HL Deb 08 February 1990 vol 515 cc1006-20

House again in Committee on Schedule 2.

[Amendments Nos. 63 and 64 not moved.]

Lord Carter moved Amendment No. 65: Page 26, line 30, at end insert ("which are life-threatening or severely disabling").

The noble Lord said: This is an amendment which deals with a subject that I raised at Second Reading. I do not think that it has been discussed at all in the context of the Bill. It refers to the need for criteria that the proposed licensing authority should use to decide which research into congenital diseases it will license. Paragraph 13.6 of the Warnock Report specifically stated: We do not see it as our function to specify in detail the criteria for granting a licence but there are certain controls which we believe should be imposed".

In the consultation paper published in December 1986, after the report, the Government said nothing at all about the criteria for research. The White Paper, published in November 1987, echoes Warnock in paragraph 22 which states: The Government does not intend to specify in legislation the detailed criteria which should be applied in granting licences".

The noble Baroness, Lady Warnock, was interviewed for television in April 1985. I have her permission to quote from the transcript of that interview. She deals with the point that I am now raising. In response to the question: Do you not think there are dangers in that really what one is doing is genetically engineering?

she replied: Well, I think there are dangers and I think that it requires enormous thought to say which of the full list of conditions will, as it were, merit this kind of treatment … I think we need to have an agreed list, by society as a whole, of which of the conditions that are so disabling lead to such a short life on the part of a child who suffers from them that medicine and common humanity must work together to eliminate these if possible".

Later in the interview she said: I think this is why I feel so very strongly that when these kinds of developments become possible, we've got to have an agreed list of conditions which are agreed by everybody to be so disabling and so tragic for the person and the family within which they care that it is worth bringing them [the diseases] to an end".

I should make clear that this is a probing amendment. Certainly I do not intend to divide the Committee on it. However, I believe that we should spend a few moments considering this very difficult question of criteria. Although I have not received any advice on this point from outside bodies —and the amendment reflects my own wording —I was gratified to note that the Medical Research Council has circulated a note which, in respect of the amendment, states: It seems to be an attempt to prioritise research by bringing it towards increasing knowledge of serious and congenital disease and away from less important areas, and as such would be acceptable to the MRC".

I am grateful for the support of the Medical Research Council, except for the use of the dreadful word "prioritise". The form of words used in my amendment indicates the kind of criteria that the licensing authority might use but I willingly admit the text is not perfect.

Let me take an example. We heard earlier in the debate that colour blindness is an inherited disease or defect. If it were possible to detect it in the embryo, would we really suggest that scarce research resources should be devoted to detecting that defect? The difficult area for the licensing authority may lie in those disabilities which can be detected in the embryo and which are disabling, but perhaps not seriously so early in life yet get progressively worse. That indeed may apply to some eye conditions which do not cause total blindness until quite late in life.

The difficulty of a definition perhaps indicates why the Government have avoided the attempt to define. If that is the case, we should recognise the great responsibility that we are placing on the licensing authority; and the Committee should consider whether that is what it wishes to bring about. I beg to move.

Baroness Hooper

I fully recognise the noble Lord's concern in this matter and the apparent desirability of having some kind of agreed list of conditions. I note with interest the MRC's support for the idea of having some list of priorities. However, in the light of the arguments that have been advanced in the course of our discussions on the Bill so far, we all recognise that there are very rapid advances in techniques and increasing knowledge in this area, so that any attempt to define priorities at a particular stage in itself would impose particular difficulties.

That is why the Government feel that this kind of amendment would not be welcome. In practice, it would be extremely difficult to decide which diseases came into any particular category, whether it was phrased in the actual wording proposed in this amendment or indeed any other similar wording. We believe that if research were to be licensed, the decision on which research projects to license would be best left to the authority, which will be able to consider each application in detail through the proposed structure of licensing committees. In that context, obviously we have been and are concerned that the composition of those committees should be correct so that they are able to make these decisions which we recognise are important.

