§ 3.9 p.m.
§ Report received.
§ Clause 1 [Meaning of "embryo", "gamete" and associated expressions]:
The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 1:
Page 1, line 6, leave out from beginning to ("and") in line 7 and insert ("In this Act, except where otherwise stated—
- (a) embryo means a live human embryo where fertilisation is complete, and
- (b) references to an embryo include an egg in the process of fertilisation").
§ The noble and learned Lord said: My Lords, in moving this amendment I wish also to speak to Amendments Nos. 3 and 63. These amendments derive from the debate in Committee on Clause 1 during which my noble friend Lady Elles proposed an amendment which sought to ensure that the period following the mixing of a sperm and egg until the appearance of a two-cell zygote, a period of some 30 hours, would also be covered by the Bill. In winding up that debate, I set out at some length the thinking behind the definition of an embryo in Clause 1(1) of the Bill and undertook to consider in the light of the debate and of the Committee's decision on Clause 11, whether the position in relation to control in the period before the two-cell zygote stage is reached was satisfactory.
§ At a later stage of the Committee, after a very full and absorbing discussion, the Committee reached by a substantial majority the view that research on human embryos up to 14 days should be allowed to continue under strict controls.
§ I think your Lordships will agree that the issues covered by the proposed government amendment are most difficult technical ones. As currently drafted, the Bill regulates activities involving embryos in vitro from the point at which fertilisation is complete, which is taken as being on the appearance of a two-cell zygote, the storage of gametes and the use of donated gametes. Following the Committee's decision on Clause 11, this means that the Bill regulates treatment and storage involving gametes and embryos, and research involving embryos. The Government's subsequent consideration of Clause 1 has led to the conclusion that, while the Bill does cover activities in the 30 hour period which are concerned with "bringing about the creation of an embryo", the position where the egg and sperm are mixed but it is not the intention to create an embryo is not free from doubt. The Government believe any such doubt should be removed.
It might be thought that it would be a relatively simple matter to amend the Bill to ensure that this period is fully covered. However, what is it that exists once the sperm has penetrated the egg but before the appearance of a two-cell zygote? After fertilisation has started strictly speaking you have neither gametes nor an embryo. The term "conceptus" was suggested by the noble Lords, Lord Walton and Lord Adrian. But this word is used by
different people in different ways. For example, some people, like the noble Lords, Lord Walton and Lord Adrian, would use it to describe an egg in the process of fertilisation but before that process is complete; others would use it to cover the period up to 14 days; still others would say it covered a longer period. Indeed, one medical dictionary I consulted gave the definition of "conceptus" as:
The total products of conception, not just the embryo or fetus but everything derived from the fertilized egg, including the entire chorionic sac in the early stages of pregnancy and the placenta with fetal membranes in later stages".
§ That is taken from Churchill's Medical Dictionary 1989.
§ The Government have therefore concluded that the word "conceptus" is not precise enough to cover the period in question. It should be plain to all that comprehensive controls apply to an egg in the process of fertilisation just as for the period up to 14 days. For that reason we have decided to amend the Bill using those very words rather than introduce any new concepts on which there has been no opportunity for full consultation.
§ This amendment, as I have said, brings the first 30 hours or so under the controls introduced by the Bill. In Committee I raised the question of how one can tell, once the sperm has penetrated the egg, that this has occurred and that fertilisation is indeed taking place. From its outward appearance an egg in the early stages of fertilisation looks exactly as it did before the sperm entered it. You cannot tell by looking at it whether you have an unfertilised egg or an egg in the process of fertilisation. There are only two periods when this distinction can be made visually: the first is when the sperm is entering the egg and the second is during a short period commencing some 16 hours later when the two pronuclei are present as the final manifestation of the separate chromosome sets from egg and sperm before they merge.
§ It must be recognised, therefore, that securing proof, for example of an offence by a person who keeps or uses an egg in the process of fertilisation without a licence, will not always be easy. If an inspector visiting an unlicensed laboratory found a mixture of sperm and eggs he could reasonably assume that the process of fertilisation had been initiated or at least that it was likely to follow shortly. However, if an egg already in the process of fertilisation had been separated, by washing, from those sperm which had not penetrated it, he could not tell simply by looking whether or riot the process of fertilisation had commenced. In order to determine the true state of affairs he would either have to watch for the appearance of pronuclei, which he might see for about six hours from a time around 16 hours after the gametes had been mixed, or division into two cells at something like 30 hours after mixing. Alternatively, he would need to fix, stain and section the fertilising egg and examine the resulting specimen carefully.
§ These examples illustrate the difficulty of dealing with rapidly changing events in these very early stages of development. I can, however, assure the House that every effort will be put into policing the system properly; that those who will be involved in 1055 it will be experts in the techniques; and that they will have powers under Clauses 34 and 35 to collect and preserve evidence and to enter premises.
§ I have gone into this matter in some detail because I realise it is one in which your Lordships have taken a considerable interest. The Government's aim in introducing these amendments is to put beyond doubt the fact that the Bill, especially in relation to research, does cover activities involving the fertilised egg which occur between the mixing of sperm with eggs and the emergence of the embryo, at the two-cell zygote stage, from the two pronuclei. I therefore now invite the House to support the amendment and at later stages the subsequent amendments to the Bill which flow from it.
§ The remaining amendments in this group, Amendments Nos. 3 and 63, are consequential and necessary to ensure appropriate adjustments. I beg to move.
§ Baroness Elles
My Lords, I warmly thank my noble and learned friend the Lord Chancellor for introducing this new amendment. It meets the question I raised in Committee and the great concerns of many noble Lords in regard to the 30-hour period between the mixing of the gametes and the two-cell zygote. It was clear that this period of time was not covered by the Bill as it then stood.
In regard to research, my noble and learned friend has made perfectly clear that it can start from when the gametes are mixed; so this particular definition does not affect that part of the Bill. However, concern arose as to the aspect of this form of genetic material. The 30 hours between the beginning of conception and the formation of an embryo would not have been covered when it came to keeping, storing and the other processes covered in the Bill.
I know that many noble Lords spoke on this subject and that it was an aspect supported by many noble Lords who are also scientists. I was grateful for that support during our debates in Committee. I support the amendment of my noble and learned friend and express my gratitude for the full explanation he has given of the implications for the Bill.
§ Lord Ennals
My Lords, may I briefly say that having opposed the amendment put forward by the noble Baroness, Lady Elles, in Committee, I am now delighted with the outcome of the exchanges. It shows the wisdom of the intervention by the noble Baroness and also the noble and learned Lord's own wisdom in arriving at a compromise that I hope will satisfy the whole House.
§ Lord Harvington
My Lords, briefly, I, too, support the noble Baroness and my noble and learned friend the Lord Chancellor in the amendment which he has brought forward. The amendment has gone a long way towards meeting some of the considerable difficulties we have had in accepting the Bill.
However, I have one or two minor reservations about the roundabout way in which this change is made. We are still told that we do not have an embryo until the two-cell zygote has formed; but we 1056 are not then told that references to an embryo include an egg in the process of fertilisation.
That seems like saying that fruit means apples, and it is also like an obscure EC Bill which says that fruit means apples but that the references to fruit include oranges. Why not simply admit that fruit means apples and oranges? There are three places where we are told that the definition contained in Clause 1(1)(b) does not apply. However, they do not seem to be of any great consequence. Surely it would have been more logical to have one definition of the word embryo and then to deal with these three points in some other way. It may be that the noble and learned Lord will be able to clarify this point for me. Nevertheless, I have no hesitation in supporting this amendment put forward by my noble and learned friend, who has conducted this debate and most difficult Bill with the utmost skill and sensitivity.
§ Lord Kilbracken
My Lords, the noble and learned Lord said that he was going to speak to Amendment No. 3 when speaking to the amendment now under discussion. I have a couple of queries to which the noble and learned Lord may wish to give his attention. I wonder how this amendment will affect the meaning of mother and father referred to on page 14 of the Bill, in Clauses 26 and 27. In Clause 26 there is reference to,A woman who has carried a child as a result of the placing in her of an embryo or of sperm and eggs".In Clause 27 there is reference to the meaning of father. It seems to me that in both these clauses the reference must be to eggs which have been fertilised. The word "eggs" cannot be used for such eggs as regards Amendment No. 3. Amendment No. 63, which is also tabled by the noble and learned Lord the Lord Chancellor, is to insert the words:of an egg in the process of fertilisation".Under this amendment references to eggs do not include those in the process of fertilisation. I feel that some rewriting may be necessary as regards each of these three instances.
§ The Lord Chancellor
My Lords, first, perhaps I may express my gratitude for the general welcome that this amendment and the others have had. As regards the apples and oranges point, what we have done is to enlarge the definition of apple—if I may use that analogy—to include a time before people might strictly say you had an apple but where the apple was in the process of becoming an apple. That is why the amendment has been tabled in this way.
Secondly, concerning the point raised by the noble Lord, Lord Kilbracken, Amendment No. 3 is intended to make clear that once we are including eggs in the process of fertilisation with embryos, then that is the place for them; they should not be in more than one place. It would be possible to regard an egg in the process of fertilisation as an egg for the purpose of this Bill. Instead, we have put an egg in the process of fertilisation generally into the category of embryo.
For example, in Clause 26 we say:A woman who has carried a child as a result of the placing in her of an embryo or of sperm and eggs".1057 That refers to sperm and does not include an egg at all. In that respect eggs do not include those in the process of fertilisation because they would be included in the word "embryo" in this passage. In the light of the question I was asked, as far as I can see there is no problem with that definition. We are trying to make these three categories mutually exclusive for the purposes of the rest of the Bill.
§ Lord Kilbracken
My Lords, I wonder whether the noble and learned Lord will allow me to ask him again if it is not the case—
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 2:
Page 1, line 11, leave out from first ("embryo") to ("keeping") in line 12 and insert ("applies only to bringing about the creation of an embryo outside the human body; and in this Act—
- (a) references to embryos the creation of which was brought about in vitro include those whose creation was brought about partly in the human body and partly in vitro, and
- (b) references to embryos taken from a woman do not include embryos whose creation was brought about in vitro.
(2A) This Act, so far as it governs the keeping or use of an embryo, applies only to").
§ The noble and learned Lord said: My Lords, this amendment would ensure that where the Bill governs bringing about the creation of an embryo, if the fertilisation process begins outside the body, the embryo is treated as brought about in vitro. This would ensure that if a fertilising egg or subsequent embryo were then incubated in a woman and afterwards removed by lavage, for example, the embryo would be treated as if it had been brought about in vitro and so the consents required by Schedule 3 would be those for an embryo created in vitro, not for one taken by lavage. The amendment also makes it clear that, where the Bill refers to embryos taken from a woman, that does not include embryos whose creation was brought about in vitro.
§ This amendment is intended to deal with the possibility (and it is only a possibility so far) that a fertilising egg might be placed in a woman, be allowed to remain there for a time and then be removed. We want to classify that type of embryo, and this amendment does that. I beg to move.
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 3:
Page 1, line 15, at end insert ("but references below in this Act to gametes or eggs do not include eggs in the process of fertilisation").
§ The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 1. I beg to move.
§ On Question, amendment agreed to.
§ Clause 2 [Other terms]:
The Lord Chancellor moved Amendment No. 4:
Page 2, line 5, leave out ("cryopreservation") and insert ("keeping while preserved, whether preserved by cryopreservation or in any other way").
§ The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to 1058 Amendment No. 5. These amendments take up the point raised by my noble friend the Duke of Norfolk, who sought to extend the definition of keeping embryos or gametes in Clause 2(2) to cover any other method of preservation. While so far as can be seen at present no methods other than cryo-preservation are used to store gametes and embryos, it seems right that the Bill should foresee a situation where new techniques other than freezing may be developed and to provide for that possibility.
§ The Government are happy to accept in principle the changes which my noble friend the Duke of Norfolk has suggested and I hope that the House will agree with these amendments. I beg to move.
§ The Duke of Norfolk
My Lords, I thank my noble and learned friend for this amendment. It meets what I require.
§ The Lord Chancellor
My Lords, I am grateful to my noble friend and I am glad that the amendment meets precisely his concern.
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 5:
Page 2, line 5, leave out ("preserved") and insert ("kept").
§ The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 4. I beg to move.
§ On Question, amendment agreed to.
§ Clause 3 [Prohibitions in connection with embryos]:
The Lord Chancellor moved Amendment No. 6:
Page 2, line 21, leave out ("other species of")
§ The noble and learned Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 8, 73 and 82. These four amendments amend references in Clauses 3(2) and 4(1)(c) and paragraphs 1(1)(f) and 3(4) of Schedule 2 to the Bill to mixing human sperm and an egg from an animal and prohibiting placing a human embryo in an animal. The effect of all four amendments is to remove the reference to another species of animal which is in the Bill as drafted.
§ This was the subject of concern expressed by a number of noble Lords and in particular by my noble friend Lady Elles. This is a drafting improvement which rightly emphasises the particular importance to be attached to the use which may be made of human genetic material to meet the objections which have been raised to referring to humans as a species of animal. While for all I know that may have some degree of biological support, the Government accept that as drafted Clauses 3(2) and 4(1)(c) may be open to misinterpretation. This amendment makes it clear that for this purpose human embryos and gametes are not to be regarded as being on the same footing as animal gametes and embryos. I beg to move.
§ Baroness Elles
My Lords, I should like to thank my noble and learned friend for having listened so carefully to my objection during the Committee stage that humans were being put on a par with animals.
1059 I hope he will feel that we have been restored to our rightful place in the hierarchy of nature. At the same time I am concerned about Clause 4(1)(c) which will still enable a scientist in pursuance of a licence to mix gametes with the live gametes of an animal. We must look at this point seriously because many people will find it totally unacceptable. However, that point does not arise under the amendment before us. I again take this opportunity to say that I am grateful for the definition given by my noble and learned friend.
§ The Lord Chancellor
My Lords, I am grateful to my noble friend. The other point that she makes is a separate one which we may have an opportunity to consider later
§ On Question, amendment agreed to.
§ 3.30 p.m.
Lord Jakobovits moved Amendment No. 7:
Page 2, line 21, at end insert—
("() bringing about the creation of an embryo other than in the course of providing treatment services,").
§ The noble Lord said: My Lords, in moving this amendment I shall also address myself to Amendments Nos. 78, 79 and 80. They have a common theme, although we shall of course vote on them separately.
§ This is the first time that I have been privileged to move an amendment in this House. Perhaps I may be allowed therefore to start on a brief personal note. Some 35 years ago I presented to the University of London my doctoral thesis on a comparative historical study of medical ethics. Since then I have pursued the subject extensively in books and in lectures given in five continents. During those years I have looked for an opportunity to turn theory into practice by helping to shape, as well as studying, lecturing and writing on, medical ethics. This is my chance. The privilege is enhanced by my most distinguished co-sponsors of the amendment, the right reverend Prelates the Bishops of London and of Southwark and the noble Duke, the Duke of Norfolk. We probably represent between us a wider spectrum of inter-denominational agreement than has ever previously sponsored a specific amendment. I believe that this broad consensus reflects public opinion in the country at large; I hope that it will likewise be manifested in your Lordships' vote.
§ I do not subscribe to the slippery slope argument and to the fear that if the law allows two weeks, in practice or in due course experiments will be done beyond the two week limit. Also I do not accept that full human status necessarily starts at conception though I have a profound respect for that view. Nor do I want to see an absolute ban on all embryo experiments. Nevertheless I am profoundly disturbed, as I believe are many inside and outside the House, by the Bill as it stands and the lack of almost any legislative controls on how the embryo is to be produced and then treated up to the first two weeks of its life.
§ When last we debated this issue in Committee I found myself unable to vote either way. In a highly 1060 polarised Division we were given what seemed to me a Hobson's choice of either all or nothing—either no experiments at all, not even on embryos that could never live beyond a few more days, or else virtually indiscriminate licence within the first two weeks after conception to carry out any experiments whatever the circumstances of the embryo's creation, whatever the capacity of the embryo to become a perfectly normal human being and however urgent or flimsy the purpose of the experiment. This surely cannot be right. I therefore want to suggest a new approach designed to narrow, if not eliminate, the gap between the two sides.
§ These are my principal concerns. It is surely repugnant to generate human life solely for the purpose of destroying it; in other words, to produce embryos only to destroy them by experiments. However diverse our views on the exact moment when the embryo begins to enjoy full human status, no one can deny that so long as it has a potential for human life its status is no longer that of a mere egg or mere sperm. An embryo which can develop into a human being must surely be entitled to supreme respect and protection. At the same time one must recognise that those who support certain experiments are equally concerned to promote human life by eliminating the afflictions of infertility and of grave genetic defects which often lead to premature death. Are these two concerns really incompatible? I believe that they can easily be reconciled in a simple and yet effective formula.
§ If we are to allow in vitro fertilisation to go ahead as before there will inevitably be embryos which will not continue developing. These are the so-called spares. In IVF operations there are usually more fertilised eggs than can later be used. Some eggs withdrawn from the mother may not be successfully fertilised, and even with the fertilised eggs some may not be successfully reimplanted in the mother's womb. Yet to insert more than three and risk a high multiple pregnancy could endanger both the mother and her progeny. Therefore there are always likely to be some fertilised eggs which cannot safely be reinserted into the mother. These are bound to die within a few days. I see no reason why strictly defined essential tests should not be carried out on these spares while at the same time respecting the religious and moral susceptibilities of all citizens. Clearly these experiments should themselves be undertaken only for the most urgent medical reasons.
§ The proposed amendments seek first to ensure that no human embryo should ever be generated solely for the purpose of research. The potential of human life must never be used simply as a means in this way. Secondly, they seek to restrict research to such embryos as had to be produced to bring about a live birth. There is then no reason why an excess embryo should not be used in that way once it becomes impossible for it to develop into a live baby. Thirdly, the research to be done on these so-called spare embryos should be strictly limited to vital therapeutic purposes; namely, the relief of infertility and the prevention of the transmission of grave genetic abnormalities.
