live, it was the custom for a man to live with a girl for a year. If at the end of the year she was pregnant he had to marry her. If she was not, they could part. Nobody minded. It was quite all right. In those days, when there was no welfare state and no old age pension, one of the objects of marrying was to have children to provide support and care in one's old age. That was a sensible arrangement.

I am not really interested in morality, in the rights of women to have children, or in prevalent sexual mores. I am concerned with the best interests of the children. As the noble Earl, Lord Lauderdale, said, legislation is a question of balancing various interests. It is a question of compromise between private interests and society's interests, which in this case I think means the children's interests.

I entirely agree with the noble Baroness, Lady Ewart-Biggs, that we should support the family as it is, but I do not think that we should necessarily always assist it to become as it is. I was surprised to hear of the number of letters she says she has received from various organisations. Most of those organisations are not exactly slow to write to the tabler of an amendment with which they do not agree. I have not had one single angry letter, or not angry letter, from any organisation about my amendments since they were tabled, which was quite a long time ago.

The noble Lord, Lord Swinfen, made an important point about common law marriages. I accept that it is one which needs to be addressed. To the noble Baroness, Lady Robson of Kiddington, I want to say that I do know what in vitro fertilisation involves. I have watched the whole process at the Cromwell Hospital and at Simpson's Memorial Pavilion in Edinburgh. But AID is a simple process which can easily be done at home on a do-it-yourself basis. There is no way to prevent do-it-yourself AID.

I was grateful to the noble and learned Lord the Lord Chancellor for clarifying the point made by the noble Lord, Lord Ennals, about the European Convention on Human Rights. At the end of it all, I come back to the fact that there is here a serious conflict of interest between the woman and the potential child. In view of the fact that the noble and learned Lord the Lord Chancellor has suggested that in this instance the Committee will have to make up its own mind, I have decided to ask the Committee to do precisely that.

9.55 p.m.

On Question, Whether the said amendment (No. 21) shall be agreed to?

Their Lordships divided: Contents, 60; Not-Contents, 61.

Abinger, L. Home of the Hirsel, L.
Ashbourne, L. Hunt of Tanworth, L.
Belhaven and Stenton, L. Iddesleigh, E.
Blatch, B. Jenkin of Roding, L.
Boardman, L. Joseph, L.
Braye, B. Kinloss, Ly.
Brentford, V. Lauderdale, E.
Brightman, L. Liverpool, E.
Caldecote, V. Long, V.
Cocks of Hartcliffe, L. Luke, L.
Coleraine, L. Macaulay of Bragar, L.
Cork and Orrery, E. Margadale, L.
De L'Isle, V. Melville, V.
Eden of Winton, L. Monk Bretton, L.
Elles, B. Morris, L.
Ferrers, E. Mountevans, L.
Fitt, L. Norfolk, D.
Gisborough, L. Oxford and Asquith, E.
Glenarthur, L. Peel, E.
Grantchester, L. Perth, E.
Haig, E. Reading, M.
Halsbury, E.[Teller.] Reay, L.
Harvington, L. Renton, L.
Hives, L. Robertson of Oakridge, L.
Romney, E. Stallard, L.
St. Albans, Bp. Stodart of Leaston, L.
Salisbury, M. Strange, B.
Saltoun of Abernethy, Ly. Strathmore and Kinghorne,
[Teller.] E.
Sanderson of Bowden, L. Swinfen, L.
Sidmouth, V. Ullswater, V.
Addington, L. Downshire, M.
Adrian, L. Elliot of Harwood, B.
Ampthill, L. Ennals, L.
Barnett, L. Ewart-Biggs, B.
Borthwick, L. Faithfull, B.
Brain, L. Falkland, V.
Butterworth, L. Graham of Edmonton, L.
Carnegy of Lour, B. Grey, E.
Craigavon, V. Hacking, L.
Darcy (de Knayth), B. Hailsham of Saint
David, B. Marylebone, L.
Denham, L. Harmar-Nicholls, L.
Hatch of Lusby, L. Pitt of Hampstead, L.
Henderson of Brompton, L Prys-Davies, L.
Houghton of Sowerby, L. Rea, L.
Hylton, L. Richardson, L.
Jellicoe, E. Robson of Kiddington, B.
Kagan, L. Seear, B.
Kilbracken, L. Sherfield, L.
Lawrence, L. Taylor of Blackburn, L.
Lindsey and Abingdon, E. Thomas of Gwydir, L.
Llewelyn-Davies of Hastoe, Turner of Camden, B.
B.[Teller.] Tweeddale, M.
Lockwood, B. Walpole, L.
McGregor of Durris, L. Walton of Detchant, L.
[Teller.] Warnock, B.
McIntosh of Haringey, L. Westbury, L.
Mackie of Benshie, L. White, B.
Monson, L. Winchilsea and Nottingham,
Mowbray and Stourton, L. E.
Nicol, B. Winstanley, L.
Pender, L. Wynford, L.
Petre, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.3 p.m.

The Duke of Norfolk moved Amendment No. 22:

Page 2, line 23, at end insert — ("or

  1. (e) keeping or using an embryo obtained by lavage.").

The noble Duke said: Some Members of the Committee will be aware that where there is normal sexual intercourse the embryo is in the womb and is engaged in attaching itself to the side of the womb. It is what medical scientists call nidation. We, Pro-Life Group, feel that that is a course of nature, the beginning of human life, and that the baby will eventually fructify in the womb and be born. To wash it out, or lavage, is a bad thing to do. It was done before in vitro fertilisation existed. It is now unnecessary to do it and it should be forbidden. I beg to move.

Lord Walton of Detchant

This technique of lavage is one which is of great relevance to research in relation to pre-implantation diagnosis. If this amendment were to be agreed it would pre-empt a substantial part of the discussion that we may be having on Clause 11 of the Bill on Thursday. The point of relevance is that if research is to be approved under this Bill when Clause 11 is debated, there will be two techniques that may be possible for studying pre-implantation diagnosis of genetic disease.

The first technique will be to undertake in vitro fertilisation to allow the embryo, or conceptus, to develop to the eight or 16-cell stage and then to carry out a procedure (which will be discussed on Thursday) to identify whether a defective gene is present. One alternative method that is used in certain centres is to allow the normal course of intercourse to take place, for fertilisation to begin within the woman's uterus and at that stage, within about five days, the blastocyst or conceptus is floating free in the uterus and has not yet begun to implant.

Of those blastocysts which are formed by the process of normal intercourse, some 80 per cent. are shed in the course of normal human reproduction. The purpose here is to be able to wash out those blastocysts at three, four or five days after intercourse and to carry out the same kind of studies relating to pre-implantation diagnosis. If this amendment were to be passed, I think it would prejudice our discussion on research on Thursday.

