§ 5.5 p.m.
§ House again in Committee on Clause 13.
§ The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): moved Amendment No. 84:
§ Page 6, line 35, leave out ("1") and insert ("5,").
§ The noble Baroness said: This is a minor amendment which is required to correct the references to paragraphs in Schedule 3 in this clause. The paragraph in Schedule 3 which deals with consent for the use of a person's gametes is paragraph (5) rather than paragraph (1), and that which deals with consent for the use of any embryo is paragraph (7) and not paragraph (3). I speak also to Amendment No. 85. I beg to move.
§ Baroness Hooper moved Amendment No. 85:
§ Page 6, line 40, leave out ("3") and insert ("7").
§ On Question, amendment agreed to.
§ Lord Robertson of Oakridge: moved Amendment No. 86:
Page 6, line 45, at end insert —
("( ) No woman shall be provided with treatment services unless the person responsible is satisfied that the woman does not intend to receive the treatment services with a view to becoming a surrogate mother for the purposes of section 1 of the Surrogacy Arrangements Act 1985.").
§ The noble Lord said: Surrogacy is of course where a woman carries a child in her womb and after it is born she hands it over to another woman or couple. This amendment seeks to ensure that those providing treatment under the Bill cannot be a party to surrogacy arrangements. Although surrogacy cannot be practised commercially —and this Bill helpfully states in Clause 32 that surrogacy arrangements cannot have the force of law —the practice has taken place and will probably continue to do so.
§ The Government have already recognised that surrogacy is an undesirable practice. It creates major difficulties if the mother who has carried the baby to full term wishes to retain it. Clause 26 makes it very clear that the woman who carries the baby will always be regarded in law as the mother. Therefore, adoption proceedings have to take place for another woman to be treated as the mother.
§ As the Bill stands there is a strong implication that medical centres providing treatment under this Bill should not assist surrogacy. This amendment would convert that strong implication into a clear directive. I beg to move.
§ Baroness Hooper
The Government's policy on surrogacy is contained in the Surrogacy Arrangements Act 1985, to which this amendment 1283 refers. That Act prohibits the development of commercial surrogacy agencies and advertising of or for surrogacy services, but does not seek to ban private arrangements nor commercial arrangements between commissioning parents and the surrogate mother; that is, where no third party is involved. The Government opposes this amendment because it is considerably more restrictive than the Surrogacy Arrangements Act. It would appear to attempt to prohibit all forms of surrogacy and would, for instance, forbid a woman having placed in her any embryo created from her sister's egg and her sister's husband's sperm with a view to handing over the resulting child to them —an arrangement which we have seen to work.
It is the Government's opinion that the 1985 legislation has achieved its principal objectives of preventing the spread to this country of commercial surrogacy arrangements, particularly from the USA, where I understand such agencies operate in some states. It was no part of the policy of that Act to seek to outlaw altogether this practice, whose origins go back to the Old Testament. Indeed a provision of the kind proposed by this amendment, however much sympathy one might have with its objective, would be unenforceable. For some childless couples, surrogacy is a last resort. Effective guidance is in place to local authority social services departments to ensure that, in appropriate cases, children born as a result of surrogacy arrangements which come to light are made wards of court. In addition, Clause 26 of the Bill makes clear beyond doubt that the carrying mother is to be regarded in law as the child's mother. Clause 32 will ensure that surrogacy contracts are unenforceable in law.
It seems that we have to accept that surrogacy is a practice which it is impractical to prohibit. However, the 1985 Act has proved to be successful in its objective of preventing the exploitation of women who might be used by those wishing to make a profit out of the plight of the childless. The further restrictions that the noble Lord intends in his amendment are therefore in the Government's view both unnecessary and unenforceable. I hope I have been able to persuade the noble Lord to withdraw his amendment.
§ Baroness Warnock
There is often confusion in discussions on the different kinds of surrogacy which exist. One kind is the result of artificial insemination by a man to a woman who is not his wife but who is to carry the baby on behalf of the couple. The child born of that arrangement is a child genetically connected with the husband but also with the woman. In some sense that has been referred to as the flip side of AID. The child is partly the child of the commissioning couple but partly the child of another woman.
In the United States, however, there is increasingly a use of what may be referred to as IVF surrogacy which is useful to certain couples where the wife of the commissioning couple can produce an egg and the husband sperm. The egg and the sperm of the commissioning couple are united and fertilised and the embryo is then placed in the womb of the 1284 surrogate mother. In that case the surrogate mother is simply a living incubator and is not in any sense the genetic mother of that child.
Perhaps not enough was made in our report and in the 1985 legislation of that very crucial distinction. If there are those who feel very strongly against AID surrogacy and not so strongly about IVF surrogacy, it would be mistaken as well as unenforceable to try to legislate against surrogacy in the manner proposed by this amendment. My own view, therefore, is that this amendment should not be accepted.
§ Lord Somers
I differ slightly from my noble friend. The amendment does not outlaw surrogacy as far as I can see. It places a discouragement on it but it does not outlaw it. My noble friend says that the practice is increasing in America. I might point out that many practices of a highly undesirable nature are increasing in America, as they are everywhere else as far as I can make out. It is bad enough surely not to know who your father was, but not to know who your mother was is even worse. I therefore hope that my noble friend will not withdraw his amendment.
§ Lord Robertson of Oakridge
I thank the noble Lord, Lord Somers, for his encouragement, but I am also grateful for the explanation by the Minister and the speech by the noble Baroness, Lady Warnock. In the circumstances I think it is the wish of the Committee that I withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13, as amended, agreed to.
§ Clause 14 agreed to.
§ [Amendment No. 87 not moved.]
§ Clause 15 [Grant of licence]:
§ [Amendments Nos. 88 and 89 had been withdrawn from the Marshalled List.]
§ 5.15 p.m.
§ Lord Ennals moved Amendment No. 90:
§ Page 7, line 41, leave out ("accompanied by the initial fee").
§ The noble Lord said: I beg leave to move Amendment No. 90 standing in my name and that of the noble Earl, Lord Jellicoe, the noble Baroness, Lady Faithfull, and the noble Lord, Lord Henderson of Brompton. The amendment is grouped with Amendments Nos. 92 and 97. These three amendments concern the funding of the statutory licensing authority and although there are only a few Members in the Chamber I believe that these are issues of profound importance.
§ I and my colleagues who have joined me in moving this amendment believe that it is quite wrong that the statutory licensing authority should raise funds for is own maintenance from the clinics which it licenses. In our view the cost of the licensing authority should be borne in full by the public purse. That is what we seek to bring about.
§ The Bill as it stands proposes a new method of extracting payment for services from patients. The notification of infectious deseases and at-risk registers are paid for out of central funds and not charged to individual patients. The procedures 1285 relating to the Abortion Act 1967 require the completion of two certificates and inspection and licensing of private clinics, but none of the expenditure is passed on either to the clinics or to the patients.
§ Lack of central funding is discriminatory against those who are infertile. Much is done, quite rightly, for the fertile and services include pre-pregnancy counselling, ante-, intra- and post-partum care, neonatal paediatric services, conception, abortion and sterilisation where necessary. Certain contraceptive procedures and sterilisation operations even attract extra payment for medical staff out of central funds.
§ As was pointed out in the report by my noble friend Lady Warnock and frequently elsewhere, provision for the infertile in the National Health Service is poor due to the underfunding of the service. Failure to provide central funding for the proposed new authority would perpetuate this state of affairs.
§ Most of the patients affected by this Bill are in any case forced to resort to the private sector for treatment which the NHS fails to provide. Many small clinics, especially NHS and university-based clinics, cannot afford large licence fees and might have to stop work. These are precisely the clinics where services are available at minimal cost and the charges of licence fees would inevitably result in fewer patients being treated and a reduction in the service.
§ The proposal to finance the statutory licensing authority primarily from fees collected in connection with its licensing activities would probably mean an indirect tax of about £100 for each of the 10,000 patients who seek assisted conception treatment every year. As there are only two NHS-funded IVF centres in this country, the vast majority of patients seeking assisted conception by IVF, GIFT or AID already pay for their entire treatment. That is a heavy burden for most of them. Furthermore, since the take-home baby rate for in vitro fertilisation is only about 10 per cent., that charge could be levied on some poor unfortunate couples on a number of occasions. That will add further to the injustice between services provided for the fertile, (that is, abortion, contraception and sterilisation) and the services provided for those who are childless.
§ The requirement to have regulation of research and the use of gametes and embryos is one felt by government and society as a whole. The sub-fertile, who will be the ultimate consumer of most of these services, do not necessarily benefit from the statutory work of the statutory licensing authority. Nor are they the sole benefactors of the results of research work, which also requires a licence. Thus, to have to pay for the licensing activities of the statutory licensing authority would be a further injustice and amount, in effect, to a tax on the infertile. The cost of licensing, as I said earlier, should be borne in total by the public purse.
The White Paper of November 1987 said:
provision will be made for contributing towards the costs of the SLA from public funds, although it will be expected to meet a large proportion of its expenditure from fees connected with its licensing activity".
The then Voluntary Licensing Authority, in its third report made in 1988, responded to that White Paper as follows:
The VLA considers that it may be impracticable to attempt to meet a large proportion of the expenditure of the SLA from licence fees. From experience, to cover the costs of the SLA, such fees will have to be high, in the order of £5,000 pa. Implications are grave for clinics operating in academic or NHS departments, which might be unable to pass the costs on to patients. It is also unclear who would be expected to pay for project licences. Much research is carried out in University Departments with grant support. The (VL) Authority recommends that 'the running costs of the SLA should come primarily from public funds' ".
§ I agreed with them then, and I agree with them now.
Further comments on the funding of the proposed SLA were made in the fourth report of 1989, which says:
We believe that the imposition of a licence fee would deter the expansion of NHS centres of which there are only two".
§ I can understand that those who do not wish to see these treatments extended and this research facilitated, may want to see some licence because they would look on it as a deterrent. Those who have supported continuation of research and the treatments which result from it would want to see that encouraged. They would want to remove any deterrent factor.
§ There is perhaps another argument which I have not deployed. I shall use it in conclusion. If the running costs of the authority which this Bill establishes are paid for by the clinics that it is policing, then at least there is a conflict or a potential conflict of interest. At worst a cosy relationship could develop where the authority will seek to please its paymasters rather than Parliament. I believe that there should be no element of paymaster in this provision and that running costs are the responsibility of central funds which should come from the Department of Health and not from a licensing system. That would create not only insecurity, uncertainty and discouragement, but also, as I have said, a relationship between the authority and the clinics which may be very unfortunate. I beg to move.
§ Lord Henderson of Brompton
I wish to add a very brief observation to what the noble Lord, Lord Ennals, has said. I make two points and the first is in relation to Clause 15(7), which says:Different fees may be fixed for different circumstances and fees paid under this section are not repayable".I very much deplore the fact that there may be fees; but if there are, then it appears that there will be discrimination between beneficiaries of the treatment. I find that strange. Secondly, I ask the noble Baroness who is to reply what precedents there are. I cannot think of any treatment under the National Health Service which demands payment from the client other than for teeth and spectacles. Perhaps there are others, but there cannot be very many. For instance, if treatment for abortion is available free under the National Health Service, then treatment of this nature should also be free. I would very much like to hear what are the precedents for justifying the imposition of fees in this case.