§ Amendments Nos. 79 and 80 concern the provisions in Schedule 2 listing the kind of research 1061 which will be allowed. Such a list should ensure that human embryos are only used for the most urgent purposes. These amendments would not only exclude eugenic or frivolous motives—such as the preference for boys, for blue-eyed children, or, as has already been suggested, for smaller humans who would reduce the payload of spaceships—but they would also exclude the development of contraceptives from the list of sanctioned experiments.
§ I am not dealing here with the morality of contraception; I am simply making the point that this is not a sufficiently urgent consideration to justify the use of human embryos. As the noble Duke, the Duke of Norfolk, reminded us during the course of the previous debate, the majority of the public apparently agrees with that view. A Gallup poll conducted last December revealed that 57 per cent. of those expressing an opinion said that they would not support embryo research for the purpose of developing new methods of contraception, with only 32 per cent. in favour. It would be both ironic and morally offensive to destroy the most basic substance of life for research to prevent the generation of life.
I now return to Amendments Nos. 7 and 78. Those amendments would require that no licence could sanction the creation of an embryo other than in the course of providing treatment services. Admittedly, a few research programmes may have to be curtailed or modified, but I understand that the bulk of the existing and anticipated vital tests could be continued unhindered. Thus Professor Robert Winston told me that he,
could live with the proposed amendments".
Instead of further dividing the country on an issue of enormous public interest and sensitivity, this approach could to a large extent prevent the tensions of polarisation being further aggravated. Few subjects discussed in your Lordships' House could he of greater gravity or could have more far-reaching consequence than what we are to resolve in this debate. For countless germinating human lives we are to determine quite literally:
To be, or not to be: that is the question".
§ That is the question upon which we have to vote.
§ I am confident that conscience and consensus will be widely identical by both cultivating supreme respect for human life and, at the same time, by giving due weight to relieving the agony of infertile couples and also the devastation of grave hereditary abnormalities. Those paramount objectives need not be in conflict. I beg to move.
§ 3.45 p.m.
§ The Lord Bishop of London
My Lords, I should like to express my support for the amendment moved by the noble Lord, Lord Jakobovits. I also wish to endorse the arguments he put forward. Unlike the noble Lord, I voted against the provisions for research while the Bill was in Committee. I did so for precisely the reasons which prevented him from voting at all; narnely, that the provisions were far too extensive. Therefore, I was told that the right thing to do at that stage was to vote against them.
1062 Nevertheless, I very much welcome this amendment which permits research under much more limited conditions such as he spelt out.
In addressing your Lordships I accept the fact that the House has decided to permit research. However, the question is: upon what terms is it to take place? If we ask that question I believe that we must ask yet again: what is it that we are researching on? I shall not go into long arguments about processes, stages, and so on. I believe that there is a simple answer to that question which matches much of what the noble Lord just said.
However, before I develop that argument perhaps I may remind your Lordships that the Warnock Committee actually burked this issue. It said:Although the questions of when life of personhood begin appear to be questions of fact susceptible of straightforward answers, we hold that the answers to such questions in fact are complex amalgams of factual and moral judgments. Instead of trying to answer these questions directly we have therefore gone straight to the question of how is it right to treat the human embryo".I believe that we cannot leave the matter there. We cannot adopt a purely pragmatic view towards the question of the use that is made of embryos. The idea has been circulated by some people that respect and dignity are given to something by social claims, by social practice, by the attitude of society, and so on. I believe that to be an extremely dangerous line. If you follow it, you will find yourself justifying some of the most inhuman acts in human history. Because a particular society felt it was right to justify the treatment of a particular group or a particular nation in a particular way, did that thereby confer upon that group or nation a less worthy status in the eyes of mankind? It is indeed a very dangerous argument.
I believe that there is an answer to that question, leaving aside, as I said, all the issues regarding processes, stages, and so on. The fact of the matter is that at fertilisation genetically there comes into being a member of the human species and not of any other species. I am not worried, as the noble and learned Lord the Lord Chancellor was when an amendment was recently put forward on the subject, about being called a member of a species. I am a member of a species; namely, Homo sapiens—the human species. We cannot deny the fact that when fertilisation has taken place a member of the human species comes into being, admittedly with great potential, stages to go through, and so on.
As I see it, given that fact, we must ask: what is the right use to make of the embryo? It is not simply a piece of material or a kind of substance which we can use at our will without thought; it has a particular character. I believe therefore that the use which is made of embryos, and in a sense their creation, is to be judged by what we think is a fitting and proper use for beings of the human species. That is why I support the amendment of the noble Lord. I believe that it is proper and right to use embryos for the purpose of relieving infertility and for the purpose of trying to cope with genetically transmitted diseases. Those are functions which seem to me to be wholly consonant with the fact that at fertilisation a member of the human species actually comes into being. If I may say so, it is a slight variation on the noble Lord's argument, but they complement each other.
1063 What is at stake today is the question, given what an embryo is: are the uses to which we are now going to put it consonant with its being a member of the human species? For that reason I support the amendment and I ask noble Lords to do likewise.
§ Lord Soper
My Lords, I rise to oppose the amendment and take a text which seems to me to be apposite and immediate. The Warnock Committee accorded a special status to the early human conceptus, as they described it, implying that its use for non-therapeutic research required "strong moral justification". I shall address myself to that strong moral justification which lies behind the comments that have already been made and the various claims that have been asserted.
I believe that it is impossible to find a moral judgment which is perfect and immaculate. In most cases—in fact in all human cases where we have to make a choice—the choice is a comparative one. The virtues that attach to properly conducted research are preferable to the proposition that to interfere with this process, even at an initial stage, is wrong.
Noble Lords will perhaps allow me to take the matter at a so-called simple level. One of the most marvellous parables is that of the Prodigal Son. I suppose that most people would regard it as comparatively simple, and it involves the conduct of an ever-loving God. But embedded within that parable are the very problems which now confront us in this debate. I have considerable sympathy for the elder brother. He had a perfectly reasonable case, it seems to me. I have an even greater sympathy for the fatted calf. Whereas if he had been a chicken he could have made a contribution, as a fatted calf he was committed, finally and utterly, and he had no say in the matter.
It seems to me that there is no issue which is so clear cut as to make any decision simple and directed towards the proposition that some things are wrong and other things are right and that, if one has the eye of faith or comparative intelligence, one can find the difference. I remember on one occasion a long time ago asking the redoubtable Dean Inge whether there was anything that he believed to be utterly wrong. He said, "Yes, mocking the insane". That was a curious reply but one which was satisfactory to my own thinking.
I therefore approach the question feeling that it would be better to conduct research, even where the effectiveness of that research might involve many mistakes, than to continue with a prohibition which rests upon the proposition that research on the embryo, the element that now goes by various descriptive names, is prohibited for those who follow the moral path which they believe to be right.
For some 65 years I have been engaged in social work, however imperfectly I conducted it. I have been more than ever convinced of the almost intolerable suffering which, by intelligent scientific and medical means, could in some cases be obliterated and in most cases be alleviated. I approached this matter not on the basis of some academic proposition about the ultimate value of a 1064 piece of fetal jelly at a certain stage. We have used words like "life" and so forth. Perhaps in passing I may remind myself that the concept of destroying fetal jelly or, shall we say, destroying this particular stage of development, seems to me peculiar in the light of the Christian concept of eternal life. I see no reason to suppose that we have the capacity to destroy. We have very little capacity so to do. The easy use of words like "destruction" seems to me to be inapposite and misleading.
Therefore I make a very simple proposition. I am entirely of the opinion that frivolous interference with the processes of "genetation" and so forth are wrong and should be repudiated by all who have a moral conscience. However I make a plea that, in this imperfect world where it is impossible finally and utterly to practise righteousness, compassion is preferable to accuracy of scientific development and even to the prospects that lie ahead for those who are prepared to make investigations into this field.
That is a simple proposition, one which derives ultimately from an experience that life is much richer than thought and that in one sense compassion compounds and puts the crown upon knowledge. Without it, whatever may be our expertise, we are not fully entitled to think of ourselves as the human beings of which the first creative stages are to be found in the subject of your Lordships' debate this afternoon. I make that plea. I believe that it is genuine and I earnestly hope that it will be accepted.
§ Lord Walton of Detchant
My Lords, I fully appreciate the reasons why the noble Lord, Lord Jakobovits, and his three supporters have proposed the amendment tabled in their names, I was deeply moved by the sincerity with which their case for the amendment was presented. I recognise that their proposals and arguments are likely at first sight to be attractice and persuasive to many of your Lordships. It sounds superficially attractive to agree that research should be conducted only on those embryos which have been created by fertilising the eggs of an individual woman with, let us assume, her husband's sperm but which prove to be surplus to requirements when the time comes to insert some three of them into her uterus in the hope that one, or at the most two, will implant and develop.
I realise that even those of your Lordships who have been persuaded of the untold future benefits to human health and wellbeing which research in this field will make available to suffering mankind may nevertheless feel instinctively opposed to the idea of creating a conceptus or embryo by such a process of fertilisation solely for the purpose of undertaking research without having the objective of using it to benefit an individual patient.
The noble Lord, Lord Jakobovits, has quoted Professor Robert Winston's view that, for his own research, he believed he could live with this amendment. I am not sure that that is right. Knowing the details of Professor Winston's research, I believe that it depends entirely on how one proposes to interpret the wording of the amendment,in the course of providing treatment services".Professor Winston has given me permission to say that he sees serious and significant problems for 1065 other equally important medical research, of which there are three examples. The first is crucial research into the mechanism of fertilisation itself; the second is equally crucial research on chromosomal abnormalities which cause monstrous malformations or miscarriage. This research could only be investigated by deliberately fertilising normal eggs from normal donors with no intention of providing a treatment service. Thirdly, the so-called polar body biopsy—that is, removal of chromosomal material from the egg before fertilisation—may eventually prove to be an effective way of avoiding embryo biopsy. However, this could never be justified ethically unless prior validation had been made by deliberately fertilising such biopsied eggs not in the course of providing treatment. These are reasons why Professor Winston would, I am given permission to say, not feel that this amendment was in the interests of mankind as a whole.
To adopt the stance of promoting and accepting the amendment is, I agree, a wholly reasonable and understandable initial emotional response. But it is one which I beg to suggest cannot be justified on closer examination, in my view, whether on moral, theological or scientific grounds. Indeed, if this proposed amendment were to become law, it would, in my opinion, effectively prevent much work now acknowledged by all scientists working in the field to be essential in order to improve the efficacy of in vitro fertilisation and implantation of the conceptus—work concerned with studying the reasons why chromosomal abnormalities may devolop and, above all, some of the current research on pre-implantation diagnosis designed to prevent the birth of children with potentially fatal or severely crippling inherited disease.
Much of that research could not possibly be carried out on spare embryos, which are in any event in short supply and are likely to become even more scarce when every IVF centre has a freezing service so that spares can be stored for a couple's future use. Much of this vital research can only be carried out on donated eggs or oocytes freely given by donor women and fertilised in vitro for research purposes. If that procedure were to be banned, about three-quarters of the exciting and potentially beneficial research programmes which I and others discussed on Second Reading and in Committee on this Bill would no longer be possible, thus frustrating the hopes and lively expectations engendered in the hearts and minds of those many patients and their families in whom serious inherited disease, caused by a gene now localised and characterised, is known to be present.
I could offer your Lordships innumerable examples of the ways in which this amendment, if it became law, would effectively terminate many existing programmes of research which have been approved after the most careful and critical scrutiny by the Interim Licensing Authority. The amendment would also make it illegal to follow through some of that research on pre-implantation diagnosis of inherited disease which is now on the verge of developing methods of disease prevention which were undreamed of only a few short years ago. But perhaps one or two simple examples may suffice.
1066 First, it is of course clear that without the painstaking preparatory work of Robert Edwards and Patrick Steptoe in the laboratory on the actual technique of in vitro fertilisation, followed by careful examination of the development and viability of the embryo, the ultimate step of inserting it into the mother's uterus could never have been undertaken and Louise Brown and thousands like her throughout the world would never have been born. Even now similar laboratory studies are essential to advance current methods. They simply could not be performed on the small numbers of spare embryos likely to be available. Such research is needed in order to study the metabolism, or chemical behaviour, of the dividing embryo in its early stages and the development of its chomosomes as well as the production of the so-called implantation hormone, which promotes implantation in the uterus. All this work, which is now proceeding apace, will steadily improve the efficacy of in vitro fertilisation. This field, like many others in medical science, is one in which it is a truism to say that today's discovery in basic laboratory science is tomorrow's practical development in patient care.
Secondly, let me turn again to the example I have mentioned before of Duchenne muscular dystrophy and explain why in my view the opinion expressed by the noble Lord, the Chief Rabbi about the prevention of genetic disease and the ways of achieving that would not be possible if his amendment were to be passed. I could equally have chosen many other devastating inherited disorders to support my case, such as cystic fibrosis. A carrier female of the X-linked recessive gene responsible for the progressive and ultimately fatal form of muscular dystrophy, having seen the tragic effects of this crippling disease in one or more of her male relatives, knows that if she has a son he will have a 50:50 chance of developing the disease and that a daughter would have a 50:50 chance of being a carrier.
Many such women have already undergone amniocentesis or chorionic cell biopsy on becoming pregnant and have had one or more abortions of male infants rather than face the prospect of having a dystrophic son. However, as I said in Committee, they now see the exciting prospect of donating eggs or oocytes, of having them fertilised in vitro by their husband's sperm, of allowing the embryo to develop to the blastocyst stage at five or six days and then of having a single cell removed by biopsy from the outer layer from which the placenta and membranes will form. From research that has already been carried out we now know that this procedure is wholly feasible without detriment to the subsequent development of the embryo. However, the next crucial step of extracting the DNA from that single biopsied cell in order to determine whether or not the dystrophic gene is present is the one upon which the carriers pin all their hopes as, once that major leap forward is achieved, as it certainly will be within the next two years, an embryo carrying the gene will be allowed to degenerate naturally while those in which it is not present can be implanted, thus allowing the carrier woman to bear only unaffected sons and non-carrier daughters.
However, the scientific techniques needed to achieve this and comparable major advances in other 1067 diseases as well, bringing into reality the prospect of preventing the birth of children with many potentially fatal conditions, are difficult and complex. Much patient and meticulous laboratory work remains to be done before the unaffected embryos can be implanted with total confidence that this will be successful. Carrier women fully understand this position and are now willingly donating eggs for fertilisation in order to validate the method. They recognise that some time must yet pass, and much laboratory research must still be done, before implantation of the disease free conceptus will be possible. Such crucial and life saving advances could not be achieved if research were to be restricted to spare embryos obtained from women who were not carrying harmful genes but undergoing IVF for other reasons. I believe that to carry out research on fertilised eggs derived from such women without the intention of inserting them into their uteri would not be in the spirit of the amendment as proposed. Those are the principal reasons why I must urge your Lordships to reject this amendment.
Finally, it is with some trepidation that I turn to a number of the moral and perhaps even theological issues raised by the amendment. It may be thought remarkable that a doctor should have the temerity to do so in opposition to the case argued so sincerely by the noble Lord the Chief Rabbi, two right reverend Prelates and a notable Roman Catholic layman. I hope I may temporarily purloin a phrase so often used by many noble and learned Lords. With the greatest possible respect, I find it difficult to see the logic underlying the amendment. If the future statutory licensing authority is to be allowed to grant licences for research as well as for treatment and storage of embryos up to 14 days, as your Lordships agreed by a very large majority in Committee that it should, that can only be because the majority recognised a strong moral justification for such research in view of the irrefutable scientific evidence indicating that it will contribute to the more effective alleviation of infertility and to a progressive decrease in the number of children being born in the future with severe handicap or with the prospect of suffering from progressive and ultimately fatal disease.
As that eminent moral theologian the Reverend Gordon Dunstan has pointed out, once it has been accepted that such purposes and potential benefits are of sufficient moral worth to justify using the early human embryo for research, no moral distinction seems sustainable between those that become spare in the course of treatment of an individual woman and those that are generated specifically for the purpose of a research project which will have the clear objective of ultimately making such treatment more effective for many women in the future so that they may see that their children produced through IVF will be normal. Surely what may be justified for the spare embryo must equally be justified for the others.
One major objective of the Bill now before your Lordships' House is to establish a statutory licensing authority, as I have said. We surely cannot frustrate 1068 the objectives which will allow that authority, and indeed will compel it, to have the duty of granting licences for research only after the most earnest and searching scrutiny of the proposals put before it, and with a series of very proper and clearly defined safeguards which are specified in the Bill.
If enshrined in formal legislation the amendment that we are now considering would be infinitely more restrictive. It would be more damaging to developments in the treatment of the infertile and those at risk from genetic disease than I believe its proponents would wish. Above all it would frustrate the well-founded prospects of many who believed, when in Committee your Lordships voted overwhelmingly in favour of research, that they could begin to see that light of long-awaited hope brightening at the end of the tunnel of despair which they have inhabited for so long. I do not believe that we should or indeed could let them down. I urge your Lordships to reject the amendment.
§ Lord Ennals
My Lords, although I speak from this Dispatch Box I speak for myself and do not seek to speak on behalf of those behind me.
It was a crucially important decision that we took on 8th February, by 230 votes to 80, to proceed with research. It would be quite wrong at this stage to undermine, as I believe we should be undermining, the hopeful prospects for such research which led us to decide to cast our votes as we did.