The Lord Chancellor

This amendment refers to a technique used in some countries for the treatment of infertility whereby embryros are flushed from a woman's body before they implant in the uterus for subsequent use usually in relation to the technique of embryo donation. Although it is not at present used in this country, it is possible that in the future clinicians may find it helpful in some cases. It would seem therefore not right to accept this amendment which would have the effect of prohibiting it altogether. Nowhere else in the Bill is a particular kind of clinical treatment prohibited, and indeed if lavage were to be used in this country it would be subject to the licensing provisions in the Bill because it would involve subsequent storage and use of the embryo.

Therefore, I should like to suggest to the noble Duke, the Duke of Norfolk, that the right way to deal with this matter is as part of the fundamental question that is to be discussed in relation to Clause 11. I think that that is in accord with the advice that the noble Lord, Lord Walton of Detchant, gave a moment ago. This is just one possible technique that might be used. It seems not right to single it out to prohibit it altogether. The right thing to do is to leave the whole matter to be discussed in principle and the consequence of the principle will affect every form of clinical treatment that might be used to further the result.

The Duke of Norfolk

I much respect what the noble and learned Lord has said, and I fully agree that, once this embryo is created in the uterus and is not yet attached to the womb —nidation, or whatever it is called —nature flushes a lot more out of the womb, and we think that perhaps those should be the ones that are used for tests. We think that it is unfortunate to take a human life that is beginning and remove it from the uterus to inspect it and maybe to experiment on it. However, I agree with the noble and learned Lord that we are awaiting the arrival of Clause 11. I should prefer to return to this subject on Report, if necessary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 and 24 not moved.]

Clause 3 agreed to.

Clause 4 [Prohibitions in connection with gametes]:

[Amendments Nos. 25 and 26 not moved.]

The Earl of Perth moved Amendment No. 27: Page 2, line 33, leave out from ("woman") to end of line 34.

The noble Earl said: In moving this amendment I wish to speak to Amendments Nos. 32, 61 and 69. I also wish to speak to Amendment No. 31, which stands in the name of the noble Lord, Lord Kilbracken. I shall speak to all those amendments, as they are either consequential or closely related. Amendment No. 31 seeks to amend Clause 4. Clause 4(1)(c) states that no person shall: mix gametes with the live gametes of another species of animal, except in pursuance of a licence". Some Members of the Committee —I must confess I was one of them —did not fully appreciate the meaning of that clause. However, it becomes crystal clear when one looks at paragraph 3(4) of Schedule 2, which lists what may or may not be done under licence. I must quote that list as it is the heart of everything, if I may put it that way. It states: A licence under this paragraph may authorise fertilisation by mixing human sperm with the egg of another species of animal for the purpose of developing more effective techniques for determining the fertility of human sperm if the resulting embryo is immediately destroyed". In brief it allows the creation of an embryo, a living thing, which is half human and half animal, even if it may be immediately destroyed. To me such a practice is wholly wrong. We must not allow it. Therefore my amendment seeks to remove the offending lines from the Bill.

As I said on Second Reading, I believe the medical profession has lost its way in using this test, known as the hamster test, for the purpose of fertility. I am sad to say this but I think that the Government have followed the medical profession in this respect. I shall explain what I understand happens in the hamster test. Some 40 eggs of the hamster are taken and mixed with human sperm. After a period of time, say three hours or so, a judgment is made on the percentage of eggs which are fertile and which have been penetrated by the human sperm. On that basis, if the eggs are living at that moment, a judgment is made as to the fertility that has been achieved. It is not always reliable but sometimes it works. The results have to be destroyed immediately, but they have been created. For me and for many others to whom I have spoken that is wholly shocking and wholly repellent.

In relation to an earlier amendment, the noble Earl, Lord Halsbury, referred to the fact that the hamster was unique in its properties and that that would not happen in other cases. We do not know that for certain, particularly with the advance of science. I must point out to the Committee that the clause does not relate only to hamsters. It allows the eggs of other animals to be impregnated with human sperm. That opens the door, horrifically, to I know not what.

I stress that the amendment does not in any way affect the broad principles with which the Committee has been deeply concerned, the experimentation on human embryos which is covered by Clause 11. That is quite separate and the amendment in no way prejudices Clause 11. That being the case, and having heard what I have said, I very much hope that the Committee will feel able to support me. The issue is stark and clear. There is no halfway house, although I appreciate that the noble Lord, Lord Walton, tries to provide one in the following amendment.

The issue is simple. The creation of embryos which are half human and half animal is unnatural and, I believe, against God. It must not be allowed, now or ever. I hope very much that the Government will feel able to accept the amendment. I beg to move.

10.15 p.m.

The Earl of Halsbury

In the context of the amendment I wish to correct a mistake that I made in connection with the amendment of the noble Baroness, Lady Elles. I said that the hamster egg was unique in its penetrability. It is not its penetrability; it is the removability of its zona pellucida. It does not have a zona. It is sometimes known as a zona free egg.

Lord Kilbracken

Quite independently of the noble Earl and the noble Duke I reached the conclusion that it was completely wrong that the gametes of humans and animals should be mixed under any circumstances under licence. I too, therefore, put down an identical amendment to Amendment No. 27 and proposed instead the prohibition set out in Amendment No. 31, which, in the case of the noble Earl and the noble Duke, is contained in Amendment No. 32.

The noble Earl has already argued the case so strongly that I do not feel that it is necessary for me to add to it except to say that I believe that it is unthinkable that the mixture of the gametes of humans and animals should be permitted under any circumstances.

Lord Home of the Hirsel

I support the principle of the Bill and had not intended to speak at this stage. However, like my noble friend Lord Perth I have been greatly concerned by the proposition that it should be legal in the future to create hybrid embryos produced by the sperm of a man fertilising the egg of a female animal. The noble Earl would like to put a stop to such practices now.

I hope that I have had some comfort from the noble Earl, Lord Halsbury, who suggested that a hamster is the only animal which could in practice be used for such experiments, but I am not now so sure that I got that right. I still find the fact of the use of hamsters repugnant. There must be other and better ways of testing the fertility of an individual donor.

I would rather that my noble friend did not divide the Committee this evening if he feels that he can avoid doing so because we are about to hear, first, my noble and learned friend the Lord Chancellor and, secondly, in a fuller Chamber perhaps, a number of noble Lords who have medical knowledge. I shall look forward to hearing their views. Nevertheless, if my noble friend decides to divide the Committee I shall go with him. I hope that there are better ways of doing what the amendment proposes. The practice must be stopped, if not now, in a very short time.

Lord Walton of Detchant

I rise to oppose the amendment proposed by the noble Earl and to offer an alternative amendment, Amendment No. 70, which I have tabled, as I believe that the issue has been clouded by considerable misunderstanding and by a number of serious misconceptions.