§ Lord McGregor of Durris
I wish to underline one point which the noble Lord, Lord Ennals, made in moving the amendment. I refer to a quotation which he also used from the third report of the Voluntary Licensing Authority published in 1988. At page 43, paragraph 18, the authority states:The VLA considers that it may be impracticable to attempt to meet a large proportion of the expenditure of the SLA from licence fees".The authority goes on to say that from experience it regards the proposal for licence fees as an impracticable method of finance.
When dealing with this amendment I hope that the noble Baroness will explain on what grounds, unless she is supporting the amendment, the Government believe that the authority, which is the only body that has experience in this field, is mistaken. There is a second point to be made as a footnote to what the noble Lord, Lord Henderson of Brompton, has just said. There appears to be a conflict of principles being introduced by this Bill, as it now stands, were fees to be charged. Inevitably some patients will be charged. Is it not an anomalous situation that patients may be charged when they seek treatment for infertility but when they go to the GP for contraceptive advice, the GP is reimbursed for giving that advice by the Family Practitioners' Committee and not permitted to charge the patient for giving contraceptive advice?
§ Baroness Hooper
We recognise the concern about fees and in particular concerning the points raised in the course of this brief discussion. Nevertheless, we think it right that applicants for licences should meet not necessarily the whole cost, but a significant part of the cost of the process of licensing. Though references were made to examples of free services, I remind the Committee that fee-paying is an established practice in other fields, if not within the National Health Service. For example, there are planning applications and licences under the Medicines Act.
Perhaps I may distinguish one of the examples quoted by the noble Lord, Lord Ennals, who referred to notifications of infectious diseases. The purpose of requiring cases of certain infectious diseases to be notified is for the protection of the health of the public generally. It is not for the benefit of the person whose case is the subject of a notification. In these cases the guiding principle is the general public interest. I realise that unsuccessful applicants may feel aggrieved to have to pay an initial fee or a differentiated fee to no purpose, but the authority will have been put to some work in dealing with their applications. Therefore it is only right that they meet some proportion of the cost.
Also, the initial fees and any additional ones would fall either on the private sector facilities, academic institutions or National Health Service hospitals. I also appreciate the point raised by the noble Lord, Lord McGregor of Durris, that the principle of the payment of fees is new in as much as the interim licensing authority does not charge fees. Its work is supported in relation to this part of its activities by the Medical Research Council and the Royal College of Obstetricians and Gynaecologists.
1288 However, I believe that there is a different situation when a new statutory authority is set up. I repeat that the Government think it important that those wishing to be licensed should be required to meet a significant proportion of the costs of that system, and indeed of the other costs incurred by the authority. As I have indicated, there are precedents for statutory bodies charging fees for licences, and there is the general principle that people should be made aware of the cost of services they use.
I say to the noble Lord, Lord Henderson of Brompton, that Clause 15(7) provides a measure of flexibility to the authority in that different fees can be charged in different circumstances. It will be for the new authority to decide on the level of fees and a fee structure which, under Clause 15(6), will need to be approved by the Secretary of State and the Treasury. This will enable the authority to design the arrangements it finds most appropriate. I do not want to speculate about what the authority's policy in relation to charging fees might be, but clearly there is nothing in the Bill to prevent it deciding to charge different rates of fees for different establishments. The Government will be paying their contribution to this treatment and there is a safeguard against the authority charging exorbitant levels of fees in that they must be set after the Secretary of State and the Treasury have approved them. Amendment No. 97 is consequential on Amendments Nos. 90 and 92 and therefore need not be spoken to individually.
The noble Lord, Lord Ennals, suggested that fees might give rise to a cosy relationship between the authority and the centres which will provide a significant part of the authority's funding. The Bill provides for the proper keeping of accounts by the authority and the proper audit of those accounts. It also provides for the authority to send a report to the Secretary of State annually, as was agreed on the first day of the Committee stage. The statement of accounts, as examined and certified by the Comptroller and Auditor General, and the report will be laid before both Houses of Parliament. We can look to these and to the integrity of the authority and the persons appointed to it to ensure that a cosy relationship between centres and the authority does not develop. I urge the Committee to reject the amendment.
§ 5.30 p.m.
§ Lord Henderson of Brompton
Before the noble Baroness sits down, perhaps she will answer my specific question about treatments within the National Health Service which are not provided free. The noble Baroness gave me examples from outside the National Health Service, such as planning permissions. I do not see that that has anything to do with what is going on inside. If she can provide me with the precedents for charging within the National Health Service for treatments of this nature I shall be much obliged.
§ Baroness White
The noble Baroness will surely recognise that there is some difference between family planning and planning land development. It 1289 is a most incongruous argument, as was pointed out by the noble Lord, Lord McGregor of Durris, that those who are concerned with negative family planning should have the arrangements free and those who are trying to secure the birth of a child should have to pay for this great privilege. This is a most astonishing situation in relation to the health service as a whole. The Government are trying to slip into the Bill a provision of payment which is not applicable in other circumstances. The noble Baroness has done the very best with her brief. We all sympathise with her. But I hope that my noble friend who moved the amendment and other noble Lords will at least press for the matter to be reconsidered between now and Report stage.
§ Lord Prys-Davies
I wonder whether the Government are mindful of the fact that many couples who are desperate to have a child can ill afford to pay the fees. It is recorded that people who are not well-to-do have mortgaged their homes in order to pay for the treatment. The Government should bear in mind that in addition to the burden of infertility people often have to mortgage their homes in order to pay for the treatment.
§ Baroness Hooper
I should clarify one point. The examples that I quoted in relation to other areas where licence fees are applicable are more similar to this case than the other services within the National Health Service to which noble Lords have referred. In this case we are talking about fees payable not by the individuals who wish to go in for the IVF treatment but by institutions which wish to carry out that course of treatment and have to apply under the Bill to the authority for permission to do so. The exact analogy that I have been asked to give is not appropriate.
§ Lord Ennals
I must confess to being very disappointed by the Minister's reply. In the course of the debate she has given some able replies. By "able replies" I mean those replies with which I agree. In this case I found myself profoundly dissatisfied; so it was not an able reply.
I should like to refer to four points arising from the debate. The noble Baroness has just implied that, somehow or other, from resources unknown, clinics will be able to pay this licence fee and will not pass it on to patients. I do not believe that for a moment. If the clinics are obliged to pay something over and above what they are now paying for the cost of their work, they will have to find it in some other way. That is what the market-place is about. Who else can they turn to? They cannot apply for a government grant because the Government are to give some unspecified grant to the statutory licensing authority. They will have no alternative but to pass it on to the patients.
This was one of the points that I made when I moved the amendment. My calculation is that it will fall to the tune of about £100 per patient if it is levelled out over 10,000 patients. It may be that in the future the issue will become greater. This will be a blow to families. The thought that the service which we have rightly decided to provide should be 1290 made available on a means tested basis or be made available only to those who can afford it is deplorable.
Secondly, the research and the resultant treatment has as one of its objectives the reduction of the number of abortions. We hope that that argument will carry some weight with those who have their doubts about what we are debating. As has already been said, abortion is carried out by the National Health Service on a non-fee-paying basis. It would seem strange that that should apply to abortion but should not apply to the treatments which may help to reduce the regrettable number of abortions.
Thirdly, the Committee has witnessed an exchange concerning the planning application. Examples were given from the Medicines Act and reference was made to the fees paid by pharmaceutical companies. Those who pay for licences under the Medicines Act are pharmaceutical companies which are in the business not only for the sake of human welfare —they do great things for human welfare —but for reasons of profit. They are commercial companies. Therefore that is not in any way a valid comparison. I should hate to think that the work being approved by this Committee will be seen as some new form of commercial activity. It is not. We are dealing with human welfare, human research and the relief of hardship. We are dealing with concern among patients about the nature of children born to them.
My fourth point is perhaps the most serious. In her reply the Minister said that different situations arise when a new service is established. That is the slippery slope argument. We argued about that in earlier stages of the debate. I refer to what the Minister said. In an evolving health service —and all right, we are talking about a new service; but there will be other new services provided by the National Health Service —if the Minister is saying that, as new services become available, they will be charged for, then this is a process of privatisation of the National Health Service which her right honourable friend has insisted he has no intention of promoting. It is a dangerous philosophy for those who believe in a National Health Service, as her right honourable friend the Secretary of State says he does, paid for by public funds.
Therefore I should like to put a few questions to the Minister. First, what proportion does she consider the Government will pay of the cost of the licensing authority? Secondly, what sort of proportion of the costs of licence fees do the Government expect will be passed on to clinics? Thirdly, when those factors have been broken down, what sort of cost per patient does she think that will imply? She must have done those calculations, or her advisers must have made such assessments, before deciding to give a negative answer to the amendment.
§ Baroness Hooper
I recognise the antipathy of the noble Lord, Lord Ennals, to any charges in the National Health Service, even those imposed upon people who can well afford to pay them. Nevertheless, I think that it is important in this 1291 context to stress again a point I previously made: fees will be charged to the centres which are providing the service and will be charged at the time of application. As centres are likely to see a number of patients during the existence of a particular licence, and if indeed they are going to pass on the costs of the licence fee to the patients, it will be shared and spread among a great many people.
As regards any possible calculations at this stage in connection with the actual costs involved, it is my understanding that it is anticipated that the applicants for a licence will be expected to pay something in the region of two-thirds of the cost of the licensing authority. Moreover, as I said previously, the Government will be paying their share in more general costs, as well as in relation to work carried out in regard to the applications.
§ Baroness Hooper
No, I am afraid that I am not in a position to give the noble Lord detailed figures at this point.
§ Lord Ennals
I think that the Minister needs time to bring forward the answers to my questions. I do not think that the Committee can be expected to take a decision on the matter when she is not prepared to say what sort of sum of money the Government are expecting to pay to the licensing authority; what sum of money the clinics are expected to pay as regards a licence; or how this is likely to fall upon patients. I hope, therefore, that between now and the Report stage the Minister will make those inquiries so that we may have a debate with adequate information to enable us to take a decision on the matter.
My view has in no way changed as a result of the Minister's answer. However, I do not propose to divide the Committee at this stage of the proceedings. But I hope that she will think seriously about the matter because it is my intention to return to the issue when we reach the Report stage. Accordingly, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 91 had been withdrawn from the Marshalled List.]
§ [Amendment No. 92 not moved.]
§ 5.45 p.m.
§ The noble Duke said: The Bill requires that when a licence is applied for there must be a "person responsible" for the activities to be carried out under that licence. Such a person may or may not be the applicant. We can assume that in many cases he or she would not in fact be the applicant. I consider that this amendment is necessary to ensure that the "person responsible" genuinely is responsible for the said activities.1292
§ As it stands, it could happen that this person was merely an administrator of a particular private clinic, a member of a pharmaceutical company or some other non-medically qualified person. Some clinics might find it convenient to operate in that way. If that were to happen, responsibility would be a fiction and would exist only on paper.
§ Lord Walton of Detchant
As a registered medical practitioner under the Act just referred to, and having had the privilege for seven years of presiding over the council which confers such registration, I naturally have some sympathy with the amendment proposed by the noble Duke. However, I think that is is important for the Committee to recall that licences under the Act, provided and conferred by the proposed licensing authority, will deal not just with treatment but also with storage and research.