In our debate on 8th February we faced up to three issues. We placed great importance on the value of human health and happiness in two particular fields. Those concerned research to tackle the massive problems of infertility which affect about 10 per cent. of couples and to reduce the number of handicapped babies who are born. So far as I know, none of those who argued the case presented by the noble Duke, the Duke of Norfolk, felt that there was something wrong or immoral about the research and medical intervention which led to the birth by in vitro fertilisation of Louise Brown. That was accepted by all of us as a great moment.
Secondly, we were all concerned that it was vital that there should be a statutory licensing authority. We believed that that authority should be endowed with powers to regulate and to take decisions to ensure that nothing is done in breach of the principles set out in the Bill. Most of us accepted the views presented by the noble and learned Lord the Lord Chancellor about the powers and the composition of the licensing authority. We should do nothing which would undermine those powers of judgment in terms set out in the Bill. Nor should we do anything to undermine the research which I mentioned in my first point.
Surely the most fundamental reason for taking that decision concerned the issue of when life begins. None of us can forget the powerful moral arguments of the most reverend Primate the Archbishop of York who, sadly, is not able to be with us today. We rejected the concept that from the moment of conception the single cells, most of which will never develop into a child in embryo, should be seen as a 1069 human life to be given the same protection as a human being. We concluded that the moment when an embryo should be given the special protection of childhood does not come until after separation and the emergence of the primitive streak when scientists can determine which human tissues, even though minute and invisible to the naked eye, are likely to develop into a fetus and eventually a child.
I submit that having taken that fundamental decision there is no logic and no moral justification in saying that we shall take the best of all worlds and use only spare embryos and none other. I doubt whether some of those who were much impressed—as anyone would be—by the powerful argument presented by the noble Lord, Lord Jakobovits, would have wanted to proceed if they had known that the research work would be impaired. That is the fundamental issue.
If we are dealing with an issue of human life or with a moral problem, then, rather than attempting to find a middle way, I believe that we ought to reject the amendment. The line of reasoning which puts a protective premium on scarcity cannot be recognised as a moral argument. If the ethically acceptable ends of alleviating infertility and avoiding handicap are to be promoted, the sooner research is enabled to achieve a successful outcome the better.
I have also heard that research in institutions across the land would be seriously damaged if the amendment were to be carried. Therefore I hope that, in the spirit in which we took our decision on 8th February, we shall not accept the amendment at present before your Lordships' House.
§ 4.15 p.m.
The Earl of Halsbury
My Lords, it is with regret that I find myself at issue with the right reverend Prelate, my bishop, and my noble friend the Chief Rabbi. Perhaps I may begin with the Book of Job which ends with a voice from out of the whirlwind counselling Job not to try to comprehend the incomprehensible, whose status is affirmed in the Athanasian Creed.
Something that I find incomprehensible about the cosmos in which I live is the strange way in which a myriad potentialities are extinguished on the way to a single actuality. That is good Artistotelianism. An oak tree grows for perhaps 500 years. During those 500 years only one acorn can survive to replace it. My noble friend Lord Zuckerman has traced very descriptively the way in which the multiple millions of oogonia gradually disappear in the course of a woman's fertility cycle until after puberty only some 500 of them turn into ovarian follicles. Most of those are never fertilised and many more are lost in the process of descent into the uterus and in the other accidents that can occur. Therefore I confess myself to be up against one of the incomprehensible mysteries of this life.
What right have we to interfere in those probabilistic processes? Just as my noble friend the Chief Rabbi at one time delivered a lecture on medical ethics, I once delivered a lecture to the Defence College on the ethics of probabilistic processes. I do not know whether I advanced the 1070 subject. However, both of us struggled with a very difficult subject.
Perhaps I may turn from the ethics and morality of what we are discussing to its purely legal aspect. I believe that the Bill as it stands will make good law. I believe that the Bill as proposed for amendment will not make good law. As it stands it will receive the co-operation of the medical profession; as amended it will be a temptation to cheat. How can one tell in the case of a consenting woman whether a research worker gave her a dose of luteinising hormone in order to enable her to become pregnant or in order to use the resulting ova for research? It is an invitation to duplicity and the corruption of the medical research workers who want to do the work. They ought to be safeguarded against corruption.
I believe that that is the determining factor. I could argue with the right reverend Prelate or my noble friend until kingdom come about the morality of stochastic processes without getting any further. But I believe that the Bill as amended will be bad law.
§ Viscount Caldecote
My Lords I voted for research on 8th February, but I should like to raise one question which seems to me to be an important outstanding issue. I have great respect and admiration for the sincerity of the noble Lords, Lord Walton of Detchant and Lord Ennals, and the noble Earl, Lord Halsbury. However, this is a deep and difficult issue as are so many in the Bill.
If we reject the amendment, how do we regulate the supply of embryos for research? Is it not repugnant? It must be repugnant to all of us that there should be any kind of commercialism or business in the supply of embryos purely for research. The noble Lord, Lord Ennals, shakes his head. I do not believe that he would want to have a business or people paid for that. He agrees with my point. However, the matter does not appear to have been tackled in the Bill. I wonder whether, before accepting or rejecting the amendment, we should—
§ Lord Ennals
My Lords, the noble Viscount was kind enough to notice that I shook my head. Surely the Bill already prohibits any profiteering in that sense.
§ Viscount Caldecote
My Lords, that is correct, but the Bill does not appear to tackle the problem of how to regulate the supply of embryos to be created solely for research. Would it not perhaps be a good way of proceeding to ask my noble and learned friend the Lord Chancellor whether he will give further consideration as to how that matter might be dealt with and as to how, if at all, it is proposed that the regulation of the supply of embryos purely for research should be dealt with? Is it to be left to the licensing authority or is Parliament to play a part in legislating to deal with that problem? It appears an urgent issue. At the extreme, it would be repugnant to have any kind of industry or business arising from the supply of embryos.
§ Lord Bridge of Harwich
My Lords, sitting next to him, I feel almost churlish in being unable to accept the gracious invitation issued by my noble friend Lord Jakobovits to join in the consensus. I do not believe that the subject is capable of consensus, and I feel obliged to oppose his amendment.
The starting point for the debate must surely be that the Bill as amended in Committee gives its full approval in principle to research upon the human embryo up to 14 days from the moment of fertilisation. Of course, it must be research for approved purposes. And it must be appropriately controlled and supervised research. However, this is no time to go back on the arguments which so large a majority found compelling in Committee and to reopen the issue of whether it is a moral imperative to treat the embryo from the moment of fertilisation as having the status and attributes of a human person.
Despite that premise as the starting point of the argument, the effect of the amendment, if carried, will be to create a new and grave criminal offence. That point has not yet been observed in the course of the debate. Its effect will operate by way of Clause 36(1)(b) of the Bill which provides:A person who … does anything which, by virtue of section 3(3) of this Act, cannot be authorised by a licence,is guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding ten years or a fine or both".The amendment proposed to Clause 3(3) would make the creation of an embryo specifically for the purpose of research something which, by virtue of that subsection, could not be authorised by a licence. Accordingly, if the amendment is carried into law, any research scientist who creates an embryo specifically for the purpose of furthering his work of research will be guilty of a criminal offence punishable on indictment by a maximum term of 10 years' imprisonment.
I believe that I understand the philosophy which underlies the amendment. The technique of in vitro fertilisation requires, as I understand it, for the purpose of endeavouring to fertilise an infertile lady, the production of a greater number of embryos than will ever have any chance of implantation; hence the spare embryos. It is said to be acceptable that approved research should be carried out on those spare embryos because, when they came into existence, they had the theoretical possibility of implantation and eventually of growing into human persons. On the other hand, if embryos are created specifically for no other purpose than to be the subject of research, they enjoy no theoretical possibility of ever growing into human persons.
Even if I were a moral philospher, which I am not, I should regard that distinction as somewhat esoteric and recondite. However, the question is not the validity of the philosophical concept, but whether it provides an appropriate foundation for the creation of a serious new criminal offence. My understanding is that the proper function of the criminal law is to sustain the fabric of society and the values of society. We need the criminal law to protect our persons, our property and our essential freedoms. We need the criminal law to protect the environment and to 1072 ensure the appropriate working of the innumerable social institutions on which the well-being of society depends. The kind of behaviour against which criminal sanctions are and should be directed is behaviour which attacks, threatens or undermines our essential social values.
Over the greater part of the field of criminal law, social and moral values go hand in hand, but they are not universally coincident. In our complex society today there are many criminal offences, most of which are relatively minor, which attract little or no moral obloquy. There used to be on the statute book many criminal offences which got there originally under the canon law purely because the criminal behaviour was originally regarded as morally abhorrent. However, the whole tendency of modern legislation has been to remove altogether from the criminal calendar those offences which, although they may still be regarded as offensive to the law of God, are not seen as in any way anti-social; it is essentially at anti-social behaviour that our criminal law is and should be directed.
Two admirable examples in recent times which immediately spring to mind are the decriminalisation, if I may use that word, of attempted suicide and of homosexual activity between consenting adult males in private. Many still regard those activities as morally abhorrent, but they are no longer criminal because they are not anti-social activities. What will the man in the street who is not a moral philosopher say when he hears that a scientist, engaged on valuable and approved research, who finds himself frustrated by the lack of a spare embryo, has created an embryo for the purpose of his research? Will he say that that is a heinous, anti-social activity? Will he say that a place should be found in our over-crowded prisons for that wicked scientist to serve out his sentence? I suggest that he will say that the creation of such a criminal offence is quite incongruous and that the creation of incongruous offences does nothing but bring the criminal law into disrepute.
The moral scrupulosity which distinguishes between the propriety of research upon a spare embryo and the iniquity of research upon a specifically created embryo may be an admirable subject for debate in the senior common room, but it has no place at all in the dock at the Old Bailey.
§ 4.30 p.m.
§ The Duke of Norfolk
My Lords, I of course appreciate the decision that noble Lords took on Clause 11 on 8th February, when we voted 80 to 234 to allow experimentation on human embryos. I am not, so to speak, kicking against that decision in any way, but the reason I support the amendment tabled in my name, which was opened by the noble Lord, Lord Jakobovits, is that I believe that it is a method of limiting some of the things that I dislike happening.
I am in no way unconscious that we live in a pluralistic society. I am not trying to force narrow ideas on the nation or on your Lordships' House. I believe—some of your Lordships also believe—that human life starts at fertilisation. The right reverend Primate the Archbishop of York, who is 1073 unfortunately not here today, explained the matter otherwise. The most famous embryo that came into this world was the Christ child. I believe that when Christ was conceived in the Virgin Mary's womb that took place on day one. It did not have to wait until D plus 14—to use military terms—for that to be the beginning of Christ. I stand by that belief. I believe that human fertilisation starts on day one.
I listened with great interest to my noble friend Lord Walton to whom I have talked in the corridors. I am in no way a doctor. I am an ordinary Member of your Lordships' House. In Committee at col. 959 of Hansard of 8th February he talked about the way in which by means of embryo biopsy and amniocentesis researchers can discover whether an embryo has something wrong with it. The idea is that if an embryo is discovered to have one of the genetic diseases, which have been mentioned so often, at the eight or 16-cell stage, one would not implant that embryo. However, my noble friend has not at any stage said that a cure could be found through that method. I see him shaking his head. I am not a doctor, but no cure has been found by embryo biopsy or amniocentesis.
It is wonderful to know whether an embryo is diseased, in which case one would not implant it. We want to discover how to cure those diseases. I believe my noble friend would agree that all the people who have those genetic diseases will be cured, only when a person with the disease can be experimented upon. I have a "gammy right eye" in Yorkshire terms because I have glaucoma. That appeared only five years ago. It was inherited from my noble father. That would never have been cured on 21st July 1915 when I was born. It can be cured only as a result of experimenting on people who have similar problems.
I beseech your Lordships to appreciate—I believe that my noble friend Lord Walton agrees with me—that we are trying to cure those diseases by research on people who have them. We will not cure them by experimenting on embryos.
Professor Robert Winston, who kindly took me around his laboratory at Hammersmith, has agreed that he could operate under the terms of the amendment. I commend it to your Lordships because it will cut down the number of embryos that will be created. I dislike—I repeat it again—the idea of creating embryos in order to experiment on them. That is the negation of the Hippocratic oath which the House should uphold. We should not experiment on one human being to cure other human beings. I strongly support the amendment.
§ Lord Hailsham of Saint Marylebone
My Lords, I rise once again on this extremely difficult matter to put forward what I believe possibly to be—I hope that I shall be forgiven if I confess it—a simpler point of view than some of those that have been put forward in the course of the debate. I came into the Chamber this afternoon to hear what the noble Lord the Chief Rabbi would say, but I also came with certain views which I have expressed in the past.
I start by saying something which I learnt when I was Lord President of the Council responsible for 1074 scientific research. One cannot tell whether research will be successful. If one knew that it would be successful that would be because one knew the answer in advance and therefore the research would become unnecessary. That is something one must always bear in mind when discussing research in any form. It is something which my noble friend the Duke is rather apt to overlook.
I believe that the second point I wish to make is beyond dispute. All the activities which are under discussion in the Bill are at the moment absolutely legal; that is to say, no offence is committed by any of the activities which are under discussion. We now face a number of problems. The first way of approaching the matter is to do nothing at all, in which case the activities will remain absolutely legal, without any restriction except those imposed by a purely voluntary form of discipline. I believe that that point is beyond dispute.
We discussed this matter fully in Committee. There was of course the road of total prohibition or substantial prohibition. That point was forcefully and sincerely argued. We turned our back on that proposal by an overwhelming majority. We also considered doing nothing. The Government were universally supported in turning their back on that second possibility. We decided that there must be some restraint or discipline, backed by criminal sanctions, imposed by some form of measure more or less along the lines of that which is now proposed.
The road down which we decided to go—again I repeat by an overwhelming majority—was a strict and restrictive form of licensing. We are now faced with a problem, which has been raised by the noble Lord the Chief Rabbi, as to whether we should take out of the licensing system a particular form of activity and put it back into the total prohibition system. That is the question that we shall have to consider. It is the only question that we have to consider. When I heard him speaking—previous doubts notwithstanding—I found myself totally on the side of my noble and learned friend Lord Bridge of Harwich when he said in effect that the amendment is totally unenforceable. Alternatively, if it turns out not to be unenforceable, I should have found myself of the same opinion as the noble Lord, Lord Ennals, who expressed a personal opinion from the Front Bench opposite.
I come to that conclusion for this reason. I do not know how one could enforce such a provision effectively. If one could enforce it effectively, I am quite sure that it would not be the wish of this House, if the amendment were passed, to impose a penalty of 10 years' imprisonment on a scientist who conscientiously did what was prohibited. I come therefore to the conclusion that the noble Lord, Lord Ennals, was right: if it is enforceable it would be to turn our back on the decision at which we arrived in Committee. I believe that that is the only possible answer to the question.
With respect to those who have said perfectly sincerely that they accept the decision of noble Lords at Committee but that they remain of the same opinion that they held before on the absolute moral question, I accept the sincerity of their view that 1075 what is proposed is a half-way course. That is not necessarily a wise course to take. It appears from what the noble Duke has said, and from what the right reverend Prelate the Bishop of London has said, that they are fundamentally of the same opinion as they always were. I take very strongly the view that it would be utterly wrong to prohibit such matters and, in an unverifiable field—and let us face the fact that the field is largely unverifiable, whatever one's view about it may be—to impose criminal sanctions on those who act responsibly and in accordance with their conscience and within the terms of a licensing system as restrictive as this. That is the view that I find myself holding.
Having said that, the conclusion inevitably is that although the amendment is well meant, it is not a right way to behave. The right way forward is to leave it to the licensing authority to control such matters in a responsible way. That is the right way because even those of us who are qualified, which I am not, do not know exactly the turns that research will take. That must depend upon a very careful analysis of fact. The crude bludgeon of a 10 years' maximum sentence of imprisonment is I believe not the way forward. To take it, I believe, would be to go back on the decision that we took at Committee stage.
I come to that conclusion after hearing the speeches, and without having made up my mind quite what was involved in all the issues that were being discussed. I should like to say, since I believe that we all have a duty to say it, that I do not start from an agnostic position religiously. I believe exactly what the noble Duke has said about the incarnation of the founder of my religion and his. I believe, whatever anyone else may think, that we have the same religion although I am excluded from his altars. I believe exactly what he believes to the extent that God can do it any way he likes. I frankly do not know what road he took to create the incarnation of the founder of my religion and that of the noble Duke, or what moment he took to do it. I do not believe that anyone else does either.
§ The Duke of Norfolk
My Lords, before the noble and learned Lord sits down, perhaps I may say that I totally agree that we have the same religion and the quicker we get together the better.
§ Lord McGregor of Durris
My Lords, the Bill has compelled many lay Members of your Lordships' House to make considerable intellectual efforts to understand points of view with which they disagree. I have done my best to understand the point of view that underlies the amendment proposed by the noble Lord the Chief Rabbi. I read several times the essay that he wrote on the status of the embryo in Jewish tradition in a book of essays edited by the Reverend Professor Gordon Dunstan, to whom the noble Lord, Lord Walton, has already referred. I should like to state two difficulties that I have with the position 1076 stated by the noble and reverend Lord the Chief Rabbi.
Perhaps I may quote some sentences from his essay.There is no moral objection in principle to genetic engineering or manipulation provided such deliberate interference with the building blocks of life serves exclusively well tested therapeutic purposes to eliminate physical or mental defects caused by hereditary or genetic disorders. The elimination of any abnormality or defect to ensure the health of the children to be born is morally no different from any other medical or surgical intervention to overcome nature's disabilities. But this licence does not cover acts of intervention in nature lacking therapeutic justification".My first difficulty is to understand the distinction between treatment and research. We were told by a number of doctors and scientists during Second Reading and during the debate on Clause 11 that therapy which had not been validated by research or was not continuously backed by research was an immoral procedure to practise upon patients. I simply cannot understand how we can have the one without the other.