The crucial issue is that no embryo is formed by the mixing of the gametes. As is specified in Clause 4(1)(c), no person shall, mix gametes with the live gametes of another species of animal, except in pursuance of a licence". The intention of the clause is to ban the creation of chimeras or hybrids which might in theory, and in theory only, result from cross-fertilisation between gametes of humans on the one hand and animals on the other. I can assure the noble Earl and those who support his amendment that any such prospect would be abhorrent to all responsible scientists.

However, the purpose underlying Schedule 2(4), as I trust that my alternative amendment makes clear, is simply to allow scientists to continue to utilise the zona free hamster oocyte penetration test, a simple laboratory procedure which provides important information on the fertilising capacity of human sperms. The test was introduced in the United States in 1976 and has subsequently gained worldwide acceptance as a diagnostic procedure in clinical studies of male fertility. The World Health Organisation warmly commends that standard test which assesses the fertility of human sperms with greater accuracy than any of the more conventional methods. Such studies are urgently required because, although defective sperm function is recognised as the largest defined cause of human infertility, there are few, if any, effective treatments which can correct it at the present time. Without that test, and the improved techniques that are likely to stem from it, clinical research workers will be unable to make any major progress towards the treatment of a condition which affects about one in 16 of the male population.

The test also plays a key role in developing male contraceptive agents, including vaccines, which are now being developed for use. If the test were no longer available, the only alternative method of assessing the fertility of male subjects now participating in clinical trials under the auspices of the World Health Organisation would be for them to have unprotected intercourse with their partners. It is surely preferable to test the efficacy of a male contraceptive agent by using the hamster test rather than to expose couples engaged in the trials to the risk of an unwanted pregnancy. However, there is also growing evidence that research workers are helped by the test to study more effectively than any other technique allows the chromosomal constitution of human sperms. That enables them to study the male contribution to genetic abnormalities in the human embryo and the influence of environmental factors such as radiation.

Here I must confess that there is an important omission in my amendment, which suggests that the test should be used solely for assessment of human fertility. I should have added, "and for assessing the normality of sperms". The test itself simply involves the incubation of human sperms with hamster eggs which have been treated with an enzyme to remove an outer shell or capsule called the zona pellucida. After three hours of incubation the eggs are removed and inspected to see whether the sperm has penetrated the egg. Once that microscopic assessment has been made the cells are easily destroyed by compressing them on a microscopic slide. Indeed that procedure is an essential component of the test itself. In other words, destruction of any such cells shown to have two nuclei, one from the sperm and one from the egg, without fusion is an integral component of the test as well as being an inevitable consequence of its being carried out.

Finally, I would add that there is no prospect whatever of true hybridisation between the human and hamster cells or indeed with the cells derived from any other animal likely to be used for that purpose. Nor is there any prospect at all of forming a viable embryo: first because the genetic situation of human and such animal cells is completely incompatible; secondly, because the incubation period is far too brief; and, thirdly, because even if the period of incubation were extended, the eggs which have been penetrated by sperm will degenerate spontaneously as they have no developmental potential whatever.

Thus, in opposing the amendment proposed by the noble Earl, I should like to suggest the alternative amendment that I have tabled and trust that it will be preferred by the Committee.

Lord Rea

Perhaps the noble and learned Lord the Lord Chancellor will put me right. As I read it, if Clause 4(1)(c) were removed, as is called for in this amendment, it would put the mixing of gametes with the live gametes of another species of animal totally outside the control of the licensing authority. In fact it would remove it altogether from the control of this Bill and make it freely available.

Earl Jellicoe

I understand very well the instinctive repugnance expressed by the noble Earl, Lord Perth, and my noble friend Lord Home in this matter. I heard what the noble Earl, Lord Perth, said; namely, that this does not prejudge our decision if we take one, as I hope that we shall, in two days' time on Clause 11. However, in fact it does prejudge it in a rather important way. As the noble Lord, Lord Walton, said, it affects important research in three major areas. One is the study, alleviation and detection of male infertility, which I believe the noble Lord said affects one in 16 of fellow males. Secondly, it affects the development of male contraceptive agents which are under study at the present time. Thirdly, it will stop the study of the chromosomal constitution of sperm and thereby the investigation of the contribution that we mere males make to abnormalities in the human embryo. Those are three extremely important areas of research.

For those reasons and for the other reasons given by the noble Lord, Lord Walton, who has such experience and knowledge, although I sympathise with the instinctive repugnance expressed by the noble Earl, Lord Perth, I very much hope that we do not pursue this amendment and prefer the amendment, perhaps amended again, which the noble Lord, Lord Walton, has in mind.

10.30 p.m.

Viscount Caldecote

I hesitate very much before crossing swords with the noble Lord, Lord Walton, who is a great expert in this field. However, the mixing of human and animal gametes is repugnant to us all in principle. The argument put forward is simply that the ends justify the means. To my mind that is a bad argument. It may be only a micro-step on a slippery slope. But that slope is very steep. I do not think that it is a slope. We are on the edge of a precipice into a very frightening abyss.

I understand from another expert that if we pass the amendment it would only cause inconvenience in some of the ways that have been explained to us tonight. I very much support the amendment.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper)

It is clear that the developments in human fertilisation and embryology that are the subject of this Bill offer the prospect of increasing human happiness, but they also raise some horrifying spectres. One of the most alarming notions that is raised by this group of amendments is the mixing of human and animal gametes to create some kind of hybrid. It is right that the Bill should proscribe such a practice in the strongest possible terms.

It is the Government's view that the Bill does that. It forbids placing any live gametes other than human gametes in a woman. That I think was the purport of the first amendment discussed this afternoon. It prohibits the placing of a human embryo in any other species of animal; and, in general, it prohibits the mixing of human gametes with those of any other species of animal. However, this last prohibition permits of one exception which may appear to weaken the general proscription on mixing species. The purpose of these amendments is to remove that exception.

As the noble Earl explained in proposing his amendment, the exception which the Bill as presently drafted would allow is a test which doctors have used for some time to determine the fertility of human sperm. I understood the hamster test to be the only way of carrying out this process, but I recognise that the noble Lord, Lord Walton, has added another possibility. I should add that this exception which the Bill provides was clearly mentioned in the White Paper. It is, I understand, extremely unlikely that any resultant embryo could develop beyond two cells, but the important safeguard is that the Bill provides that in any case such an embryo must be destroyed immediately.

While I can fully understand why the test may seem objectionable, even bizarre, to many Members of the Committee, with the science fiction connotations of creating strange hybrids, I believe that I can reassure the Committee that the test is a useful one clinically for which no real alternative exists. It is clearly right that this unique test should be permissible and it is important that the techniques should be looked at to see whether it can be improved in any way.

I recognise the strong feelings that have been voiced in relation to these amendments. But I trust that the proposers of the amendments recognise the importance of the exception, and the ultimate safeguard: that any result of the process must be destroyed immediately.

