Human Fertilisation and Embryology Bill [H.L.]

HL Deb 06 March 1990 vol 516 cc1128-57

Consideration of amendments on Report resumed on Clause 24.

Lord Robertson of Oakridge moved Amendment No. 28: Page 13, line 22, at end insert— ("(1 A) The code shall require that where treatment services are provided for a woman and a man together (whether married to each other or not) involving the use of the gametes of some other person or the placing in the woman of an embryo the creation of which was brought about by the use of such gametes, the person responsible shall advise the woman and the man to tell any child carried by the woman as a result of the provision of those treatment services of its origins.").

The noble Lord said: My Lords, Amendment No. 28 is designed to minimise the number of children born as a result of donated embryos of gametes who grow up unaware of their origins. It would require people in charge of clinics to advise the woman and the man to tell any child carried by the woman as a result of the provision of those treatment services of its origin.

We are all aware of the problem of alerting children to the fact that there is something that they ought to know about their origins so that they can make inquiries under Clause 29 of the Bill. No one has yet come up with a satisfactory solution. As matters stand it is very much up to the parents. To a certain degree that is how it should be. However, some parents will put off telling their children and some may put it off for ever. Therefore it seems right that the authority should include in its code a requirement to remind parents of their responsibilities in that respect.

The amendment would only mitigate the problem but I believe that any mitigation is worthy of consideration by your Lordships' House. I beg to move.

Lord Ennals

My Lords, I hope that the noble Lord will not press the amendment. There are many difficulties, but I shall mention only one or two.

First, there is the requirement that, the person responsible shall advise the woman and the man to tell any child". We have to decide who is the person responsible.

In moving the amendment the noble Lord referred to the parents' responsibilities. The parents must decide for themselves whether they think that it is helpful for their child to know its origins, before the age of 18. There seems to me to be no reason why they should tell the child unless they wish to do so. I said at Committee stage that I do not believe that it is the responsibility of this legislative assembly to tell parents what they should do in relation to their own children. Some parents will be most anxious that their child should know early in life what happened and why and how it was that the child was born. Others may determine that that is not in the best interests of the child.

That is just the kind of issue about which parents would seek advice from counsellors. They would want advice about how to face up to that difficult problem. However, I do not believe that it is for this House, or Parliament in general, and the law to say to the parents what they should do in this recognisably difficult predicament.

Lord Craigmyle

My Lords, the noble Lord recognises that this is a difficult situation. However, the difficulty arises from what is now common knowledge. Within the psyche of everyone is a longing to understand one's origins: where did I come from, how am I here, who are my parents?

If a child observes that he has no apparent genetic link with the people who have brought him up he will begin to wonder about his parentage. Sooner or later one or other of the people who have brought him up—if there are two of them, as I hope there will be—will let slip some remark which will begin to drill a hole in his self-confidence. He will never be happy until the truth about his origins is ascertained. If those who are acting as parents have been honest with the child from the beginning and have said, "We are not your genetic parents", the difficulty will not arise. Therefore I believe that it is as well that the child should be told.

Baroness Faithfull

My Lords, perhaps I may follow that argument through. If the child is told that the husband and wife who have brought him up are not his genetic parents he will then want to know who are his genetic parents. What happens then?

There is a great difference between adoption and this situation. In adoption one always tells the child that he is adopted. One is able to say to the child, "Your mother loved you so much; she knew that she could not give you the best in life and was generous enough to let somebody else bring you up. The people who brought you up are the people who loved you best because they chose you". That is a different situation because one knows the people involved and the matter can be followed through.

In this situation, if parents say, "We are not your genetic parents" the child's first reaction will be to ask "Who are my parents?" Then what do you say?

If the man who gives sperm thinks that he will be pursued as the father of a child he will not co-operate. However, one should consider the matter from the child's point of view, which is the most important. Where a child is brought up by a couple who act as his mother and father, even though the father is not the genetic father, that is the right way to deal with the matter. It is not the same as adoption.

The Earl of Halsbury

My Lords, I appreciate the good will and sentiments behind the amendment. However, regarding it simply as a legal provision, how is it to be enforced? It must be many years before the child is sophisticated enough to take in the kind of explanations which this advice requires.

How would one convict the adviser years after the event of being in breach of duty, either for not giving good enough or sufficiently explicit advice, or possibly no advice at all? He will not remember and the parents will not remember. I do not believe that it is a viable provision for a statute.

Lord Ashbourne

My Lords, I rise to support the amendment of the noble Lord, Lord Robertson of Oakridge. The issue seems to me to be very simple. Either one tells the truth or one does not. In Committee I was very moved by the most pertinent point that got through to me after three long afternoons of discussion in your Lordships' House. The noble Baroness, Lady Macleod of Borve, and the noble Lord, Lord Renton, said in effect, "When I was at school I was brought up to tell the truth and my advice to the House is to tell the truth now". That is what my advice to the House is now.

My noble friend Lady Faithfull asked what one tells the child. One should tell the child the truth. In my opinion one cannot gainsay the truth; so when in doubt tell the truth. I commend the amendment to your Lordships.

The Lord Chancellor

My Lords, I sympathise with the reasoning behind the amendments each of which may well raise an issue on which the code of practice should attempt to give some form of guidance. However, I should like to make a general point about the code of practice. The code will be drawn up by the new authority and will need to be approved by the Secretary of State and laid before Parliament. With the exception of the important amendment dealing with the welfare of children which I have just moved, the code in its present form is not specific as to content. The matter should be decided in the light of detailed consideration by the authority charged with the responsibility for the licensing system. I am sure that that must be the right policy.

It is tempting for Parliament to lay down in more detail the subjects with which the code should deal as a way of indicating the concern which is felt about particular subjects. That is what we have done in the amendment which the Government have moved and to which I have just referred. However, it would be unfortunate if Clause 24 were to become simply a vehicle for specifying detailed provisions about the content of the code. The code will need to cover a wide range of subjects of varying degrees of sensitivity. To highlight detailed aspects, however important in themselves, inevitably creates the impression that matters not referred to in the Bill are less important.

Unless one has made a full study of the matter, it is difficult to say which are the important points. It is surely right that the code should be subject to detailed consideration by the authority. I should be surprised if the authority did not find that it had to consult interested organisations and experts on particular matters. For that reason, it would be a great pity if, in relation to some topics, we in this legislative assembly pre-judged what line the code should take.

My noble friend Lady Faithfull pointed out one problem. Other noble friends who spoke hold an opposite view. As one would expect, my noble friend Lord Ashbourne suggested that the answer was to tell the truth. No one would wish to misinform a child; on the other hand, the amendment raises an issue of considerable difficulty. The mere fact that a child has been born following on treatment is not necessarily a consequence of the treatment. It may well be that a woman continues to have normal relations with her husband at the same time as having such treatment. I do not profess to understand in any detail the mechanisms by which those things work. But it is certainly possible that, although conception followed treatment, it was not caused by the treatment. The idea that the truth about one's origins is plain for all to see is an over-simplification of the reality.

Having said that, it may well be important in some circumstances to tell the child. One of those circumstances may be where there is any question of a genetic problem. The medical assessment of a condition in the child may well require that the genetic characteristics or other medical characteristics of the genetic father, for example, should be studied. That might create a different situation from one without such circumstances. So the situation is quite difficult and delicate. It is not easy at this stage when, with all respect, we do not know as much about the matter as the people who are deeply involved in trying to deal with these treatments will know when they come to draft the code.