The other difficulty is this. In the tradition represented by the noble Lord the Chief Rabbi, personality does not arise until birth. It is on that ground that the noble and reverend Lord permits research upon a certain category of embryo. On his premises, to deny that to specially created embryos is to treat them as having a personality not attributed to embryos used for treatment. I find it extremely difficult to follow that argument.
I also find extremely difficult the fact that moralists can spend a lifetime in applying ethics to medicine, as has the noble Lord, Lord Jakobovits, and the Reverend Professor Gordon Dunstan, who was one of the main shapers of modern medical ethics, and that they can come to the opposite conclusion. In plain terms he says that, on moral grounds, he cannot make the distinction made by the noble Lord, Lord Jakobovits.
I now wish to turn to Amendments Nos. 68, 69 and 70 to which no one has yet paid attention. They deal with contraception. The noble Lord, Lord Jakobovits, explained that his amendment dealing with contraception, also tabled in the names of the right reverend Prelates the Bishop of London and the Bishop of Southwark, is put forward on the ground that contraception is not sufficiently urgent to justify its pursuit in the course of embryo research. I find that a difficult argument to sustain.
Contraception is of the utmost importance to the whole population which, for the past 100 years, has taken control of its own fertility. It has done so income group by income group as it has reached the point at which unrestricted childbearing can be seen to be lowering an achieved standard of living. We are a society in which the aim of the vast majority of parents is a small family of consciously conceived children—
§ Baroness Phillips
My Lords, I hope that the noble Lord will forgive me, but if we wander all over the place and go to another amendment we shall never get anywhere. Can we have some common sense from ordinary people rather than lectures from 1077 professors who, after all, have spoken for a long time and have not advanced the case for the amendment at all?
§ Lord McGregor of Durris
My Lords, I understood that in introduction the noble Lord, Lord Jakobovits, said that he was speaking to Amendments Nos. 68, 69 and 70 and I am most concerned that they should not be neglected in the discussion. I am sorry, it was Amendments Nos. 78, 79 and 80. If the noble Baroness will permit me, I shall continue with my lecture, but it will be exceedingly brief.
Contraceptives were first developed when the vulcanisation of rubber was discovered with the synthesising of quinine. Those available from the mid-1880s to the early 1960s were, to put it bluntly, messy, unreliable in certain ways and a denial of any spontaneity in lovemaking. At the Lambeth conference in 1958 the Church of England, two of whose bishops have put their names to the amendment, welcomed a document entitled The Family in Contemporary Society. It stated, first, that the Church's belief was in two categories of coitus; relational coitus and procreational coitus. It also stated in the document that contraceptives were a requirement upon the Christian conscience as the essential basis of relational coitus.
We now have a situation in which, for a variety of reasons, many sectors of the population are returning to the contraceptives used from the 1880s to the end of the 1950s. I believe that any research which produces methods of contraception which are reliable and which enable civilised sexual relations to be established between husbands and wives—between whom the vast majority of acts of sexual intercourse occur, despite what we read—is a great good to be welcomed. It would be a social tragedy if the possibility of new types of contraception were prevented. They would inhibit fertilisation and on that ground cause little in the way of theological difficulties. I hope that noble Lords will reject the amendments.
§ Lord Denham
My Lords, I wish to intervene at this stage because the House is getting a little out of order without meaning to. I know that the noble Lord, Lord Jakobovits, referred to Amendments Nos. 79 and 80. However, those grouped together, and subject to any vote, are Amendments Nos. 7 and 78. Therefore, perhaps your Lordships will deal with only those amendments and discussion on later amendments can take place when they come before the House.
§ Lord Kennet
My Lords, I shall vote for the amendment for exactly the reason given by the noble Lord, Lord Jakobovits, and the right reverend Prelate the Bishop of London. I shall do so because it will tend to reduce the number of fetuses allowed to die under experimentation and will entirely dispose of the extra obnoxious category of those generated solely for the purpose of being extinguished.
If, as was said by the noble and learned Lord, Lord Hailsham, the penalty for infringing the provisions of the Bill as amended will be excessive, by all means 1078 let us consider reducing the penalty in respect of infractions of the clause.
I shall vote for anything which reduces the number of early embryos destroyed for the following very simple reason. I believe that as a layman in a sea of science you have to seize hold of the things which seem to you most comprehensible and obvious. To me it is this fact that, from the time of conception to the time of death, the genetic makeup of a human individual is unchanged. It is at the moment of conception what it will be at 14 days, at birth, at maturity and at death. To me that is a sufficient definition of human individuality. That seems to me something which can be easily understood and when understood, is hard to vote against.
I believe that the House will bear in mind, and I am sure that most noble Lords have read, the Gunning Report, which is a most useful combination of simple charts drawn up for the Government by Dr. Gunning of what the laws of other democracies say about this. I shall not try to convey that because it is complicated and there is a lot of small print. However, many countries which have already legislated on in vitro fertilisation and embryo research have adopted precisely what we have called the Chief Rabbi/Bishop of London position; that is, only research on spare embryos. Some of those countries which have not yet legislated are facing Bills which contain that provision.
§ 5 p.m.
§ The Lord Bishop of Southwark
My Lords, I should like to say a few words as one of those whose name is attached to this amendment but from a slightly different position. I am not what the noble and learned Lord, Lord Hailsham, described as an absolutist. If your Lordships look at the voting lists in Committee, I voted on the other side. Therefore, your Lordships may wonder why I am speaking for this amendment at all. The reason is that I believe that some of the arguments which needed to be heard and which are clearly emerging in this debate did not emerge earlier and I believe that they are very important.
I should like to rehearse one or two of them and to draw together some of the points made already by your Lordships from varying points of view. It is extremely painful—and I mean this very personally—to stand here and seem in any way to be opposing research. I found that a very difficult decision in Committee and I still find it a very difficult decision. However, I wish to make the obvious but necessary point that I do not believe that any Member of this House would take the view that all kinds of research are justified in any circumstances. Therefore, we all draw lines. The question is, on what basis do we draw lines? That is the reason why, for example, the Germans have voted against research. They have bitter experience of lines not being drawn in the right places. We allow and use a great deal of animal research because we feel that it would not be appropriate to use human beings. Therefore, I do not believe that we can altogether escape the question of the moral status of the conceptus.
1079 Of course, we get into difficulties here. The most reverend Primate the Archbishop of York made a very powerful speech arguing that the moral status of the conceptus is different to that of the embryo at a later stage, and so on. He argued very strongly in favour of the progressive view. What needs to be said is that in the end you have to say, even of the conceptus, that it is a human conceptus. It is not some other kind of conceptus. On that we surely all agree, and that immediately introduces a distinction which has some moral significance.
I must part company very reluctantly with the noble Lord, Lord Walton, with whom I do not wish to part company more than I can help. However, he says that there is no moral distinction between those embryos or conceptuses which are spare and those specifically generated for research. To my mind the difficulty is that there is a moral distinction to be made which concerns the intention for which those embryos or conceptuses were created. That is a very fine distinction and I am aware that that has to be balanced against the whole question of the moral worth of the research being carried out. However, that fact must be faced and wrestled with. I do not believe that we should let ourselves off the hook too easily by saying that it does not really matter or that it is insignificant or that it is of no account in the first 14 days. That cannot be true and many noble Lords have made that point very clearly.
On the question of the research which will not be done, all I plead is that one has heard that kind of argument many times before. Sometimes there is a necessary slowness in approaching and developing new ways of doing things about which all of us are very uncertain in terms of the moral significance and in other ways. I believe that many of us still feel unconvinced as yet that the kind of research being done and which needs to be done could not in large measure still be done with the spare conceptuses and embryos which are available.
Perhaps I may say a few words on the legal question. I listened with particular attention to the noble and learned Lord, Lord Bridge. I take the point—and I think that it will make it very difficult for me to vote easily on this amendment—that the legal difficulties of making this an offence in law are considerable. However, I wonder why the problem is so considerable on this and yet not considered considerable when the line is drawn at 14 days. That must be fairly difficult. I would be interested if anybody could help me on that problem. I put my name to this amendment because I believe passionately that if we could come together more closely on this and recognise the enormous force of the difficulties which many people feel about this, that would help a great deal.
§ Lord Robertson of Oakridge
My Lords, I should like to make two quick points. First, to take up a point made by the noble and learned Lord, Lord Bridge, about the role of the law, I believe that he will agree with me that one of the great roles of the law is to protect the weak. I can think of no part of our human brotherhood which is weaker and in 1080 more danger than the unborn child from fertilisation to birth.
My other point is that I see the moral position quite clearly. Perhaps I may put it in rather stark terms. It would certainly be unthinkable in this country to grow a person through birth to adult life solely for the purpose of carrying out research on him. The principle is surely the same and the difference is one of degree when one is dealing with an embryo.
§ The Lord Chancellor
My Lords, I am reluctant to begin speaking unless your Lordships feel that we have spoken for long enough on this subject, since the rules are that no noble Lord is supposed to speak after the Minister other than the Mover of the amendment. However, I get the impression that it is thought that the time has come for me to summarise the position.
First, as I understand it, Amendments Nos. 7 and 78 are directed to one question. Amendments Nos. 79 and 80 are directed to a different question. There is no reason why the same answer should be returned to both. While I well understand the noble Lord the Chief Rabbi mentioning them together, as regards voting, a vote on Amendment No. 7 does not in any way preclude one from voting in a different way on Amendment No. 79.
Perhaps I may put it in this way. When we considered these matters in Committee we were considering whether any class of embryo should be researched upon for any purpose. The amendment of my noble friend the Duke of Norfolk at that stage was to the effect that no class of embryo should be subjected to research for any purpose whatever. When I came to make my observations in that debate I sought to point out that, if it were agreed to, that had the effect of cutting out the position which the noble Lord the Chief Rabbi has taken today.
The question now is whether a specific class of embryo should be subject to research. The noble Lord the Chief Rabbi by this amendment is seeking to achieve that the only class of embryo to which research should be capable of being applied is that class of embryo which is created for the purpose of providing treatment to a particular person. Amendments Nos. 79 and 80 are directed to a different question, namely, to what purpose any class of embryo that is properly the subject of research may be directed.
Those amendments seek to cut out from the purposes to which research may be devoted contraception and the development of processes of contraception. Therefore, while I perfectly understand the noble Lord the Chief Rabbi mentioning them together, when we vote on Amendment No. 7 we shall be voting only on the question of to what class of embryo research should be permitted to be directed. As I said, the amendment seeks to prohibit research on any class of embryo except an embryo created as part of the provision of treatment for a particular person.
I shall not attempt to repeat the general arguments for and against embryo research which your Lordships considered on the principle of embryo research during Committee stage. It seems to me 1081 that the amendments of the noble Lord the Chief Rabbi, as explained by him, accept the decision of the House on that matter but seek to move the debate on and define more closely what the proposers see as the proper framework within which embryo research should be conducted; in other words, define the class of embryos on which research should be permitted.
Decision on these amendments is therefore a matter for individual conscience in your Lordships' House. The Government propose that these matters should be subject to a free vote. I intend to confine my remarks to examining very briefly the practical effects of the amendment, setting out what I believe to be the thinking behind it and summarising briefly in my own words the arguments for and against it. Again, I of course cannot do justice to all the arguments presented, which your Lordships have heard.
At present, in the absence of statutory controls, embryos used in research come from two sources. First, there are those embryos which were created for the purpose of making a particular woman pregnant. A woman undergoing in vitro fertilisation treatment is generally given several injections of superovulatory drugs over a period of time. The result is that when ovulation occurs the number of mature eggs which can be collected from her is increased. These eggs are fertilised and there are usually more embryos created than are needed for the particular treatment. Embryologists choose those eggs which they judge most likely to lead to a successful pregnancy and the rest are either stored for possible future treatment or used for research. These are often referred to as "spare" embryos, and perhaps I can use that phraseology for simplicity.
Secondly, referring to the present position, there are those embryos which are produced by fertilising eggs which have been donated. Some women agree to donate eggs when they are undergoing other surgical procedures such as sterilisation; in such cases it is usual for the volunteer to be given superovulatory drugs to increase the number of mature eggs available. It is worth recording that the injection of superovulatory drugs and the associated taking of drug specimens to monitor the effect, like any other injection, are unpleasant processes for the patient.
A ban on creating embryos specifically for research would clearly reduce the number of embryos available for research, but to what extent would it inhibit research projects? The balance between the use of "spare" embryos and embryos specifically created for research varies at present from centre to centre, but I understand that of those embryos used for research, the majority have been obtained in the course of providing treatment services. However, the balance between sources of supply may change in the future. As IVF techniques improve it is probable that the number of "spare" embryos will decrease. I understand that there is already one treatment centre where the policy is to obtain eggs for IVF without the use of superovulatory drugs. In such cases it is likely that only one mature egg will be obtained during each cycle.
1082 There is also the possibility that techniques will be developed which enable eggs to be preserved by freezing and this could also lead to fewer "spare" embryos being available for freezing. If this were to happen clinicians would be likely to take the view that it would be unethical to use these eggs to create embryos for research at least until a pregnancy had been achieved for the woman in question. It therefore seems reasonable to conclude that the effect of these amendments in restricting the quantity of research would be greater in the long term than in the immediate future.
It is also possible that these amendments could have an effect on the quality of research. Some people might argue that a growing shortage of embryos available for research purposes could lead to only the very best research projects having access to spare embryos and that this might have the effect of raising both the scientific quality of research proposals generally and of the research projects actually undertaken. On the other hand, others might take the view that many worthwhile projects might never get under way or that, if they did, they might have to be abandoned because of insufficient numbers of embryos. Furthermore, the fact that those embryos being used for research would in many cases be embryos which, because they showed signs suggesting they might be defective, had been judged unsuitable for replacing in a woman, might make it more difficult to secure scientifically reliable results.
There is one category of research that cannot be carried out at all on the "spare" embryos produced in the course of fertility treatments but only on donated eggs that are then fertilised in vitro. This research may be concerned with the care and treatment of eggs before fertilisation. For example, to develop techniques of storing unfertilised eggs by freezing them it is necessary to fertilise them after thawing and check whether the resulting embryos develop normally.
It would clearly be unethical and undesirable in the early days of such techniques to place such eggs in a woman after using them for in vitro fertilisation since it would not be known whether the freezing and unfreezing of the eggs had made them in some way defective. That may be an important area of research because it might be beneficial to have a way of storing eggs without having to fertilise them first. This would overcome the ethical objections which some people have to the storage of embryos as opposed to the storage of unfertilised eggs. The area of research may also be concerned with the process of fertilisation itself, which can be of importance in infertility or in the genesis of some chromosomal disorders. In deciding the amendment before your Lordships it is important to be clear that to adopt it would entail ruling out this particular area of research.
I turn now to the basis for the amendments and the arguments for and against them. The debates so far on embryo research in your Lordships' House have covered two main perspectives. The first is the nature of the embryo in its early stages after fertilisation and whether this is compatible with research on it. Your Lordships reached a conclusion 1083 on that at Committee stage after a long and careful debate. The second perspective is the nature of the research which should be permitted. The proposals on the particular types of research to be allowed are set out in the second schedule to the Bill and were largely accepted at Committee stage. I note, however, that the noble Lord, Lord Jakobovits, has tabled Amendments Nos. 79 and 80 designed to remove one type of research so far shown as permitted in that schedule.
However, in the amendment before the House the noble Lord has introduced a third perspective—that of the woman who is providing the eggs for research. That was also referred to by the right reverend Prelate the Bishop of Southwark. Eggs cannot lawfully be taken without the explicit and fully informed consent of the woman. The amendment raises the issue whether, even if such consent is forthcoming, the law should nonetheless impose limitations on the effectiveness of that consent and specify certain circumstances where eggs may not lawfully be taken from a woman and used to produce embryos for research.
The arguments for the amendments have been eloquently put by the noble Lord, Lord Jakobovits, and his supporters. The key point, as the right reverend Prelate the Bishop of Southwark said, seems to be one of purpose. It is legitimate for a woman to provide eggs for the creation of embryos for treatment of infertility. It is not easy to regulate the number of embryos with absolute accuracy; and for the "spare" embryos the choice is between allowing them to deteriorate and perish in a purposeless way or to use them for research. In the choice between allowing them to perish and allowing their use for research, the House has decided that the latter should prevail. But it is argued that this does not justify the deliberate creation of embryos for use only for research and that in such a situation there is a moral objection to the creation of embryos solely for research. It might also be argued that on practical grounds there are risks of pressure being brought to bear, however indirectly or subconsciously, on women who are to undergo sterilisation to consent to egg donation.
I should perhaps say in answer to my noble friend Lord Caldecote that my noble friend Lady Hooper will be moving Amendments Nos. 12 and 64 to deal with the question of regulating the supply in the sense of permitting payments. Perhaps the fuller answer to my noble friend's question is that supply will be regulated primarily by the consent of a woman to donate eggs for this purpose to be fertilised and then used for the purpose of research. That is probably the more important answer to the question. We are seeking completely to outlaw any form of commercial activity in this area. Any payments allowed will have to be approved by direction. For example, we have in mind expenses that might be incurred by a woman for the purpose of attending to donate eggs or to have a blood test in the course of that work.
The arguments against the amendments have been put with equal lucidity and force. A key question is how far the law should go—as my noble and learned 1084 friend Lord Bridge of Harwich said, it is ultimately a matter for the criminal law and criminal sanctions—in intervening if a woman wishes to ensure that her eggs are used for purposes which she believes may benefit others.
A woman who has had children but who now wishes to be sterilised may feel that she wishes to help, through research, other women to achieve fertility and enjoy the blessings of a family or to help to conquer genetic disorders which can blight a child's life and that of his family. She may see this as an altruistic action—perhaps akin to blood donation for transfusion purposes. It is argued by the opponents of the amendment that the law should not step in to prevent this voluntary act—particularly perhaps criminal law—in a way which would severely limit the ability of science to carry out much needed research.
