§ 3.4 p.m.
§ Read a third time.
§ Clause 7 [Reports to Secretary of State]:
§ Baroness Hooper moved Amendment No. 1:
Page 3, line 42, leave out from ("shall") to end of line 4 on page 4 and insert ("prepare a report for the first twelve months of its existence, and a report for each succeeding period of twelve months, and shall send each report to the Secretary of State as soon as practicable after the end of the period for which it is prepared.
(2) A report prepared under this section for any period shall deal with the activities of the Authority in the period and the activities the Authority proposes to undertake in the succeeding period of twelve months.").
§ The noble Baroness said: My Lords, this amendment has been brought forward by the Government in response to a point raised by the noble Earl, Lord Perth, at Report. It seeks to meet concerns which he and other noble Lords have raised that the authority should give notice of its plans for the year ahead as well as a report of its activities for the previous 12 months.
§ While the Government do not believe that the authority would wish to act in such a peremptory way, they are happy to allay such concerns and I believe that that should be satisfactorily achieved by this amendment. Its effect will be to specify that the authority, in producing an annual report, which will of course be laid before Parliament, shall deal not only with activities during the past year but with planned activities during the next year. That is a sensible arrangement which I am sure that the authority would have chosen to adopt of its own volition in order to ensure that the public and Parliament are fully informed of what it plans to do. However, the amendment puts that matter on record on the face of the Bill. I beg to move.
§ The Earl of Perth
My Lords, I wish to welcome the amendment and say thank you to both the noble and learned Lord the Lord Chancellor and to the noble Baroness, Lady Hooper, for having given effect to an anxiety of mine and, I think of others in the House; namely, that we should know as far as possible every detail not only of what the authority has done in the past but of what it plans for the future. The amendment gives effect to that. It gives us a chance, if after Report we think it appropriate, 199 to debate the matter ourselves or to allow another place to do so. I am deeply grateful.
§ On Question, amendment agreed to.
§ Clause 9 [Licence committees and other committees]:
§ Baroness Hooper moved Amendment No. 2:
Page 5, line 6, leave out subsection (8) and insert:
("(8) Subject to subsection (8A) below, a licence committee shall arrange for any premises to which a licence relates to be inspected on its behalf once in each calendar year, and for a report on the inspection to be made to it.
(8A) Any particular premises need not be inspected in any particular year if the licence committee considers an inspection in that year unnecessary.").
§ The noble Baroness said: My Lords, in moving Amendment No. 2, I shall speak also to Amendments Nos. 3, 4, 21 and 23.
The government amendments result from points raised by my noble friend Lord Caldecote during Committee and Report stages. He wanted to ensure that licensed premises were inspected at least annually. He wanted the legislation to ensure that the authority must appoint:
competent inspectors in such numbers and with such qualifications as the Authority considers necessary to enforce the conditions of the licences granted to the premises and any other relevant provisions
of the Act. This is also the purpose of Amendment No. 21 which is in his name on the Marshalled List.
§ After consideration, the Government have concluded that it would be helpful to place an obligation on the authority to ensure that those of its staff who carry out inspections for licensing purposes are of suitable character and are properly qualified by means of training and experience. Amendment No. 23 goes a long way to meeting my noble friend's concerns. However, we do not think it necessary to add further to the Bill about the numbers of its staff that the authority will involve in carrying out its inspection functions. Paragraph 8 of Schedule 1 already gives the authority sufficient powers to appoint the staff it thinks it will need to carry out its functions, its principal function being to operate the licensing system, which, of course, includes inspecting premises which will be licensed under the Bill or are seeking a licence. I hope that my noble friend Lord Caldecote is therefore assured on that point and will feel able to withdraw his amendment.