I therefore suggest to noble Lords that we have given a clear lead to those drafting the code that the welfare of any child to be born following the treatment should be taken into account before the treatment is given. It should then be left to the authority to draft a detailed code giving effect to that principle and trying to take account of all the other circumstances which may well arise.

However, I should like to assist noble Lords who have tabled the amendment by saying that I am content to undertake that we shall bring to the attention of the authority, once appointed—assuming that the Bill goes through—the various matters that have been raised in the amendments and that the Secretary of State will consider, in relation to his responsibility for approving the code, whether guidance should be given on the lines of the amendments. That approach will adequately take account of the concerns expressed by noble Lords in a way that is consistent with the statutory framework under which the code will ultimately be determined by the authority subject to the Secretary of State's consent.

In the light of that assurance, I hope that the noble Lord will withdraw the amendment. We have had a valuable debate upon it. Experienced views in different directions have been expressed showing that the point is not by any means a simple one, but will nevertheless be fully considered at the appropriate stage.

Lord Robertson of Oakridge

My Lords, I am grateful to noble Lords who have spoken on the amendment and to the noble and learned Lord the Lord Chancellor. I am also glad that he has given us an assurance that the matter will be discussed when the code is formulated. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lord Robertson of Oakridge moved Amendment No. 29: Page 13, line 22, at end insert— ("(1B) The code shall require that (a) the sperm of any one man: or (b) the eggs of any one woman, should not be used in the course of providing treatment services for a number of women greater than that specified in the code.").

The noble Lord said: My Lords, when speaking to Amendment No. 28 perhaps I should have said that, although the amendments are grouped together, they deal with different subjects. I hope that the House will give me leave to speak to each separately.

Amendment No. 29 requires the authority to stipulate the number of women who could be treated with the sperm of any one man or eggs of any one woman. The amendment is similar to one that I moved in Committee when I proposed that the Secretary of State should have the power to lay down the maximum numbers. Although my amendment did not find favour with the Committee, the Minister said that it would be right for the authority to provide guidance on good practice and to monitor the situation. That is one thing that it should do. The amendment would somewhat restrict the fathering of children by AID, but it would reduce the likelihood of unwitting incest. I beg to move.

The Lord Chancellor

My Lords, I suggest that exactly the same considerations apply to this amendment as applied to the previous one, more particularly perhaps to this amendment which does no attempt to specify the number but provides that this should be specified in the code. It may well be that different numbers should apply to different aspects of the amendment. However, I again give the assurance that the matters referred to in the amendment will certainly be brought to the attention of the authority when it is constituted under the Bill and that the Secretary of State will bear those matters in mind when considering whether to approve the code in terms of his statutory duty.

Lord Robertson of Oakridge

My Lords, once again I am grateful to the noble and learned Lord the Lord Chancellor. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Robertson of Oakridge moved Amendment No. 30: Page 13. line 22, at end insert— ("(1C) The code shall require that no man shall provide sperm and no woman shall provide eggs for use in the provision of treatment services unless he or she has attained the age of eighteen years or such greater age as the code may specify.").

The noble Lord said: My Lords, Amendment No. 30 requires the authority to set a lower age limit of at least 18 years for donors of sperm or eggs. That is a new subject, but I hope that there is general approval in the House of some kind of age limit. The age of 18 seems the lowest age at which someone can adequately assess what is involved in donation. It would be open for the code of practice to lay down a higher, not a lower, age.

There is no suggestion that clinics involved in infertility treatment are likely to seek donations from those under 18, but, if gametes were for any reason in short supply, they might be under some pressure to do so. I therefore feel strongly that we should build that limit into the Bill. I beg to move.

Lord McGregor of Durris

My Lords, perhaps I may ask the noble Lord what principle lies behind the amendment. My understanding is that in England people may marry with their parents' permission at the age of 16 and with the permission of the summary court if the parents refuse. I understand that a summary court rarely refuses permission. For all I know, there may well be circumstances in which a married couple aged 16 or 17 might require treatment which involved what the amendment prohibits. I do not understand the principle that is embodied in the amendment.

Lord Henderson of Brompton

My Lords, the noble and learned Lord the Lord Chancellor has implied that Amendments Nos. 28 to 30 are not apt because they are too particular to be put into the code. I respectfully suggest to the noble Lord, Lord Robertson of Oakridge, that what the noble and learned Lord said about earlier amendments applies also to this one. I should have thought that it might be advisable to have more general guidance in the code but the limit is a matter for the clinician under the code of practice. It would be unwise to spell out that limit if only for the reasons adduced by the noble Lord, Lord McGregor of Durris. I commend that point of view to the noble Lord, Lord Robertson of Oakridge.

Lord Ashbourne

My Lords, I support the amendment on the basis that the House must decide whether the limit should be included in the Bill or in the code of practice. My opinion is that the matter is sufficiently important to be in the Bill rather than in the code of practice. On that basis, I commend the amendment to the House.

The Lord Chancellor

My Lords, strictly speaking of course the amendment requires that the limit be in the code, but I do not take that point more than just as a matter of semantics. It is a statutory provision regulating the code. What I said earlier applies also to this amendment. I can well understand that it might be in somewhat exceptional circumstances only that one would think it right to resort to infertility treatment as early as this even if people were married at 16. The Bill is intended to apply more generally than to that aspect of the matter.

It is fair to say again that whether an age limit be laid down, and if so what it should be, is a matter which would have to be considered in relation to the code. For example, a different age limit might be appropriate if the couple seeking treatment were married than if they were not. Circumstances can vary. I suggest to the noble Lord, Lord Robertson of Oakridge, and my noble friend Lord Ashbourne, who supported the amendment, that this is a matter which would be appropriately dealt with in the code. I give an undertaking similar to the one I gave earlier about the matter being brought to the attention of the licensing authority when considering the code and also that the Secretary of State will have it in mind when considering whether to give approval to the code under the statutory duties that the Bill provides.

Lord Ennals

My Lords, perhaps I may follow the words used by the noble and learned Lord the Lord Chancellor—that the matter will be brought to the attention of the licensing authority. It will be brought to the attention of the licensing authority in the same sense as the issue had been raised, not in the sense that the House had taken a view on it, because other issues may come up on further amendments which might be appropriate for guidance in the code. I should not like to think that because someone who disagrees with a point has not spoken some seal of approval has been given with regard to drawing the matter to the attention of the authority.

The Lord Chancellor

My Lords, with the leave of the House, I did not intend that. In all these undertakings I intended that that consideration would be brought to the attention of the licensing authority, leaving it to decide what it should do. I would not wish to give the impression that the House as a whole had approved any line on this matter except that this was a matter for the licensing authority to consider and determine and for the Secretary of State to have in mind when deciding whether he should grant approval. That is all that I mean. These subject matters will be drawn to the attention of the licensing authority as subject matters which have been considered, without in any way telling it what to do. It must be the licensing authority's responsibility to decide whether something along those lines is appropriate, and if it thinks that something along those lines is appropriate what the detail of what it lays down should be. I am sure that the noble Lord, Lord Robertson, understood that in relation to my earlier undertakings, as I hope that all of your Lordships have.

Lord Robertson of Oakridge

My Lords, I fully understood that point. I am grateful to the noble Lords who have spoken, but I am extremely disappointed by their views because I feel that serious moral problems are involved in this subject.

A schoolboy of 16 or 17 should not be expected to make such a decision or be involved. I feel strongly that 18 should be the minimum age for donors. However, having said that, it is getting on in the evening. Attendance in the House is small and I do not believe that it would be right for me to divide the House. With respect, that is my sole reason for not dividing the House, and so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Meaning of "mother"]:

The Lord Chancellor moved Amendment No. 31: Page 14, line 7, leave out ("A woman who") and insert ("The woman who is carrying or").