In regard to waste, it can be argued that, just as it is undesirable to waste spare embryos—which is one of the reasons why this amendment has been put forward—that are not needed for treatment services although created in the course of that provision, so it is unreasonable that the eggs of a woman who wishes to be sterilised should remain without purpose in her body when she is willing, and indeed possibly anxious, that they should be used for research to the subsequent benefit of mankind, as she sees it.
I have tried to set out the arguments which seem to me to be among those most relevant. As in earlier debates on research issues I do not see any middle course between the two sets of arguments, largely because they start from different premises and assumptions about the nature of life, the validity of research in these areas and the extent to which the wishes of individuals should be regulated by law, particularly perhaps criminal law.
The amendments have led us again into the same issues considered previously but, as the right reverend Prelate the Bishop of Southwark said, the arguments are perhaps more fully exposed when they are tested in this rather special case than they were on the more general issue before us in Committee. In the end, as I have already said, they must be matters for each of your Lordships' individual consciences. It is on that basis that I leave to your Lordships the decision on the matter without any line from the Government.
§ Lord Jakobovits
My Lords, in exercising the right of reply I want to express above all in a few words my profound appreciation at having had the privilege of participating in what was to me a most enriching experience, culminating in the magnificent presentation of the arguments by the noble and learned Lord the Lord Chancellor.
I refer to two points made in the argumentation against the amendment. They fall into two categories. There were those whose arguments I could not follow and others who argued with perfect justification for their argument but I still could not endorse it. I give an example. It was argued that nature is profligate and that out of a million potentialities only one reality emerges; therefore, 1085 why should we care in dealing with the millions of sperm by giving them special protection? I cannot see the force of that argument. One might as well say that since nature can be destructive in natural disasters and destroy human life by the million, therefore we should be allowed to do the same. The argument lacks both reason and logic.
There was another argument that I likewise found difficult to follow. Several noble Lords—notably the noble and learned Lord, Lord Hailsham—referred to the criminal law being invoked. They drew dreaded pictures of scientists, research workers and doctors sitting in laboratories and opening themselves up to prosecution, after which they might sit for 10 years in prison. What happens, as the right reverend Prelate pointed out, if on the 15th day after conception experiments are carried out? Will it also be said that, because it happens to be day 15, the severity of the law can no longer take effect? That argument seems to lack the essential logic that because a line is drawn somewhere we should exclude them all. We do not and the Bill as it stands does not exclude them all.
Finally, I wish to say a few words about an argument that I found exceedingly weighty. The noble Lord, Lord Walton, spoke of his temerity in venturing into theological territory. I shall not have the temerity to enter into scientific or medical territory where the noble Lord, I know, is one of the great and celebrated masters. We are proud to have him in our midst.
I shall say one thing which I consider relevant. The noble Lord's argument was that any number of vital and essential experiments might not be carried out if the amendment were adopted. I say that there are any number of experiments that cannot be carried out today because of a moral revulsion that sets certain limits on experiments that we can and cannot carry out, notably experiments on humans though such experiments could help to make enormous advances and possibly bring to an end any amount of human suffering and misery.
Nevertheless, not only can we not perform experiments on innocent humans but even in respect of those humans on whom we perform operations their consent is needed before we can carry out any medical action which may lead to the saving of their lives. So it is perfectly true that there will be a limit which will exclude certain experimentation. We may have to wait. Instead of having today or tomorrow all the answers we may have to wait another five or 10 years, after having waited several thousand years, for the conquest of frightful diseases that afflict us, including childlessness.
Therefore, all I would have pleaded if I wanted to press this matter to a vote would be the argument that there are experiments that will not be possible. The argument itself cannot override certain moral considerations which we regard as absolute. I am sure that we would be setting the tone for the nation in wishing to preserve such considerations by stressing the infinite reverence that we have for human life.
§ 5.32 p.m.
§ On Question, whether the said amendment (No. 7) shall be agreed to?
§ Their Lordships divided: Contents, 80; Not-Contents, 214.1087
|DIVISION NO. 1|
|Ailesbury, M.||Lauderdale, E.|
|Airey of Abingdon, B.||London, Bp. [Teller.]|
|Allerton, L.||Longford, E.|
|Ashbourne, L.||Luke, L.|
|Belhaven and Stenton, L.||Lyell, L.|
|Blatch, B.||Merrivale, L.|
|Buckmaster, V.||Milverton, L.|
|Caldecote, V.||Mishcon, L|
|Campbell of Eskan, L.||Monckton of Brenchley, V.|
|Chichester, Bp.||Mowbray and Stourton, L.|
|Clanwilliam, E.||Murton of Lindisfarne, L.|
|Cockfield, L.||Nelson, E.|
|Coleraine, L.||Norfolk, D.|
|Cork and Orrery, E.||Northbourne, L.|
|Cottesloe, L.||Ogmore, L.|
|Craigmyle, L.||Oxford and Asquith, E.|
|Davies of Penrhys, L.||Perth, E.|
|Derwent, L.||Phillips, B.|
|Eden of Winton, L.||Pitt of Hampstead, L.|
|Ellenborough, L.||Rankeillour L.|
|Elles, B.||Reading, M.|
|Falkland, V.||Rees-Mogg, L.|
|Fitt, L.||Robertson of Oakridge, L.|
|Gainsborough, E.||Ryder of Warsaw, B.|
|Gladwyn, L.||St. Albans, Bp.|
|Grantchester, L.||St. John of Fawsley, L.|
|Grimond, L.||Salisbury, Bp.|
|Haddington, E.||Sidmouth, V.|
|Hampton, L.||Simon of Glaisdale, L.|
|Harvington, L.||Somers, L.|
|Hemphill, L.||Southwark, 13p.|
|Holderness, L.||Stallard, L.|
|Hooper, B.||Stoddart of Swindon, L.|
|Hylton, L.||Strange, B.|
|Iddesleigh, E.||Swansea, L.|
|Jakobovits, L. [Teller.]||Swinfen, L.|
|Joseph, L.||Tonypandy, V.|
|Kennet, L.||Tordoff, L.|
|Kilbracken, L.||Tranmire, L.|
|Kinloss, Ly.||Winterbottom, L.|
|Aberdare, L.||Brain, L.|
|Addington, L.||Bridge of Harwich, L.|
|Airedale, L.||Brimelow, L.|
|Aldington, L.||Bruce of Donington, L.|
|Alexander of Tunis, E.||Butterfield, L.|
|Allen of Abbeydale, L.||Butterworth, L.|
|Allenby of Megiddo, V.||Caithness, E.|
|Alport, L.||Callaghan of Cardiff, L.|
|Ampthill, L.||Campbell of Croy, L.|
|Annan, L.||Carmichael of Kelvingrove, L.|
|Arran, E.||Carnarvon, E.|
|Attlee, E.||Carnegy of Lour, B.|
|Aylestone, L.||Carnock, L.|
|Bancroft, L.||Carter, L.|
|Barnett, L.||Chorley, L.|
|Beloff, L.||Cledwyn of Penrhos, L.|
|Bessborough, E.||Cocks of Hartcliffe, L.|
|Birk, B.||Colnbrook, L.|
|Blake, L.||Constantine of Stanmore, L.|
|Blyth, L.||Cranbrook, E.|
|Boardman, L.||Crook, L.|
|Bonham-Carter, L.||Cross, V.|
|Borthwick, L.||Cullen of Asbourne, L.|
|Bottomley, L.||Dainton, L.|
|Boyd-Carpenter, L.||Darcy (de Knayth), B.|
|Brabazon of Tara, L.||David, B.|
|Davidson, V.||Manton, L.|
|Dean of Beswick, L.||Margadale, L.|
|Denham, L.||Marshall of Goring, L.|
|Denington, B.||Mersey, V.|
|Dilhorne, V.||Mills, V.|
|Donaldson of Kingsbridge, L.||Molloy, L.|
|Dormand of Easington, L.||Montgomery of Alamein, V.|
|Dunrossil, V.||Moran, L.|
|Ennals, L.||Morris, L.|
|Erroll, E.||Mottistone, L.|
|Ewart-Biggs, B.||Mountevans, L.|
|Faithfull, B.||Mulley, L.|
|Fanshawe of Richmond, L.||Munster, E.|
|Fisher, L.||Murray of Epping Forest, L.|
|Fisher of Rednal, B.||Nicol, B.|
|Foot, L.||Northfield, L.|
|Fortescue, E.||Onslow, E.|
|Fraser of Kilmorack, L.||Oppenheim-Barnes, B.|
|Gainford, L.||Oram, L.|
|Gallacher, L.||Orkney, E.|
|Galpern, L.||Orr-Ewing, L.|
|Gibson, L.||Park of Monmouth, B.|
|Gibson-Watt, L.||Parry, L.|
|Gisborough, L.||Pender, L.|
|Glenamara, L.||Peston, L.|
|Glenarthur, L.||Ponsonby of Shulbrede, L.|
|Goold, L.||Porritt, L.|
|Graham of Edmonton, L.||Prior, L.|
|Gray of Contin, L.||Prys-Davies, L.|
|Greenhill of Harrow, L.||Quinton, L.|
|Grey, E.||Raglan, L.|
|Griffiths, L.||Reay, L.|
|Grimston of Westbury, L.||Renton, L.|
|Grimthorpe, L.||Renwick, L.|
|Hailsham of Saint Marylebone, L.||Robson of Kiddington, B.|
|Halsbury, E.||Roll of Ipsden, L.|
|Hankey, L.||Romney, E.|
|Hanworth, V.||Roskill, L.|
|Harmar-Nicholls, L.||Sainsbury, L.|
|Harris of Greenwich, L.||St. John of Bletso, L.|
|Hatch of Lusby, L.||Saltoun of Abernethy, Ly.|
|Hayter, L.||Sanderson of Bowden, L.|
|Henderson of Brompton, L.||Seear, B.|
|Hirshfield, L.||Seebohm, L.|
|Hives, L.||Sefton of Garston, L.|
|Home of the Hirsel, L.||Serota, B.|
|Hood, V.||Shackleton, L.|
|Houghton of Sowerby, L.||Shaughnessy, L.|
|Howie of Troon, L.||Slim, V.|
|Hughes, L.||Somerset, D.|
|Hunt, L.||Soper, L.|
|Hunter of Newington. L.||Stedman, B.|
|Hylton-Foster, B.||Stockton, E.|
|Jeger, B.||Strathclyde, L.|
|Jellicoe, E.||Sudeley, L.|
|Jenkin of Roding, L.||Swann, L.|
|Jenkins of Putney, L.||Taylor of Blackburn, L.|
|John-Mackie, L.||Taylor of Gryfe, L.|
|Kagan, L.||Templeman, L.|
|Kearton, L.||Terrington, L.|
|Killearn, L.||Thorneycroft, L.|
|Kilmarnock, L.||Trefgarne, L.|
|Kirkhill, L.||Trumpington, B.|
|Knollys, V.||Tryon, L.|
|Knutsford, V.||Turner of Camden, B.|
|Lawrence, L.||Ullswater, V.|
|Leatherland, L.||Underhill, L.|
|Listowel, E.||Vernon, L.|
|Llewelyn-Davies of Hastoe, B. [Teller.]||Walpole, L.|
|Walton of Detchant, L.|
|Lloyd of Hampstead, L.||Warnock, B.|
|Lloyd of Kilgerran, L.||Westbury, L.|
|Long, V.||Whaddon, L.|
|Lovell-Davis, L.||White, B.|
|McGregor of Durris, L. [Teller.]||Wigoder, L.|
|Williams of Elvel, L.|
|McIntosh of Haringey, L.||Willis, L.|
|Mackie of Benshie, L.||Winstanley, L.|
|Manchester, Bp.||Wynford, L.|
|Manchester, D.||Young, B.|
|Mancroft, L.||Zuckerman, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.44 p.m.
§ Clause 4 [Prohibitions in connection with gametes]:
The Lord Chancellor moved Amendment No. 8:
Page 2, line 37, leave out ("another species of") and insert ("any").
§ The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 6. I beg to move.
§ On Question, amendment agreed to.
Lord Walton of Detchant moved Amendment No. 9:
Page 2, line 37, at end insert ("; or
(d) extract from the ovary of a woman an oocyte in order to replace it elsewhere to achieve fertilisation in vivo,")
§ The noble Lord said: My Lords, I hope to be brief in proposing this amendment. It is essentially similar in its objective to the amendment jointly proposed in Committee by the noble Earl, Lord Halsbury, and myself. Its objective is simply to bring the technique known as GIFT—gamete intra-fallopian transfer—within the ambit of the Bill.
§ At present the technique does not require a licence from the Interim Licensing Authority. More than 60 centres in the United Kingdom offer this method of treatment. The technique is quite simple. It is used in those women who are infertile largely in consequence of the fact that there is a plug of mucus in the cervix of the uterus or womb which prevents the sperm from fertilising the ova which they produce quite normally. The method therefore simply involves obtaining ova or oocytes from the woman and inserting them with the husband's sperm directly into the fallopian tube. That is why it is called gamete intra-fallopian transfer.
§ The problem is that the number of centres offering this technique is increasing steadily. The evidence is that some such centres do not have the necessary expertise and skill to prevent the wholly unacceptable number of multiple pregnancies which may result from the technique. There is a temptation to insert a large number of sperms and ova into the fallopian tube in the hope of achieving success. Sometimes the technique is far more successful than the individuals operating it would wish and therefore the risk of multiple pregnancies is unacceptably high. It is a wish of the Interim Licensing Authority, and, I understand, the wish of most of those individuals working in this field that the Government should regulate this activity in the same way as in vitro fertilisation.
§ I appreciate the arguments advanced by the noble Baroness, Lady Hooper, in Committee when she gave the Government's reasons for excluding GIFT from the provisions of the Bill. I simply wish the House to recognise the strong feeling in the medical and scientific world and in the Interim Licensing Authority that the Government should reconsider their view on the matter. I beg to move.1089
§ Lord Kilbracken
My Lords, I should like to ask the noble Lord, Lord Walton, two questions. Is an oocyte exactly the same thing as an egg; and if so, why should he not say so? If it is inserted in the womb, as I suppose it is, should it not be in viva rather than in vivo?
The Earl of Halsbury
My Lords, I support the noble Lord's amendment as indeed I supported my own amendment at an earlier stage of the proceedings. I told the Committee then, and I repeat it now, that the Civil Service establishment is against it because it means a greater workload. That is the only reason for not agreeing to the incorporation of the amendment into the Bill.
§ The Lord Chancellor
My Lords, I am glad that the noble Earl, Lord Halsbury, recognises in the Civil Service a detachment from its own interests. That is very heartening.
When we debated this matter in Committee there was strong support for adding this treatment to the list of those to be licensed by the new authority. I am aware too, as was said by the noble Lord, Lord Walton, that the Interim Licensing Authority is concerned about the treatment and has itself taken steps to collect information about it. I appreciate these concerns which arise because the use of super-ovulatory drugs can increase the risk of multiple pregnancies and, some would argue, the technique is sufficiently close to the other techniques to be licensed that it should be brought within the fold.
While I appreciate these concerns, as was indicated in the earlier debate by my noble friend Lady Hooper, we think that licensing this technique, except where it involves donated gametes when it does clearly fall within the scope of the licensing arrangements, would be to take a first step which could logically lead to a much larger degree of statutory regulation of medical treatment than was envisaged either in the Warnock Report or the White Paper. Such regulation is something which, quite rightly, is only contemplated in extreme circumstances as it is surely wrong that the law should interfere, except where absolutely necessary, with matters of clinical judgment of doctors in relation to individual patients.
Bringing this treatment within the scope of the licensing provisions in the Bill because of concerns about possible multiple pregnancies would mean that licensing the use of super-ovulatory drugs themselves in pregnancy would be a good step. That is indeed quite a slope to get on to. I shall not refer to arguments which have been used in other connections. However, if one is contemplating licensing medical treatments by law, among others with potentially greater risk to the patient, it would be difficult to defend leaving these unregulated.
On a slightly more technical level, I am advised that the amendment as proposed does not achieve strict control because it refers to the licensing of the technique where the intention is to achieve fertilisation in vivo. A defence to the charge of carrying out some unlicensed activity in relation to the eggs taken for that purpose would be that there 1090 had been a change of mind about the intention to carry out the treatment. As your Lordships know, intention can be a very difficult concept, although the law has to grapple with it in many areas.
I understand that the Royal College of Obstetricians and Gynaecologists is considering the issue and that it expects to reach a collective view on whether this treatment should be regulated at a meeting of its council on 23rd March. While so far the Government have decided not to license this treatment—and that is the way the Bill stands—and could not commit themselves to change that view, they will clearly need to take into account the outcome of such a weighty deliberation before reaching a final view on the subject matter to be covered by the amendment. To make any change would mean extending the principles underlying the Bill—that treatments should involve either the keeping of an embryo outside a woman's body or donated gametes. Those are the principles upon which we are seeking to erect the licensing structure at present. If we were to include this treatment, we would be going outside those principles. If the Bill is to be a logical one—and I hope that it will be—we shall need to think of some other principle to determine its scope.
We certainly have a very open mind on the question and we are willing to take account of the balance of professional advice, bearing in mind that if we want to alter the structure of the Bill we must try to look for some containing structure to replace what we have at present. Therefore, if the noble Lord is prepared to withdraw the amendment, I would certainly undertake to ensure that the matter is considered further in the light of the decision that the Royal College may take. However, I cannot commit myself necessarily to being ruled by that decision, but we shall certainly be influenced by it.
Having regard to the timetable, it is likely that this issue will be raised for further discussion in another place. Your Lordships may well have a chance to consider the matter in the light of that discussion. We certainly want to do what is right in this connection, but the matter is not without difficulty. I hope therefore that in the light of that explanation the noble Lord will feel able to withdraw the amendment.