In raising this amendment, the noble Lord has underlined the reasonable role that the authority will have in this matter. On that basis I hope that he will feel able to withdraw his amendment.

Lord Carter

I am extremely grateful to the Minister for her reply. She is absolutely correct. I was anxious to underline the severe and very real responsibilties that we are placing on the members of the licensing authority in deciding on the lines of research that they will license. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Halsbury moved Amendment No. 66: Page 26, line 32, leave out paragraph (d).

The noble Earl said: This is a probing amendment and it should not occupy the Committee for very long. I gave noble Lords notice during Second Reading that I would raise this point because research into contraceptives using an embryo was outwith the recommendations of the Warnock Committee. I confirmed that with the noble Baroness, Lady Warnock. In fact it was never considered by her committee.

Therefore this is the first new item which has appeared in the context of embryology and embryo research. I think it worth asking why it has been put into the Bill since research at present is yielding very good results. I understand that the strategy behind it is to produce something like auto-immune antagonism to the ovum or sperm, as the case may be. I also understand that it is only likely to give immunity for a couple of years, or something like that. It is not a permanent immobilisation of a woman's fertility capacity. The dose would have to be renewed by a prick in the arm every two years or so. If it is a medicine it brings in the status of the Safety of Medicines Act. Perhaps the noble Baroness or the noble and learned Lord would like to comment on that question.

Lord Houghton of Sowerby

The noble Earl surely knows that if his amendment were carried it would throw the International Planned Parenthood Federation into confusion. The whole world is waiting for a better contraceptive.

The Earl of Halsbury

If the noble Lord will give way, I shall not carry this through to a Division. There is no question of the amendment being accepted. I said that it was a probing amendment to find out the current state of play.

The Earl of Lauderdale

Perhaps I may ask my noble friend on what basis the measure goes beyond the Warnock Report and the White Paper.

Lord Ennals

I was arguing the case on an earlier amendment for having some flexibility. If we set up a statutory body in which we have confidence, with people whom we trust, but hedge it around with limitations on what it can do —and we are here setting out what it may or may not do —it is important that it should have some flexibility. I suppose that we could have added a rounded term such as "such other activity as might be in the public good" or what have you. It is perfectly clear, as my noble friend Lord Houghton said, that it is important to have an improved contraceptive, and this seems to me to be the right body to approve research in this field. I should therefore be very happy if the matter were to be withdrawn.

It does not flow from the Warnock Committee. It may well be that certain activities may be undertaken which were not anticipated when the noble Baroness, Lady Warnock, produced her report. However, it is within the same field and I believe that it is the natural body to do such research, of course under licence. I hope that the provision will remain in the Bill.

The Earl of Lauderdale

We have been told not once but half a dozen times in Committee earlier this week, and several times today, that the argument for such and such is that it was either in the Warnock Report or in the White Paper. I am asking the Government on what basis they are adding extras that were not in either of those documents. I am only asking for the information.

Viscount Craigavon

Perhaps I may help the noble Earls, Lord Halsbury and Lord Lauderdale. I refer to the guidelines in the latest report of the interim licensing authority.

The Earl of Lauderdale

That is not the White Paper or the Warnock Report.

Viscount Craigavon

They have been in use for some considerable time.

The Earl of Lauderdale

They may have been in use for some considerable time, under the interim licensing authority. We are referring to a statutory body. We have been told over and over again, on Tuesday and more than once today, that a measure in the Bill is justified because there was reference in the Warnock Report or the White Paper. There may have been guidelines by the Interim Licensing Authority, but the issue was not in the White Paper or the Warnock Report.

Viscount Hanworth

If it is a sensible thing to do, I cannot understand why we should raise these various objections. We all know perfectly well that the over-population of this planet is likely to become a major problem. I know of course what the Catholics think about it. However, for the remainder of us I should have thought that there was no question whatsoever that this matter should be included.