For that reason it would be inappropriate in my view that the licences should be held only by registered medical practitioners because there are many distinguished scientists, Fellows of the Royal Society among them, who are concerned with the research which will fall within the ambit of this legislation. In my opinion the amendment would be entirely reasonable, or appropriate, if the following words were added:A practitioner registered under the Medical Act 1983, or a suitably qualified scientist".It is very important to recognise that many scientists will be engaged in such research.
There is one other possibility which I think it is only right that the Committee should consider on Report. It concerns licences for treatment as set out under Schedule 2, which we have already considered. In my view it would be perfectly appropriate that that provision should require the designated supervisor to be a registered medical practitioner.
I am afraid that I must oppose the amendment as it stands, but trust that I have offered the noble Duke some suggestions which might perhaps, with modification, make what is proposed more acceptable.
§ Lord Renton
In order to decide the matter we need to consider what the licences are for. If noble Lords will look at Clause 11(1) (a) it will be seen, among other things, that the legislation is,authorising activities in the course of providing treatment services".That seems to indicate the work of a medical practitioner. Moreover, that view is fortified if we refer to paragraph 1 of Schedule 2, to which, incidentally, we are referred in Clause 11. There we find various examples of the work which is to be carried out under the licences, including,(d) practices designed to secure that embryos are in a suitable condition to be placed in a woman or to determine whether embryos are suitable for that purpose,(e) placing any embryo in a woman,1293(f) testing the fertility of any human sperm by the penetration of the egg of another species of animal, but only where any resulting embryo is immediately destroyed, and,(g) such other practices as may be specified"—and, we do not know what they will be—in, or determined in accordance with, regulations".Therefore, for an important part of this work under licence, it seems that the skill of a medical practitioner and the responsibility which he exercises will be required. That surely indicates that the amendment should be accepted.
§ Viscount Craigavon
I had not intended to speak on this amendment, but perhaps this will assist the noble Lord, Lord Renton. I understood that the question of licences was not simply black or white—that a person is either given a licence or fails to be given a licence. I thought a person was licensed for a particular activity. When the noble Lord refers to treatment, I suggest that not all people applying for licences will do so for the purposes of treatment. They might be given licences for other reasons. So a diversity of people with different requirements might apply for licences.
§ Baroness Phillips
As the discussion progresses, my dislike for the Bill becomes more and more intense. I could almost have tolerated it if it concerned fertilisation, but it seems that the Bill starts with a total disregard for the dignity of human life.
§ Baroness Phillips
Perhaps my noble friends will wait a minute. They have had their turn. There is the comment in paragraph 1(1) (f) of Schedule 2:testing the fertility of any human sperm by the penetration of the egg of another species of animal, but only where any resulting embryo is immediately destroyed".That is rather left in the hands of the person who will carry it out. Surely research in relation to human life should be carried out under a general practitioner. We all know that scientists are sometimes carried away by their enthusiasm for their experiments. It seems strange to me that anyone should object to this. At some stage we must bring in the medical profession if the legislation is to hold any validity at all.
§ Lord Swann
I am troubled because I do not think that noble Lords have picked up what the noble Lord, Lord Walton, said. Undoubtedly there are facets of the matter which require a qualified medical practitioner. But there are rather few medical practitioners who would be happy with, for instance, testing the fertility of human sperm and the storage and keeping of embryos. A number of such activities need highly skilled scientific treatment.
It seems to me that the noble Lord, Lord Walton, was absolutely right in saying, "Yes, of course it needs medically qualified practitioners but it is also necessary that before the medical practitioner can carry out his medical work some of the background activities should be carried out by skilled scientists". I feel strongly that that should be part of an amendment.
The Earl of Halsbury
I support the argument of my noble friends Lord Walton and Lord Swann. Much of the activity will be group activities by firms and similar organisations, as they are called in hospitals. The act of fertilisation might well be under the control of biochemist or a biologist. Different parts of the procedure are conducted by different people. I understand that a person has to have a hypodermic inoculation with a luteinising hormone in order to induce superovulation. That might well be done by a medical technician who gives other types of injections.
The Bill leaves the situation quite open. It only insists that one person must take overall responsibility for seeing that the other persons are qualified. Why should not the biochemist engaged in fertilisation assure herself that the ovum will be extracted by a gynaecologist or whoever it may be? She should be in charge of the project as a whole. I think that the Bill should be allowed to stand as it is.
§ Lord Prys-Davies
The noble Lord, Lord Walton, gave helpful guidance to the Committee; namely, that one should draw a distinction between a licence for treatment and a licence to undertake research. If the amendment had been in place, if this had been the law of the land, would Robert. Edwards of Cambridge and Anne McLaren of the MRC have been able to make the contribution they made?
§ Lord Somers
Perhaps I may say one word before the noble and learned Lord replies. One point has been overlooked by some noble Lords: whether the work is to be research or treatment. The preliminary operation must be carried out on the human body. Surely that is a case where a qualified medical practitioner is essential.
I should like to make this point. The body which has responsibility for the overall control of the conduct of registered medical practitioners is the General Medical Council, of which the noble Lord, Lord Walton, was such a distinguished president. The GMC would continue to be responsible for the conduct of such practitioners, ethical or otherwise.
On the other hand, the body responsible for the conduct of the work that comes under this Bill is to be the licensing authority. That authority will have to supervise with great care the conduct of each and every person working in that field. It will do so. The GMC will only be responsible for the conduct of registered medical practitioners. That is worthy of consideration.
The Lord Chancellor
The policy of the Bill is that licences will be granted either to individuals who will themselves control the premises where the activity to be licensed is to be carried on or to another person or body which manages the premises on which the activity is to be carried on. But —and this is the important point —each licence application must designate an individual under whose supervision the activities authorised by the licence will be carried on. So there must be a single person responsible for supervision of all the activities authorised by a 1295 particular licence. This person is described as "the person responsible" in Clause 16. The effect of the amendment would be that a licence could be granted only if the individual designated by the licence as the person responsible was a medical practitioner registered under the Medical Act 1983.
I appreciate that where research is to be done in respect of the human body, as the noble Lord, Lord Somers, has pointed out, it would be entirely appropriate that a properly qualified doctor would be in charge and responsible for it. But, as has already been pointed out, the Bill in its present form provides for the licensing of treatments, of storage and of research. It by no means follows, as the noble Lords, Lord Walton, Lord Swann and others have already pointed out, that a person who would be qualified to give treatment would be qualified properly to supervise research. These are quite different matters. Again, the specialities that one might need in order properly to arrange for storage might involve other qualifications.
How does the Bill deal with that? It takes the view that the supervisor should be a person appropriate to supervise. It provides that the activities regulated by the Bill should be carried on under the supervision of a person who is responsible —that is the requirement —and who is suitable in character, qualifications and experience. That is why paragraph (c) of Clause 15(2) requires the licence committee, before it may grant a licence, to be satisfied that the individual designated by the licence as the person responsible is suitable in character, qualifications and experience and that he or she will discharge the detailed duties of supervision set out in Clause 16.
In my submission that is precisely what the noble Lord, Lord Walton, suggested. I think it meets what my noble friend the Duke of Norfolk desired in moving the amendment. He wished that where the necessary qualification is a medical one the supervisor should be medically qualified. I take it that he agrees that where the proper requirement or qualification necessary is scientific, the person should have the appropriate scientific qualifications. More than one of these activities might be carried on and we need to be sure that the appropriate qualifications for all activities carried on are held by the person responsible.
I suggest to the Committee that what the noble Lord, Lord Walton, has proposed is already covered in the Bill, leaving it to the licensing authority to decide, in relation to any particular licence, what are the necessary qualifications. As I said, that may be quite a difficult matter of judgment. It would not surprise me, for example, if the authority thought that in licensing certain types of treatment the fact of merely being a medical practitioner might not be sufficient. The authority may require some other specialist qualification, such as a qualification granted by one of the Royal colleges or something of that kind. I do not believe the Committee will improve this matter by seeking to be too specific. The principle of this amendment is already covered appropriately in the provisions of Clause 15, to which I have drawn attention.
1296 I hope that my noble friend may feel that we have catered adequately for his concern, and if so that he may feel able to withdraw his amendment. I should say to the noble Baroness, Lady Phillips, that the various matters to which she has referred emphasise how important it is for people involved in this kind of activity to have appropriate qualifications.
§ 6 p.m.
§ The Duke of Norfolk
In view of what the noble and learned Lord and other speakers have said I am consoled. I pointed out that we did not wish to have a licence granted to someone who is purely, let us say, the director of a pharmaceutical company. We do not want that. However, if the people who will carry out this kind of activity will have appropriate qualifications, we shall be content with that. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 94 to 96 had been withdrawn from the Marshalled List.]
§ [Amendment No. 97 not moved.]
§ Clauses 15 and 16 agreed to.
§ Clause 17 [Revocation and variation of licence]:
§ [Amendments Nos. 98 and 99 had been withdrawn from the Marshalled List.]
Baroness Hooper moved Amendment No. 100:
Page 9, line 15, leave out ("is not discharging") and insert ("has failed to discharge").
§ The noble Baroness said: This amendment alters the wording of Clause 17(1)(c) to make the reasons given in that clause for revoking a licence clearer and more clearly demonstrated, should the licence holder wish to appeal to the full authority against the licensing committee's decision. I beg to move.
§ On Question, amendment agreed to.
Baroness Hooper moved Amendment No. 101:
Page 9, line 17, leave out ("any directions") and insert ("directions given in connection with any licence").
§ The noble Baroness said: This amendment is also designed to make it clear that the grounds for revoking a licence because the person responsible has failed to comply with directions given to him by the authority can include failure to comply with directions given to him in connection with a different licence. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 102 to 109 had been withdrawn from the Marshalled List.]
§ Clause 17, as amended, agreed to.
§ Clause 18 [Procedure for refusal, variation or revocation of licence]:
§ [Amendments Nos. 110 to 116 had been withdrawn from the Marshalled List.]
§ Clause 18 agreed to.1297
§ Clause 19 [Appeal to Authority against determinations of licence committee]:
§ [Amendment No. 117 had been withdrawn from the Marshalled List.]
§ Clause 19 agreed to.
§ Clause 20 [Appeals to High Court or Court of Session]:
§ [Amendment No. 118 had been withdrawn from the Marshalled List.]
§ Clause 20 agreed to.
§ Clause 21 [Temporary suspension of licence]:
§ [Amendments Nos. 119 to 121 had been withdrawn from the Marshalled List.]
§ Clause 21 agreed to.
§ Clause 22 [Directions: general]:
§ Baroness Hooper moved Amendment No. 122:
Page 12, leave out line 7 and insert —
("(3) Anything clone by a person in pursuance of directions is to").
§ The noble Baroness said: In moving Amendment No. 122 I wish to speak also to Amendment No. 123. These are drafting amendments designed to make clear the intention of Clause 22(3); that is, that anything done in pursuance of conditions set out in directions is, for the purpose of the Act, to be treated as if done in pursuance of a licence. I beg to move.
§ On Question, amendment agreed to.
Baroness Hooper moved Amendment No. 123:
Page 12, line 8, leave out ("authorised to do so by virtue") and insert ("done in pursuance").
§ On Question, amendment agreed to
§ Clause 22, as amended, agreed to.
§ Clause 23 [Directions as to particular meetings]:
§ Viscount Craigavon moved Amendment No. 124:
Page 12, line 28, at end insert —
("(1A) Directions may authorise that records maintained in pursuance of a licence may be transferred by the person responsible to the Authority for safe keeping after the expiry of ten years since their creation or of such longer period and with such conditions as may be specified by the Authority.").