§ Lord Ennals
My Lords, I think that the noble and learned Lord the Lord Chancellor is absolutely right; it is a very difficult problem. Behind the remarks made by the noble Lord, Lord Walton, there is a strong medical and scientific argument. The very fact that the Royal College is considering the matter at such an appropriate time will give the Government and Members of your Lordships' House an opportunity to study its advice. I hope therefore that my noble friend will feel it is appropriate to withdraw the amendment.
§ Lord Walton of Detchant
My Lords, in the light of the comments made by the noble and learned Lord the Lord Chancellor, I shall be happy to do so. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1091
§ Clause 7 [Reports to Secretary of State]:
The Earl of Perth moved Amendment No. 10:
Page 3, line 38, at end insert—
("() Every report made under this section shall include full information in respect of the activities of the Authority and of any of its committees in the areas covered by section 8(a) and section 9(1) of this Act.").
§ The noble Earl said: My Lords, in Committee and also during today's debate noble Lords confirmed their wish that embryo research should be allowed up to 14 days. In the arguments put forward both in Committee and today, the activities of the licensing authority were stressed as being of vital importance.
§ I hope that noble Lords will support what is proposed. It is of the greatest importance that we should know what is happening once this decision has been taken. We should know what sort of activities the authority will allow.
It may be said that that aspect is taken care of, but the first part of Clause 7(1) reads:
The Authority shall send the Secretary of State—
(a) a report on its activities during the first twelve months of its existence".
It is vital that we should know more than that. We do not know what the report may cover. Yet if I look for the two items which I had hoped would be included in the report I find in Clause 8(a):
The Authority shall—
Keep under review information about embryos and any subsequent development of embryos and about the provision of treatment services and activities governed by this Act, and advise the Secretary of State, if he asks it to do so".
In other words, as it stands, there is nothing about that being an essential part of the report. Only the Secretary of State, if he asks the authority to advise him, will be able to find out about such matters. However, even then we may not know because the information may not be mentioned in the report. I ask that that detailed activity of the authority should be a part of the report. I go even further and ask that the same consideration be exercised in relation to Clause 9(1), which reads:
The Authority shall maintain one or more committees to discharge the Authority's functions relating to the grant, variation, suspension and revocation of licences".
§ I feel that that aspect is at least as important as anything else contained in the report. To leave it in the air, as it were, and merely say that the report should be made every 12 months is really not good enough. I beg the Government and your Lordships to consider whether it would be right to insist upon this provision under the Bill and not leave it to the Secretary of State alone, or to the authority, to tell us what is happening, not only now but also in the future. I beg to move.
§ Lord McGregor of Durris
My Lords, I should like to support the amendment moved by the noble Earl. Clearly the more information that is made available in the annual reports of the authority for the public more educated public opinion will become on an area of very great importance both medically and morally. I therefore hope that your Lordships' House will strongly support the amendment.
My Lords, I too should like to say that I am very sympathetic towards the amendment 1092 moved by the noble Earl, Lord Perth. My noble friend on the Front Bench was kind enough to accept in Committee an amendment which I moved calling for annual reports by the statutory licensing authority rather than reports at two-year intervals after the first year. I moved that amendment for the precise reason that I think it is most important that Parliament and the general public should be kept closely informed about the whole matter. I do not know what the technicalities are; but in principle I am very much in sympathy with what the noble Earl has said.
§ Lord Ennals
My Lords, I take precisely the same view. I took that view when we dealt with annual reports and I was delighted that the Government accepted that amendment. The more information that is made available to those who naturally have a sense of concern and wish to be informed the better. I warmly welcome the amendment proposed by the noble Earl.
§ 6 p.m.
§ The Lord Chancellor
My Lords, I take the sense of the remarks of all who have spoken and their wish that the authority's report should be as informative as possible. The obligation under the Bill is that the authority,shall send the Secretary of State a report on its activities during the first twelve months of its existence, and in respect of each succeeding period of twelve months, a report on its activities during the period".The report is to be sent as soon as possible and is to be laid before each House of Parliament. The scope of the report is the activities of the authority. that is to say all its activities. Short of narrating again in such an amendment what all these activities are, I am not sure that anything is added.
The amendment picks out Clauses 8(a) and 9(1) dealing with "activities" but not all the activities of the authority. The intention behind the point made by the noble Earl, Lord Perth, about advising the Secretary of State under Clasue 8(a) is to seek something more than a mere report. It may be that advice is required about some subject such as advice to the Secretary of State about a way forward or action to be taken. The authority is required to report on its activities. That includes all its activities. To add the requirement that,full information in respect of the activitiesshould be given is to detract from the force of the whole. Surely we want full information to be laid before Parliament on all the activities of the authority. That is essentially what the present Clause 7 secures.
It is also important to notice that the authority's annual reports are to be laid before Parliament. If Parliament perceived any deficiency in the scope or detail of the annual report, I am perfectly certain that Parliament would make that plain.
I appreciate entirely the principle of the amendment and what is sought to be achieved by it. However, if it were incorporated in the Bill it might have a slightly opposite effect to that intended. It might rather concentrate the report on two matters—important matters, I grant—under Clauses 1093 8(a) and 9(1). Probably what we all wish—this seems in accordance with what noble Lords have said—is a full report. This is an important area. The size of votes and the concern with which noble Lords have dealt with the subject will convince the authority, if it needs convincing that this is an important matter and that Parliament will take great interest in anything that the report has to say. Anything that the authority cares to write will not gather dust but will be studied with great interest. I am sure that that will encourage it to report fully and in an informative manner to your Lordships.
I hope that the noble Earl will feel that the purpose of his amendment is achieved without it being incorporated in the Bill. When appointed, the authority will have before it an account of these proceedings.
§ The Earl of Perth
My Lords, I am afraid that I am disappointed in the reply of the noble and learned Lord the Lord Chancellor. In a sense however I am not surprised. I beg him to realise the support which I have received from all sides of the House. He has argued that my amendment might detract from the provisions. It cannot be said to do that. It states that the report "shall include"; it does not say that it shall only deal with those matters. Therefore, surely, it is necessary and right that items of such importance should be covered and that we should know that they will be covered.
The noble and learned Lord has said, "Oh, well, if there are deficiencies, the House will soon find out in the report". That might be difficult if the House does not know what the report is all about. How can I say that there is a deficiency if I do not know? Somebody can say to me, "Do you realise that the report does not cover this point?" But that is not the way in which these matters should work. I beg the noble and learned Lord to think again. The amendment is of such importance that perhaps he himself, having heard the support that I have received, will consider the matter again at Third Reading. Perhaps he will see whether he could bring forward some words—if he will not take mine—which will give effect to what I propose. I should be extremely grateful.
§ The Lord Chancellor
My Lords, I think I made plain that I have fully considered all that has been said. I very much doubt whether singling out particular parts of the activities of the authority would be conducive to greater detail in its report. If I were to amplify the obligation, it would be to emphasise that we wish to hear about all the authority's activities. That is the force of the clause now. I am perfectly willing to consider the matter further in the light of the amendment of the noble Earl and of the support for it. I recognised that in my first address on the subject to your Lordships when I sought to explain that the purpose was achieved. I shall consider the matter further if the noble Earl is content to withdraw the amendment on that basis.
§ The Earl of Perth
My Lords, I thank the noble and learned Lord. On the assumption to be drawn 1094 from the remarks he made, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 [General conditions]:
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper) moved Amendment No. 11:
Page 5, line 37, after ("maintained") insert ("in such form as the Authority may specify in directions").
§ The noble Baroness said: My Lords, in moving Amendment No. 11 I wish to speak also to Amendments Nos. 13, 14, 20 and 26. Amendment No. 11 has been brought forward by the Government in response to a point raised by my noble friend Lord Caldecote in the last day of our Committee proceedings. During the debate on his amendment, I promised that the Government would look at this point and I am glad to say that we have been able to take it on board. This amendment provides that the new authority may specify the form in which it will require records to be kept by licence holders as one of the general conditions specified in Clause 13 which will apply to their licences. The Government see advantage in giving the new authority this power as it may simplify the administration of the licensing system if the authority can receive information from licence holders and require licence holders to keep information in a form which it considers appropriate.
§ I hope that my noble friend will accept that this amendment meets the spirit of the point he was raising without removing from the authority the discretion to decide what information it wanted recorded as his earlier amendment would have done. As I explained in the earlier debate, we believe that that could have been unduly bureaucratic and cumbersome for the authority.
§ The effect of Amendments Nos. 13 and 14 is the same. It is to extend the range of information which may be specified in directions to cover matters other than those covered by Clauses 13(2) and 14(1) which the authority considers appropriate. The amendments extend the powers of the authority in these matters to give it a wide discretion to specify information so that it is not confined to the lists of specific points currently to be found in these provisions. I hope that your Lordships will agree that these amendments will be helpful to the authority in giving it flexibility in this important matter.
§ Amendment No. 26 would place a duty on the authority, in the case of treatment licences, to give directions requiring information to be recorded about the aspects of treatment services set out in Clause 13(2), paragraphs (a) to (e). This ensures that the authority will require licence holders to supply that information. As I said, I hope that it will be agreed that these amendments are helpful. I beg to move Amendment No. 11.
§ Viscount Caldecote
My Lords, as my noble friend the Minister said, I moved an amendment in Committee to subsection (2) of Clause 13, at line 3 of page 6, to require the authority to record information 1095 covered in paragraphs (a) to (e) in such a form as the authority may specify. My noble and learned friend the Lord Chancellor agreed to look at that matter. I am most grateful for that. It seems to me that Amendment No. 26 achieves more or less precisely what I had in mind in the amendment that I moved. I hope that when the noble Baroness replies she can confirm that that is the case and that the information under Clause 13(2) (a) to (e) is required to be included in a report by the authority, just as I suggested in my amendment. I am most grateful for the notice that has been taken of that.
§ On Question, amendment agreed to.
Baroness Hooper moved Amendment No. 12:
Page 5, line 37, at end insert—
("(dd) that no payment in money or money's worth shall be made or received in respect of any supply of gametes or embryos unless the payment is authorised by directions").
The noble Baroness said: My Lords, in moving this amendment I wish to speak also to Amendments Nos. 19, 64 and 65. Amendments Nos. 12 and 64 have already been referred to during our long discussion on a previous amendment. However, like many of your Lordships, I am concerned that a trade in the sale of embryos or gametes should not be allowed to develop. To that end, Amendment No. 12 would make it a condition of all licences that,
no payment in money or money's worth shall be made or received in respect of any supply of gametes or embryos unless the payment is authorised by directions".
§ This amendment would replace subsection (7) of Clause 13, which would be deleted by Amendment No. 19. That subsection makes it a condition of treatment licences that no payment for gametes for the purpose of treatment services could be made unless that payment was authorised by directions.
It may, however, be desirable to allow payments to cover particular expenses so that the donor does not incur any cost. This amendment therefore would give the authority power to give the directions permitted by Clause 22 allowing payment in specified circumstances. The Government think it right that there should be some sanction attached to the new provision. Amendment No. 64 therefore provides that,
Where a breach of the condition … occurs with the knowledge of the person who holds the licence, that person is guilty of an offence".
Amendment No. 65 provides that the penalty connected with this offence shall be a term of imprisonment,
not exceeding six months or a fine not exceeding level five on the standard scale or both".
§ At present a fine on level 5 amounts to £2,000. Again, I hope your Lordships will feel that these amendments improve the Bill.
§ I beg to move Amendment No. 12.
§ 6.15 p.m.
§ Lord Donaldson of Lymington
My Lords, I am in complete sympathy with the objectives of the 1096 Minister, but bearing in mind that this provision creates indirectly a criminal offence I am a little troubled by the wording. I am not entirely satisfied that it is right to attach the word "payment" to the words "money's worth". The amendment begins by stating:no payment in money or money's worth shall be made or received".That may seem a wide provision. However, the amendment finishes by stating:unless the payment is authorised by directions".I venture to suggest, although the noble and learned Lord the Lord Chancellor may correct me, that the words that are really needed here are "no consideration". The problem could arise in an acute form in the kind of scenario which I have reason to believe is troubling the Interim Licensing Authority at the moment where a lady is told that there will be no charge for private accommodation or private treatment if she agrees to donate eggs. I am not satisfied that that is a case of paying "money's worth". It is a case of waiving a payment for an advantage. I see the noble and learned Lord the Lord Chancellor shaking his head in a manner which conveys doubt. I do not disagree with him but I feel that where a criminal offence may be created crystal clarity in the wording is desirable. However, I am not suggesting that the amendment should not be accepted, but merely that it should be considered before the next stage of the Bill.
§ Baroness Hooper
My Lords, I am most grateful to the noble and learned Lord for raising this point. I can confirm that we shall look at the argument that he has put forward in this respect and come back to it, if necessary, at a subsequent stage.
§ On Question, amendment agreed to.
§ Clause 13 [Conditions of licences for treatment]:
Baroness Hooper moved Amendments Nos. 13 and 14:
Page 6, line 13, leave out ("and").
Page 6, line 15, at end insert ("and
(f) such other matters as the Authority may specify in directions.").
§ On Question, amendments agreed to.
The Lord Chancellor moved Amendment No. 15:
Page 6, line 22, at end insert—
("(4A) A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment, and of any other child who may be affected by the birth.").
§ The noble and learned Lord said: My Lords, in moving Amendment No. 15 I wish to speak also to Amendment No. 27. I regard these amendments as extremely important. They have been introduced following careful consideration of the debate on an amendment moved in Committee by the noble Lady, Lady Saltoun, which would have confined the treatments licensed by the Bill to married couples.
§ The House will recall that that amendment which was regarded by the Government as a matter of conscience and therefore was the subject of a completely free vote, was defeated on a free vote.1097
§ This amendment also deals with a matter raised by my noble friend the Duke of Norfolk in debate on Clause 2 in Committee namely, where a clinician was considering offering treatment to a married woman, a single woman in a long-standing relationship or a single woman. The second amendment to Clause 24 would require that the code of practice which the authority will be required to produce should give guidance on how those providing treatment services should take into account the welfare of the child and of other children that the women patients may have. We wish to go further than simply providing that the code should deal with these matters. By this first amendment we are making an overriding provision that will apply to all treatment services provided under this legislation.
§ It may be helpful if I begin by setting out the size of the group that may be involved. At present only a very small number of relevant treatments are made available outside marriage. The best and most recent estimate that can be made is that fewer than 100 out of some 3,500 patients who received the AID treatment in 1989 were single women, and some of those will have had permanent partners. The figure does not distinguish between those two sets of women. I do not, however, suggest that the small size of the issue suggests that it is of no great importance. It is because the Government appreciate the significance of this matter in a broad and general sense that they have, after considerable thought, proposed these amendments.
§ I think everyone would agree that it is important that children are born into a stable and loving environment and that the family is a concept whose health is fundamental to the health of society in general. A fundamantal principle to our law about children, including the legislation which this House considered in such detail last Session and which became the Children Act 1989, is that the welfare of children is of paramount consideration. I think that it is, for these general reasons, entirely right that the Bill should be amended to add that concept. It could be argued that the concept of the welfare of the child is very broad and indeed all-embracing. That I think is inevitable given the very wide range of factors which need to be taken into account when considering the future lives of children who may be born as a result of techniques to be licensed under the Bill. My attention has been drawn to a New Zealand case where Mr. Justice Hardie Boyce dealt with this concept in Walker v. Harrison which was noted in the 1981 New Zealand Recent Law, volume 257. I think his remarks, which were cited by the Law Commission in a recent working paper on family law, indicate very well the wide range of circumstances and meanings which the concept of welfare involves.
'Welfare' is an all-encompassing word. It includes material welfare, both in the sense of an adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place, they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child's own character, personality and talents".
§ The amendment will place on clinicians in statutory form a responsibility which I believe most, if not all, of them already perform. I accept that that is an important responsibility and it may in particular cases be far from easy to discharge.
§ Among the factors which clinicians should take into account will be the material circumstances in which the child is likely to be brought up and also the stability and love which he or she is likely to enjoy. Such stability is clearly linked to the marital position of the woman and in particular whether a husband or long-term partner can play a full part in providing the child with a permanent family setting in the fullest sense of that term, including financial provision.
§ The House does not need to be reminded of the plight of childless people and the very strong and deeply felt emotions which those in that position experience. We may on the one hand pay the tribute which is due to the importance of ensuring that children are born into the family environment by specifically excluding from treatment women who are not married or have no stable partner to be involved in the decision about treatment and in counselling beforehand, but I wonder what will happen if we do that. Surely there is a risk that such women, driven by the very strong desire for a child, may turn elsewhere for treatment. I am advised that it is a relatively easy matter for AID to be carried out in clinically unsupervised conditions. It may be that the result of the amendment would be to encourage those few single women who are infertile to seek unsuitable donors if we were to introduce such a restriction. Any children who may be born as a result of uncontrolled treatment are at risk of serious disease, including HIV infection.
§ On the other hand, if the law recognises that in a very small number of cases single women will come forward for treatment, it may be better to encourage them to seek clinical advice. With the child and welfare amendments we have just discussed there is a likelihood that through counselling and discussion with those responsible for licensed treatment they may be dissuaded from having children once they have fully considered the implications of the environment into which their child would be born or its future welfare.