The Earl of Perth

I am not at all happy. I heard the comments of the noble Lord, Lord Walton, who is far more knowledgeable. He asked that his amendment be pursued and not those which I and other Members have tabled. He did so on the basis that the hamster test has greater accuracy than others. That is no argument for what I and many others believe to be shocking; namely, the mixing of human sperm with that of another animal, thereby creating another living thing. It is no good to say that the embryo will not live. The words are contained in the clause, "if the resulting embryo". Therefore, there is a mistake.

The noble Lord, Lord Walton, spoke of chromosomal changes and the importance in research. That is one of my worries. I understand that medical science and the profession are making enormous steps and it is not so fantastic to imagine that over the years they will be able to change the chromosomes. Then all kinds of doors will be open. The noble Earl, Lord Jellicoe, talked about the provision hampering research. Perhaps it will hamper research but I am not afraid of that. The noble Baroness, Lady Hooper, said that it is clearly right. I am sorry but, as was said by the noble Viscount, Lord Caldecote, it is clearly morally wrong.

I was most worried by the point made by my noble friend Lord Home. He said that he wished for a fuller Chamber and more ability to hear the medical arguments. I respect that but I do not believe that the matter is purely medical. It is a question of what is basically right or wrong. I believe that during the past 15 years the medical profession has gone astray. I am perfectly sure in my mind, and I have spoken to various scientists who are of the same opinion, that if it were not allowed there is no doubt that with today's skills other methods would be improved to a point where this was no longer necessary — —

Lord Home of the Hirsel

I had exactly the same hope as the noble Earl; that medical opinion would convince us that there were alternatives which could be used and therefore there would be no need to proceed with the hamster test.

The Earl of Perth

I agree and we have heard from the eminent noble Lord, Lord Walton, that there are other methods. I am reluctant to do so but believe that I must test the opinion of the Committee. I beg to move.

10.38 p.m.

On Question, Whether the said amendment (No. 27) shall be agreed to?

Their Lordships divided: Contents, 36; Not-Contents, 61.

Ashbourne, L. Kinloss, Ly.
Belhaven and Stenton, L. Lauderdale, E.
Brentford, V. Lindsey and Abingdon, E.
Caldecote, V.[Teller.] Liverpool, E.
Cork and Orrery, E. Morris, L.
Craigmyle, L. Norfolk, D.
De L'Isle, V. Oxford and Asquith, E.
Downshire, M. Parmoor, L.
Eden of Winton, L. Peel, E.
Elles, B. Perth, E. [Teller.]
Elliot of Harwood, B. Petre, L.
Gisborough, L. Pitt of Hampstead, L.
Grantchester, L. Renton, L.
Harvington, L. Robertson of Oakridge, L.
Home of the Hirsel, L. Ryder of Warsaw, B.
Hunt of Tanworth, L. Sidmouth, V.
Iddesleigh, E. Strange, B.
Kilbracken, L. Swinfen, L.
Addington, L. Llewelyn-Davies of Hastoe,
Adrian, L. B.
Ampthill, L. Lockwood, B.
Belstead, L. Long, V.
Borthwick, L. McGregor of Durris, L.
Brain, L. Mackay of Clashfern, L.
Brightman, L. Mackie of Benshie, L.
Butterworth, L. Monson, L.
Carnegy of Lour, B. Mountevans, L.
Cocks of Hartcliffe, L. Pender, L.
Craigavon, V. Ponsonby of Shulbrede, L.
Darcy (de Knayth), B. Prys-Davies, L.
David, B. Rea, L.
Denham, L. [Teller.] Reay, L.[Teller.]
Ennals, L. Robson of Kiddington, B.
Faithfull, B. Romney, E.
Ferrers, E. Saltoun of Abernethy, Ly.
Fraser of Carmyllie, L. Seear, B.
Glenarthur, L. Sherfield, L.
Graham of Edmonton, L. Somerset, D.
Hacking, L. Strathmore and Kinghorne,
Halsbury, E. E.
Harmar-Nicholls, L. Taylor of Blackburn, L.
Hatch of Lusby, L. Thomas of Gwydir, L.
Henderson of Brompton, L. Turner of Camden, B.
Henley, L. Walpole, L.
Hooper, B. Walton of Detchant, L.
Houghton of Sowerby, L. Warnock, B.
Jellicoe, E. Westbury, L.
Jenkin of Roding, L. White, B.
Kagan, L. Wynford, L.
Lawrence, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.46 p.m.

The Earl of Halsbury moved Amendment No. 28:

Page 2, line 34, at end insert ("; or (d) extract from the ovary of a woman an oocyte for the purpose of replacement elsewhere and fertilisation in vivo,").

The noble Earl said: In moving this amendment I am glad to be joined by my noble friend Lord Walton, who knows a great deal more about this subject than I do. The process described is known by the acronym GIFT—gamete intra-fallopian transfer—and is referred to rather briefly in the Warnock Report. It is an alternative to IVF which is favoured in certain cases.

The position is that the scientific establishments would like GIFT to come under the provisions of the Bill but the national health establishment thinks it will involve too much in the way of administration. I therefore commend the amendment to the Committee and make way for my noble friend, who is a great deal more knowledgeable on these matters than I am. I beg to move.

Lord Walton of Detchant

I apologise to the Committee for speaking again but the purpose of this amendment, which I warmly support, tabled by my noble friend Lord Halsbury is to ensure that the technique called gamete intra-fallopian transfer, or GIFT, is not exempted from the requirement to be licensed. GIFT does not at present require such a licence from the Interim Licensing Authority and the number of centres offering the treatment is increasing. The most recent figures available reveal that there are 32 centres in the UK offering GIFT alone and 33 offering GIFT and in vitro fertilisation—IVF.

Whereas the usual technique of IVF is, for instance, appropriate in those women who are infertile because of blockage of the fallopian tubes so that the eggs released from the ovaries cannot reach the body of the uterus to be fertilised by the incoming sperm, GIFT is an appropriate technique to be used in the case of those infertile couples where the ova can travel along the fallopian tubes to reach the uterus but where the sperms, for reasons often related to the chemical composition of the mucus plug in the cervix are prevented from reaching the eggs within the body of the uterus.

The GIFT technique involves obtaining a sample of the husband's sperm and obtaining eggs from the female subject using an ultrasonic imaging technique. The sample of sperm and the eggs are then injected together into a fallopian tube so that fertilisation takes place in a normal and natural environment. The technique is significantly less complex and at present in percentage terms more successful in skilled hands than IVF, but it nevertheless requires special expertise and facilities. Like IVF, it can result in a considerable number of multiple pregnancies. Concern has been expressed by the chairman and members of the Interim Licensing Authority that, especially in the private sector, centres without the appropriate medical and scientific skills may begin to offer this form of treatment. For example, they may transfer an excessive number of fertilised eggs in the hope of increasing their success rate, but with the unfortunate consequences of producing an unacceptable number of multiple pregnancies.