The Earl of Lauderdale

We had arguments earlier about the slippery slope. We have had arguments about this or that matter being authorised now and the authority then going a little further. We have here an issue that was in neither the White Paper nor the Warnock Report. I hope that we shall be given an answer as to why it has been added.

8.15 p.m.

Lord Walton of Detchant

I believe that scientific progress has developed even since the Warnock Report was published. The amendment is concerned not so much with the development of new drugs for contraception but more with the possibility of developing a vaccine for male contraception in which this test —the embryo research, but also the issue of the hamster test —is very much involved. It is a technique that brings considerable hope of developing new and effective male contraception methods which may have world-wide application. For that reason I believe that it is an important issue to be retained in the Bill.

The Earl of Lauderdale

What one wants to know is that the activities arising from this authority will not expand by a degree here and there and end up in activities that are only marginally implicit in our legislation and may not even be authorised by it.

Viscount Hanworth

That has been my problem in voting on the Bill. There are several things that could be done illegally at the moment in the Bill —such as cloning —which would be highly unfortunate, but I should have thought that it was a quite clear issue and that nothing has been said which should deter us from putting it in the Bill.

Baroness Hooper

I should start by saying to my noble friend Lord Lauderdale that everything that is contained in the Bill is not totally dependent upon being mentioned in the Warnock Report because the report came out some years ago and, as we have already established, a number of changes in techniques and practices have developed in the intervening period. Any measure is not totally dependent on what is in the White Paper. Nevertheless, if my noble friend looks at Annex B of the White Paper he will see that paragraph 48(c) refers to suggested benefits of research which include developing more effective forms of contraception. It is therefore in this case mentioned in the White Paper.

I should also like to establish in the context of the amendment that has been proposed by the noble Earl, Lord Halsbury, that we are also speaking to Amendments Nos. 67 and 68, which I understand were grouped with Amendment No. 66.

On the question of contraception, and in relation to the amendment, I should also preface my remarks by saying that the Government are neutral on this question and in the event of a Division would leave it to Members of the Committee to decide according to their own consciences on whether a licence should be authorised for research for the purpose of developing more effective techniques of contraception. However, I acknowledge that the noble Earl said in moving the amendment that he intends it as a probing amendment. I would therefore merely say that those who support embryo research for the purpose of developing more effective techniques of contraception argue that embryo research beyond the two-cell stage is important for testing some contraception methods based on vaccines to ensure not only that failure rates are minimal but also that they have no adverse effects if pregnancy nevertheless occurs.

On the other hand —attempting to be even-handed and presenting the other side of the argument —those who are opposed to embryo research being used for this purpose argue that while they accept research involving human embryos in principle for moral reasons, they would not wish that research to be carried out for this purpose. The Government remain neutral on the question and therefore I must leave your Lordships to decide the matter in due course on the basis of the arguments put for and against.

Viscount Craigavon

The noble Baroness said that Amendments Nos. 67 and 68 have been grouped with this amendment. However, she does not appear to have replied to Amendment No. 68 to which I was hoping to speak. I was also hoping to hear comments from the noble Duke. Can the matter be clarified? Are we now talking to Amendments Nos. 67 and 68? It may be better if they dealt with them separately after first dealing with the amendment tabled by the noble Earl, Lord Halsbury.

Lord Robertson of Oakridge

I have been entrusted with moving Amendment No. 67 and it may be to the advantage of the Committee if I spoke to it now. The noble and learned Lord said that we could table amendments to Schedule 1 in order to discuss individual areas of research. This is such an amendment. It would exclude the development of methods for detecting the presence of gene or chromosome abnormalities in embryos before implantation. What will be done with the information once it is available?

Research can lead to treatment of the genetic disorders or chromosome abnormalities. However, I have gained the impression from the debates that, as yet, there is no claim that the information will lead to treatment. Therefore, its purpose would be to identify defective embryos so that they could be "weeded out".