§ Because human and family circumstances can vary so widely there are advantages as well as problems in not trying to draw sharp dividing lines. The second amendment will help the clinician in exercising his responsibility by requiring the authority to include welfare of children in the code of practice to be drawn up under Clause 24. The addition of this matter as a specific part of the authority's code of practice, which will have to be approved by the Secretary of State, gives added weight to the importance which the Government attach to the welfare of children in this context. I am sure that everyone concerned with these matters will place great importance on that code, and this is one of the most important matters with which it will need to deal. Equally, in monitoring the licensing arrangements the authority will, I am sure, pay particular attention to the operation of this aspect of those duties.1099
§ I regard these as very important amendments, I hope that your Lordships will agree that in seeking to add them to the licensing arrangements and to the content of the code of practice to be drawn up by the new authority we are recognising an important principle and consideration which it is appropriate to acknowledge. I beg to move.
§ Lady Saltoun of Abernethy
My Lords, I am most grateful to the Government for the amendments. They go a very long way towards redressing the balance of the conflicting interests of the woman who wants to have a child and those of the resulting child, which are not necessarily compatible.
In its consideration of the welfare of a child who may be born as a result of the treatments and in the guidance given in the code, perhaps the authority could be asked to bear in mind the following point. Where a married couple have a child and one of the parents dies or is killed, it is usual for the other parent to bring up the child. However, when a single woman who has a child dies or is killed there is no one left to bring up a child, who may very well be taken into care.
Would it be desirable to specify that donor services should be provided to women or couples only upon the production of evidence that a guardian has been appointed who will undertake the care of the child in the event of the untimely demise of the woman or the couple? Many couples do that in any case. I did and my children have done so. It is not unusual. That would go a long way towards taking care of the welfare of the children in the event of any misfortune overtaking the parents.
I had thought to mention the point on the Motion that this Bill do now pass but it seemed more appropriate to do so now.
§ Baroness Faithfull
My Lords, perhaps I may ask my noble and learned friend the Lord Chancellor one question. I am not quite clear and should like some guidance as to who is to make the decision. Is it to be the clinicians to whom the mother goes? Is it to be made jointly by social workers and medical staff? Is it to be left to the licensing authority? How is the decision to be made?
§ The Lord Chancellor
My Lords, I propose to speak again later, but with your Lordships' leave perhaps I may answer the points that have been raised. I believe that the point raised by the noble Lady, Lady Saltoun, would be an appropriate matter to be taken into consideration in relation to the welfare of the child. The precise circumstances may vary from case to case. That is why we have used a very broad term which encompasses all of those matters. It would be a question to be asked in relation to particular circumstances such as the noble Lady has mentioned.
In answer to my noble friend Lady Faithfull, we are concerned here with laying down the framework. The precise manner in which the decision should be taken would be for consideration in relation to the code of practice. Obviously counselling is essential for the person receiving treatment. Their own views would also be important. We regard this as a vitally 1100 important matter and the range of advice which is appropriate should be available. The ultimate decision whether or not to give the treatment in accordance with the conditions laid down by the authority will be made by the clinician. That does not mean that he would be left alone to consider the issues in a particular case. It might be too important a decision for a clinician to take unaided. I believe that under the present arrangement such matters are taken into consideration. However, I believe that the precise detail as to the way in which that would be done is best left to be dealt with in the code.
That is one reason why we want to make a specific provision that the matter should be dealt with in the code. That would indicate to those providing treatment what guidance should be given and how they should go about exercising that duty.
§ 6.30 p.m.
§ Lord Robertson of Oakridge
My Lords, I simply wanted to say that I thoroughly welcome the amendment and am grateful to my noble and learned friend the Lord Chancellor for moving it. My only reservation is that it is drawn in very broad terms and might be open to different interpretations in different parts of the country. For that reason I hope that the House will look at other amendments which seek to tackle the same problem and to minimise it so that we obtain the best possible result.
§ Lord McGregor of Durris
My Lords, I welcome the principle of the amendment as strongly as I opposed the principle of the amendment tabled by the noble Lady, Lady Saltoun, at Committee stage. This is a happy extension of a principle which has now been part of English law for more than half a century. It is greatly to be welcomed.
§ Lord Ennals
My Lords, perhaps I too may say a few words. I greatly welcome the initiative taken by the noble and learned Lord the Lord Chancellor. It adds great strength to the code of practice. The more I think about the code of practice, the more I recognise how important it will be. As I listened to the noble and learned Lord speaking on the question of who would take the decision, in answer to the noble Baroness, Lady Faithfull, I realised what a burden and what a difficult decision would be placed upon whoever must take that decision. We are all concerned with the welfare of the child, but perhaps some more thought is needed about what goes into the code of practice in order that it may provide additional guidance. I do not see how that decision could be taken simply on the basis of the four words in the amendment.
I also welcome the amendment because it lays great stress on the importance of counselling. The noble and learned Lord the Lord Chancellor referred to counselling. One of the greatest tasks when the Bill is passed into law will be to ensure that there are effective counselling measures.
I very much hope that, when we come to Amendments Nos. 16 and 17, the noble Lords will feel that this amendment meets the concerns that I know are in their minds.
§ The Lord Chancellor
My Lords, I am grateful for the response from all sides of the House to this and the other amendment to which I spoke. I certainly attach a great deal of importance to them. I agree with the noble Lord, Lord Ennals, that the precise detail requires to be worked out. That is why I think it right to state the principle as an overriding principle to be given effect in the code of practice and to provide that the code of practice should deal with it. When we come to consider the code of practice, we shall expect the authority to consult widely. I am sure that the extremely important practical questions posed by the noble Lord will then be taken into account. However the matter is dealt with, it must be taken into account before treatment services are provided.
§ On Question, amendment agreed to.
Lord Ashbourne moved Amendment No. 16:
Page 6, line 22, at end insert—
("(4A) Treatment services shall only be provided for a woman together with a man.").
§ The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 17 and 46.
§ Amendment No. 16 will restrict treatment services to men and women coming together for treatment. It will prevent a single woman coming for treatment without a man. Amendment No. 17 is a relatively minor consequential amendment which will not be moved if noble Lords do not accept Amendment No. 16. Amendment No. 46 ensures that the man who comes for treatment together with a woman will be designated the father of any child resulting. A child born to an unmarried woman following licensed treatment will therefore have a father.
§ The House may recall that I put forward an amendment in Committee to outlaw donation of gametes. That proposal seemed unlikely to find favour with noble Lords and was not pressed. The noble Lady, Lady Saltoun, then put forward a more moderate amendment to limit treatment services to married couples, which was defeated by 61 votes to 60. Surely the House must now accept that children created by government-regulated treatment should at least have a father and a mother.
§ Secondly, the creation of a child is an important responsibility. The amendments will ensure that both men and women—particularly men—take the responsibility seriously.
§ Thirdly, there are many reasons why people end up as single parents. All such people deserve support and help. However, single parenthood is not the ideal and should not be endorsed through government-regulated treatments. The Government are currently trying to make fathers responsible for maintenance payments. Is it not contradictory in this Bill to allow the creation of fatherless children? Who will then pay the maintenance?
§ Fourthly, we believe that the amendments will override the provision in Clause 27 under which a husband may disown a child if he can prove that he did not consent to treatment. The amendments require that men and women must present together for treatment.1102
§ Perhaps some noble Lords might worry that the amendments discriminate against single women. It is true that the amendments will prevent a single woman without a partner from receiving treatment. Is it not entirely reasonable for the Government to restrict treatment of that type to men and women presenting together to ensure that the child has both a mother and a father? Again, noble Lords might feel that the amendments discriminate against women who want to receive treatment without their husband or partner knowing. In Committee the noble Baroness, Lady Warnock, explained that in order to cope with the situation of Asian women who wanted to receive treatment without the knowledge of their husbands, her committee did not endorse prior written consent for treatment. The amendments would directly affect such women. It is sad that women within a certain section of society are not able to be honest with their husbands, but surely it would be wrong to frame a law for all to meet the needs of one small section of society. Is it not more important to ensure overall that men and women appear together for treatment? I beg to move.
§ Lord Prys-Davies
My Lords, the noble Lord, Lord Ashbourne, acknowledged that the amendment comes up against the point of principle that we discussed in Committee; namely, that treatment should be available to all who can benefit from it subject only to proper counselling and clinical advice prior to treatment. Both those aspects have been emphasised in the two amendments which have been moved and accepted this afternoon.
In Committee my noble friends Lord Ennals and Lady Ewart-Biggs suggested that to discriminate against an unmarried woman would be a breach of the European Convention on Human Rights. However, when the noble and learned Lord the Lord Chancellor replied to the debate, he told the Committee that he had been advised that to restrict the treatment to married women would not be a breach of Article 12.
The noble and learned Lord made no specific reference to Article 8 of the convention. That article provides that everyone has the right to respect for his private and family life. It is designed to protect private life. It is the view of some people who have advised us that the right of an unmarried woman who is not cohabiting with a man to receive treatment under the Bill, subject to counselling, is very much a part of her private life which is protected by Article 8. We would welcome the views of the noble and learned Lord the Lord Chancellor as to whether the amendment is compatible with Article 8.
§ The Earl of Lauderdale
My Lords, in this debate and others there has been one rather alarming ambiguity. I refer to the reference to counselling. Counselling is sometimes given the adjective "proper". That begs many questions. So also does the use of the term "private life". It is said that Parliament should not interfere with people's private lives, but it is doing so all the time from morning to night. We are told, "Oh no, private life is private life and people can do what they like". We are told 1103 that counselling is desirable, but we are not told what kind of counselling. Is the counselling to be Christian counselling? Might it be Jewish counselling? Might it be Islamic counselling? Might it be atheistic counselling or might it be just counselling? There is a hideous range of ambiguity here. To take refuge in the term "counselling" is to take refuge in a cloud of ignorance.
I support the amendment, or whatever amendment the Government might think proper to bring forward at a later stage to replace it. To allow and encourage by state provision—it is at the taxpayer's expense ultimately—begetting of children into what are designed to be one-parent families does not make sense as regards serious sociological responsibility. Whether one is a Christian, a Moslem, a Jew or whatever, it does not make sense. The spirit behind the amendment is sound. It is not a specifically Christian matter. It is not a specifically Jewish matter. It is not a specifically Islamic matter. It is merely common sense from the point of view of society.
The Government, whom I support to the best of my ability—sometimes one is tested—have declared themselves, not once but many times, in favour of family life. There have been all sorts of questions and discussions in the House and elsewhere about the terrible state of homeless young people who have usually left their families because the mother has taken a new lover who has kicked out the son or daughter. That is one of the legacies of one-parent families.
We are discussing a situation where we might end up with more rather than fewer one-parent families, with less rather than more provision for children, other than state care, and so I beg the Government to give due weight to the sense of the amendment. Its terms may not be adequate. I am sure that my noble and learned friend the Lord Chancellor could come back with better terminology. He has already done so once or twice today, for which we are grateful. This is a serious point, not merely from the Christian standpoint but from the common sense social standpoint. On that basis, I beg your Lordships to support the amendment and the Government to pay serious attention to what has been said.
§ 6.45 p.m.
§ Baroness Warnock
My Lords, the amendment in whatever words it was put forward would be difficult to enforce. I oppose it because Amendment No. 15 moved by the noble and learned Lord the Lord Chancellor has already taken care of the true issue, which is the good of the child, which must be considered and taken into account. There is to be discussion and counselling is to be given to anyone who attends for treatment.
The effect of the amendment would mean that intrusive inquiry would have to be made into the relationship of the man and woman who presented together seeking treatment. In several cases of treatment by in vitro fertilisation the woman who wanted the child has attended with a "borrowed" man whom she has brought along for respectability's 1104 sake and who has no close relationship with her. I do not see how such a situation could be avoided without the most intrusive kind of inquiry, which we should be ill-advised to put into the Bill. I oppose the amendment.
§ Lord McGregor of Durris
My Lords, I agree strongly with the noble Baroness, Lady Warnock. I do not see how the amendment could be enforced. If it were to be enforced it would, as she said, be done only by turning clinicians and workers in clinics into private inquiry agents.
§ Lord McGregor of Durris
My Lords, there is all the difference in the world in that and giving counselling in proper circumstances in a proper setting by people who are properly qualified to give it. The amendment makes no reference, as does the previous amendment, to proper counselling. It would inevitably drag questions of status into the issue and, if the noble Lord, Lord Prys-Davies, is correct in his interpretation of Article 8 of the European Convention on Human Rights, it would cause major difficulties. I am at a loss to understand what benefits the amendment would confer which are not much better provided by the amendment to which the House has just agreed.
§ Baroness Faithfull
My Lords, I should like clarification from my noble and learned friend the Lord Chancellor. I do not see why we are discussing the amendment when we have agreed to Amendment No. 15. Amendment No. 15 deals with the situation. Surely we cannot have Amendment No. 15 and Amendment No. 16.
§ Lord Mackie of Benshie
My Lords, I intervene only to contradict the assumption that one-parent families always result in disaster. One should consider the number of widows who have brought up the most successful families. It is hard, but it is not impossible. To stipulate that there must be a father and that that in itself will produce a happy family home is ludicrous. The prospect of a woman who is deranged in some way being treated and having a disastrous family is taken care of by the previous amendment.
§ Lord Ennals
My Lords, I spoke at length in Committee when we debated the amendment moved by the noble Lady, Lady Saltoun, which would have limited the treatment to married couples. I am glad we have not returned to that point. I want to be brief. If the amendment were carried it would be unenforceable. A woman who is living on her own, who may or may not be a widow, or a woman who is living with another woman—let us consider all the possibilities—who wanted the treatment and wanted a child—the issues raised in the previous amendment having been considered—would not be put off by the fact that she had to bring with her a man with whom she was at that moment living. She might "rent" a man. She might bring in someone to show that that is the man with whom she is living.
1105 It would be deplorable to force a widow into that situation. If it is enforceable it cannot be good law unless we require evidence of the stable relationship that the woman has with the man who accompanies her when seeking that treatment.
As I stated on the previous amendment moved by the noble and learned Lord the Lord Chancellor, I thought that he had found the right answer in Amendment No. 15. I still take that view. I hope that the amendment will not be pressed to a Division.
§ Lord Robertson of Oakridge
My Lords, it is worth looking at Amendment No. 46. It states.where treatment services are provided for a woman and a man together, the man shall be treated as the father of any child carried by the woman as a result of the provision of those treatment services".Therefore, it would not answer the provisions of the Bill if a strange man were produced for the purpose of the interview who then felt that he could fade out of the picture. As I understand it, he would have a legal obligation to act as a father.
§ The Lord Chancellor
My Lords, these amendments take us back to the territory covered by the amendments moved by the noble Lady, Lady Saltoun, in Committee. The amendment is somewhat wide in intention, in that it would require a man and woman to present themselves for treatment and that counselling would be available to a man and woman.
The effect of the amendments would be to permit licensed treatment only to a couple comprising a man and a woman whether or not they were married and to exclude from treatment single women or other combinations of women. I have some considerable sympathy with the purpose of these amendments, which would be designed to ensure that a child who came into the world as a result of one of the treatments to be licensed under the Bill would be born into circumstances in which the child's development would be properly cared for.
It is certainly necessary for us to reflect very carefully before we do anything either in relation to legislation or in statements about government policy which detracts from the stability of the family, for the health of the family is largely at the heart of the continuing health of our society.
However, I explained earlier that one has to take account of other possibilities. We wish to achieve a result. One has to seek to achieve it against the background of the actual and real world and what people may do in that world. On the whole there is much to be said for seeking not to make a completely watertight rule that may bar all consideration of particular situations, but to allow people, whatever their situation, to come forward to have their situation and the consequences of what they wish to do considered. I believe that in the end that may better achieve the purpose of my noble friends Lord Ashbourne and Lord Lauderdale, an aim shared, I am sure, by other noble Lords.
The essential element is the proper welfare of the child. My noble friend Lord Lauderdale asked me what counselling there will be. I hope and believe that counselling will be provided that will take account of 1106 all the relevant circumstances of the person presenting for treatment and advise that person on all aspects of it. It is a matter for individual conscience, as was the amendment moved by the noble Lady, Lady Saltoun.
However, I distinguish between Amendments Nos. 16 and 17 and Amendment No. 46. Amendment No. 46 provides in effect that.where treatment services are provided for a woman and a man together, the man shall be treated as the father of any child carried by the woman as a result of the provision of those treatment services".That strikes me as something that might well be appropriate in given circumstances. It could not arise directly from the amendment which I have already proposed, but it might well be a good way of giving effect at least in some circumstances to what the amendment seeks to achieve.
The Government have no line on Amendments Nos. 16 and 17. We are neutral. I t is up to your Lordships to decide according to your individual conscience about that, seeking to take account of the circumstances that I have mentioned.
Amendment No. 46 is in a different category. I am very content to consider that further to see exactly under what conditions it might operate in order to provide a mechanism. At the moment there is no mechanism to cope with that situation. We have not so provided. Obviously such a provision could be construed in some quarters as seeking to promote relationships other than those in marriage. That is not something that we wish to promote. On the other hand, where such a relationship exists and treatment is to be provided, then it may well be that some responsibility should by law be attached to the male partner presenting together with the woman for treatment.
If my noble friend Lord Ashbourne is prepared to allow me to consider Amendment No. 46 further, I shall be very happy to do so when we come to that amendment. Amendments Nos. 16 and 17 are amendments upon which your Lordships must vote according to your conscience if my noble friend decides that he wishes to press the matter to a division.
I should have answered the question of the noble Lord, Lord Prys-Davies. The precise effect of the Convention on Human Rights is, as he knows very well, a matter of opinion and judgment. I have stated what I was advised about Article 12. I have not received such definitive advice on Article 8. I regard it as extremely doubtful whether the scope of Article 8 extends to such questions. I rather think that the law of the state which was party to the convention would have some part in defining what is meant by the private and "family life of the person", in particular the latter phrase. I do not imagine for a moment that Article 8 allows people a completely free hand on the relationships into which they may be allowed by the law of the member state to enter. That is the best that I can offer at this juncture. I am not able to offer a concluded opinion of my own on that question tonight.