The noble and learned Lord said: My Lords, I shall speak at the same time to Amendment No. 35. Amendment No. 31 provides that, subject to a subsequent adoption, a woman who is carrying or has carried a child as a result of the placing in her of an embryo or sperm and eggs, and no other woman, is to be treated as the mother of the child.

Amendment No. 35 provides that Clause 27, which deals with the meaning of father, applies in the case of a child who is being or has been carried by a woman as a result of the placing in her of an embryo or of sperm and eggs or her artificial insemination.

The amendments make it clear that a woman is to be treated as the mother of a child not only following the child's birth but also during the period when she is carrying the child, and if a man is to be treated as the father of a child he is to be so treated not only following the child's birth but also during the period when the woman is carrying the child. The amendments are necessary because in some statutes references to a child living at the time of the death of any person include a child en ventre sa mere at that time. Examples are Section 55(2) of the Administration of Estates Act 1925 and Section 25 of the Inheritance (Provision for Family and Dependants) Act 1975. Similar provisions may appear in deeds.

If Amendment No. 31 is agreed to, it will have an effect on Amendment No. 32 tabled by the noble Lord, Lord Kilbracken. I beg to move.

9 p.m.

Lord Kilbracken

My Lords, I had therefore better speak now. I agree with the noble and learned Lord about the desirability of the amendment. I am concerned with a different point, but if my amendment were accepted it would have the effect of deleting the amendment moved by the noble and learned Lord. At a later stage I should like to see a further amendment which would embody the amendment that he has moved and what I would have moved in Amendment No. 32 which is on a different point.

Your Lordships will see that Clause 26 states: A woman who has carried a child". It will now read The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child". My point is that it requires the placing in that woman either of an embryo or of sperm and eggs together. Therefore it does not apply in the case of a woman who has been artificially inseminated when only the sperm are placed in her.

Noble Lords may think from Clause 1(2) that the Bill has nothing to do with conceptions as the result of artificial insemination. I agree with that. However, if we then read Clause 27(1) which relates to the meaning of "father", the Bill refers to a woman who has become pregnant as a result of artificial insemination.

Perhaps I have put forward the provision the wrong way round. Perhaps the right way would be to delete the reference to artificial insemination in Clause 27. However, without having read Amendment No. 31 of the noble and learned Lord, the way that I chose to put it forward was to make a deletion at page 14, line 7, so that the subsection would simply read, A woman who has carried and that should read, "who is carrying or has carried a child" leaving out everything else— and no other woman, is to be treated as the mother of the child". The definition would then apply to a woman who has been artificially inseminated or to a woman who has been inseminated by her husband in the ordinary way. It would indeed apply to any woman who was pregnant and, if I may say so, even to the Virgin Mary. Something along these lines to make Clauses 26 and 27 consistent is desirable.

The Lord Chancellor

My Lords, the noble Lord has raised a point that is separate from the one with which my amendment deals, as he has recognised. Clause 26(1) as at present drafted provides that the woman who has carried the child is to be treated as the child's mother. But the application of the clause is limited to cases where she carried the child as a result of the placing in her of an embryo or of sperm and eggs. The amendment would remove that limitation, as the noble Lord has explained. In cases where a woman is inseminated artificially or naturally, it is clear who the mother is because her own egg is used. She is both the carrying and the genetic mother. There is no need to make provision in the clause for what is indisputably the case. That is a reasonably basic rule of statutory drafting. Indeed, by raising the question as to why it is necessary to make statutory provision, it might cast doubt on what had previously seemed obvious.

The only reason for this provision is to deal with the case where the lady is carrying the child as the result of the placing in her of an embryo or of sperm and eggs. The reference to artificial insemination is needed in Clause 27 because in such cases, if the husband is not the donor, the common law will not treat him as the father. However, where artificial insemination by donor is given to the woman she is the genetic parent and the mother at common law. Therefore Clause 26 does not need to cover artificial insemination by donor.

The noble Lord may say in a sense that it does no harm to state in the law what is already the law. On the other hand, it makes it more pointed when one is making a provision which is required to point out the circumstances in which it is required. That is the reason that we have done it in this way.

I am happy to consider further what the noble Lord has said. However, that remains my view for the present. As the noble Lord has said, it does not affect directly Amendment No. 31. He may consider what he is to do with Amendment No. 32 when I call it.

On Question, amendment agreed to.

Lord Kilbracken had given notice of his intention to move Amendment No. 32: Page 14, line 7, leave out from ("(1)") to second ("and") in line 8 and insert— ("The woman who carried a child,").

The noble Lord said: My Lords, I understood the noble and learned Lord to say that he would not be able to call the amendment. I simply take the opportunity of thanking him for what he has just said. I would have been out of order to comment on it but I am grateful to him for undertaking to consider my remarks.

[Amendment No. 32 not moved.]

Lady Saltoun of Abernethy moved Amendment No. 33: Page 14, line 12, at end insert: ("() Where a woman is to be treated as the mother of a child by virtue of subsection (1) of this section the entry in the Register of Births concerning the birth of such child as required by law shall if the mother so requires indicate that the birth is by donation.").

The noble Lady said: My Lords, I should like to speak at the same time to Amendment No. 47 which has been grouped with this amendment. They are two halves of the same amendment. These are purely probing amendments. They follow the recommendations of the Warnock Report in Chapter 4, paragraph 25 and Chapter 6, paragraph 8; namely, that in the case of a child born of sperm donation, the father should have the option of having the fact recorded in the register and in the case of a child born by egg donation the mother should have the option to have the fact recorded in the register. I wonder why the Government did not accept the suggestions of the Warnock Committee on that matter. That would at least give the parents the option of telling the whole truth for the sake of posterity. I shall be interested to hear the noble and learned Lord's reply and whether he believes that the Government might give the idea further consideration.

Lord Henderson of Brompton

My Lords, I have only very brief observations to make on these two amendments. First, I feel that both the father and the mother may regret having made a decision quite early on and may wish to change it, by which time it would be too late. That is a very brief but practical observation. I believe that it is fatal to the amendment. The father or mother might be distraught that he or she had caused a mark to be made on the birth certificate of their child.

Perhaps I may introduce my second point from what I have just said. I feel that it is against the welfare of children to have marks put on their birth certificate. I find it totally unacceptable. As I said at the last stage of the Bill, it does not comply with the kindly laws on legitimacy which do not put "B" for bastard on the birth certificate of a child. I see no circumstances in which "D" for "by donation" should be put on the birth certificate of a child by analogy. For both those reasons the amendment is unacceptable to me and I hope unacceptable to the House.

At this stage the noble and learned Lord the Lord Chancellor has introduced into the Bill the most welcome concept that the welfare of the child should be of paramount importance. I believe that giving the parents that option may militate against the welfare of the child. For that additional reason I oppose it.

Baroness Faithfull

My Lords, I oppose the amendment. There is no reason why the short birth certificate should not be used if the parents wish, as is the case in adoption. In cases such as this the choice should be left with the parents and not made by us.

Lord Prys-Davies

My Lords, I support the objection to the amendment on two grounds. Although the amendment gives an option to the mother or the father to register an entry in the birth register, it does not overcome the objection that it would be unfair and unjust to the child that for the rest of his life he must carry the label that he is a child by donation.

Secondly, the entry in the birth register would be permanent. If later the mother changes her mind and believes that it is not in the interest of the child that the entry should remain on the birth register, she would not be in a position to remove the entry.