I believe that if we go down that road we shall give an unfortunate impression to the public because, in effect, we should be saying that all seriously handicapped people are a burden to society and should not have been born. I question whether that is wise and I shall be interested to hear Member's comments.

The Lord Chancellor

I understand that paragraph (e) of Schedule 3(2) is designed to deal with one of the examples given by the noble Lord, Lord Walton of Detchant, in the course of his earlier speech. One knows that there are married couples who have been advised that there is a serious risk that a child born of their union will have a congenital disease which may be due to a gene or chromosome deficiency. Very often that risk can be expressed as a percentage. The provision would enable research to be carried out into the development of methods for detecting whether that is so in relation to a particular embryo.

In the normal case, if such couples are willing to accept the risk, they can go forward by the normal method in which case the risk might or might not occur. One has heard of and known couples who have been advised and counselled about the risks but have decided to take it. The woman has conceived in the natural way and sometimes a handicapped child has been born. If that happens once, the question becomes even more serious in respect of a second child and so on. I am sure that many Members of the Committee will know families in which until now every male child has suffered from a distressing congenital problem.

If techniques were developed as a result of successful research, the provision would enable medical advisers to be in a position to offer such couples the option of IVF. They would apply to the embryos produced for that purpose the test developed under this research. They would take the view of the parent regarding what they wish to happen. By using the technique of IVF they may be able to eliminate the risk of the congenital disease in the child born to those parents.

It is a matter entirely for the parents. There is no question of the technique eliminating a particular type of congenital disease if it could be detected in that way. The matter would be entirely for the parents. Some couples would be prepared to take the risk as it now exists without going down this road. However, others may feel that the distress of having a handicapped child, particularly if they have had the experience of having such a child already, is too great.

It is fair to say that a woman bearing a child is naturally concerned that the child is normal. One of the most anxious inquiries made by a mother on the birth of her child is whether it is all right. Anxious examination is usually made at the first opportunity that she has of seeing the child. It is one of the deepest maternal instincts. However, that does not mean that if the mother finds that her child is handicapped the love for the child is any the less. But it is a natural concern that the child is "normal", if I may use that expression without any offence to the handicapped or people who suffer from congenital disease. Accordingly, it is a natural concern for parents to have, and if they are advised that there is a risk, that they should seek to have a normal child if a reasonable method is available.

The method is a reasonable possibility. The Government are neutral on the whole question of research and on all its aspects. Therefore, I do not put forward that view as being concluded, but I thought it right to put those points before the Committee for consideration. No doubt the noble Lord will have them in mind when deciding what to do about his amendment.

Viscount Craigavon

That was an extremely reasoned and reasonable reply to the amendment tabled by the noble Lord, Lord Robertson. The question was debated and the answer was given by the noble Lord, Lord Walton, earlier this afternoon.

I shall not talk about contraception but about genetic and chromosomal diseases which are mentioned in Amendment No. 68. I wish to refer to statistics and I apologise for raising them at this hour of the night. If I confuse Members of the Committee, the statistics will be in Hansard and can be read in the morning at leisure. They are not statistics that I have produced, but those already referred to by the noble Duke. They were produced as a result of a Gallup poll and he first mentioned them on Tuesday. The poll was commissioned by the Society for the Protection of Unborn Children on behalf of LIFE.

I wish to quote further extracts from the poll which are not favourable to the noble Duke's cause in the way that he might have hoped. I shall first read carefully the question asked in the poll so that I do not slant it in any way. The question asks: Scientists can create human embryos in a laboratory by fertilising ova with sperm. Do you think this should not be allowed for the following types of experiments? Category (c) reads: For research into genetics and chromosomal diseases". The percentage who said that that should not be allowed was 32 per cent. and the percentage that said it should be allowed was 58 per cent. That is the public speaking. Those are not my statistics. As I have said, this poll was commissioned by the Society for the Protection of Unborn Children. I hope that those statistics will be available and will be widely disseminated with the other SPUC propaganda for the benefit of the other place.