§ We do, however, consider that my noble friend's other point on frequency of inspection is not covered to the same degree by the existing provision in the Bill. Whereas it is clear that a responsible authority would ensure that inspections were carried out by properly qualified persons, whether members of the authority or members of its staff, it does not follow from the Bill as at present drafted that such inspections should normally be carried out each year. It is clearly the desire of the House, and the Government fully understand this, that the licensing provisions of the Bill should be strictly enforced. Amendment No. 2 therefore provides that a licence committee must arrange for licensed premises to be 200 inspected once a year, unless the committee considers an inspection unnecessary. While it is clearly important that the authority ensures that the terms of a licence are complied with, the Government consider that a licence committee should have the discretion to dispense with the requirement in cases where it is clear to the committee that an inspection is unnecessary in that particular year.
§ Amendments Nos. 3 and 4 are consequential to Amendment No. 2. I beg to move.
§ Lord Ennals
My Lords, broadly speaking, I support the proposals made by the noble Baroness and believe they are an improvement, as was the first amendment that she proposed.
However, I have two concerns. The first, in Amendment No. 2, relates to subsection (8A) which contains the phrase:if the licence committee considers an inspection in that year unnecessary".Obviously, that flies in the face of the concept contained in the amendment of the noble Viscount, Lord Caldecote; namely, that a licensed premises should be inspected at least annually. Perhaps the noble Baroness will give the circumstances that she has in mind in which the rule of an annual inspection, which I thought at one moment she seemed to support, would be thought to be unnecessary. Would it not be difficult for a committee with a large number of premises under its supervision to decide that it did not need to have them inspected without inspecting them to see if they needed to be inspected? Perhaps the noble Baroness could comment on that point?
My other point related to Amendment No. 4:An inspection in pursuance … may be carried out by a person who is not a member of a licence committee".As I understood it, an inspection would normally be carried out by more than one person. We have spoken of the possibility that there might well be included a doctor, a scientist and a lay person. Does this amendment relate to a person who might be part of an inspecting team? Perhaps she could say a little more about what lies behind the Government's thinking on the reference to:a person who is not a member of a licence committee".
§ Viscount Caldecote
My Lords, at an earlier stage of this Bill I moved amendments relating to inspection, as my noble friend Lady Hooper said. At Report stage my noble friend undertook to bring forward an amendment at Third Reading to give effect to the substance of my amendments.
I am most grateful to my noble and learned friend the Lord Chancellor and to my noble friend Lady Hooper for the trouble that they have taken to look at this point. The undertaking has been fully carried out in Amendments Nos. 2, 3, 4 and 23. They seem to me to be entirely satisfactory and to have achieved the objective of my amendments, albeit in a slightly different way. I do not therefore intend to move Amendment No. 21. I repeat my gratitude to my noble and learned friend and to my noble friend for the great care and trouble that they have taken with their advisers to deal with the point which I raised.
§ Baroness Phillips
My Lords, I should like to follow up the remarks of my noble friend on the Front Bench. It seems rather curious that an inspection is to be carried out by a person. It is almost: casual. It is as though someone just drops in to deal with what is a highly complicated business. After all, we are not exactly talking about a person who is serving fish and chips. The amendment states that:Any particular premises need not be inspected … if the licence committee considers an inspection … unnecessary".That is very unusual legislation. I am sure that the health and safety regulations and matters of that character are not dealt with in such a casual way. It is almost as though the committee will say that there is no point in anybody going. Or is it a matter of seeing who will volunteer to go? It is extraordinary legislation and I am sure that if we look at the Acts relating to inspection of premises for any reason we shall see that this is quite new.
§ 3.15 p.m.
§ Baroness Hooper
My Lords, with the leave of the House, we are operating on the premise that the authority which is to be appointed will be a responsible body that will take account of the kind of anxieties expressed by your Lordships. Our intention is and always has been not to impose a straitjacket on this highly responsible body.
In response to the question asked by the noble Lord, Lord Ennals, there could be some circumstances in which inspections would be unnecessary on an annual basis. For example, the centre which has applied for a licence or has a licence might be closed for a large part of the period. I am glad that my noble friend has recognised that our amendment covers the position.