The Lord Chancellor

My Lords, Amendment No. 33 would enable a mother who is not the genetic mother of a child to require that an indication is included in the register of births that the birth is by donation. Amendment No. 47 would similarly enable a father who is not the genetic father of a child to require that an indication would be included in the register of births that the birth is by donation.

As the noble Lady, Lady Saltoun, said, the Warnock Report suggested that for sperm, egg and embryo donation it should be possible for a social parent, in registering the birth, to add the words "by donation" after his or her name. There was, however, little support for this proposal in the response to the Warnock Report. Noble Lords will remember that we consulted on the Warnock Report. As a result the Government published a White Paper which is the main basis of policy upon which the Bill has proceeded.

It can be argued, as has been the case, that parents should be able to choose whether they wish to register themselves as parents by virtue of donation. However, the interests of the parents who wish to register themselves in this way need to be balanced against the interests of the child born as a result of donation. The decision to tell such a child the true circumstances of its birth is for the child's parents to make and, if they wish, that information can be kept within the privacy of the family. However, marking the entry in the register of births would make the circumstances of the child's birth known to anyone who purchased a birth certificate or examined the register. This would not be in the interests of the child's right to privacy. Furthermore, as I argued in the debate on these matters in Committee marking the entry in the register of births would be labelling the child.

The noble Lord, Lord Prys-Davies, pointed out that the entry must be made shortly after the child's birth. Once the date for entry has passed the option would no longer be open. If it were exercised it would be impossible to change. Therefore, the option must be exercised within a short time after the birth in a way that is irrevocable.

If, while a woman is having AID treatment, a couple carries on having normal sexual relations, it may not be certain that any resulting child is definitely the child of the donor. In view of this uncertainty, it would not be right for the social father to be able to have the entry in the register of births marked "by donation".

Where a couple are married there is a common-law presumption that the husband is the father of the child and his name is entered on the birth certificate. As I have mentioned it is estimated that on about one in 20 birth certificates the registered father is not in fact the genetic father of the child. Where the husband is aware that he is not the genetic father of the child but nevertheless goes ahead and registers himself as the child's father, the law does not allow him to qualify the statement that he is the father of the child on the birth certificate. In the interests of the child born as a result of a donation, it is right that the common law presumption should operate.

It is because I believe that the interests of the child are paramount in these circumstances that I doubt whether it is wise to accept the amendment moved by the noble Lady, Lady Saltoun. As your Lordships know, the information will be retained by the licensing authorities although it will be available only within very closely guarded circumstances. This method of notification will be open to all the world. For the reasons which I have suggested I doubt whether that is wise. I do not advise your Lordships to accept this amendment. As I said, the principal reason that the Warnock recommendation was not accepted was that it was not widely supported on consultation.

9.15 p.m.

Lady Saltoun of Abernethy

My Lords, I listened with great interest to what the noble and learned Lord said and to the contributions of various other noble Lords. I should like to say to the noble Baroness, Lady Faithfull, that the amendment was designed to give the parents the choice. However, I appreciate the reasons the amendment is not acceptable and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 27 [Meaning of "father']:

The Lord Chancellor moved Amendment No. 34: Page 14, line 13, leave out ("subject to subsection (6) or (7) below").

The noble and learned Lord said: My Lords, in moving Amendment No. 34 I shall speak also to Amendments Nos. 36, 37, 40 and 45. Amendment No. 34 omits the words, subject to subsections (6) or (7)", because, as I shall explain when I come to Amendments Nos. 40 and 45, neither of those subsections nor their replacement, subsection (3A), apply to subsection (1), with the result that the words may be misleading. Amendments Nos. 36 and 37 remodel subsection (2) and make clear that it does not apply to cases where the husband is the donor. In such a case he is the father at common law and his inclusion is otiose and therefore could lead to confusion.

Amendments Nos. 40 and 45 have two purposes and effects. First, they replace subsections (6) and (7) with a new subsection (3A). For clarity's sake, adoption is distinguished from the other rules about paternity which the provision preserves. Secondly, the amendment makes clear that the new subsection (3A) applies only to subsection (2). The House may recall that I explained the purposes of subsections (6) and (7) in Committee when dealing with an amendment moved by the noble Lord, Lord Grantchester. As I then explained, there are already rules at common law and in statute which would provide a satisfactory answer as to who is the father of a child born following sperm donation.

For example, in England and Wales a child born to a married woman is presumed to be the legitimate child of her husband, and in Scotland in the same circumstances there is a presumption of paternity. In both jurisdictions, once a child has been adopted he is in law the child of the adopters. The purpose of subsections (6) and (7) and the replacement subsection (3A) is to give priority to those rules over that in subsection (2) which provides that the husband of a woman who produces a child by sperm donation is to be the father. Hence, there is no need for subsections (6) and (7) or the replacement to apply to any part of the clause other than subsection (2). I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 35: Page 14, line 14, after ("child") insert ("who is being or has been").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 31. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 36 and 37: Page 14, line 16, after ("If") insert ("(a)"). Page 14, line 17, after ("marriage") insert ("and (b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, then, subject to subsections (3A) and (4) below,").

On Question, amendments agreed to.

9.15 p.m.

Lord Kilbracken moved Amendment No. 38: Page 14, line 20, at end insert— ("(2A) If it is shown that he did not so consent, or if the woman at that time was not a party to a marriage, the genetic father shall be treated as the father of the child provided both he and the mother express their agreement to this.").

The noble Lord said: My Lords, in Clause 27 we move on from the meaning of the word "mother" to the meaning of "father". Subsection (2) states: If at the time of the placing in her of the embryo … the woman was a party to a marriage, the other party to the marriage shall be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo".

That is fine as far as it goes, but I want to ask the noble and learned Lord what the position would be if there was no subsisting marriage or if the husband did not consent to the placing in the mother of the embryo. It seems to me that in those circumstances the child will have no father; the child will literally be filius nullius, which I think is the Latin tag. I do not think that situation is right. Every child needs a father.

When I considered this point I wondered who the father should be if there were no subsisting marriage. It seemed to me that the only person who could or should legally be the father of the child is the genetic father. I then considered that in some circumstances either the genetic father or the mother may not want the identity of the genetic father to be known. It may be a lorry driver in Aberdeen or anyone else who has volunteered to donate semen.

I propose therefore—and hope it might have some support—that under these circumstances the genetic father should be the legal father provided that both he and the actual mother agree to that course. That is what is proposed in my amendment. I beg to move.

The Lord Chancellor

My Lords, subsection (2) of Clause 27 provides that where a child is born as a result of donation, the husband is to be treated as the father of the child unless it is shown that he did not consent. Because a sperm donor is not treated as the father by virtue of subsection (4)(a), the result of the husband showing that he did not consent is that the child would in law, as the noble Lord said, be fatherless. I prefer to say it in English. The same would be true if the woman treated was not party to a marriage.

This amendment would have the effect that the genetic father would in law be the fat her provided that both he and the mother agree. It is not acceptable as it stands for technical reasons. In particular it is not clear when "at that time" is. What is more, I have great difficulty in understanding the circumstances for which the amendment, as drafted, is meant to provide.

As Clause 27 stands, if a sperm donor provides sperm other than through the statutory scheme, he will be the father of the child unless the woman concerned is married and her husband has fatherhood conferred upon him by Clause 27(2). If it is not through the scheme the genetic father will be the father anyway, unless it is the husband by virtue of Clause 27(2). Accordingly, this amendment could only be relevant where the donation is made under the statutory scheme. In those circumstances the donor and donee are unknown to each other.