§ Lord Ashbourne
My Lords, I am extremely grateful to all noble Lords who took part in these 1107 discussions and to the noble and learned Lord the Lord Chancellor for winding up in such a masterly fashion and for the encouragement that he was able to offer me on Amendment No. 46.
The noble Lord, Lord McGregor of Durris, seemed to think that counselling was not covered. However, if he looks at Amendment No. 17 he will see that that concerns counselling and nothing else. There was a little doubt about the rent-a-man or rent-a-husband issue. The point of linking the amendment to Amendment No. 46 was to overcome that problem. I entirely accept the point that one does not wish the woman to grab any man and just appear. That will achieve nothing. Having said that, and in view of the encouragement that the noble and learned Lord was able to give me, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 17 and 18 not moved.]
Baroness Hooper moved Amendment No. 19:
Page 6, line 43, leave out subsection (7).
§ The noble Baroness said: My Lords, the amendment was spoken to with Amendment No. 12. I beg to move.
§ On Question, amendment agreed to.
§ Clause 14 [Conditions of storage licences]:
§ 7 p.m.
Baroness Hooper moved Amendment No. 20:
Page 7, line 20, after ("storage") insert ("and as to such other matters as the Authority may specify in directions").
§ The noble Baroness said: My Lords, the amendment was spoken to with Amendment No. 11. I beg to move.
§ On Question, amendment agreed to.
Baroness Hooper moved Amendment No. 21:
Page 7, line 21, at end insert—
("(1A) No information shall be removed from any records maintained in pursuance of such a licence before the expiry of such period as may be specified in directions for records of the class in question.").
§ The noble Baroness said: My Lords, the amendment adds to Clause 14, which deals with storage licences, a provision exactly equivalent to that in Clause 13(4) in relation to treatment licences. If I may look forward to the debate on the new clause on research licences which comes after Clause 14, parallel provision is also proposed for that group of licences.
§ The effect of the amendment is to prevent the removal of any information from the records kept about storage licences before the end of such period as the authority may specify in a direction. Its purpose is simple: it enables the authority to ensure that information is kept for such period as may be necessary. I beg to move.
§ On Question, amendment agreed to1108
Baroness Hooper moved Amendment No. 22:
After Clause 14, insert the following new clause: ("Conditions of research licence
.—(1) The following shall be conditions of every licence under paragraph 3 of Schedule 2 to this Act.
(2) The records maintained in pursuance of the licence shall include such information as the Authority may specify in directions about such matters as the Authority may so specify.
(3) No information shall be removed from any records maintained in pursuance of the licence before the expiry of such period as may be specified in directions for records of the class in question.
(4) No embryo appropriated for the purposes of any project of research shall be kept or used otherwise than for the purposes of such a project.").
§ The noble Baroness said: My Lords, I wish to speak also to Amendment No. 84. Amendment No. 22 would insert a new clause which specifies conditions which apply to licences for research in addition to those specified in Clause 12 which apply to all licences. It would give the authority the power to require particular information to be recorded and kept.
§ Subsection (3) specifies that no information can be removed from any such records before the expiry period for that information. The expiry period, which may be different for different types of information, is to be specified in directions given by the authority under Clause 22 and is to ensure that information is retained for as long as it may be needed. This subsection is equivalent to subsection (4) of Clause 13.
§ Subsection (4) specifies that it must be a condition of any research licence that no embryo which is appropriated for research may be used for any other purpose. The purpose of the condition is to ensure that an embryo used for research purposes is not used for treatment. This subsection replaces the second part of paragraph 3(6) of Schedule 2. Amendment No. 84 is consequential. I beg to move. On Question, amendment agreed to.
§ Clause 15 [Grant of licence]:
Lord Ennals moved Amendment No. 23:
Page 7, line 35, leave out ("accompanied by the initial fee").
§ The noble Lord said: My Lords, in moving the amendment in Committee I referred to the lack of central funding as being discriminatory against those who are infertile. I argued that in our view it was wrong that the work should be carried out and paid for from fees which would almost certainly be passed on to patients. I said that much was rightly being done for fertile people. The many services available include pre-pregnancy counselling, ante-, intra- and post-partum care, neonatal paediatric services, conception, abortion and sterilisation, where necessary. Indeed, a whole range of services is provided for those who are fertile. On the other hand, provision within the Naional Health Service for those who are infertile is poor due to the underfunding of the service. I argued as strongly as I could that all that work, whether carried out in private or NHS clinics, should be paid for from the public purse.1109
§ I have subsequently been informed of the views of the Interim Licensing Authority about which your Lordships will wish to hear. It also believes that it would be impractical for the authority to have to deal with licence fees. It gives a number of reasons. At present there are only two IVF centres wholly funded by the National Health Service. They are at St. Mary's Hospital in Manchester and at the University Hospital of Wales in Cardiff. In those and in many other centres treatment is offered on a tight budget to enable patients to receive treatment at no cost or very little cost. The licence fees charged to those centres would put considerable strain on the already overstretched budget and may result in the closure of some centres. Under current NHS rules centres are not permitted to pass on any costs to the patient. That additional cost to the setting up of a new unit would also deter any expansion in the provision of those services within the NHS.
§ However, within the private sector the cost will undoubtedly be passed on to the patients, thereby increasing the already high cost of treatment. Many couples receiving treatment in the private sector can ill afford to do so but consider it to be their only chance of having their own much-wanted family. Within the private sector a precarious financial framework exists whereby some centres provide a service for NHS patients by ploughing back the fees obtained from treating private patients. That structure would also be put at risk by the imposition of licence fees.
§ In Committee I calculated that it was likely that the cost would be about 100 for each of the patients who seek assisted conception treatment each year. I argued that that was a heavy burden for them to bear and that the cost should be borne by the public purse. At that time I asked the noble Baroness several questions. I asked what sums of money the clinics were expected to pay in regard to the licence; what sums of money the Government were expecting to pay to the licensing authorities; what was the proportion that would be paid by the Government; what proportion would they expect to be paid for by fees; and once the cost had worked its way down to the patients what figure would that be, and was my guess right.
§ I have thought over the matter subsequently and it may be that we do not have the proposed amendment exactly right. Perhaps there should be a different method of dealing with fees for NHS and university clinics as opposed to private clinics. Before I and those who support the amendment decide on the action to take, I hope that the noble Baroness will indicate the funding as she sees it. Furthermore, does she believe that it will be possible to have a regime which does not impose additional charges on health service clinics and leaves the private sector clinics free to set their own fees? I beg to move.
§ Baroness Faithfull
My Lords, the noble Lord, Lord Ennals, has put the case so well that I shall not repeat it. However, I wish to add that money available in this area is open to abuse. In such an area we wish to close every door to every possible form of abuse. I support the amendment, although 1110 I too am not sure that we have the wording right. I hope that the Government will feel sympathetic towards it.
§ Lord Henderson of Brompton
My Lords, I recall the occasion in Committee when the amendment was raised. We were not greatly enlightened by the noble Baroness's reply. I asked her what treatments in the National Health Service were subject to charging. We received a peculiar reply and I do not believe that she answered the question. She referred us to treatments outside the National Health Service which none of us believed to be relevant.
In view of the slightly different way in which the noble Lord, Lord Ennals, has moved this amendment, I ask whether the noble Baroness will consider that the fee in the private sector might be passed on to the patients but there should be no passing on of the fee to patients in the National Health Service. That seems to me in accordance with present practice. As I said in Committee I can think of no National Health Service treatment where charges are paid, and of course a fee would be a charge to the patient except for treatments outside hospital, which they usually are—for example, treatment to teeth and charges for spectacles. If the noble Baroness will consider making a distinction between the National Health Service and private patients in that way, I am sure that that will be very well received by the House.
My Lords, I can add very little to those noble Lords who have spoken in support of the amendment moved by the noble Lord, Lord Ennals. On the face of it, it strikes me that the present idea will be discriminatory against the infertile, as the noble Lord, Lord Ennals, said. As we know, something like one in eight couples in this country at present are infertile.
Secondly, depending on what are the arrangements, I think it would also be discriminatory in another way; that is, against those couples who are not only infertile but also poor. It may be that richer couples seeking treatment—and if these costs are passed on to those seeking treatment then I think this will apply—may be able to bear the costs without unduly worrying their bank managers. That would not necessarily be the case for poorer couples seeking treatment. Without in any way wishing to appear unduly egalitarian, I have a feeling that that is hardly fair.
Perhaps I may also say that I was interested in what the noble Lord said in Committee. I was not able to be present then because I was in the People's Republic of China and I apologise for that. He said that he was rather worried about the possibility of a cosy relationship between the statutory licensing authority and those being licensed. I say to the noble and learned Lord on the Woolsack that I have run up against a somewhat similar position in a part of the country with which he is well acquainted; that is, on the shores of Loch Cairnbawn, where my wife and I have what we call an enlarged shack. It is a croft which we have modernised. Over the past decade we have seen a tremendous increase in salmon farming, the licences for which are given by 1111 the Crown Commission. That body is also in receipt of the rents from those whom it licences. It has always struck me that that is not an ideal situation, although I do not wish to press that point unduly.
Another point which troubles me is that the Government have consistently and rightly paid tribute to the work of the Interim Licensing Authority. I believe that the authority has done marvellous work and it seems odd that if the Government insist on pursuing this course—and they may be right in doing so—they will be flying in the face of the one authority with real, valid, up to date experience in this field. In its third and fourth reports the licensing authority has expressed its disquiet about these proposals. I say that without knowing what the Government really have in mind. I have noted what the noble Lord, Lord Ennals, and my noble friend Lady Faithfull have said about the fact that perhaps we do not have the wording right. Perhaps that is so but I wonder whether the Government have it right. Before I form a firm judgment, I should like to know what is really in the Government's mind.
§ 7.15 p.m.
§ Lord McGregor of Durris
My Lords, I do not wish to add to any of the arguments save to press again a question which I put to the noble Baroness in Committee and which the noble Earl, Lord Jellicoe, has asked again this evening. I should like to know why the Government have decided, as regards the charging methods, to disregard the very forceful and cogent advice on the consequences and difficulties of charging from the only body—the Interim Licensing Authority—which has experience in that area. I shall be very grateful if the noble Baroness will help me on that.
§ Baroness Hooper
My Lords, perhaps I should start by reiterating what I said in Committee—that is, that there will be no question of National Health Service patients being charged for the licence fees. Indeed, there are no powers which would make that possible even if anybody wanted to do so.
I must go further and deny any intention in Clause 15 to penalise centres providing licensed treatments and undertaking research, if Parliament decides that that should be permitted. Indeed, since these centres are not being required to meet the full costs of the authority but only, in broad terms, about two-thirds of these costs, they are being treated more favourably than some other licensing systems where the aim is to achieve full recovery of licensing costs. I quoted that figure during the previous debate and I shall try to respond to other questions raised by the noble Lord, Lord Ennals, and others in my following remarks.
In areas which, to a greater or lesser degree, involve the protection or safety of the public, the principle of charging those who apply for licences is well established. While each case has of course its own variations, the range of examples I can cite in these areas shows how well established the principle is. Fees are charged for planning applications, for licences under the Medicines Act, for those wishing to carry out research involving scientific procedures 1112 carried out on animals, for licences for consumer credit, for certain licences issued by the Health and Safety Executive, for registration of private nursing homes by local authorities and under the Data Protection Act registration scheme.
These are only examples in the fields of the protection on safety of the public but the breadth of subjects covered and the number of government departments involved shows how widespread is the concept of recovering the costs of a licensing system from those who benefit from it. The Government see no reason to depart from this principle in the case of licences to be issued by the new authority as a result of this Bill.
It may be helpful if I comment on how the Government expect the new system to operate. In broad terms, as I have already indicated, we would expect fees to meet two-thirds of the costs of the new authority. The figures in the Financial and Explanatory Memorandum indicate what the initial costs of the new authority are expected to be. Under Clause 15(6) of the Bill, the fee structure devised by the new authority will be subject to the approval of the Secretary of State and of the Treasury. As has been pointed out on other occasions, the Secretary of State is in turn responsible to Parliament.
Under Clause 15(7) the authority will have flexibility to charge different fees in different circumstances. Therefore, to answer the point that was raised, different fees can be charged for the National Health Service or indeed, for university centres. It would not be right for me to prejudge how the authority devises a fee structure. It may want to relate fees to the cost of work in processing particular types of application. Equally, it may decide to link fees to levels of the licensees' work so that it could charge less to small university-based units which provide treatment to a few patients, essentially in the interests of carrying out research on infertility services, and relatively more to centres with a large throughput of patients which charge market rates. It may be possible to combine elements from both options. The authority will clearly want to consider in depth the kind of scheme it should submit for the approval of Ministers and the Treasury.
Much has been made of the argument that centres will simply pass on the licensing costs to patients who will thereby be disadvantaged. It has even been suggested that that is discriminatory. However, under the National Health Service reform Bill, which will soon be before your Lordships, health authorities will have a duty to provide those services which are required to meet the needs of the local population. There is no reason why a health authority should not decide that this area of infertility treatment is one of those priorities. In any event, there is nothing unique about the passing on of licensing costs. Many of the licensing systems I mentioned in other examples are in the health field and mean that in the end the cost of licensing falls either on the National Health Service or, in the case of the private sector, on those who are paying for treatment or care.
That is what already happens with the cost of medicines licensing, which is the most apt analogy.
1113 The cost is reflected in the final cost of medicines which are paid for either by the National Health Service or the private patient. The alternative would be that the whole cost of licensing services, directly or indirectly for the infertile, should fall not on the Government—for the Government have no money of their own—but on the taxpayer. The Government do not believe it is wrong that part of the licensing costs should fall on the National Health Service and on those obtaining infertility services outside the National Health Service. Given the precedents that I cited in medicine control and elsewhere, it would have been an oddity had the Government decided to reject those precedents and put the whole cost on the taxpayer, as suggested by the amendment.
The noble Lord, Lord Ennals, asked for details of the real costs of treatment and how that works out in terms of individual patients. I do not think it would be productive for me to enter into detailed argument about estimated costs at this stage. Suffice to say that the estimates which appear in the financial and explanatory memorandum were drawn up after careful consideration of the relative costs which might be involved in licensing activity for specific types of licensed treatments. These estimates are inevitably tentative and in a new field such as this may need appreciable adjustment in practice. Equally, much will depend on how the new authority chooses to go about its work and how efficient it can make the operation of its work that is to be met from the fees. I venture to say that as a result of the changes that have already taken place in the Bill and the fact that the measure may be changed again in the course of its passage, then, as a result of those changes, the costs may be altered.
The noble Lord, Lord Henderson, may say that I have not answered his point. I believe that I did in saying that we do not intend licensing charges to be charged directly to patients but via the unit which obtains the licence. I realise that there is support for the amendment as explained by the noble Lord, Lord Ennals. I trust however that the examples I gave and the precedents I quoted reassure your Lordships and that the noble Lord will withdraw the amendment.
§ Lord Ennals
My Lords, I am extremely grateful to the Minister for her explanation, but I have to admit that I am still very puzzled. The Minister gave what appeared to be a very important assurance that there was no question of NHS patients being charged. That means that the institutions that are licensed to provide services and treatments and, indeed, research, would not be able to pass the cost on to NHS patients although possibly doing so in respect of private patients. I think I hinted that we should perhaps be looking for a different type of regime.
If the NHS patients are not charged, who actually does pay? Is it something that it is suggested could be paid for by the health authority? What would be the case with treatments in universities? How would that be paid? There are still these uncertainties and I bear in mind that the noble Baroness did not answer the noble Lord, Lord McGregor, who asked why the advice of the ILA had been rejected.
1114 This is a subject of very great interest: the amount of support shows that. I wonder if it is possible for there to be a meeting between those who, on different sides of the House, support this amendment and the Minister between now and Third Reading to inquire whether we can turn some of the assurances given into something clearer in the Bill. If the Minister could agree to that, putting us in a position to produce something which might be acceptable, I would be only too pleased to withdraw the amendment.
§ Baroness Hooper
My Lords, with the leave of the House, the most conclusive example—and it is perfectly clear—is that of the cost of medicines licensing which is paid for either by the National Health Service or the private sector.
§ Lord Ennals
My Lords, that is totally different. It is not comparable at all. There we are dealing with large multinational pharmaceutical companies who pay their licensing authority. They do not have a shortage of money. They do not need to pass the cost on to their patients in the same way that in this field it has to be passed on to patients.
§ Baroness Hooper
My Lords, I was going on to say that nevertheless, in view of the support that has been shown and because, I hope, we are always a listening Government, prepared to be as co-operative as possible, I should be happy to meet and discuss the matter before Third Reading as the noble Lord suggests.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 24 and 25 not moved.]
§ Clause 23 [Directions as to particular matters]:
Baroness Hooper moved Amendment No. 26:
Page 12, line 23, at end insert—
("(1A) In the case of every licence under paragraph 1 of Schedule 2 to this Act, directions shall require information to be recorded about each of the matters referred to in section 13(2)(a) to (e) of this Act.").
§ The noble Baroness said: My Lords, this was spoken to with Amendment No. 11. I beg to move.
§ On Question, amendment agreed to.
§ Clause 24 [Code of practice]:
The Lord Chancellor moved Amendment No. 27:
Page 13, line 22, at end insert—
("(1A) The guidance given by the code shall include guidance for those providing treatment services about We account to be taken of the welfare of children who may be born as a result of treatment services, and of other children who may be affected by such births.").
§ The noble and learned Lord said: My Lords, this is the second part of the amendment I spoke to with Amendment No. 15. I beg to move.
§ On Question, amendment agreed to.1115
§ Baroness Blatch
My Lords, this might be an appropriate moment to move that consideration on Report be now adjourned until half past eight. I beg to move.
Moved accordingly, and, on Question, Motion agreed to.