§ The noble Viscount said: This is a probing amendment, to attempt to clarify the position of the records which are mentioned in the Bill. I think I can guarantee that this amendment will not raise the blood pressure of the noble Baroness, Lady Phillips.
§ In the Bill the records are described in Clause 13(2). Those are the records which will have to be kept by the licence holder. They are fairly detailed records. It appears under Clause 29(1) that the central authority also has to hold most of those records, although not the most detailed records which are mentioned in Clause 13(2)(e). This amendment might seem to be rather weak as I have used the word "may". However, the intention is to give the approval of Parliament to a specific minimum number of years as regards keeping records.1298
Clause 23(2) states that:
Directions may authorise any person…".
As I said, I wish to clarify the matter of keeping records. My intention is to ensure that no unduly onerous or impractical conditions are laid upon licence holders and clinics. Attention is drawn to this possible problem by the mention in Clause 23(1) of a period of 50 years. That subsection requires certain records to be kept for 50 years. A possible solution is suggested by the wording in Clause 23(5)(a). The word "may" occurs again here. In the event of a licence being discontinued directions may:
require anything kept or information held in pursuance of the old licence to be transferred to the Authority or any other person".
§ That suggests a possible procedure for successfully relieving licence holders of the need to keep records for long periods after those records have effectively become dormant. The provision may ensure safer conditions for the preservation of records against fire, flood or some computer mishap. Obviously, some clinics may prefer to hold on to all their past records, but for those for whom this would be an onerous requirement over a long period the stipulation of a minimum period of 10 years seems to be reasonable. After that period, under this amendment, detailed records could be transferred to the authority. It also happens, by coincidence, that the period of 10 years is the period stipulated in Clause 14(2) as the maximum period for storing gametes.
§ I mentioned the period of 50 years appearing in Clause 23(1). That relates only to records where it appears that no child resulted from treatment.That period of 50 years is not unreasonable if it is intended to cover a case where directly after the treatment, the outcome of which is unknown, a woman may disappear without trace, for example to Australia. It may be reasonable and useful for her or her child to know that records are being kept for 50 years. However, what is not quite so reasonable or even useful is for there to be a requirement that the individual clinic should have to keep those records. It would be much more sensible not only for those seeking information about past treatment to be able to find it centrally through the register, but also, for the reasons I have given, to allow clinics, if they wish, to be able to transfer their records after the period of 10 years to the central authority.
§ As I said at the beginning, the wording of this amendment may seem to be rather weak and at the end of the day it still leaves the final decision to the authority, but what it achieves in the same spirit as other parts of the clause is to tell the authority that Parliament has considered this matter and that it thinks 10 years is a reasonable minimum period of time in this context. I beg to move.
§ Baroness Hooper
We believe that the amendment is unnecessary since the information to which the noble Viscount referred is already held by the authority. The noble Viscount himself pointed out that the provisions of Clause 13(2) and Clause 14(1) require, as a condition of all licences, that all necessary information is recorded. In addition, under Clause 29, that information must be provided to the authority. Since the authority will already 1299 hold the information it requires the effect of the amendment would be to place an unnecessary burden upon the authority if it were to receive in addition the physical records kept in pursuance of a licence. Clause 13(4) specifies that there is no limit to the length of time that may be specified for keeping the information held by the authority.
For those reasons the Government oppose the amendment. I trust that the noble Viscount will feel able to withdraw it.
§ Viscount Craigavon
I do not want to take up the time of the Committee further. The Minister's explanation is useful. I beg leave to withdraw the amendment.
§ Amendment, by leave withdrawn.
§ Baroness Elles moved Amendment No. 125:
Page 12, line 35, at end insert—
("Provided that —
- (a) any person receiving gametes or embryos from outside the United Kingdom shall be required to obtain with the gametes or embryos such information and consent as would have been required if the gametes or embryos had been obtained in the United Kingdom under a licence from the Authority, and
- (b) any person exporting gametes or embryos shall satisfy the Authority that the gametes or embryos shall be held under the same terms, conditions and restrictions (including restrictions on use and conditions for destruction) as would have applied thereto under this Act but for such exportation.").
§ The noble Baroness said: The noble Lord, Lord Grantchester, cannot be present this evening for family reasons. He sends his apologies to the Committee. He joins me in supporting all the amendments in both our names. Regrettably I have not been able to discuss with the noble Lord the arguments that he would have deployed before the Committee. Therefore, I retain sole responsibility for the arguments that I put forward in support of this amendment and other amendments in our joint names.
§ Amendment No. 125 concerns an important aspect of the storage, keeping and other treatment of gametes and embryos which have not yet been covered by this Bill; namely, the possibility of their being exported to other countries where different legislation or no legislation applies. It also concerns the importing of embryos and gametes from other countries. We should like to see the same legislation applied to gametes and embryos coming into the country as covers those already in the country.
§ As Members of the Committee who are concerned with farming will know, there are already very strict health certification and licensing regulations concerning the export and import of, for example semen of bulls and embryos of cattle and other animals. We suggest that some form of corresponding regulations should apply to human gametes and embryos.
§ Regrettably, it is not impossible that in the future there may be the question of the sale of and trade in embryos and gametes. That may be carried out perfectly respectably and honourably with those countries undertaking embryo research but which 1300 do not have sufficient embryos. In this country there may not be sufficient embryos and there may be a demand for more. If that should happen I believe that such transfer of embryos from one country to another should be very carefully regulated, as in the case of animals. In that case gametes and embryos when first imported to this country go to an artificial insemination centre where they are recorded and tested before being sent to individual farms.
§ I hope that with that short explanation the Government will give their opinion and see fit either to accept the amendment or, if they cannot accept it in this form, to consider the implications behind the amendment. I beg to move.
§ The Earl of Onslow
Am I alone in thinking "yuk" at the idea of trade in gametes and embryos? It is repellent and I am not sure that it should be allowed at all under any regulations.
§ 6.15 p.m.
The Lord Chancellor
The amendment is concerned with the export and import of gametes or embryos. Trade is rather a different matter and I believe that the noble Earl's graphically expressed attitude to that will be widely shared.
On this particular matter the situation is that the Bill as drafted provides in Clause 23(2):Directions may authorise any person to whom a licence applies to receive gametes or embryos from outside the United Kingdom or to send gametes or embryos outside the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions".The intention is that that will be very closely controlled by the authority. The subsection continues:directions made by virtue of this subsection may provide for sections 12 to 14 of this Act to have effect with such modifications as may be specified in the directions".The necessary framework exists. It is therefore a matter that we have addressed.
The subsection as drafted recognises two difficulties. First, there need to be strict controls so that the United Kingdom legislation which is the subject of the Bill cannot be circumvented by imports from abroad. Secondly, it makes no sense to attempt to legislate on what happens in foreign countries.
It is not anticipated that such movements of gametes and embryos will be at all commonplace, but it is important that we are able to deal with any that take place properly and reasonably. That is why the Bill proposes to enable the authority to give directions which will make it possible to attach particular condtiions to such movements. The precise conditions to be attached will depend to a great extent on the subject matter.
The clause as presently drafted provides for the authority to be able to impose by directions the very conditions which the amendment proposes. However, it is the Government's view that by seeking to incorporate those conditions into the body of the legislation the amendment would impose inflexibility and create considerable practical difficulties. The authority will recognise that not all the standards imposed by proposed licence 1301 conditions set out in the Bill will apply when gametes or embryos are exported for use in another country. It will also recognise and take full account of the possibility that high standards may not have applied in the countries from which it is proposed to import gametes or embryos. In either case it is hardly possible to lay down in United Kingdom legislation what shall happen in another sovereign jurisdiction.
We therefore consider that it makes more sense for the authority to treat such cases on their merits and impose on the import on the one hand or the export on the other the conditions that seem appropriate, taking into account the situation in the particular country at the time, the purpose for which the import or export is sought and any other factors which seem relevant.
Perhaps I may add in relation to what the noble Baroness has proposed that the authority would not only need to have the information required in this country, where there would be a supervised regime, but it would need to have effective methods of ensuring that the information it received was correct. Therefore the controls that would be required on import and export would have to be very closely geared to the circumstances. We are therefore catering for the very concerns that my noble friend has expressed but in a way that gives the authority very full discretion as to the precise method by which that result would be achieved.
I hope that my noble friend will feel able to withdraw her amendment in the light of that explanation.
§ Baroness Phillips
Before the noble and learned Lord sits down, in relation to the remark of the noble Earl can he confirm that gametes and embryos would not be exported or imported for gain but that that is merely a phrase and the exchange would be between medical authorities?
The Lord Chancellor
The words "import" and "export" are used with what I believe is the correct meaning; namely, carried out of the country or carried in. Import means carried in and export means carried out. If those gametes or embryos are to be carried into the country, it is essential that proper protection is afforded because that could be an extremely delicate and dangerous matter, as I am sure all noble Lords appreciate. Similarly, for us to allow embryos to go out would offend most people unless we were satisfied that they would be used in the same way as noble Lords have in mind might be allowed here. However, the precise terms in which that provision should be expressed would relate closely to the situation. For example, it might be appropriate that a person should continue to be responsible for the embryo until an operation was carried out. A much more specific provision would be required than would be appropriate in the case of an ordinary licence which, in a licensed institution, was to run for some time in this country.
§ Baroness Elles
I am grateful to my noble and learned friend for his explanation. Perhaps he will be kind enough to consider this point. My amendment refers toany person receiving gametes or embryos".1302 Clause 23(2) states:Directions may authorise any person to whom a licence applies".Would the phraseany person to whom a licence appliesalso cover employees working within the framework under a person to whom a licence has been given and —the point raised by my noble and learned friend —an individual woman residing outside the United Kingdom who wished to take embryos with her to continue the treatment? That point is perhaps not completely covered by Clause 23(2), although I accept my noble and learned friend's general explanation. Rather than take up the time of the Committee, perhaps he would be willing to agree to consider that point. I should then withdraw my amendment.
The Lord Chancellor
Before my noble friend sits down, it may be worth giving what I think is the answer; namely, that no person shall keep or use an embryo except in pursuance of a licence. That is the basic doctrine for this country. The only way in which a person could, therefore, lawfully either import or export an embryo or gamete would be under licence. That covers the point but, naturally, I shall be happy to consider it further.
§ Amendment, by leave, withdrawn.
§ Clause 23 agreed to.
§ Clause 24 agreed to.
§ Clause 25 [Procedure for approval of code]:
§ [Amendment No. 125A had been withdrawn from the Marshalled List.]
§ Lady Saltoun of Abernethy moved Amendment No. 125ZA:
Page 14, line 4, leave out subsection (4) and insert —
("(4) If the Secretary of State does not approve a draft, he shall give reasons to the Authority.
(4A) If the Secretary of State approves a draft, he shall lay it before Parliament; and if either House of Parliament passes a resolution requiring the draft to be amended the Secretary of State shall withdraw the draft and shall prepare a draft in substitution for the one which is withdrawn.
(4B) No resolution shall be passed by either House of Parliament under subsection (4A) above in respect of a draft after the expiration of the period of 40 days beginning with the day on which a copy of the draft was laid before that House; but for the purposes of this subsection no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(4C) If, on the expiry of the period of 40 days mentioned in subsection (4B) above, no resolution requiring amendment of the code has been passed by either House of Parliament, the draft shall not come into force until it has been approved by resolution of both Houses of Parliament.