What is more, it is to my mind impossible to think of circumstances where, even if they did discover each other's identity, either of them would consent to the donor being treated as the father. From the donor's point of view all he would achieve would be to burden himself with the liability to maintain the child. Because he would not be married to the mother, he, like any unmarried father, would not share in the other parental rights and duties. As to the mother, having gone to the lengths of using an anonymous system, why should she want to confer paternity on the donor?

It is, I suppose, just possible to imagine a donor and donee accidentally meeting, somehow recognising each other and then wanting to confer parental status on the man. However, that is an unlikely scenario and I doubt whether it is wise to provide for it.

I should, however, say that there is a possibility that under Amendment No. 46, which I have agreed to consider, it might be that if the donor and the woman are acquainted with one another—I was about to say by some mischance, but perhaps that is not the right phrase—by some particular circumstances the machinery of Amendment No. 46, if we ultimately decide to incorporate that amendment into the Bill, would apply to the situation. Therefore, if the man and the woman went for treatment together, the man being the donor Amendment No. 46 would make him the father.

Therefore in circumstances where that might be feasible, the principle of this amendment could be thought of as applying, but in a general case because of the anonymity of the donor, as the noble Lord recognised, it would not be possible. The whole reason for this difficulty is that anonymity which the scheme requires to be placed on donors, for reasons to which the noble Lord has already alluded. If we could get rid of that in some way it would simplify the whole matter. However, that is a fundamental fact which we have to face in constructing the scheme. Accordingly, I hope the noble Lord will feel that it is not wise to press this amendment.

Lord Kilbracken

My Lords, I certainly wish to study what the noble and learned Lord said and I am grateful for the way in which he has, as always, considered the matter. Perhaps I may refer to my use of the Latin tag. I began by expressing it in English and I thought that a Latin phrase might be familiar to the noble and learned Lord.

My main concern in tabling this amendment was the case of a couple who are not married—a couple who are cohabiting—who decide to have a child by one of the means set out in Clause 27(2). If the couple are cohabiting in a long, stable relationship and a child is born, then, as the clause is presently drafted, the father is not recognised as the father of the child. It is only if, the woman was a party to a marriage [that] the other party to the marriage shall be treated as the father of the child". It would be part of my amendment that, where the couple are unmarried when the child is born, the genetic father—that is, the cohabitee of the lady—would be the father to the child. Those are circumstances which I believe we can all visualise arising a lot more often than the other case and which would be embraced by my amendment where the donor of semen is the father. Therefore, for that purpose I feel that the amendment has some value. However, in view of what the noble and learned Lord said, I have no hesitation in asking leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved.]

The Lord Chancellor moved Amendment No. 40: Page 14, line 23, at end insert— ("(3A) Subsection (2) above does not apply—

1. (a) in relation to England and Wales and Northern Ireland, to any child who, by virtue of the rules of common law, is treated as the legitimate child of the parties to a marriage,
2. (b) in relation to Scotland, to any child who, by virtue of any enactment or other rule of law, is treated as the child of the parties to a marriage, or
3. (c) to any child to the extent that the child is treated by virtue of adoption as not being the child of any person other than the adopter or adopters.").

The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 34. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 41: Page 14, line 26, leave out ("1") and insert ("5").

The noble and learned Lord said: My Lords, with this amendment I speak also to Amendments Nos. 51 and 66. These amendments are intended to improve the drafting. Amendment No. 41 substitutes the proper reference to the relevant paragraph of Schedule 3. Amendment No. 51 inserts a reference to Clause 26 or 27 which is not in the Bill at the moment. Amendment No. 66 omits the word "other" which on further consideration has been shown to be unnecessary. It is designed to make clear that the person responsible for supervising the activities at the time of commencement can then be treated as if he were the person responsible under the terms of a licence.

On Question, amendment agreed to.

9.30 p.m.

The Lord Chancellor moved Amendment No. 42: Page 14, line 31, leave out from beginning to ("do") in line 32 and insert— ("(5) The references in subsection (2) above to the parties to a marriage at the time there referred to— (a) ").

The noble and learned Lord said: My Lords, in moving this amendment I should also like to speak to Amendment No. 44. Subsection (5)(a) is intended to make it clear that subsection (2), which provides for the mother's husband to be treated as the father of a child born as a result of donation, only applies where they are married at the relevant time, namely, the time of the treatment. Without such a provision, it might be thought that provided they had been married at some time, the man would be the father even if the marriage had ended before the treatment was given.

However, as at present drafted, subsection (5)(a) applies to the whole clause. As such it might be taken to apply to subsections (6) and (7) which preserve the general rules about fatherhood so that when they provide a father it is not necessary to resort to the special rules under subsection (2). If subsection (5)(a) did apply to subsections (6) and (7), one result would be that a child who was able to rely on the common law presumption that he is the legitimate child of his mother's husband at the time of his birth, or, in Scotland, that man's child, would not be able to rely on that presumption if their marriage had subsequently ended. That would be a pointless nonsense and the redraft avoids the clause being construed in that way. I hope it would not be construed in that way in any event, but we have endeavoured to make it clear. I beg to move.

On Question, amendment agreed to.

Lord Kilbracken moved Amendment No. 43: Page 14, line 33, after ("time,") insert ("or parties to a marriage who were legally separated at that time,").

The noble Lord said: My Lords, as I hope I made clear just now, Clause 27(2) states that, the other party to the marriage shall be treated as the father of the child

if at the time the woman was a party to a marriage. In subsection (5)(a) of that clause we are told that that only applies if it was a subsisting marriage. The provision does not apply if they were parties to a marriage which had been dissolved or annulled. The point I wish to make is that in the case where a marriage is still subsisting, but the parties have been separated for a greater or lesser period of time, the husband will still be regarded as the father of the child though for some reason or another the husband and wife may not have seen one another for 20 or 30 years. They may have decided not to marry for whatever reason.

It seems that if a couple have gone to the extent of being legally separated, then the husband should not be treated as the legal father of the child whose mother he has not seen for many years. That is the import of my amendment. I beg to move.

The Lord Chancellor

My Lords, this amendment raises a very interesting point. As drafted, by virtue of Clause 27(2), where a married woman gives birth to a child as a result of donation, her husband will be treated as the father unless it is shown that he did not consent. Where the wife and husband have been judicially separated, it seems highly likely that the husband will be able to prove rather easily that he did not consent. But I do see that it is questionable whether a judicially separated husband, or those coming after him, should have the burden of proving that he had not consented in order to avoid parenthood which carried with it responsibility for maintaining the child, together with rights of succession.

As drafted, Clause 27 only distinguishes between the married and the unmarried. I should like to take time to consider whether a third category (the judicially separated) needs to be introduced, and if so, how the clauses would need to be amended. In thanking the noble Lord for drawing attention to this point, which, as I say, we had intended to cover in a more general way, I wonder whether he would be kind enough to withdraw the amendment to give me a chance to consider further what if anything we should do about it. We would probably want to deal with that in another place if indeed it has to be dealt with.

Lord Kilbracken

My Lords, I am most grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendments Nos. 44 and 45: Page 14, line 34, leave out from beginning to ("include") in line 35. Page 14, line 41, leave out subsections (6) and (7).

The noble and learned Lord said: My Lords, I spoke to Amendment No. 44 with Amendment No. 42 and to Amendment No. 45 with Amendment No. 34. Therefore, with the leave of the House, I should like to put these together en bloc. I beg to move.

On Question, amendments agreed to.