I share that view and in supporting the amendment I trust that the Committee will also accept it in order that the centres offering the GIFT technique of treatment as well as those offering IVF, will require a licence.

Lord Jenkin of Roding

I intervene only to support the amendment for the reasons given and to which I could not possibly add. If there is one Member of the Committee who is taking part in these debates and who has no need to apologise for speaking frequently, it is the noble Lord, Lord Walton. We listen to him with the utmost respect. We are deeply obliged to him for the guidance that he gives us on these recondite medical matters.

Baroness Hooper

The Government believe that it is not appropriate that this treatment, known as gamete intra-fallopian transfer or GIFT, should, as such, be regulated by the Bill. In considering which treatments to regulate, the Government applied two general tests. The first was whether treatments involved the creation of a human embryo outside the body. The second was whether, in other cases, the treatment involved donated or stored gametes or embryos. In each case, the process raises important questions like disposal, consent and legal status, which need to be addressed as they have many legal consequences. It is for this reason that the four treatments to be regulated by the Bill need statutory control.

Thus, where GIFT involves the storage or donation of any gametes used in the technique, it will be subject to the licensing provision of the Bill because it falls within the general tests I have described. But because the embryo does not leave the woman's body and no stored or donated gametes are involved, in other cases, GIFT does not fall within these general tests and so is not covered by the Bill. The Government do not believe that it would be appropriate to extend these necessarily stringent licensing conditions to treatments unless they satisfy one or both of these general tests to which I have referred.

The Government believe that GIFT as such should not be regulated by the Bill but its use should, like other treatments, be a matter for the clinical judgment of the doctor concerned as in the case of other kinds of treatment. Therefore, we do not feel able to accept the amendment. While thanking the noble Lords who proposed it in such a knowledgeable way, I hope that nonetheless they will understand the Government's reasons for being unable to accept the amendment.

Baroness White

Can the Minister explain what the Government propose to do about these very difficult multiple pregnancies which cause a great deal of distress?

Baroness Hooper

I believe that comes within the clinical judgment of the doctor concerned, to which I referred before and which is applicable to many other forms of treatment as well.

Lord Walton of Detchant

I am disappointed by this response because of the concerns that I expressed, which I know are shared by the chairman of the Interim Licensing Authority, and because of the belief that unless some kind of statutory control is imposed on the development and extension of this GIFT technique in the growing private sector, there is a serious risk that, even with the kind of clinical judgments —which are issues being considered by members of my profession —to which the noble Baroness has referred, there may be significant problems arising in the future.

I would ask that this issue be considered, even without it being included in the Bill as an amendment as we proposed, which I confess I should have preferred, with a view, by regulation, to bringing this GIFT procedure within the ambit of the statutory licensing authority. It may not be possible but I confess to being disappointed by the Government's response.

Baroness White

Could it not be reconsidered on Report?

Lord Walton of Detchant

I hope that it can be reconsidered at Report stage.

Earl Jellicoe

I apologise to the noble Baroness but I found what the noble Lord, Lord Walton, had to say on this subject extremely persuasive. I have not been altogether persuaded by my noble friend's reply. I add my voice to those I have heard expressing the hope that this will be considered by the Government again between now and Report stage.

Lord Ennals

I should like to add to the plea for the Government to give an assurance that they will consider the matter between now and Report stage. A powerful argument was put forward by the noble Lord, Lord Walton. I hope it will be responded to.

Baroness Faithfull.

I, too, support the amendment and hope that the noble Lord, Lord Walton, will withdraw it with a view to the matter coming up again at Report stage after discussions with the Government.

Baroness Hooper

We shall look at the amendment in the light of the arguments advanced by noble Lords. We shall look at it perhaps particularly in terms of the spirit of the amendment, as the noble Lord, Lord Walton, suggested, and no doubt we shall return to the subject at a future stage.

The Earl of Halsbury

I warned the Committee that the Establishment was against it. But having regard to the assurance given by the noble Baroness, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Lord Robertson of Oakridge moved Amendment No. 30:

Page 2, line 35, at end insert —

("( ) A licence cannot authorise the use of—

  1. (a) sperm of any one man; or
  2. (b) eggs of any one woman,
in the course of the provision of treatment services for more than such number of women as the Secretary of State may by regulations specify.")

The noble Lord said: This amendment would enable the Secretary of State to limit the number of women who could receive treatment services using the sperm of any one man or the use of eggs of any one woman in treatment services. At present there is no restriction on how often a man can provide sperm for AID or a woman can provide eggs for donation; nor is that covered in the Bill. The intention of the amendment is to avoid the gametes of one individual anonymously donated being used to create many children. It therefore seeks to reduce the possibility of genetically related individuals either marrying or having sexual relations without knowledge of their common background. I beg to move.

Baroness Hooper

This amendment would allow the Secretary of State to limit the number of women who could be treated with the eggs of a particular woman or the sperm of a particular man. The Govenment argued in the White Paper that, while it was desirable to have limits on sperm donations, there would be significant practical difficulties in trying to enforce any such limit. Recovery of eggs for a woman is a less easy procedure than the obtaining of sperm. It is in the Government's view unnecessary to legislate on what is again essentially a matter of clinical practice. Nevertheless we feel that it is a matter where it would be right for the authority to provide guidance on good practice and to monitor the situation. That is the safeguard we envisage.

11 p.m.

Lord Ennals

Perhaps I may say that in my view the noble Baroness has got the position absolutely right. It was only proper that the issue should be raised because there is some concern in this connection. However, I do not think that the Secretary of State should have such a power injected into the Bill at this stage. The responsibility must lie with the licensing authority and, obviously, guidelines would be the best way to deal with the matter. I am certain that members of the authority would not wish to see the kind of abuse, to which the noble Lord, Lord Robertson referred, take place.

Lord Robertson of Oakridge

I am grateful to the Minister and to the noble Lord, Lord Ennals, for the comments they have made. It is possible that we shall return to the matter on Report to see whether this provision should be built into authority's instructions, so to speak. However, with that consideration in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 and 32 not moved.]

Baroness Hooper moved Amendment No. 33: Page 2, line 36, leave out ("keeping") and insert ("storing").

The noble Baroness said: In moving this amendment I shall speak also to Amendment No. 34. As currently drafted, Clause 4(2) provides that, if regulations prohibit the keeping or use of gametes, a licence cannot authorise their keeping or use. Subsection (1)(a) prohibits the storage —that is, preservation by freezing —of gametes except in pursuance of a licence. Subsection (2) should also refer to storage: keeping is a wider term than storage and it is not intended that the Secretary of State should have the power to make regulations prohibiting keeping gametes in any way other than preservation by freezing. I beg to move.

On Question, amendment agreed to.

[Amendment No. 33A not moved.]