(4D) Where the Secretary of State withdraws a draft under subsection (4A) above, he shall lay an amended draft before Parliament and the amended draft shall not come into force until it has been approved by resolution of both Houses of Parliament.").
§ The noble Lady said: The object of the amendment is to ensure that the draft code of practice which the 1303 licensing authority will issue to the licensees can be amended as well as approved not only by the Secretary of State, but by both Houses of Parliament.
§ Although I was naturally sorry that the Committee did not agree with me over the question of the provision of AID to unmarried women, reports in the press that I intend to raise the matter again on Report are quite unfounded. Apart from anything else, it is against the rules of the House to do so. I took great comfort from the words of the noble and learned Lord the Lord Chancellor at cols. 800 and 801 of Hansard of 6th February, about the emphasis that the code of practice would put on the welfare situation of any child to be born as a result of the treatments. I hope that I shall have the opportunity of reading the code when it has been drafted, and I have great confidence that it will be satisfactory.
§ However, governments and Secretaries of State change. Perhaps noble Lords will consider that in a matter of such importance —and it is a matter of great importance as it will give directions on the conduct of licensees in many other areas besides the welfare of children —Parliament should have a chance to amend, as well as approve, the code, both when it is first drafted and later on, should changes be made to it in the future. There is a precedent for that practice in Section 118 of the Mental Health Act 1983.
§ Perhaps I may also suggest that whoever drafts the code should have his attention drawn to the recommendations of R. Snowden and G. Mitchell of the Institute of Population Studies at Exeter University, in Chapter 9 of their book Artificial Reproduction, a Social Investigation. They emphasise the importance of counselling and the greatest care as to the suitability of prospective parents as parents. I beg to move.
§ Lord Campbell of Alloway
I support the amendment, which ensures that the spirit of the amendment which the noble Lady moved and lost shall nonetheless receive due consideration when the regulations or code are drafted. It is an important point on which the Committee was narrowly divided. It is a matter which noble Lords may well think is best left to the code rather than to primary legislation. The status of the code is made clear in Clause 24(4). It is advisory and it does not constitute secondary legislation. The Committee is therefore in no way inhibited in praying against secondary legislation and the provisions of subsection 4(c) of the amendment in that regard are apt. I support the amendment.
§ Lord Ennals
Without saying a word for or against the amendment, as the noble Lady who moved it referred to the Mental Health Act, and as the noble Lord, Lord Mottistone, who raised the issue a few weeks ago, knows, perhaps we may put on record the fact that it took from 1983 to 1990 to produce a satisfactory code of practice which was then debated and approved by both Houses. I hope that it will not take seven years for the operation to be completed. It should be said —and I hope that the noble and learned Lord the Lord Chancellor will confirm 1304 this —that there will be some encouragement that the process will be completed rather more speedily. Noble Lords on all sides of the Chamber, whichever position they take, want to see effective codes of practice. The sooner that they can be presented in a way that we can understand and debate them, the better.
The Lord Chancellor
First, I entirely agree that the code should be produced as rapidly as possible consistent with the subject matter with which it deals. Secondly, when I replied to the earlier amendment of the noble Lady, Lady Saltoun, to which she referred, I had in mind the possibility that statutory guidance —not just in the code, but a statutory provision dealing with the matter that she raised on the lines that I suggested —might go into primary legislation and control the code to some extent in that way. I am still considering whether I can bring forward such a proposal on Report, having regard to what happened to her amendment.
Clause 25 deals with the procedure which we have set out for the approval of the code. The Secretary of State would require to approve the draft. If he did not approve it, he must deal with the matter by requiring a further draft. The consultation must be wide, as subsection (3) requires. Subsection (4) is also important. It states:If the Secretary of State approves a draft, he shall lay it before Parliament and, if he does not approve it, he shall give reasons to the Authority.Subsection (5) states:A draft approved by the Secretary of State shall come into force in accordance with directions.The idea is that Parliament should see the code, but that the code should come into force immediately. If Parliament did not care for the code, that point could be drawn to the attention of the Secretary of State responsible to Parliament and the result would be reconsideration of the code.
As the Committee knows, the purpose of the code will be to give guidance to licence holders and persons who apply for licences from the authority on matters such as counselling arrangements, to which the noble Lady referred, and which are extremely important in this area, procedures for obtaining consent, and qualifications and experience of staff—such as the matters that we dealt with earlier in answer to the amendment of my noble friend the Duke of Norfolk. The code will be drawn up by the authority and will have the benefit of the authority's own expertise and that of any persons or groups whom they may wish to consult. I have already mentioned the detailed specialist experience that the authority will have across a number of different fields. I believe that it will be more than qualified to draw up a code of practice to be followed by licence holders and applicants for licences.
A code of practice is not intended to be unchanging. It is expected to reflect the wisdom of the day concerning those issues that it covers. As the Committee is aware, the field of human fertilisation and embryology is still relatively new and we can expect further advances to be made. It would be unwise if we required each new draft of the code not only to be approved by the Secretary of State who 1305 is accountable to Parliament but also to be laid before and approved by resolution of each House of Parliament before it could come into force. One would then have the difficulty of being able to take action by means of the code to deal with some new development which might well require practice directions to be given in respect of it.
In effect, we should be requiring the code to go through an elaborate two-stage process of approval before it could be brought into effect or any change at all could be made in it. I cannot believe that the affirmative resolution procedure, which is normally reserved for regulations which make significant alterations in the effect of principal legislation, is appropriate for a code of practice which does not carry the status of a statutory instrument.
I believe that this procedure takes as a model that set out in Section 118 of the Mental Health Act 1983. That provision required the Secretary of State to draw up a code of practice and lay it before Parliament on the same basis as these amendments propose for the code of practice to be prepared by the Human Fertilisation and Embroyology Authority. There are important differences between the Mental Health Act code and the one provided for in Clause 25. First, the Mental Health Act code is to be prepared by the Secretary of State and his department rather than a statutory body which, as I indicated in earlier debates about the role and functions of the new authority, is intended to be independent in its day-to-day operations of government.
Secondly, the Mental Health Act code deals with matters such as professional guidance and the admission to hospital of patients suffering from mental disorders and professional guidance about medical treatments which may be appropriate for such patients. Those matters include serious issues affecting that vulnerable group of patients, such as the detention under the powers provided in the mental health legislation. I do not therefore think that there is a direct analogy between the requirements in the Mental Health Act code and the matters to be dealt with in this new code with which we are now dealing.
Clearly in that situation Parliament felt it right to impose very careful safeguards in a code being prepared by central government themselves which, among other things, dealt with restricting the liberty of patients who, in the nature of their illnesses, were not in a position to defend themselves. The position with the code of practice in this Bill is altogether different. I believe that it would not be right to look to that as an appropriate model. As I said earlier, we shall look carefully at the issues raised in our debates in Committee to see whether some statutory directions in relation to the code are appropriate. I mentioned one in particular.
The code will not set out regulations but will give guidance which licence holders will be expected to follow. That guidance can be expected to change with advances in the field. Surely it would be inappropriate to make too cumbersome a procedure necessary to make an effective change in the code.
1306 I hope that the noble Lady will feel that we give effect to her concerns but that the way in which that is done in the basis of this legislation is appropriate for this particular code.
§ 6.30 p.m.
§ Lady Saltoun of Abernethy
I am most grateful to the noble and learned Lord for that very helpful explanation and for his remarks about the possibility of guidance on certain matters in secondary legislation. On that account I shall withdraw this amendment. But before I do so perhaps the noble and learned Lord could possibly arrange that when the draft code has been prepared a copy of it is placed in the Library.
The Lord Chancellor
I see no difficulty in that. The authority will be consulting quite widely on the code and I should expect it to be very easy for noble Lords to have sight of it at that stage.
§ Lady Saltoun of Abernethy
I thank the noble and learned Lord for what he has just said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 125A had been withdrawn from the Marshalled List.]
§ [Amendment No.125B not moved.]
§ Clause 25 agreed to.
§ Clause 26 [Meaning of "mother"]:
§ Lord Teviot moved Amendment No. 126:
Page 14, line 15, at end insert—
("(3) Where a woman is to be treated as the mother of a child by virtue of subsection (1) above, the prescribed particulars concerning the birth of the child required by the law governing the registration of births shall include an indication that the woman registered as the mother is so registered by virtue of this subsection..")
§ The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 129, 133, 135, 137 and 144. In previous discussions I mentioned that certain matters were applicable to all these amendments but my general introduction to this group of amendments is based on my genealogical interests. The noble Lady, Lady Saltoun, will be discussing primarily the very important consequences to the family.
§ At the outset perhaps I may say how much I have appreciated the interest shown by the British agencies for adoption and fostering. Genealogy may still convey to many people an image of some body of people once called the upper classes who can trace their descent from ancestors who came over with William the Conqueror. However, even if that image was ever a fair one it has ceased to be so over the past 25 years. Since the 1960s the study of genealogy and family history has grown dramatically among people of all social origins who are interested in understanding the life and surroundings of their recent ancestors, many of whom would be termed as of humble status.
It has been estimated that in England alone 70,000 people are currently interested in tracing their
ancestry and belonging to a family history society. More than 2,000 visitors a day use the records of the General Register Office and many are family historians. Drover's Dictionary of Psychology, 1953 edition, defines genealogy as:
the investigation of the genetics of the ancestral descent of an individual".
One can therefore continue to say that the importance of genealogy in medical research, expecially research into the inheritance of genetic defects, grows every year as more and more illnesses, from colour blindness to fatal conditions, are found to be of an inherited nature.
§ Genealogists are very concerned that the Family Law Reform Act 1987 should have thrown into doubt the birth certificate and thus the genetic record of every child registered in England and Wales. As it stands this Bill does nothing to correct that matter. It is unfortunate that the Bill now drafted had to include this matter as it was discussed specifically by the Warnock Committee. For various reasons I personally declined to come into the discussion until we had this Bill before us.
§ The present Bill allows for the birth of a child following AID or as a result of any one of many modern techniques to be registered as if that child were a normal legitimate child. That is so not only where the legal father is not the genetic father or the legal mother is not the genetic mother but also where neither the legal father nor the legal mother is the genetic parent of the child. It is the view of genealogists and others that the birth certificate of such a child should indicate in some way the fact that it is not the genetic child of its legal parents. It should be done in a discreet manner. The amendment suggests that it would only be meaningful to informed people. However, we might mention that there is nothing discreet about the birth certificate of an illegitimate or adopted child. The facts are there for everyone to see. We believe that the facts should be indicated in those cases as well.
§ I visited a gynaecological clinic and spoke to an eminent professor who has been quoted and whose name I shall not mention. I put this point to him, and his feelings were that there should be no secrecy.
§ If we do not do anything to mark the certificates we are in effect abandoning any real claim that our birth certificates and birth registers show genetic relationships. In the past it was always an offence knowingly and wilfully to give wrong information to a registrar. It is one thing for an individual to give false information and to risk prosecution but quite another for a government to create a legal fiction. We believe that every adult has the fundamental right to information about his or her genetic parents. We also believe that this right is more important than the desires of genetic parents to keep the information secret.