Lord Ashbourne moved Amendment No. 46: Page 14, line 47, at end insert— ("(8) Subject to the preceding provisions of this section, 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.").

The noble Lord said: My Lords, I spoke to this amendment with Amendments Nos. 16 and 17. However, for the benefit of noble Lords who were not in the Chamber then, I shall just say that the amendment seeks to ensure that a man who comes together for treatment with a woman will be designated "father" of any resulting child. This means that a child born to an unmarried woman following licensed treatment will have a father. Noble Lords with their usual mental agility will quickly appreciate that this will mean fewer fatherless children and fatherless families. The noble and learned Lord the Lord Chancellor has made it clear on a previous occasion that the Government are 100 per cent. behind the institution of the family, which they regard as the fundamental unit of society, a concept with which I entirely agree. This amendment would help to bolster and build up the family. In view of the promising noises which the noble and learned Lord was kind enough to make earlier, I beg to move.

The Lord Chancellor

My Lords, I should just like to repeat what have been described as promising noises by saying that I have undertaken to consider this amendment and to see whether the principle of it can be incorporated. I believe that we may be able to do that. If my noble friend is prepared to withdraw the amendment without my giving any further commitment than that, I shall certainly consider it further to see whether at a later stage in the Bill we can bring forward something on these lines.

Lord Ashbourne

My Lords, I am extremely grateful to the noble and learned Lord. I accept that undertaking and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 47 not moved.]

Clause 28 [Effect of sections 26 and 27]:

Lord Robertson of Oakridge moved Amendment No. 48: Page 15, line 4, leave out ("subject to subsection (3) below").

The noble Lord said: My Lords, in moving Amendment No. 48 I should like to speak at the same time to Amendments Nos. 53 and 54 which are consequential. With one exception the nearest I have been to fulfilling my ambition of making my mark on the laws of England was being understudy for Strephon in a performance of "Iolanthe". Fortunately, Strephon had good health through every performance and my talents were not called on. In the absence of my fairy queen I do not think that I shall improve on my record with this amendment.

The amendments would apply right across the board the definition of "father" and "mother" and exceptions would no longer be made for the succession to any dignity or title of honour. They would therefore end a slightly invidious inconsistency in the Bill. In effect we are saying that the arrangements we are making are extremely good so long as they do not apply to us, even if they involve legalising a fiction on public records, as is the case with birth certificates. We could also be accused of saying that it is more important for the wrong person not to succeed to a title than for someone to know about the nature of his antecedents. Although I value any title, especially a seat in this House, extremely highly, I think that the need for some of those antecedents is probably more important.

There is a practical point involved in this area; namely, what the procedure will be when someone inherits a title. Perhaps the noble and learned Lord can enlighten us upon the matter. I think that before anyone applies for a writ of summons that person would have to apply to the authority for clearance or he may have to make a declaration on the basis of the information available. It would be a terrible shock for someone who applied for a writ of summons to receive no clearance from the authority and for his younger brother, with whom he may not have a very good relationship, to take his seat in the House of Lords while he remains plain Mister. If we could avoid that situation, it would be worth doing so. I beg to move.

Lady Saltoun of Abernethy

My Lords, perhaps I shall be ruled out of order in this connection, but it seems to me that it may be relevant at this stage to mention my amendment, Amendment No. 59, which is not in fact grouped with this one. I think that it would save time at a later stage. Amendment No. 59 would enable those whose duty it may be to ascertain that a particular person would be the right person to inherit under Clause 28(3) to have access to the minimum information necessary to enable them to carry out their duty. It may be that Clause 30 covers the situation and that what is proposed is therefore unnecessary. However, it is important that the necessary information is available to those who need to know and if Clause 28(3) is to be capable of being implemented.

Lord Craigmyle

My Lords, this is a strange but vitally important point. Moreover, this is the appropriate forum in which it should be considered as it concerns many of your Lordships' families. It appears that every claimant to a peerage will have to be vetted in the way suggested by the noble Lord, Lord Robertson of Oakridge. But further matters also arise.

There have been occasions in the past when a claimant who was well known in society to have arrived in the world by what one might nowadays call old-fashioned, low-tech adultery claimed his seat in the House of Lords and was welcomed. For example, there was the great Lord Melbourne. However, it now appears under this Bill that a claimant who came into the world by modern hi-tech adultery, euphemistically called AID, would be refused a seat in the House of Lords. If we are to support what my noble and learned friend was reminding us was the general rule of law—that the child of a married woman is considered to be her husband's—I think that we should support it in this case. In 1990 we cannot seriously say that there is one law for Lords and another for commoners.

Moreover, what would be the procedure in the case which my noble and learned friend posited in response to Amendment No. 33? What would happen if there was some doubt as to whether the child had been born by a donation which it is agreed was given but the father and mother had had normal intercourse at about the same time so that no one could tell whose son he was? The records could not give this information because they would only record the donation and not its success. The father could not give the information because presumably he would be dead and very likely the mother would also be dead. We shall be in an awful pickle unless the amendment is carried.

9.45 p.m.

The Lord Chancellor

My Lords, the rule which has hitherto been followed is that the genetic line is the important line in relation to succession dealt with by subsection (3). As my noble friend has pointed out, in cases where the title is in question and what the noble Lord has referred to as old-fashioned low-tech methods, a degree of investigation has had to be gone through in a number of situations. My noble friend refers to it as "being in quite a pickle". These cases raised a good deal of difficulty and the legal profession found them of some interest. They were also of some length. Therefore the policy has been to operate in the same way as under the earlier statutory provision.

The procedure for claiming a title in relation to this matter has yet to be finalised but it seems likely that claimants will make declarations which will deal with it on the basis of their knowledge. Where there is a dispute the procedure will be as at present. As my noble friend has pointed out and as I pointed out on a number of occasions, the mere fact that treatment has been resorted to does not at all prove that the results are from the treatment. It may well be that the birth has followed the treatment without having been caused by it. Obviously there is room for further investigation. Also the development of modern techniques for matching genetic characteristics helps to make that easier than it was in the old days when the House's investigations relied on perhaps less scientifically based tests and evidence.

That is the position and the reason why we have this provision in the Bill. I do not intend to change it unless it is shown that there is a strong feeling in that direction. This is the way that the law has stood and I suggest that it ought to continue to do so. That is my answer to the matter raised by Amendment No. 48.

Lord Robertson of Oakridge

My Lords, I am grateful to the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Craigmyle, for having spoken on the amendment. We are in a slight tangle on the subject which will be quite difficult to unravel. I have no doubt that that can be done. The only lesson that comes out of this to me is that AID is an intrusion on family life which will produce these tangles. I do not think that your Lordships'

House would wish me to go further down that road tonight; therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 49: Page 15, line 4, leave out from ("purposes") to end of line 7.

The noble and learned Lord said: My Lords, with Amendment No. 49 I wish to speak also to Amendment No. 52. These are purely drafting amendments. The closing words of subsections (1) and (2) of Clause 28 are perhaps not, on consideration, as clear as they might be. There may be circumstances in which an instrument or document has to be construed other than, in its application to the child and that or any other person".

For example, suppose we need to ask who are the ancestors of the son of a Clause 27(2) child. The relationships in such a case may be those between, say, a child of the Clause 27(2) child and a grandchild of the Clause 27(2) child. The words, in its application to the child and that or any other person",

are unnecessary and potentially confusing. This amendment omits them and restates the provision in a neater and, I believe, more concise and clear way. I beg to move.

On Question, amendment agreed to.