I take up another point raised by the noble Duke this afternoon. In his major speech on Clause 11 he said that his views represented the majority. I shall give the Committee the statistics and Members of the Committee can decide whether he is speaking for the majority. The poll, having asked other questions about whether we want embryo research to develop new techniques for abortion or for research on testing drugs, neither of which are actually contemplated, the final question was whether or not embryo research should be allowed at all. In fact, there was 1 per cent. difference between the two answers, with a huge number of "don't knows". Therefore, the majority which the noble Duke represents polled 37 per cent. of the votes whereas those who said that research should be allowed polled 36 per cent. and the "don't knows" polled 27 per cent. Therefore, the majority which the noble Duke says he represents is only 37 per cent. I hope that in future the noble Duke will not use those statistics to claim that he is representing the majority on this subject. I apologise if all this is rather confusing but the statistics can be read in my speech in Hansard tomorrow.

I deal with one final question from the poll. It is rather convoluted but I believe that the answer at which it arrives is probably not what the noble Duke wanted. The question was as follows: If the principal aim of the research into genetic diseases was not to find a cure or treatment but was to try and identify an afflicted embryo so that it could be discarded do you think human embryos should or should not be used for these types of experiments? The number of people who said that they should not be used was 29 per cent., and the number of people who said that should be allowed was 55 per cent. According to the statistics, a considerable majority are in favour of the research dealt with in this amendment. I hope that the Committee will accept the arguments of the noble and learned Lord.

8.30 p.m.

The Duke of Norfolk

Since I have been quoted as almost misleading the Committee, I immediately say that the noble Viscount was quoting from the same Gallup poll which I was using. The poll builds up question by question so that one answer did not lead into the next. The critical question was on the last page and 49 per cent. on the consolidated list were in our favour.

Viscount Craigavon

I cannot see how the noble Duke arrives at that figure. However, if he will disseminate those figures publicly, it would be very useful to see the results.

The Duke of Norfolk

We held a press conference and the Gallup poll figures were given to the press. I shall make quite certain that a copy is placed in the Library, if it is not already there. Some people were against the research and some were not, but the final figure of 49 per cent. was on our side. I assure the Committee that that is the situation.

Lord Ennals

We are all grateful to the noble Duke for saying that he will place a copy of this in the Library. I have not seen those figures and therefore took at face value the summary given by the noble Duke. I wish to ask him to place all the figures, including those quoted by the noble Viscount, in the Library.

The Duke of Norfolk

The poll is very complicated, but the final figure was 49 per cent. I am sorry if the Committee feels that it has been misled. I was totally confused, but the press reported the figures. Members of the Committee can see the statistics for themselves.

Lord Bridge of Harwich

To return to the subject matter of Amendment No. 67, the principle of embryo research has been accepted by the Committee. If there is a possibility of research developing a technique which can give to a mother or a would-be mother the option of bearing an unhandicapped as opposed to a handicapped child, surely there is no conceivable rational ground for saying that research for that technique should not be an appropriate objective.

Lord Walton of Detchant

I simply wish to add that if Amendments Nos. 67 and 68 as tabled were accepted by this Committee, it would have the effect of frustrating at least two of the major objectives of the research upon the embryo, which is the matter upon which the Committee divided earlier this evening. For that reason, in my view it would be quite unacceptable to overturn that earlier decision by accepting these two amendments.

Lord Robertson of Oakridge

I did not realise quite what I had started when I moved the amendment. I am very grateful to the noble Lord, Lord Walton of Detchant, and the noble and learned Lord the Lord Chancellor.

The Earl of Halsbury

One of my anxieties was that when the matter appeared in the Bill it had not been discussed publicly at all. We have now had a public discussion and the authoritative voice of the noble Lord, Lord Walton, is now on the record. That leaves me content. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 to 70 not moved.]

[Amendment No. 71 had been withdrawn from the Marshalled List.]

Schedule 2 agreed to.

Clause 12 agreed to.