Baroness Hooper moved Amendment No. 34: Page 2, line 37, leave out ("keeping") and insert ("storage").

On Question, amendment agreed to.

Viscount Caldecote moved Amendment No. 35:

Page 2, line 39, at end insert — ("(4) Not more than three premises shall be licenced for activities specified in subsection 1(c) above.").

The noble Viscount said: As Amendment No. 27 was not carried, the activities authorised by Clause 4(1)(c) can be undertaken subject to a licence. I believe that we would all agree that it is most important, in view of what was said in connection with Amendment No. 27, that such activities should be effectively regulated and that the terms of any licence granted should be rigidly enforced.

The greater the number of licensed premises, the harder it will be to inspect them effectively and enforce the terms of the licences. It seems to me that if three places were licensed to carry out such tests that would be reasonable. It would ensure that there was an adequate number of such places where the testing service could be provided. I beg to move.

Lord Ennals

The issue of the value of the hamster test, shortly put, has already been debated. Various concerns were expressed and by a substantial majority of two to one the matter was decided. These tests have been carried out for the past 14 years without —at least, so far as I know—protest from any side of the Chamber, or from elsewhere. I suppose some people may say that part of the horror is the use of animals in research. However, we have recognised that this is a test which has substantial backing, which has a considerable effect and which, if it had been abolished —although, fortunately, the amendment was not carried —would have led to most unfortunate consequences for those people suffering from infertility; namely, one in 16 of the population.

If we recognise the fact that such tests must continue in the interests of good research —properly protected, as we have agreed —then I do not see a case for limiting the number of such centres to three. Access to the test would be readily available only to those living near one of the three centres. It would impose considerable difficulties on those living at a distance. Apart from the cost and inconvenience of travel to one of the three centres, it would add to the cost of the treatment. The transport of the sperm between centres would require the purchase of a special container which would maintain a constant temperature of 37 degrees centigrade. That could prove difficult when long journeys are involved. Why should that be done in any case if it is a recognised and accepted form of test whose value has been proved? No alternative has been found. Why should we limit the number of centres to three? Whom would we benefit by doing that?

Baroness Hooper

We discussed the substance of the amendment when we discussed Amendment No. 27. In the two cases which are permitted by the Bill, as was established, the ultimate safeguard is that the embryo resulting from the process must be destroyed immediately. For those reasons, the Government's view is that it would be inequitable to restrict the number of premises which could be licensed to carry out the activity and therefore I trust that my noble friend will feel able to withdraw his amendment.

Viscount Caldecote

I thank my noble friend the Minister for her reply. The fact that the tests have been carried out for a long time is neither here nor there. Many people were not aware that they were being carried out. I recognise that some inconvenience would be caused if the amendment were carried.

As the noble Lord, Lord Ennals, said, it is important that the premises should be properly regulated. If 10, 20 or 30 premises are to be licensed it will be difficult in practice to inspect and effectively enforce the terms of the licence. That is my only point. I am not trying to prevent the tests being done. We dealt with that matter when we dealt with Amendment No. 27. If my noble friend thinks that the amendment is unreasonable perhaps we can leave it now and bring it back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4, as amended, agreed to.

Clause 5 agreed to.

Schedule 1 [The Authority: Supplementary Provisions]:

The Duke of Norfolk moved Amendment No. 36:

Page 23, line 21, after ("informed") insert ("by the views of persons having wide knowledge or experience in the fields of law, social work, philosophy and religion as well as medicine or science and").

The noble Duke said: The amendment will ensure that the licensing authority does not become dominated by scientific and medical interests. That accords with the recommendations of the Warnock Committee which said, with regard to a licensing authority, that the new body would need access to expert scientific and medical advice. We therefore envisage a significant representation of scientific and medical interests among the membership. It will also need to have members experienced in the organisation and provision of services. However, that is not exclusively or even primarily a medical or scientific body. It is concerned essentially with broader matters and with the protection of the public interest.

If the public is to have confidence that the body is independent —that is, is not to be unduly influenced by sectional interests —its membership must be wide-ranging and the lay interest should be well represented. We recommend that there should be a substantial lay representation on the statutory authority to regulate research and infertility services and that the chairman must be a lay person. I beg to move.

Baroness Hooper

I very much understand the reasons which have prompted this amendment. The Government made it clear in the White Paper that the membership of the Human Fertilisation and Embryology Authority would be likely to include people with wide knowledge and experience in the fields mentioned in the amendment. However, the Government think it would be wrong if these categories were specifically mentioned in paragraph 4(2) of Schedule 1, as not only would this unduly tie the hands of the Secretary of State in choosing the right balance of membership when he comes to do that, but also there are people who are members of other disciplines which, like nursing and counselling, could make an equal claim to being appointed to the authority.

It would be easy to load this provision with a long list of highly appropriate disciplines and experience, but that would be to run the risk of unduly confining Ministers when they come to make appointments to this important new body. While, therefore, I have every sympathy with what the proposers of this amendment are seeking to achieve, I can assure them that it is to be expected that people with the experience and from the disciplines they mention will find their way on to the authority when it is appointed. It would be unduly restrictive to confine choice in the way the amendment suggests. I trust that the noble Duke will feel able to withdraw his amendment on this basis.

Lord Jenkin of Roding

I should like to make a particular plea that one category of people who should be considered for appointment are those who have a particular expertise in the field of medical ethics. I ask this because a couple of years ago I was invited to carry out a private review of an interesting and worthwhile body called the Institute of Medical Ethics. During the course of that review I became profoundly convinced that there has been growing up, both in Britain and in other countries, notably America, a considerable corpus of expertise which results from the mixture of disciplines not only medical and legal —which are obviously important —but of moral theology and similar disciplines of that kind.

It so happens that the interim committee includes one such person, Professor the reverend Canon G. R. Dunstan, who is the emeritus professor of moral and social theology at the University of London. I have no doubt that he makes a considerable contribution to the work of the interim committee. I became convinced that, in this growing number of issues, where medical science is confronting the public with a range of new moral issues which have to be resolved, the people who have devoted, in some cases, a lifetime of work to these subjects have a considerable insight to bring.

This can be of great value to those who perhaps come with only one discipline and who find the breadth of vision that these experts can give to be of great value. I hope that my noble friend will feel able to take account of this. It would not be for me remotely to suggest names, but there are quite a number of people from whom the Government choose in making their appointments.

11.15 p.m.

The Earl of Lauderdale

I rise to support this amendment, and to try to correct something that my noble friend the Minister said from the Front Bench. She talked about not confining it to certain kinds of people. The hard fact is —and there will be very few Members on either side of this Committee who will not agree with what I am going to say —that whenever the Government appoint a so-called neutral committee, many of us find that it is always biased in a particular way.