Lady Saltoun of Abernethy moved Amendment No. 50: Page 15, line 7, at end insert— ("Provided that this subsection shall apply only in relation to deeds or other instruments or documents executed after the commencement of this Act by a person, other than a person who is by virtue of section 26 or 27 of this Act to be treated as the mother or father of the child, and in the case of a deed or other instrument made in the exercise of a special power of appointment shall apply only where the deed or other instrument creating the power is executed after such commencement.").

The noble Lady said: My Lords, this amendment, which replaces the second half of Amendment No. 141 that was considered in Committee, is designed to cover the cases where either someone other than the parent of a donor child has made a will and died so that he cannot alter his will, or he has made a trust which he cannot break or alter without great trouble and expense. For instance, a person may have made a trust benefiting grandchildren, some as yet unborn. At the time he made the trust he did not know that the law was to be altered to enable donor grandchildren to benefit under that trust which he made before the legislation came into force.

Your Lordships will note that in this amendment we have not extended the proposed exemption to wills or trusts made by the parents of a donor child because the parents have the option of not having a donor child if they do not wish that child to benefit under a trust that has already been made. Without some safeguard such as we propose, there would seem to be an element of retrospectivity in the Bill. Noble Lords will consider whether they think this does or does not constitute retrospective legislation. The proposed amendment would remove that element of retrospectivity. I beg to move.

Lord Jauncey of Tullichettle

My Lords, this amendment is intended purely as a transitional provision of limited effect. It applies only to deeds which were executed prior to the legislation coming into force, because of course in relation to all deeds which are executed after the legislation comes into force the executor of the deed is presumed to know the law and he is presumed to know the consequences of the legislation. The purpose of the amendment is simply to avoid the position whereby unknown and possibly unintended beneficiaries are imposed upon testators and trusters. This is a result which Parliament has in the past sought very carefully to avoid. I shall give four simple examples.

In the Succession (Scotland) Act 1964, where rights of succession were granted to adopted children they were treated as the children of the adopter but not for the purposes of any deed executed prior to that Act. As regards illegitimate children, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 provided effectively that a child of an individual should for the purposes of any deed include illegitimates. However, again that applied only to deeds executed after the Act came into force.

Correspondingly, in England and Wales, under the Family Law Reform Act 1969 there was a presumption in dispositions which were executed after the Act came into force that a child included an illegitimate child, but only in relation to deeds executed after the Act came into force. Similarly, the Family Law Reform Act 1987, which is applicable to England and Wales, as I understand it provided effectively that, as regards inter vivos and testamentary deeds, post-Act illegitimates were to be treated as children of their mother and father, whether or not the latter were married. But of course again that only applied to deeds executed after the coming into force of the Act.

I made a tentative suggestion along those lines in Committee. I cast a small fly over my noble and learned friend on the Woolsack. He did not like that very much. I hope I am doing him justice if I paraphrase the three reasons which he gave for not accepting the principle of this amendment. He said, first of all, that donor children were being given a new status. Secondly, he said that the same rights that children born of natural conception enjoy should be given to donor children. Why, one might ask, should the same rights as those enjoyed by natural children now be given by Parliament to donor children when they were not given to legitimated children in the past?

As I understand it, the third ground put forward by my noble and learned friend on the Woolsack was that there would be discrimination if a family had a donor child and a natural child and the natural child were to inherit, say from its grandfather or its uncle, to the exclusion of the donor child. Again, that is a result achieved by the 1976 Act in relation to legitimated children. One might ask why donor children of one party to marriage should be thought to merit more favourable treatment than legitimated children of both parties to the marriage.

I can understand my noble and learned friend's anxiety that children should not be discriminated against. However, on the other side of the coin, one must surely consider the wishes and interests of the testators and the trustors. Why should they have imposed upon them beneficiaries of whom they might never have conceived and, had they conceived, whom they might not have wished to benefit?

In my submission there is no justification for Parliament in this case departing from its prior practice of eschewing the imposition on existing deeds of legislation which has the effect of altering or possibly altering the beneficiaries who might take thereunder.

The Lord Chancellor

My Lords, the point was raised in relation to Scotland during the Committee stage, as my noble and learned friend Lord Jauncey of Tullichettle said. Presumably it is intended that deeds, instruments and so on executed before the clauses come into force will be construed without regard to the legal parentage conferred by the Bill unless those deeds were executed by the legal parent or parents themselves.

As I made clear during the debate in Committee, the Government's intention is that children born as a result of these techniques should generally have the same rights in succession law as any other children. The sole general exception is titles of honour and other dignitaries which follow the blood line, which we discussed a while ago.

I also pointed out that previous legislation has recognised the distinction between children born as the result of donation and children whose parents are not married to each other or who have been adopted. The disadvantages of the status of illegitimacy as regards the law of succession was removed by the Family Law Reform Act 1987 and the Family Law (Scotland) Act 1985. It was then thought right that the new law should not apply to existing wills or instruments in case the intention of the testator was no longer recognised. No such qualification was made in Section 27 of the 1987 Act as regards the status of children born as a result of AID. Therefore, while the examples that my noble and learned friend cited are on one side of the argument, there are already examples in the 1987 Act on the other side.

The reason for the distinction is reasonably simple. Although the 1985 and 1987 Acts removed the disadvantages of illegitimacy, nothing in those provisions treated a child whose parents were not married to each other as the child of any marriage. That contrasts with the present Bill and with Section 27 of the 1987 Act under which a donation child is treated as the legitimate child of the marriage for all purposes.

The intention of both this Bill and the 1987 Act was to give donation children the same succession rights as genetic children. The main reason why I find it difficult to accept the amendment is that it discriminates against donation children. If the amendment were agreed to it would mean that a child born as a result of gamete or embryo donation would never be entitled to inherit from certain wills. For example, if a man made a will before the commencement of these clauses and provided benefits for all his grandchildren, we might be faced with a situation in which one child was entitled to benefit but his AID cousin was not.

My noble and learned friend asked why that should be. The main reason is that, whereas adoption and legitimation were matters with which the testator or grantor of the deed might be presumed to be familiar, this is a different situation. It is a technique, in effect, for producing a child who is very closely connected with the person in question.

The amendment assumes that the person who executed the deeds or instruments would have wished to exclude children born as a result of donation. How do we know that? Let us assume that there is nothing in the deed to indicate that. If there is something in the deed to indicate that, it might be different. However, if there is nothing in the deed to say, why should a testator be presumed to have more regard for a child born otherwise than by donation than for a child born by donation? The child might be just as wanted, indeed even more so. Why should we therefore presume that the testator did not want or contemplate that child as a grandchild when he did not make any stipulations about the manner in which the child should be born? I therefore consider it most unlikely that the majority of people who try to arrive at the original intention of the testator or trustor who granted the deed would wish to exclude from benefit a grandchild, for example, who has been treated in law as a child of the person who executed the deeds, merely because he was born by donation.

There is another objection to the amendment, applicable specifically to AID children in England and Wales. By virtue of Clause 42(4) the status of such children born after Section 27 of the Family Law Reform Act 1987 came into force but before this Bill has effect will continue to be determined by the old Section 27. As I said, no provision equivalent to the present amendment appeared in the 1987 Act. If the amendment were agreed to, an AID child born before the act comes into force might benefit from certain wills whereas his younger brother, born after the Act comes into force, would not. Again, that appears to be discriminatory and unacceptable. There may be room for some further rules in that connection. For example, if a deed made specific provision for the class of children in question, that might well be allowed to prevail, but I do not see why a general destination to children should be thought to exclude AID children.