§ As a genealogist one tends to see this problem from the point of view of the child. It is a point of view which has often been overlooked. One can obtain the consent of all the people concerned but one canot obtain the consent of the person ultimately the most concerned: that is, the resultant child. The 1308 desire for confidentiality and privacy by the parents is a natural one, but as the Warnock Report says in paragraph 4.12, in deceiving family and friends one also deceives the child. We have to be cautious about situations in which the whole of family life is built on deceit; whether it is a deceit about which any two people know or the other relatives know, the child is unaware of it.
§ My noble friend Lady Saltoun will go much further into that area. As a genealogist one is struck by the number of people interested in tracing the origins of their parenthood, not of their more remote descent. It is adopted children who want to find their real genetic parents, illegitimate children who want to trace their fathers, or mothers of children given up for adoption who want to trace those children. Children are often in great distress and will go to enormous lengths to trace the real truth about their origins, however unsavory the facts may be and however well disguised they have been in the past.
§ Those who enter into the kind of arrangement included in this Bill will no doubt do so after much painful discussion and lengthy counselling. In that process their eyes must be open to the long-term consequences of what they are doing and to the rights of the child they are creating. The donor must also realise the effect of what he is doing and realise that in later years he may be confronted with the children for whom he is genetically responsible. He should realise that he must be able with a clear conscience to explain these things to his own wife and children.
§ Here I shall depart from my brief because in general discussions there has been talk about donors being medical students. I have been told that they are not of an age to be generally suitable. We hope that the authority will look into this area most carefully. One believes that the best donors would be those in the mid to late thirties or early forties who have had their own family and who wish to provide others. It is a very serious matter. I believe there have already been consequences of donors wondering whether there are children of theirs around, and those donors have been in a rather upset condition.
§ Above all, however, problematic this may be, the children must be brought up in the knowledge that the circumstances and facts of their birth must be recorded for future generations, and the certificate must be marked in some way. The whole situation of births is clarified in the amendments we are proposing.
§ With regard to Clause 26, from the genetic and genealogical points of view we come to the crux of the amendments in Amendment No. 126. This amendment provides for marking of the birth certificate to identify the status of the mother. Until the advent of embryo transplantation any woman giving birth to a child was that child's genetic mother. The identity of the genetic mother, unlike the genetic father, was never in doubt and the birth certificate, except in cases of gross fraud, was a true record of the child's genetic mother. Adopted children's birth certificates on re-registration after adoption always made it clear that the child was adopted and not the genetic child.1309
§ Now an embryo deriving from an egg donated by one woman can be implanted in the womb of another woman, and a woman giving birth to a child is no longer necessarily the genetic mother of that child. This amendment seeks to mark the birth certificate of a child born as a result of such transplantation to show that he or she is not or may not be the genetic child of the woman described on the certificate as his or her mother. If the Bill is not amended, the accuracy of any birth certificate as a true record of a person's genetic mother will be suspect. As the genetic record of maternal descent the registration of birth will have been destroyed. Destruction of the record is an awesome responsibility.
§ I should also make it clear at once that the amendment is not intended to affect the legal status of the woman described on the certificate as mother. It retains her position for all purposes except those of Clause 28(3) and for other purposes which may be introduced if other amendments to this Bill are carried. It is right and proper that the woman who has become a mother by virtue of Clause 26 should be just as much a mother as one who, by adopting a child as with an adoption, lets the fact be mentioned on the certificate.
§ The amendment requires that the birth certificate of the child be annotated, as I have mentioned, in the most discreet manner. Against the mother's name on the certificate would appear the simple note that she was the mother by virtue of Clause 26(3) of the Bill. Such a notation would indicate to an informed person that the mother on the birth certificate was not the mother of the child. If the child does not wish it to be generally known, he or she can use the short form of the birth certificate which omits details of parentage altogether. That was a most satisfactory procedure brought in just after the last war.
§ I come now to the next and last amendment in the group which deals with the father—Amendment No. 129 to Clause 27 which follows the previous one in marking on the child's birth certificate the true status of the father. Instances in which the mother has her status by virtue of Clause 26 will always lead to the husband having status by virtue of Clause 27. The only exception is where the embryo is derived from the sperm of the legal mother's husband but the egg is that of another woman. However, the reverse is not true. Artificial insemination as mentioned in subsection (1) of Clause 27 affects the status of the father and not that of the mother.
§ What I have said about the previous amendments applies here. Every child has an undeniable right to know the truth about its genetic parents. The information about the father does not allow the brothers, sisters or other close relatives of the child to make inquiries. Because of such full information which is available to the child at the age of 18, there is no need for the existence of subsection (b) about the child's intended marriage partner.
§ I hope I have explained these amendments clearly and succinctly. In regard to what was discussed on previous amendments, if Members of the Committee had feelings that they should not move an inch, I hope they will listen to this argument. I beg to move.1310
§ 6.45 p.m.
§ Lady Saltoun of Abernethy
I entirely support all that the noble Lord, Lord Teviot, has said about the marking of birth certificates of the donor children from the point of view of their descendants who may wish to trace their ancestry. The need to know one's roots is a very fundamental one, and it is a question of a person's sense of identity, a lack of which could even lead to mental instability.
Long ago, before the age of the train and the steamship, most people spent their whole lives in the same part of the country and they as well as their neighbours knew exactly who they were. Then there was the family bible in which all births, deaths and marriages were recorded. Nowadays it is probably rare to spend one's whole life in the same district. There are Britons scattered over the whole world, and Scots especially, who come over here desperate to discover from where their forebears who emigrated came and how they fit into the family. If there is no differentiating mark on the birth certificates of donor children in future they will never in their researches know that any person is not a donor child; and neither will any donor child ever know for certain that he or she is not a donor child unless he happens to have asked his parents in their lifetime or they have told him that he was or was not.
I do not think it necessary that the short birth certificate should be marked, but the long one and the entry in the register should record the fact that the child was born by donation. To put nothing in the register or on the birth certificate may or may not be telling a lie with regard to the identity of the legal father, but it can only be described as being exceedingly economical with the truth about the actual parentage of the child.
There is another reason why it is essential for the birth certificate to be marked, and for that reason it is necessary that the words "by donation" appear on the certificate. It is important to put all possible pressure on the parents of the donor child to tell him that he is a donor child so that he does not accidentally discover the fact later. There have been cases where donor children have discovered that fact and it has been a traumatic experience for them as it has been for adopted children. It is not something that should be risked, and attempts at secrecy will carry that risk. The parents may quarrel over the child and let the secret out, or someone may tell a third party in confidence and that confidence may be broken. It is now accepted that adopted children should be told that they are adopted while they are still young, so that they can grow up with the knowledge. The same should surely apply to donor children. It is more difficult to tell a young child, but there are ways of doing it, and it has been done.
If the birth certificate is marked, the parents will be under greater pressure to tell the child than if it is not. Snowden and Mitchell of the Institute of Population Studies at the University of Exeter in their book Artificial Reproduction, A Social Investigation which I mentioned earlier, maintained that where children are told when they are young they accept the fact happily. They stress the great importance of counselling.
§ Lord Robertson of Oakridge
My Amendment No. 137 is grouped with the amendments that we are discussing, and so it might be for the convenience of the Committee if I were to speak to it now. In doing so, I am conscious that some fairly heavy 16-inch shells have been winging my way from the Government Front Bench as we have gone along this afternoon. The aim of the amendment is to ensure that by including the words "by donation" on the birth certificate children created through gamete donation would know the nature of their conception. That will enable them, if they so wish, to invoke the provisions of Clause 29 to discover at the appropriate time further information about their genetic parentage.
In line with the Family Law Reform Act 1987, the Bill would make it legally permissible to put inaccurate information on the birth certificate. The birth certificate would then show that there was nothing out of the ordinary in the birth and what led up to it, when in fact that was not the case. Although Clause 29 contains provisions to enable children to find out information about their parents, a child cannot seek such information unless it knows the method of its creation. Since we have no guarantee that the parents will tell their children —indeed, there may be some pressure not to tell them —the only way to ensure that the children know is to indicate on the birth certificate that there is something to find out. I suggest that the words "by donation" would do that. The children will then be able to seek further information and avoid all the unwitting problems of incest or potential hereditary disease.
I should think that in our time most of us have been asked by our doctor whether a particular disease had appeared in previous generations of our family. Perhaps I may emphasise that the provisions contained in Clause 29 are all very well, but they are not worth putting on paper if children do not know that there is a question to be asked.
When this place discussed the Family Law Reform Bill 1987, it was rightly pointed out that AID clinics encourage partners to maintain normal sexual relations while receiving treatment. It is therefore possible for children to be created naturally while AID treatment is being received. That problem would be avoided if the partners submitting to AID treatment agreed to a blood test for the child. That could be a condition of treatment. It would be sad if confidence in public records were undermined by Parliament ordaining that inaccurate information could legally be put on such records. Furthermore, it is wrong to put difficulties in the way of children to prevent them obtaining information about their creation which, by any standard, they are entitled to have.
§ The Earl of Lauderdale
We alluded to this subject earlier this afternoon. My noble and learned friend pointed out that existing birth certificates sometimes give information which is not historically accurate. Parents may conceal the fact that the father was someone else. That is sometimes innocently done. It might happen that a father does not know that 1312 he is not the father of the child. I remember a conversation with a Member of this place some years ago in which it was said that "We never know".
According to my noble and learned friend's earlier intervention, it is suggested that there should be no indication that such a procedure has been gone through. While one respects the need for privacy, something that we all agree is important, that need must be reconciled with the integrity of the records. If the records are going to be inaccurate that will be serious. It is difficult to believe that Parliament and my noble and learned friend would want anything to be done which would lead to official records being inaccurate. I beg my noble and learned friend to look at the matter sympathetically. It may not be necessary to have some indication on the birth certificate. The point could be covered in some other way. We must ensure that the integrity of the record is respected as well as the privacy of those concerned.
§ Lord Renton
The main principle should surely be, although there may be exceptions, that every birth certificate should contain the truth, the whole truth and nothing but the truth. There are circumstances in which the truth with regard to the father's name is not always ascertainable. That is an exception into which we need not go. Another exception is made by Clause 26(1). For reasons which have already been given, I find it unsatisfacotry that we should create an exception in such wide terms as that subsection does.
I favour something along the lines of Amendments Nos. 126 and 129, which go together, or Amendment No. 137 which is an alternative as I see it. It would not be sensible to have all three amendments written into the Bill. They are consequential. I prefer Amendments Nos. 126 and 129 because Amendment No. 137 merely includes the words "by donation". I do not believe that that is specific enough in relation to the supposed mother or the supposed father.
I hope that my noble friends on the Front Bench will realise that this matter is important. It of course affects descent by blood and various things of which some families are proud. It is surely also important for medical reasons. There are times when the doctor needs to know whether an inherited characteristic has been transmitted. It may be essential to treatment to know. I greatly look forward to hearing what my noble and learned friend will say because this is a matter which the Bill does not yet have right. It is something which, with the Committee's help, can somehow be rectified.
§ 7 p.m.
§ Lord Ennals
It had not been my intention to rise before the noble and learned Lord the Lord Chancellor because it is my earnest hope that he will discourage the acceptance of the amendments to the same extent as his noble and learned friend Lord Hailsham did when dealing with similar amendments to the Family Law Reform Bill 1987. However, I have been a little disturbed by the trend of the debate so far and I wanted it to be known that there are at least some who are very strongly opposed to the amendments put forward and the concepts 1313 behind the amendments proposed by the noble Lord, Lord Teviot, and the noble Lady, Lady Saltoun. As I listened to the noble Lord, Lord Teviot, proceeding with his arguments, the more he proceeded the more I became opposed to the case he was seeking to make. For his sake I was glad he did not proceed further; otherwise I might have leapt to my feet rather than try, as I am trying now, to be as reasonable as I can.