There have been many times when the choice of theologians has leant on the liberal side without a fair balance there, and there are many reasons why this body should be able to draw upon the widest possible variety of disciplines if it is to have public confidence. It is important that that body wins public confidence. I was rather disappointed with what my noble friend the Minister said in her first comment on this amendment. She seemed to be saying that the amendment would somehow confine appointments to a particular category. However, that is not the object. The object of the amendment is to widen the categories to make sure that the body is balanced and wins public confidence.

If the Minister cannot give an undertaking to look at the amendment now, I hope that my noble friend will be willing to bring it back with vigour on Report as it is a serious matter which affects the whole Bill. The whole Bill depends on the licensing authority. Many of the assurances which have been offered hitherto depend on the suitability of that authority and on the fact that it enjoys public confidence. If my noble friend the Minister cannot be more forthcoming now, I hope that my noble friend will not despair and will be willing to come back to this matter with vigour and rally a lot of support for a Division early in the day when we could perhaps carry it.

Lord McGregor of Durris

It should be said that the membership of the present Interim Licensing Authority under the chairmanship of Dame Mary Donaldson covers all the categories of persons mentioned in Amendment No. 36 and includes many more besides. It is important to note that the Interim Licensing Authority has established itself very firmly as a body, having achieved public confidence.

Earl Jellicoe

I wish to endorse everything which the noble Lord, Lord McGregor, has just said. I find myself very sympathetic to the general approach of my noble friend the Duke of Norfolk and of my noble friends Lord Lauderdale and Lord Jenkin on this issue. I hope that the Government will ensure that there is the widest possible spectrum of lay representation on the authority.

Lord Henderson of Brompton

I wish to follow what the noble Earl, Lord Jellicoe, has said in the confidence that the Secretary of State would do exactly what he has asked for. Therefore, it is not necessary to lay that down in the Bill.

The Duke of Norfolk

I wish to thank the Members of the Committee who have spoken, including the noble Lord, Lord McGregor, the noble Earl, Lord Lauderdale, and the noble Lord, Lord Jenkin. We feel strongly that there should be a wide representation. The noble Earl, Lord Jellicoe, also mentioned that. I am a little bit unhappy about the idea of the present membership of the licensing authority being taken on completely. I think there should be a new authority which will no doubt include some members from the present one but which would also contain many new people. That would give the country a feeling that this Bill has had an effect in this area. However, having heard the comments of my noble friends, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Duke of Norfolk moved Amendment No. 37:

Page 23, line 21, at end insert ("and that a reasonable balance is maintained amongst the membership of the Authority between persons in favour of and against the carrying out of activities requiring to be licensed by section 3 of this Act").

The noble Duke said: If Parliament chooses to place a restriction upon the use of the human embryo in IVF and research —and all sections of opinion in the Chamber wish to place some restrictions on those practices —it is necessary that the authority should not be dominated by those who are unequivocally in favour of or against the practices involved. Some scientists have already expressed a desire to experiment beyond 14 days. If the wishes of Parliament are to be respected, it is necessary to ensure a balance on the authority as required by this amendment. I beg to move.

Lord Ennals

I had more sympathy with the previous amendment than I have with this one. Whoever is appointed must administer the law. If someone wanted to go outside the law, namely beyond 14 days, they should not be appointed. To require that there should be a balance and that, for example, half the members should disagree with the legislation is rather like saying that half the members of a health authority should not support the National Health Service or that 50 per cent. of the Church Commissioners should be atheists. If we want the job to be done properly such a limitation, rather than a broad spread of membership as suggested in the previous amendment, would be very unfortunate.

Lord Jenkin of Roding

I too should be unhappy if the amendment were carried. I say that on the basis of experience. On one occasion I had to make appointments to a body which was concerned with nuclear power. One of the appointees made it clear that there were certain aspects of the job which because of his views on nuclear power he did not feel that he could properly undertake. That was a very unsatisfactory arrangement. I have a feeling that if one had to look for people who were opposed to the principle of the Bill —supposing that the vote on Clause 11 goes in favour of research —it would pose considerable difficulties of conscience. I had experience of such a situation on the committee which I appointed, and it was not a happy one.

Lord McGregor of Durris

I am chairman of an independent self-regulatory body which enforces a code of practice upon all print advertising. Nobody would wish to appoint a group or persons of monolithic unity of view to any such body. However, if it is to work at all there must be a consensus of opinion. In the case that I have in mind there must be a consensus that self-regulation is a method of achieving the task superior to statutory regulation. In any such body if consensus cannot be built among the members, the job which the body exists to undertake simply cannot be performed

Baroness Hooper

The short discussion on the amendment has been useful. I believe that if it were accepted it would prove axiomatic in practice. In appointing the members, as the White Paper indicated, the Secretary of State will wish to ensure that the authority represents a mixed and balanced set of views. That said, I can assure the Committee that it is not the Government's intention to appoint an authority packed with those who are partisan on the issues. I hope that with that assurance my noble friend will feel able to withdraw his amendment.

The Duke of Norfolk

I am glad to have heard what has been said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Duke of Norfolk moved Amendment No. 38:

Page 23, line 32, at end insert — ("( ) The Secretary of State shall secure that at least half the members of the Authority have not been involved in conducting or securing the conduct of any project of research for which a licence may be granted under this Act.").

The noble Duke said: The amendment would ensure that at least half the members of the authority are not involved in research on embryos should that be allowed. It would not preclude their having been involved in treatment or storage activities. If research on embryos is permitted, that will be necessary for the reasons given in connection with the previous amendments. If those granting licences for research were predominantly the same persons performing the research, it would be unrealistic to expect there to be any effective control.

The amendment is similar to the two previous amendments. The purpose behind the three amendments has been the feeling of the Pro-Life Group that the Secretary of State should be in control and not the authority so that there is day-to-day control by Parliament. We want the authority to report to the Secretary of State. We do not wish to see the whole of the controlling authority dominated by one section of the community. I beg to move.

Baroness Hooper

I have some sympathy with the spirit of the amendment. Under paragraph 4 of Schedule 2 to the Bill as it at present stands, at least a third but no more than half of the members of the authority, with the exception of the chairman and deputy chairman, shall either be registered medical practitioners or scientists involved in embryology. It is highly unlikely that Ministers would seek to appoint that portion of the membership exclusively from among people who are involved in embryo research, if that should be Parliament's decision. Equally, the White Paper's proposals about the membership of the authority stress that it will need to include a majority of people who are lay. Thus, it is likely that in practice the Bill as at present drafted will secure what the amendment seeks to achieve.

Nonetheless, in view of the concern about the ethics of such research, which in all probability will continue to be held by many people in this country if Parliament decides to approve research involving human embryos in the strictly controlled circumstances provided by the Bill, the Government will consider the debate on this amendment carefully and —it almost goes without saying —without commitment, see whether it is possible for an amendment to be brought forward at a later stage of the Bill which would meet more explicitly the concern expressed in the amendment. I hope that my noble friend will feel able to fall in with that position.