With regard to Amendment No. 4 and the point raised about "a person", this must be read in conjunction with paragraph 8 of Schedule 1 which, as I have already pointed out, gives the authority powers to appoint the staff that it considers it will need to carry out its functions. We should expect the inspecting group to be composed of suitably qualified people. This amendment simply allows the possibility of "a person" to be part of that group if he is not a member of the licence committee. I trust that noble Lords will accept my response to the questions that have been raised.
§ Baroness Lockwood
My Lords, I wonder whether the Minister will clarify the wording in subsection (8A)? Does it mean that any particular premises need not be inspected in one particular year? The wording is "any particular year". Would it be possible, for instance, for the authority to determine that the premises will not be inspected this year and then next year also to determine that they will not be inspected, or will it be confined to one year only?
§ Baroness Hooper
My Lords, my understanding is that it would relate to one particular year. After all, licences will be issued for a certain number of years. I would expect that the extent, if any, of the discretion to be used by the authority would be covered in the authority's annual report, to which 202 we have also just spoken, in terms of what it has done in the past year and what it plans to do in the future years.
§ On Question, amendment agreed to.
§ Baroness Hooper moved Amendments Nos. 3 and 4:
Page 5, line 10, after ("subsection") insert ("or subsection (8) "). Page 5, line 12, at end insert:
("(10) An inspection in pursuance of subsection (7) or (8) above may be carried out by a person who is not a member of a licence committee.")..
§ The noble Baroness said: My Lords, with the leave of the House, I should like to move that these amendments be taken together. I beg to move.
§ On Question, amendments agreed to.
§ Clause 12 [General conditions]:
Baroness Hooper moved Amendment No. 5:
Page 6, line1, leave out ("payment in money or money's worth shall be made") and insert ("money or other benefit shall be given").
§ The noble Baroness said: My Lords, in moving Amendment No. 5 I shall speak also to Amendments Nos. 6 and 22. During the Report stage of the Bill I moved two amendments. One made it a condition of all licences granted by the authority that no payment in money or money's worth could be made or received in respect of any supply of gametes or embryos unless the payment was authorised by directions. The other provided that, where a person to whom a licence applies or the nominal licensee makes or receives any payment in money or money's worth, other than a payment authorised by directions, in respect of any supply of gametes or embryos, he would be guilty of an offence.
§ During the debates on these amendments, the noble and learned Lord, Lord Donaldson of Lymington, expressed his concern that the words "money or money's worth" might not cover the case in which a woman is offered private treatment or some special preference if she agrees to donate eggs while undergoing sterilisation. I am grateful to the noble and learned Lord for bringing this matter to my attention. In response, the Government have put down Amendments Nos. 5, 6 and 22.
§ Amendments Nos. 5 and 6 make it a condition of all licences granted by the authority that no money or other benefit shall be given or received in respect of any supply of gametes or embryos unless authorised by directions. This will be a matter for the authority to consider but it is hard to envisage that it will countenance any significant payments to donors; but it may, for example, choose to allow the reimbursement of their incidental or travelling expenses. Amendment No. 22 is consequential to Amendments Nos. 5 and 6 and provides that where a person to whom a licence applies or the nominal licensee gives or receives any money or other benefit not authorised by directions, in respect of any supply of gametes or embryos, he is guilty of an offence. I beg to move.
§ On Question, amendment agreed to.203
Baroness Hooper moved Amendment No. 6:
Page 6, line 3, leave out ("the payment is").
§ On Question, amendment agreed to.
§ Clause 13 [Conditions of licences for treatment]:
Baroness Hooper moved Amendment No. 7:
Page 7, line 9, leave out ("whose gametes or embryos are to be used") and insert ("providing gametes or from whom embryos are taken for use").