Schedule 3 [Consents to use of gametes or embryos]:

[Amendments Nos. 72 to 74 not moved.]

Lord Meston moved Amendment No. 75: Page 27, line 44, at end insert — ("( ) A consent under this Schedule must provide that in the event of the death of the person or one of the persons who has given such consent or in the event of disagreement between persons who have given such consent as to the future use or storage of any embryo to which such consent relates such consent shall forthwith cease to be effective and all rights of control over the embryo shall pass to the person licensed to keep, use or store the embryo who shall forthwith destroy that embryo.")

The noble Lord said: In speaking to Amendment No. 75, I shall speak also to Amendment No. 77. These two amendments are intended to provide for it to be an invariable term of any consent to the storage or use of embryos that in the event of the death of one of the parties giving consent, or in the event of a disagreement between them, they should forfeit control over the embryo or embryos concerned.

Rightly or wrongly, these amendments relate only to embryos, whereas Schedule 3 governs the consents in relation to the use and storage of gametes as well as embryos. That may or may not be a technical defect in the amendment which perhaps can be corrected later if necessary.

These amendments are designed to give effect, although not precise effect, to the recommendations in chapter 10 of the Warnock Report. They are also the recommendations of the Family Law Bar Association as submitted to the Government at the time of the consultation process. My proposals are consistent also, as I understand it, with the terms which are generally speaking written into consent forms as they are presently drafted by or for the clinics involved in these matters.

Perhaps I may briefly read to the Committee paragraph 10.12 of the Warnock Report. It states: We consider that the position that may arise in the event of the death of one or both of a couple who have stored an embryo should be clarified. We therefore recommend that when one of the couple dies the right to use or dispose of any embryo stored by that couple should pass to the survivor. We make this recommendation notwithstanding our reservations about the possibility of posthumous pregnancies".

Pausing there, I should say that earlier in the report the recommendation had been that post-mortem implantation should be actively discouraged. Paragraph 10.12 continues: We recommend that if both die that right should pass to the storage authority".

With regard to disagreement, paragraph 10.13 of the Warnock Report reads as follows: Problems might also arise when, whether in cases of marital breakdown or not, the couple fail to agree how the shared embryo should be used. We recommend that where there is no agreement between the couple the right to determine the use or disposal of an embryo should pass to the storage authority as though the ten-year period has expired. This recommendation and those in the previous paragraph will require legislation".

In the White Paper, particularly paragraphs 51, 58 and 59, the Government in effect decided not to accept the recommendations of the Warnock Report in this regard, preferring to place emphasis on the wishes of the donors. I submit that that in some ways creates a vacuum. Death and disagreement create different problems, but both sets of problems are areas in which the law should if possible provide certainty. I suggest that this Bill does not do that; indeed, it stores up problems for the future. Implantation of an embryo after the death of one of the parties may cause profound psychological problems for the mother and for the child. That was the view of the Warnock Committee at chapter 4.4.

There may also be legal problems if it is thought to be the position that there is, or may be, a right to dispose of an embryo by will. The problems after estrangement or divorce are similar and, I suggest, arguably worse. The Warnock Committee, at the end of paragraph 10.11, stated: We hope the couple will recognise that they have a responsibility to make a firm decision as to the disposal and use of the embryo".

The Warnock Committee, however, went on to grapple with the problems which may arise if the couple are incapable of making a firm decision, or disagree. I speak in this context as a matrimonial lawyer who is paid daily to argue about matrimonial disputes involving houses, furniture, money and children. I have recently argued about engagement rings, toastracks and pet dogs. Those are disputes which, as anyone who knows that work will realise, can be vehement and thoroughly depressing.

That depression increased last year when I read of a case —I suspect many Members of the Committee also read of it —in, I think, Tennessee when an estranged couple argued whether an embryo should be implanted in the mother as she wanted or not implanted as the father wished. As I recall, the mother succeeded, but it being America I should think there will be several trips to the appeal court before the matter is finally resolved. All family lawyers in this country no doubt shuddered at that case and the prospect it opened up for this country. It reinforced our hope that legislation would prevent that sort of litigation in this country.