The Duke of Norfolk

I thank my noble friend for that assurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 6 agreed to.

Clause 7 [Reports to Secretary of State]:

[Amendment No. 39 not moved.]

Earl Jellicoe moved Amendment No. 40: Page 3, line 35, leave out ("two years") and insert ("twelve months").

The noble Earl said: The amendment which I am moving, which also stands in the names of my noble friend Lady Platt and of the noble Lords, Lord Ennals and Lord McGregor, is simple, straightforward and not in the least controversial. Given those admirable virtues, I trust that it will be acceptable, not least to the Government.

Clause 7 provides that the Human Fertilisation and Embryology Authority should report to the Secretary of State on its first year of activities and thereafter at two-yearly intervals. Our amendment is designed to make those reports annual, as is the case with the reports of the Interim Licensing Authority.

My reasons for that are as follows. The first concerns precedent. The ILA, under its admirable, charming and efficient chairman, has reported annually. It has been able to do so with its skimpy resources. I see no reason why the new authority with its far greater resources should not be able to follow suit. Moreover, the ILA's reports have been far from pro forma. They have contained much valuable information on the clinics that it has licensed, on the guidelines under which they operate, on the research projects that it has approved and not least on research projects that it has not approved and the reasons for that, and much else besides.

My second reason is that, if the regular annual reporting has been desirable with the ILA, it is even more so with the powerful new authority with its increased powers which we are at present creating. The whole field of human fertilisation and embroyology is fast-moving. Reports at two-yearly intervals could be far from up-to-date. Moreover, the noble Baroness, Lady Warnock, said in our Second Reading debate that the new authority's decision will be of deep interest to other countries; all the more reason that its reports should be as contemporary and informative as possible.

Above all, I believe that when one is operating in a field as complex, fast moving and controversial as this one, as much openness as possible is highly desirable. I believe that the discipline of annual reports —to government, to Parliament (I emphasise that) and for the benefit of the general public both at home and abroad —is not a bad thing in itself. I observe that there was fairly wide support for that view in this Chamber at Second Reading, and it came not only from those who favour research. Among those who held that opinion at Second Reading and voiced it was my noble friend the Duke of Norfolk.

I was also encouraged then by the response of my noble friend Lady Hooper. Therefore I hope that she will find this simple little amendment acceptable. I beg to move.

1130 p.m.

Baroness Hooper

The arguments of my noble friend Lord Jellicoe are very convincing. Indeed he and other members of this Chamber raised the point about annual reports in the course of the Second Reading debate.

The purpose in drafting Clause 7(1)(b), to provide for reports every two years after the first year of the authority's existence, as I explained at Second Reading, was to avoid imposing too heavy an administrative burden on the authority. Nevertheless, after considering the arguments then advanced, we came to the conclusion that the preparation of an annual report would be a useful discipline for the new authority and indeed would provide valuable data. Therefore the Government are happy to accept this amendment.

On Question, amendment agreed to.

[Amendment No. 41 not moved.]

Clause 7, as amended, agreed to.

Clause 8 [General functions of the Authority]:

[Amendment No. 42 not moved.]

Lord Harvington had given notice of his intention to move Amendment No. 43: Page 4, line 2, after ("about") insert ("the creation of embryos and the keeping or use of").

The noble Lord said: Owing to the lateness of the hour and the fact that the noble Duke's amendment has not been moved this evening, I think that probably the Committee will be glad to know that I do not propose to do anything about the remaining amendments which stand in my name and appear in the Marshalled List before Clause 11. That, I think, leaves the noble Lord, Lord Henderson, by himself.

[Amendment No. 43 not moved.]

[Amendments Nos. 44 to 46 not moved.]

Clause 8 agreed to.

Clause 9 [Licence committees and other committees]:

[Amendments Nos. 47 and 48 not moved.]

Lord Henderson of Brompton moved Amendment No. 49:

Page 4, line 31, at end insert —

  1. (b) at least one person who is authorised to carry on or participate in any activity under the authority of a licence; and
  2. (c) persons numbering more than half but not more than two-thirds who neither are or have been medical practitioners (as defined in Schedule 1 (4)(3)(a)); nor are or have been, concerned with keeping or using gametes or embryos outside the body.").

The noble Lord said: I am happy to say that the Lord Henderson is not alone! He has with him the noble Lords, Lord McGregor of Durris and Lord Prys-Davies, and the noble Earl, Lord Jellicoe. I can explain this amendment very briefly. It concerns licence committees.

It has been widely thought that it would give public confidence if the licence committee, as opposed to the authority itself, had on it a majority of lay members. I very much agree with that. I also agreed, though I did not say so at the time, with the noble Duke's amendment, Amendment No. 38. I was very glad that that amendment had a receptive acknowledgment from the noble Baroness on the Front Bench. I hope to receive the same kind of receptivity from her with this amendment.

In my amendment paragraph (c) provides for: persons numbering more than half but not more than two-thirds who neither are or have been medical practitioners …nor are or have been, concerned with keeping or using gametes or embryos outside the body". I hope that that point would have the support of everyone in the Chamber. But I think that paragraph (b) would give some comfort to the medical fraternity in providing: at least one person who is authorised to carry on or participate in any activity under the authority of a licence". There should be someone of that standing on the licence committee. The amendment that I propose is very simple. It provides those two additions to the composition of a licence committee. I beg to move.

Baroness Hooper

The amendments seeks to define more precisely the balance of membership of licence committees to be set up by the authority. As Clause 9(5) is at present drafted it specifies that at least one member shall be "lay" in the sense of not being someone authorised to participate in an activity to be licenced under the Bill. The amendment would require a majority of non-medical or scientific members or those authorised to carry out licensed activities.

While I sympathise with the spirit of the amendment, which in many ways reflects the policy behind Schedule 1 to the Bill, which provides that the chairman and deputy chairman and a majority of the other members must neither be doctors nor embryologists, in practice in the context of licence committees, it could be too restrictive. The Committee will no doubt keep in mind that there are likely to be a number of licence committees operating at the same time and that the authority may need to set up licence committees quickly to deal with emergencies which may lead the committee to suspend or revoke a licence. Without some measure of flexibility it could in practice be difficult to convene a licence committee at short notice. Clause 9(5) provides that the membership of licence committees should be specified in or determined by regulations and the Government will keep very much in mind the points made in proposing the amendment when they come to prepare those regulations.

We are considering also the earlier amendment, No. 38, as the noble Lord, Lord Henderson, has reminded us. I hope that with that assurance the noble Lord will feel able to withdraw his amendment.

Lord Henderson of Brompton

If the noble Baroness is saying that she will very kindly consider not only Amendment No. 38 but also Amendment No. 49, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Clause 9 agreed to.

Clause 10 agreed to.

Baroness Blatch

I beg to move that the House do now resume.

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

House resumed.