The noble Baroness said: My Lords, this amendment makes clear that it shall be a condition of all treatment licences that suitable procedures should be maintained for determining which persons are to provide gametes or from whom embryos are to be taken for subsequent use in treatment services. In the Bill as at present drafted the words:
whose gametes or embryos are to be used
§ may be taken to imply ownership of gametes and embryos in a way that the Bill generally seeks to avoid. Schedule 3 of the Bill sets out the system of consents which will be needed before gametes or embryos can be used for any purpose. The amendment ensures that Clause 13 (6) is drafted in accordance with the system of consents. I beg to move.
§ On Question, amendment agreed to.
§ Clause 24 [Directions as to particular matters]:
§ Baroness Hooper moved Amendment No. 8:
Page 13, line 49, at end insert:
("(10) Where the Authority proposes to give directions specifying any animal for the purposes of paragraph 1 (1) ((f) or 3 (4) of Schedule 2 to this Act, it shall report the proposal to the Secretary of State; and the directions shall not be given until the Secretary of State has laid a copy of the report before each House of Parliament.").
§ The noble Baroness said: My Lords, the amendment deals with another point raised by the noble Earl, Lord Perth, during the debates on the Report stage of the Bill. The amendment would operate when the authority proposes to give directions specifying an animal other than a hamster for the purposes of paragraph 1 (1) (f) or 3 (4) of Schedule 2 which deal with treatment and research licences respectively. The amendment requires the authority to report that proposal to the Secretary of State and directions shall not be given until the Secretary of State has laid a copy of the report before each House of Parliament. In practice, this will mean that Parliament will be aware of any such proposal which is made by the new authority.
§ Having considered carefully the debate last week, I think there was substance to the points made by the noble Earl, Lord Perth, and that it is right that Parliament should be put in this position should the authority propose to make a direction of this kind. I hope the noble Earl and other noble Lords will feel that this amendment effectively meets their concerns on this difficult matter. I beg to move.
§ The Earl of Perth
My Lords, again I have to say how grateful I am for the amendment which has been put forward. I was very worried that there was not an adequate safeguard to ensure that before any 204 change were made, if ever any change is to be made, in the type of mixing, of human sperm with other than that of a hamster, we should be aware of it and have the chance to comment upon it. I know that the noble Lord, Lord Walton, was readily agreeable to accepting the same principle. I want to thank the Government for having given effect to this provision. These few words achieve exactly what we wanted.
§ On Question, amendment agreed to.
§ Clause 27 [Meaning of "mother"]:
Lord Walton of Detchant moved Amendment No. 9:
Page 14, line 42, at end insert ("unless the embryo placed is not created from the egg of the woman, or the egg placed is not that of the woman, and before the placing in her of the embryo or egg the woman has consented not to be treated as the mother of the resulting child").
§ The noble Lord said: My Lords, the noble Lord, Lord Meston, has sent his sincere apologies to your Lordships' House for not being able to be present in the Chamber this afternoon to move the amendment. He spoke to me this morning and asked me to explain the substance of the amendment and to move it on his behalf.
§ The position is as follows. A recent case has caused considerable concern. It involved a lady who did not possess a womb— or a uterus— but who did have functioning ovaries. She was able to have ova, or eggs, removed from her ovaries which were then fertilised in vitro by her husband's sperm and another lady willingly volunteered to carry the baby on behalf of the couple. The result was that the surrogate lady carried the baby, the birth was normal but, of course, the child was genetically that of the original lady from whom the ova were removed and of her husband. However, the legal position was such that at the end of the day they were not able to have the child without going through the full legal process of adoption, even though the surrogate mother willingly undertook to carry the child. Even at this stage, the noble Lord, Lord Meston, wanted this issue to be brought to the attention of your Lordships' House so that the point might be taken into consideration in future legislation. I beg to move.
§ Lady Saltoun of Abernethy
My Lords, I rise to express my support for the amendment. It seems to me that as the situation stands at present the law is in danger of looking an ass. I very much hope that the noble and learned Lord will feel able to meet the concerns of my noble friend.