For those reasons I cannot accept the amendment at present. Perhaps the noble Lady, Lady Saltoun, will want to consider the matter. I am certainly willing to consider it further.

10 p.m.

Lady Saltoun of Abernethy

My Lords, I have listened with great interest to what the noble and learned Lord has said. I cannot accept that a donor child should be retrospectively foisted on to a testator or a trustor any more than a legitimated child should be. I do not see why a testator should be presumed to have wished to include a donor child merely because he has not expressed a wish to exclude him. Even now, many people have never heard of donor children and do not know what they are.

However, I was encouraged when the noble and learned Lord said that he would consider the matter. I shall therefore withdraw the amendment, reserving the right to return to it at Third Reading.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendments Nos. 51 and 52: Page 15, line 8, leave out ("this section") and insert ("section 26 or 27 of this Act"). Page 15, line 11, leave out from the beginning to end of line 14 and insert— ("(2A) Where subsection (1) or (2) above has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly.").

The noble and learned Lord said: My Lords, I spoke to Amendment No. 51 with Amendment No. 41 and to Amendment No. 52 with Amendment No. 49. With your Lordships' leave I shall move the amendments en bloc. I should say that if Amendment No. 52 is agreed, I cannot call Amendment No. 53 on account of pre-emption.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 55: Page 15, line 15, leave out ("This section does not affect") and insert ("In relation to England and Wales and Northern Ireland, nothing in the provisions of section 26(1) or 27(2) and (3), read with this section, affects— (a) ").

The noble and learned Lord said: My Lords, I should like to take also Amendments Nos. 56 and 57. In Committee, in response to amendments proposed by the noble Lady, Lady Saltoun of Abernethy, and others, I undertook on behalf of the Government to bring forward amendments to ensure that the Bill does not affect succession to property etc. intended to devolve along with a Peerage or other dignity or title of honour. This amendment fulfils that undertaking. It introduces a new sub-paragraph (b) to Clause 28(3) in respect of England and Wales and Northern Ireland, and a new subsection (4) for Scotland which make the policy clear.

Let me turn at once to a matter which some noble Lords may consider is missing from the amendment. That relates to succession to coats of arms in England and Wales. I have been advised that there is legal authority to the effect that a coat of arms is a dignity. Hence, coats of arms are already covered by subsection (3) of Clause 28, so that nothing in the Bill affects succession to them and no further amendment is needed to achieve that aim in relation to England and Wales. The retained references to coats of arms in the Scottish part of the amendment ensures consistency with other Scottish statutory provisions. I beg to move.

Lady Saltoun of Abernethy

My Lords, I am most grateful to the noble and learned Lord for moving the amendment which I believe meets the concerns that we expressed in Committee. I must confess to some surprise that regarding England the courts should have held that a coat of arms is a dignity. I should be interested to know when and what were the judgments wherein the courts took that view.

Lord Teviot

My Lords, it may be helpful to your Lordships if I intervene before my noble and learned friend replies. During the whole of the evening's proceedings I have felt that silence was golden and I have stuck to my seat reluctantly. I feel it is now necessary to intervene. I am most grateful to my noble and learned friend for tabling the amendment relating to Scotland, which is fulsome and concise. As he did not think fit to include coats of arms in Clause 28(3) I was hoping for a full explanation.

It may be necessary for me to explain the difference between the two countries. The law of arms in England and Scotland is not the same. In England the terms "dignity" and "title" do not cover a coat of arms. Sir Edward Coke, the great 17th century lawyer, wrote in his Commentary upon Littleton of 1628: Gentry and armes is of the nature of the gavelkind; for they descend to all the sonnes, every son being a gentleman alike. Which gentry and armes do not descend to all the brethren alone, but to all their posterity". In Scotland the arms descend to the heir who is a single person. In England a right to new arms can be acquired by grant of the Sovereign, by Act of Parliament or by grant of the Kings of Arms, the senior heralds, to whom the Crown delegates the power to grant arms. Once granted, those arms pass to all descendants in the male line.

The control of arms in England comes under the High Court of Chivalry, which last sat in 1954 and before that had not sat since the 18th century. Therefore, when in 1823 Dr. William Cruise produced his Treatise on the Origin or Nature of Dignities, he covered all but the last case, and nowhere in his 322 pages does he say that the coat of arms is in England a dignity.

I come now to a very different subject. I refer to an adopted child who does not have a right to arms of his adoptive parent. It can only be by a royal licence. I ask noble Lords whether a variation of the arms can be granted to the adopted child. If coats of arms are not mentioned, an AID child will be in a better position than an adopted child. I hope that my noble friend will agree to include the words "coat of arms" in a future amendment on Third Reading, or expressly define dignity as including coats of arms for the purpose of the Bill.

The Lord Chancellor

My Lords, I hope that I made it clear, although I was moving Amendment No. 55, that I was speaking also to Amendments Nos. 56 and 57.

The authority on which I rely is a case called Manchester Corporation v. The Manchester Palace of Varieties Limited in 1955 Probate, at page 133, in which Lord Goddard made the statement that in his opinion the right to bear arms is a dignity and not property. That is the only decision that has been drawn to my attention.

I followed as closely as I could the argument of my noble friend Lord Teviot. I do not think that he has produced comparable authority to the opposite effect. If the Manchester case is right, then it would obviously be unwise to make a special provision here because it would cast doubt on the meaning of the phrase "in other statutory provisions" with regard to England and Wales. That is the situation. If I were to put it in here, and I am right in the law, then earlier statutes which do not refer to coats of arms but refer to dignities—for example, the Adoption Act 1976, the Legitimacy Act 1976 and the Family Law Reform Act 1987—might all be put into a certain amount of doubt.

The question is not free from difficulty but that is the view that I have taken of it. I am answering the question of the noble Lady, Lady Saltoun, and attempting to answer the question posed by the noble Lord, Lord Teviot. I hope that I may have had more success with the noble Lady, Lady Saltoun of Abernethy, than with my noble friend Lord Teviot in the acceptance of my position.

The Duke of Norfolk

My Lords, with the leave of the House and the noble and learned Lord, perhaps I may say that there was indeed a case that came up under my cousin as Earl Marshal which had lapsed for 200 years, and he appointed the Lord Chief Justice to be his surrogate. I have taken precautions to appoint the Lord Chief Justice to be my surrogate should the need arise. This subject was going to be abolished by some amendments to laws in 1890. It was overlooked because no one knew anything about it. If it comes up again, it is all covered. I promise that justice will be done.

It is a matter verging on a bit of a joke but it is of some consequence to our country. It is slightly different now in England as opposed to Scotland. However, the matter is covered and it is important that it should be dealt with properly. I have heralds looking on from the galleries at this very moment.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 56 and 57: Page 15, line 16, leave out ("render") and insert ("renders"). Page 15, line 17, at end insert ("or (b) the devolution of any property limited (expressly or not) to devolve (as nearly as the law permits) along with any dignity or title of honour. (4) In relation to Scotland— (a) those provisions do not apply to any title, coat of arms, honour or dignity transmissible on the death of the holder thereof or affect the succession thereto or the devolution thereof, and (b) where the terms of any deed provide that any property or interest in property shall devolve along with a title, coat of arms, honour or dignity, nothing in those provisions shall prevent that property or interest from so devolving. (5) Schedule (Status: amendments of enactments) to this Act shall have effect.").

The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 56 and 57. With your Lordships' leave I move them en bloc.

On Question, amendments agreed to.

Baroness Blatch

My Lords, I beg to move that further consideration on Report be now adjourned.

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

House adjourned at a quarter past ten o'clock.