I believe that the direction in which these amendments take us is unfortunate and undesirable. The most important fact is that the child who will result from an embryo implant comes from the mother's womb and in that sense is the product of the mother. There are of course all sorts of questions as to whose sperm it was which fertilised the embryo and created the child. Those are all questions that arise, along with others, in the records that exist at the moment. The noble Earl, Lord Lauderdale, was reminding us of the situation, although perhaps he did not do it as specifically as the noble Baroness did when she was replying to an earlier amendment. I think she said that on the registration forms one in 20 of the fathers listed were not the fathers of the children appearing on the birth registration form.
I want to know why we should do all this. I believe that we are storing up, not for ourselves but for the children who result from the birth, a degree of trouble. A mother gives birth to a child, and that child has a life from that moment. I think that we are creating problems if we, as it were, encourage this rather macabre research into whose sperm it was.
§ The Earl of Lauderdale
Surely the medical argument is important. We have all been examined by a doctor at some time or other and the question has been asked: "Is there any madness in your family?" I have been asked that question many times. There is plenty now! Medical treatment may require knowledge of antecedents and if those antecedents are not known or are wrongly stated the treatment can be wrong as well. So from he child's point of view or that of the grandchild, surely the medical case is a very important one.
§ Lord Ennals
When we come to legislate we always have to balance one argument against another and of course the medical argument is one of them. I believe that the social argument against doing this is very much more powerful. It is not for us as legislators to tell parents what they should tell their children. I believe it is for parents to decide what they should tell their children. In many cases at a certain stage a mother may say to the child, "I want you to know the circumstances and how it was that mummy and daddy just were not able to produce you without a little bit of help from elsewhere". The parents might feel they wanted to tell the child that but I do not think they would ever want to add, "And Mr. So-and-So was the man from whom we managed to get the little bit of sperm that did the trick".
I do not believe that that is the right way for parents to behave; or perhaps what I really mean is that I do not think this is the right way for us as 1314 legislators to behave. It is most important that parents should have the responsibility for their children, with all the counselling and the social work backing that we can provide; but for us as legislators to decide to write on a child's birth certificate the words "by donation" to distinguish them from every other child is wrong. We do not now write the word "illegitimate" on a birth certificate concerning a child who is not born within marriage.
I see the noble Lord wishes to interrupt but may I just finish this and then I will sit down. I hope we shall not go down this line. I think that for elderly legislators to tell parents how they should look after the social problems involved with their children is not right.
§ Lord Teviot
The noble Lord talks about "illegitimate". The word is not used, but in the long birth certificate at the moment if the child is illegitimate a line is drawn straight across the space in column five referring to "father".
§ Baroness Macleod of Borve
I feel very strongly about this. Unfortunately the noble Lord, Lord Ennals, seems to be on the wrong foot. He gives great credit to the mother—and of course it is the mothers who give birth to the children —but he does not seem to think that the fathers matter at all. But very often they matter to the children as much as the mothers.
What is paramount is that children must be told the truth and they must be seen to know the truth if they want to. It is not likely that a child will want to see its birth certificate before perhaps the age of 14 or 15, and it would be able to do that at the age of 18, as is the case with children who are adopted. On that birth certificate the truth should be stated, the space should not be left blank. As the noble Lady, Lady Saltoun, said, it can lead to terrible psychological problems if at the age of 18 or so you discover that nobody knows who your father is or where you came from. I believe the truth must be put on the birth certificate and must be told to the child as and when the child wants to know.
§ Lord Swinfen
I wonder whether the noble Lord, Lord Ennals, would take into consideration the case of a disease such as Huntington's chorea. Would it not be of the most considerable assistance and relief to the child to know that that particular disease, which he knows to be a horrible one, will not have been transmitted to him or her because it was all done by donation? The child would be able to prove to the family that he or she was not a carrier.
§ Lord Ennals
If I may just respond to that point immediately and then sit down, these are matters for decision by parents. That is the argument I am putting forward. I am not saying that children should never know, but I do not think it is for legislators to decide what children should know in these very intimate matters.
§ Viscount Craigavon
May I briefly follow up the line taken by the noble Earl and quote exactly what the noble Baroness, Lady Hooper, said at Second 1315 Reading (at col. 1112) on 7th December 1989. The noble Lord, Lord Ennals, referred to this. She said:But perhaps we should remember in this context that the clinical geneticists tell us that about one in 20 of the population today have a father other than the one named in the birth certificate".At that point the noble Lord, Lord Teviot, interrupted her and said he thought that was a myth. I should be interested to know whether he has had any further thoughts about that. It is a very interesting statistic. The noble Lord gave an impression of all these people interested in genealogy burrowing away in the records. I am not sure how they would take into account the fact that that might be the case. I find when discussing this very interesting statistic with others that women are very much more prepared to believe it than men. Perhaps we should not forget the words Oscar Wilde put into the mouth of one of his characters:You should study the Peerage, Gerald … It is the best thing in fiction the English have ever done".
§ Lord Redesdale
When the noble Lord, Lord Ennals, was saying that it was for the parents to decide, I think he meant it with the best possible heart. However, having had some knowledge of foster children and adoption, these children desperately need to know who their parents were down the line. I do not see why children born in this way should not have the same right of finding out. They need to know, and it will cause problems. I totally agree with what the noble Baroness, Lady Macleod said. I can assure the noble Lord that when the children come to the point of wanting to know, they desperately want to know.
§ Lord Ennals
Will the noble Lord recognise that there is a difference between adopted children and those born from their mother's womb? He shakes his head, but of course there is. The adopted child arrives in the family at a certain age, having been born elsewhere. Some have recollections of their early life. In this case we have children who were born from the womb of the person they know to be their mother and with a known father. These are not comparable situations.
§ Lord Redesdale
Although the mothers have given birth naturally without knowing the identity of the fathers, the children still desperately need to know.
§ Lady Saltoun of Abernethy
There is one other instance in which a person badly needs to know at least whose son or daughter he or she is not. It is in applying for life insurance. One is then asked what one's mother and father died of. Therefore, it is just as well to know who one's father was not.
§ Lord Henderson of Brompton
I briefly endorse the distinction which should be made between adoption and what is provided for in this legislation. They are not on all fours. The kindly laws of legitimacy should continue to be followed. They provide for the presumption of legitimacy of any child born to the wife of a marriage. That is a kindly and wise law of long standing and it should be preserved. By analogy, this Bill should follow that line.
1316 Secondly, the legitimacy of any child by a subsequent marriage of his or her parents is provided for by the law. Again, that is a kindly provision. We should continue to honour it when considering this legislation and not label children on their birth certificates with marks which could prove to be extremely distressing.
§ The Duke of Norfolk
I am certain that in such matters we should be guided by the truth. It is wrong to pretend by failing to tell the children. The truth will out; truth has the mastery.
§ 7.15 p.m.
The Lord Chancellor
The White Paper which we published in November 1987 made it clear that in the Government's view all adults over 18 should have a legal right to find out whether they were born as a result of sperm, egg or embryo donation and that those who were should be given right of access to certain non-identifying information about the donor or donors of the genetic material; for example, about their medical or genetic history. This is reflected in Clause 29. The point about medical records is dealt with absolutely. I can do no better than remind the Committee of the reason which the Government had when indicating that this was their policy in paragraph 83 of the White Paper:While the Government has much sympathy with the view that children born following donation should be able to seek out their genetic parents if they wish to, it also recognises the differences between adoption and donation. Its present view is that all adults over the age of 18 should have legal right to find out whether they were born following gamete or embryo donation: and that those who were should have a right of access to certain non-identifying information about the donor to be prescribed in regulations.There is a balance to be struck here between the interests of children born through donation and others who may have an interest in tracing the genetic origins of such children and the importance of confidentiality of personal information. It is clear that many people believe that it is in the interests of children born following donation that they should be able to learn of that fact and, indeed, some think, also the identity of their genetic parents. If it were made a requirement that birth certificates should include the words "by donation" then, perhaps, it would be easier for children to trace their genetic origin. I realise that the Warnock Committee considered that it should be made possible, if the social parents so wanted, that birth certificates could indicate whether a birth has been by donation. However there was little support for the proposal for an optional "by donation" annotation of the birth register in the response to Warnock. That is not proposed in these amendments.
Certainly, it would alert a donation child looking at birth records to ask the authority for the information that he or she is entitled to under Clause 29. But it would also reveal to anyone seeing the certificate that the person had, or might have been, born following AID or IVF and that his or her parents had undergone treatment. This, I think, could be regarded as an invasion of the personal privacy of both the children concerned and their parents, as well as, possibly, a breach of confidence 1317 concerning the parents' personal medical information.
While I understand the argument made by the supporters of the amendment that it is important that the birth records contain truthful information about the actual circumstances of the birth, I believe that too much can be made of the argument. As I indicated in the earlier debate, in many cases where infertility treatment is not involved, the information about a child's father on the birth record may not reflect the true genetic position. That can arise for a number of reasons; for example, the mother may not know who the child's father is because she was having sexual intercourse with another man as well as her husband at the relevant time. After all, the birth register is a record and not a legal statement about the reality of who the child's father is. The noble Lady, Lady Saltoun, said that a doctor may ask what one's father died of. There is a chance that if one proceeds on the basis of what is shown on the birth certificate one may not give the correct answer. That is one of the problems.
In that connection, the noble Viscount, Lord Craigavon, mentioned the figure of 5 per cent. I have had an opportunity to look at that matter more closely. It is misleading to believe that at present the information on a birth certificate necessarily contains the full facts about the birth of a child. Members of the Committee will remember the surprise which greeted the reply made by my noble friend Lady Hooper on Second Reading. She indicated that clinical geneticists tell us that about one in 20 of today's population has a father other than the one named on the birth certificate. "Wrong paternity", if I may describe it as such, is an important matter to such medical specialists because, for reasons that have been outlined, they must take account of it in their clinical practice.
I am not aware of any published research reports from which one can derive with certainty an estimate of the prevalence of this state of affairs. But, in an article published in Nature on 26th October 1989, mention was made of a figure of 10 per cent. I have discussed the question with Professor Marcus Pembery, Professor of Paediatric Genetics at the Institute of Child Health in London. From his experience, he believes that 10 per cent. may be a somewhat high estimate. In his view, research studies where wrong paternity is an incidental finding, and clinical experience of clinical geneticists up and down the country each of whom has a service covering a wide geographical area, point to a prevalence of at least 5 per cent.
The importance of the matter is stressed in at least one text book and it takes up the point that I made in relation to the comment of the noble Lady, Lady Saltoun. An article written by Peter Harper, appearing on page 7 of Practical Genetic Counselling, 3rd edition, published in 1988, states:Illegitimacy must be borne in mind, especially in a puzzling situation. A family doctor or nurse may well, particularly in a small community, be able to clarify this possibility. Illegitimacy is not of course the problem, but mistaken paternity. New and definitive tests of paternity based on DNA will help to resolve those problems more easily, but may equally produce new difficulties by the more frequent detection of unsuspected non-paternity".1318 A person investigating the incidence of a genetic disease may have genetic DNA records of more than one generation. It is possible for those who are skilled in the science to tell in some instances whether the genetic quality of a child is compatible with the parents. The result is that sometimes, quite incidentally and not as part of any deliberate study, that is apparent. Of course, if the treatment or diagnosis is based on the birth certificate, as is obvious, mistakes can be made. The science of genealogy, in so far as it rests on birth certificates, is not on completely secure foundations. Nevertheless, it is still an important subject.