Earlier this afternoon the most reverend Primate the Archbishop of York said the lawyers only think in terms of things and of persons. Of course he was right, for the good reason that hitherto we have only had to deal with things and persons and not with the problems of embryos. If an embryo is to be treated by the law as a thing, it could obviously be owned. The Warnock Report dealt with that firmly in paragraph 10.11 as follows: We recommend that legislation be enacted to ensure there is no right of ownership in a human embryo".

If, however, an embryo is treated as a person, it cannot be owned. If it is to be treated as a person, how are such disputes to be resolved? Presumably they will have to be resolved, if not by ownership, by analogy to child custody cases and by what is in the best interests of the embryo. I do not envy the court which has to decide what is or may be in the best interests of an embryo, particularly if the choice is between being implanted or not being implanted or if to be implanted will mean that it will be brought up by perhaps a thoroughly undesirable mother living in thoroughly undesirable circumstances who almost certainly will not have the support and may indeed have the active opposition of the father, the father having no commitment to the upbringing of that child.

The further question which occurs to me is whether the court in such circumstances would have authority, as in the wardship jurisdiction in this country, to make a decision which is contrary to the wishes of either the mother or the father; for example, saying to the parties, "We will not decide whether the embryo should be implanted now but will delay the decision in the hope that perhaps the mother's position may improve by remarriage or in some other way".

A further problem which occurs to me is whether the father who unsuccessfully opposes implantation should be expected to maintain the child which is brought into the world against his will. The common law does not allow a natural father to contract out of his obligation to maintain.

One simply states those problems to try to avoid them in the future and in the hope that the Government will grasp the nettle which Warnock grasped and perhaps adopt a less laissez faire attitude than is adopted in the Bill. We hope they will deal with the problems which will undoubtedly arise in the future where either one or other of the parties whose consent is required dies or there is a disagreement between them. It is, in my submission, an area which needs certainty rather than uncertainty. I beg to move.

8.45 p.m.

The Lord Chancellor

The noble Lord, Lord Meston, is referring to ground which to some extent we covered in relation to the amendment moved by the noble Lord, Lord Kennet, in which he sought to classify an embryo either as a person or as a chattel. In spite of what was said earlier today it was not the lawyers who sought that classification; I think on that occasion it was the noble Lord, Lord Kennet. Some of the lawyers who spoke, including my noble and learned friend Lord Hailsham, suggested that the lawyers had not developed classifications into which an embryo would properly fit, and therefore he declined to do so. In this particular respect, I followed his good example.

Regarding the amendments, and my understanding of Amendment No. 75, the proposal is that if one of the persons who has given a consent dies, the consent shall no longer be effective. That is one way of dealing with the matter. It does not give much choice to the person who has died while the embryo is still in existence. We have tried to create certainty but in a slightly different way. Death is one point and the second is disagreement. We have sought to deal with both of these. In the first set of circumstances, where the person or one of the persons who had given consent to the future use or storage of the embryo dies, the Government believe not that the embryo should be destroyed, but that the embryo should be used or stored in accordance with the consent of the person who has died.

The noble Lord is saying that one might not contemplate that; and, what would have been said if it had been contemplated? We have tried to deal with that situation. Paragraph 2(2) of Schedule 3 requires a consent to the storage of any gametes or embryo to state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable, because of incapacity, to vary the terms of consent or to revoke it. In other words, the person giving this consent is required to deal in the consent with what he or she wishes to happen in these two events; namely, death or incapacity.

Where there is agreement between the person who has given consent to the future use or storage of the embryo and who has died and the other person who has given such consent, the embryo will be used or stored in accordance with that consent. The whole of this paragraph of Schedule 3 is based on the view that no use or storage of an embryo can be done except with an effective consent. Therefore, I believe it deals effectively with the questions raised by the report of the noble Baroness and also with the question raised by the Family Law Bar Association, but not quite in the same way.