The birth certificate as such is not necessarily a correct record of the situation. Of course, the birth certificate has always to be understood in the light of the existing law. The noble Lord, Lord Henderson of Brompton, referred to the kindly presumption of paternity, which exists, and has existed for many years, in respect of a child born in wedlock.
The important thing is to decide how this matter should be taken forward. I want to point out that Clause 29 provides for the policy which I indicated a moment ago. Clause 29(2) states:A person who has attained the age of eighteen … may by notice to the Authority require the Authority to comply with a request under subsection (3) below, and the Authority shall do so"—that is, shall give information about whether or not the parents of the child had those treatments—if the information contained in the register shows that the applicant was, or may have been, born in consequence of treatment services".I need not remind the Committee that there may not be certainty in this matter depending on what else was happening at the same time as the treatment. Paragraph (b) states —and this is very important:the applicant has been given a suitable opportunity to receive proper counselling about the implications of compliance with the request".As has been pointed out, that may be a matter of crucial effect on the person asking for the information.
In this legislation we have a perfectly clear way in which a person who may think that he or she was born as a result of one of these treatments can require the authority, which shall have kept the necessary records, to indicate whether or not the parents who are shown on the certificate were involved in treatment of that kind. Therefore, the child can find out through records to which he has access. On the other hand, those records are not open to everyone and the public cannot find out that information. That matter of privacy is respected because the right to receive the information is fairly limited in terms of Clause 29, but the person himself can find that out.
The information given in Clause 29 does not go the full distance which some would like. It goes the distance which is required to indicate "by donation". That can be found out from those records. However, the identity of the genetic father is not indicated. The reason for that is, as I explained earlier, that this policy depends upon the view that the particular identity of the genetic father in an AID case requires to be protected for reasons of continued supply. That 1319 is a matter of general experience which this policy recognises. So far as the information is important for medical or genetic studies, all the information necessary is available in the records. Of course, the precise detail of the record will be settled by the authority.
In my submission to the Committee, the main aims sought by this amendment and the related amendment are achieved in a way which is more consistent with the privacy of the family arrangements and family life than the amendments themselves. They go as far as is reasonable in that respect. Of course, a genealogist would not be able to search the record, but a genealogist with the authority of an applicant —that is, with the authority of a child who wanted to know —would be able to obtain this information on the basis that the child was a qualified applicant who had been counselled before the information was sought.
I suggest to the Committee that most of the concerns —indeed, I hope, all the concerns —expressed are adequately catered for in an appropriate way by the provisions which we have made. In the light of that explanation, I hope that my noble friend Lord Teviot will feel able to withdraw the amendment.
§ The Earl of Lauderdale
I am not quite sure how a child, or indeed an adult if he has reached the age of 21, would know that he could apply to the authority or have any reason to do so if his mother had not told him that there was a donation.
The Lord Chancellor
If he was concerned about that, all he needs to do is to apply to the authority and that authority will tell him whether or not there are grounds for his fears. If a person is happy with his roots and does not wish to know anything more about them, then he can leave the matter as it is. However, if he wishes to find out, provided that he satisfies the condition of having been counselled, he need only apply to the authority which will be able to tell him whether or not his parents had been in receipt of treatment covered by the Bill at the appropriate time, although it cannot tell him exactly how he was born.
§ Lord Swinfen
Before my noble and learned friend sits down, does not everyone who writes to the authority have to receive counselling before an answer is given? Could that not mean a lot of counselling?
The Lord Chancellor
If Members of the Committee take the view, as I do, that it is an important matter to know what the likely effects will be, then I believe that that counselling is very well placed. I do not imagine that there will be a huge desire to resort to these applications. It may be that more people will have recourse to this process than may at first sight appear, although the total number affected by these procedures is likely to be rather small. Even so, the need for counselling is so important that it is right to make it a condition that a person should be counselled before he receives an answer to the query.
§ Lord Hailsham of Saint Marylebone
Perhaps I may say, if only for my own satisfaction, how deeply I agree with what my noble and learned friend the Lord Chancellor said. The world was not made for genealogists but was made for people. If you muck about with a birth certificate, you are labelling a child as a second class person.
The only legitimate point made by the supporters of the amendment has been the question of the potential desire of a child to know his origins. That point is met, as far as humanly possible, by Clause 29. I do not agree with them but I have always understood those who find that these practices are so inherently immoral that they should not be allowed at all. If anybody has studied the well known story of Oedipus, which I have seen re-enacted in real life more than once in some rather modified form, they will appreciate the catastrophic effects of labelling a child. They will also appreciate the high desirability of the long tradition of English law that there is a presumption of paternity in respect of a child who is born of a marriage and brought up as a child of the marriage. That is something which is based on humanity and not on the anfractuosities of the professional genealogist.
§ Lord Robertson of Oakridge
I listened to what the noble and learned Lord the Lord Chancellor said with great interest. One point worries me. He said that if anyone was concerned about their origins they could apply under Clause 29. Putting "by donation" on the birth certificate is a pointer that someone should be concerned. There may be a less clumsy way of dealing with this problem than putting those words on a birth certificate, but if we do not have some pointer in view then the only solution is for everyone, when they reach the age of 18 —man or woman —to write to the authority and say, "Have you got anything for me?"
§ 7.30 p.m.
The Lord Chancellor
That is a solution for those who want to find out the information. The problem about putting anything on the birth certificate is, first, that it is public to everyone, whatever their interest or connection with the family. Secondly, if the Committee believe in counselling before this information is disclosed —which I hope and believe most Members of the Committee may do —if such information is put on the birth certificate the child may discover it completely by accident when he tries to get a copy of his birth certificate. He will not have any opportunity to have counselling; he will suddenly discover it. I believe this has happened in other circumstances, but this is a difficult problem. One of the disadvantages of putting this information on the birth certificate is that there cannot be an enforceable requirement for counselling before the information is disclosed.
§ Lord Teviot
This debate has been long and wide-ranging, but perhaps I may pick up one or two points. Coming back to my noble friend Lord Lauderdale, integrity of records and accuracy are paramount. Also, I am glad my noble friend Lord Renton preferred my Amendments Nos. 126 and 1321 129 to Amendment No. 137. I will pick up the last point of my noble and learned friend Lord Hailsham. Not only the professional genealogist but also very much the British adoption, fostering and other family organisations feel the same as we do. This is not just something which will suit us.
The noble Lady, Lady Saltoun, spoke about the family consequences. My noble friend Lord Redesdale, with his great practical experience, whom I was delighted to hear, says that fathers need to know. All right, there is Clause 29, but that is not the easiest way round. As regards discovering that your birth certificate contains the words "by donation", it is important that the child should be told. I have seen people arrive at a general registry office for the first time and find their names not in the birth registers but in the adoption registers. That is horrifying. These things happen. It is important for everyone to know.
In view of the support one has had for these amendments, despite all that is going on, I believe that the Committee must decide. The truth should be paramount and I therefore press this amendment.
§ 7.33 p.m.
§ On Question, Whether the said amendment (No. 126) shall be agreed to?
§ Their Lordships divided: Contents, 35; Not-Contents, 97.1322
|DIVISION NO. 1|
|Alexander of Tunis, E.||Mersey, V.|
|Ashbourne, L.||Napier and Ettrick, L.|
|Carnock, L.||Norfolk, D.|
|Craigmyle, L.||Oxford and Asquith, E.|
|Falmouth, V.||Peel, E.|
|Fortescue, E.||Phillips, B.|
|Halsbury, E.||Reading, M.|
|Harvington, L.||Redesdale, L.|
|Hemphill, L.||Robertson of Oakridge, L.|
|Hylton, L.||Salisbury, M.|
|Iddesleigh, E.||Saltoun of Abernethy, Ly. [Teller.]|
|Kinloss, Ly.||Savile, L.|
|Lauderdale, E.||Strabolgi, L.|
|Liverpool, E.||Sudeley, L.|
|Macleod of Borve, B.||Swinfen, L.|
|Masham of Ilton, B.||Swinton, E.|
|Melville, V.||Teviot, L. [Teller.]|
|Addington, L.||Carnegy of Lour, B.|
|Airedale, L.||Colwyn, L.|
|Allenby of Megiddo, V.||Craigavon, V.|
|Alport, L.||Crathorne, L.|
|Ampthill, L.||Darcy (de Knayth), B.|
|Attlee, E.||Davidson, V. [Teller.]|
|Belstead, L.||Denham, L. [Teller.]|
|Blease, L.||Donaldson of Lymington, L.|
|Boardman, L.||Downshire, M.|
|Borthwick, L.||Elliot of Harwood, B.|
|Bridge of Harwich, L.||Elliott of Morpeth, L.|
|Brightman, L.||Ennals, L.|
|Broadbridge, L.||Ferrers, E.|
|Brookes, L.||Fraser of Carmyllie, L.|
|Brougham and Vaux, L.||Galpern, L.|
|Butterworth, L.||Gardner of Parkes, B.|
|Caithness, E.||Graham of Edmonton, L.|
|Caldecote, V.||Hacking, L.|
|Hailsham of Saint Marylebone, L.||Molloy, L.|
|Monk Bretton, L.|
|Harmar-Nicholls, L.||Mountevans, L.|
|Harris of Greenwich, L.||Munster, E.|
|Hatch of Lusby, L.||Nicol, B.|
|Henderson of Brompton, L.||Northfield, L.|
|Henley, L.||O'Neill of the Maine, L.|
|Hives, L.||Onslow, E.|
|Home of the Hirsel, L.||Orkney, E.|
|Hooper, B.||Orr-Ewing, L.|
|Houghton of Sowerby, L.||Parry, L.|
|Howie of Troon, L.||Prys-Davies, L.|
|Jenkins of Putney, L.||Rankeillour, L.|
|Johnston of Rockport, L.||Rea, L.|
|Joseph, L.||Reay, L.|
|Kaberry of Adel, L.||Renton, L.|
|Kilbracken, L.||Robson of Kiddington, B.|
|Kirkhill, L.||Seear, B.|
|Lawrence, L.||Seebohm, L.|
|Liverpool, Bp.||Shackleton, L.|
|Llewelyn-Davies of Hastoe, B||Stockton, E.|
|Stoddart of Swindon, L.|
|Lloyd of Kilgerran, L.||Thomas of Gwydir, L.|
|Lockwood, B.||Tordoff, L.|
|Lothian, M.||Tranmire, L.|
|Lyell, L.||Turner of Camden, B.|
|McGregor of Durris, L.||Underhill, L.|
|Mackay of Clashfern, L.||Warnock, B.|
|Marshall of Goring, L.||White, B.|
|Mason of Barnsley, L.||Winchilsea and Nottingham, E|
|Mills, V.||Winstanley, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.40 p.m.
§ Clause 26 agreed to.
§ Baroness Blatch
This may be a convenient moment to resume the House. In moving that the House be now resumed, I suggest that we reconvene the Committee stage on this Bill not before 8.45 p.m. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.