As regards the second set of circumstances where there is disagreement between the persons who had given consent for the future use or storage of any embryo, the Government believe that the consent which the amendment would require Schedule 3 to provide is in effect already provided for in that schedule. Paragraph 6(3) of Schedule 3 prevents any embryo which has been created in vitro being used for any purpose unless there is effective consent to that use by each person whose gametes were used to bring about the creation of the embryo. Again, the general principle is that there should be no use unless there is an effective consent.

Paragraph 8(2) prevents any embryo which has been created in vitro being kept in storage unless there is an effective consent to that storage by each person whose gametes were used to bring about the creation of the embryo. The effect of these paragraphs together is that no embryo which has been created in vitro can be used for any purpose or stored without the effective consent of each person whose gametes were used to bring about the creation of the embryo. If one takes the matter without any variation, the original consents must cover the use, and agree to the use. If there is a disagreement, then there is no effective consent from both parties and the embryo must be allowed, as we say, to perish —or to use the phrase used by the noble Lord, Lord Walton of Detchant, to degenerate naturally.

That is the ordinary position where the original consent applies or does not, according to the situation. If one or both of the partners change the wishes set out in the original consent, then the revised wishes will be taken into account under the terms of the Bill as it stands. A person who has given a consent is always allowed to vary it. Let us assume that A and B have agreed a particular use of the embryo. If A and B fall out and A decides that he or she does not wish the embryo to be used in that way, A can withdraw the original consent. Thereafter, there is no effective consent to the use of the embryo and it must be allowed to degenerate naturally —or as we say to perish.

I believe I can reasonably claim that we have dealt with all the points in these amendments, not exactly as the noble Lord, Lord Meston, has suggested, but perhaps in a more flexible way which enables the parties to operate to some extent beyond their deaths whereas the noble Lord would restrict their choices to their lifetime.

Lord Meston

I believe that is the difference between the noble and learned Lord and myself. What he describes as greater flexibility could create greater uncertainty. I have studied the Government's position in the White Paper. I wish to consider the matter further. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 76 to 79 not moved.]

Lord Meston moved Amendment No. 80: Page 28, leave out lines 39 and 40.

The noble Lord said: The noble and learned Lord the Lord Chancellor pointed out at an earlier stage of this Bill that it was legislation that had to be understood by ordinary people. A moment ago he referred to Schedule 3, paragraph 6(3). That consists of a sentence with 72 words without punctuation before the full stop at the end. I feel rather like the pot calling the kettle black because I have just moved an amendment which contains one sentence of 90 words containing one comma. However, two wrongs do not make a right.

I have tried to understand what the last two lines of sub-paragraph (3) mean. At first I thought that the last two lines were a printing error, but I believe I am wrong about that. I ask what meaning they add to the paragraph. If they add anything, apart from length, it is confusion. I beg to move.

Baroness Hooper

I was labouring under the delusion that this amendment was grouped with Amendments Nos. 75 and 77 which we previously discussed. I believe that the consequences of the noble Lord's amendment are as stated in paragraph 6(3) of Schedule 3. I consider that there is no advantage in the amendment moved by the noble Lord.

Lord Swinfen

If the gametes are given by a married couple or two single people, does that have any effect on the question of consents?

Baroness Hooper

No. As I understand it, the consents are given by the two people involved whether they are married or not.

Lord Meston

I am very sorry to take the noble Baroness by surprise. The grouping was not of my choice. I very pointedly did not speak to this amendment when speaking to the other two. At this stage I shall do no more than ask the Government to look at the matter again. The wording could be improved. Indeed, I venture to suggest that it can only be improved. Meanwhile, I beg leave to withdrawn the amendment.

Amendment, by leave, withdrawn.

Schedule 3 agreed to.

Baroness Blatch

I beg to move that the House do now resume.

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

House resumed.

House adjourned at nine o'clock.