§ Lord Prys-Davies
My Lords, I, too, should like to support the amendment. It seems to us to address a gap in the Bill.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, it is certainly true to say that the amendment addresses a situation. Clause 27 provides that where a woman carries a child as a result of embryo or egg donation, she is to be treated as the mother of that child to the exclusion of all others. The amendment would qualify that rule by 205 providing an exception where the woman has consented in advance not to be treated as the mother. Such an arrangement might be sought by couples who wish to commission a surrogate mother to carry their child.
The amendment would not achieve what I suspect is the aim; that is, to ensure that the genetic parents of a child born to a surrogate mother have full parental status. Under the Bill as drafted, where an embryo is created by in vitro fertilisation and transferred to the womb of a "host mother", the genetic parents will be both treated as donors. Neither will have parental status as regards the child, by virtue of Clause 27 (1) and Clause 28 (5) (a).
The reason that donors will not have parental status is that in the vast majority of cases they are anonymous and have no social relationship with the child. Parenthood involves, among other things, liability to maintain the child and this policy safeguards those who, in a public spirited act, donate eggs or sperm for the treatment of others, from such liability. The effect of the amendment would therefore be that where the woman had, in advance, consented not to be treated as the mother of the child, the genetic mother would be, in law, the mother. But because of Clause 28 (5) (a), the genetic father would not be treated as the father. I am sure that is not what those who support this amendment intend. As the noble Lord, Lord Walton, said, the amendment has been put forward rather late in the proceedings on the Bill simply to raise the issue.
I should now like to turn to the major matters underlying the amendment. The policy in Clause 27, that the carrying mother should be treated as the mother of a donation child to the exclusion of all others, was recommended by the committee chaired by the noble Baroness, Lady Warnock, and was outlined in the White Paper, Human Fertilisation and Embryology: A Framework for Legislation (Cmnd. 259). To take the opposite view might fulfil the intentions of those few people who enter into "womb leasing" arrangements, but such a policy would have numerous disadvantages.
Such a view ignores the practical, physical and emotional realities of the post-natal situation and the fact that the only person who can be guaranteed to be present to care for the child at its birth, unless death intervenes, is the carrying mother. It would take no account of the emotional attachment which arises as a result of carrying a child through to term, sometimes at significant physical cost and the "bonding" that occurs between the carrying mother and the child during pregnancy and at birth. Moreover, it ignores the physiological consequences in the mother, such as lactation.
In in vitro fertilisation and egg donation cases, the genetic blueprint of the child is that of the donor. But the flesh and bone that forms the body of the child is entirely formed by the carrying mother. The donor is responsible only for a single cell or small group of cells which is introduced to the mother. I find it difficult to reconcile that with the view that the child is to be regarded as the child of the genetic parent in that situation. It must be wrong and it is at variance with Clause 33 (1) which makes surrogacy 206 unenforceable in law. In principle the amendment makes a surrogacy arrangement enforceable in law by preventing the ordinary result of carrying the child to have its consequence as a result of an antecedent agreement such as is mentioned in the clause.
In view of these strong emotional attachments and the physical consequences, there may well be circumstances in which a surrogate mother does not wish, having carried the child, to hand it over. If the amendment were to be agreed to, I think that the consequence would be that she would be forced to do so. As experience surely has shown, there may also be circumstances in which the commissioning parents prove unwilling to accept the child, for example if it were born handicapped, perhaps as a result of the carrying mother's conduct or an accident during pregnancy. There must never be any doubt about who is responsible for the child. Clause 27 is intended to put that question beyond doubt. By introducing the notion of consent, the amendment would remove that certainty. That can hardly be in the interests of the child. As I say, that would certainly have the effect of giving a surrogacy arrangement the appearance of enforceability.
As a matter of policy we have said that that should not be so and that is one of its consequences. In the White Paper the Government made clear their intention that legislation should not give any encouragement to the practice of surrogacy arranged privately or on a non-commercial basis. In Clause 33 the present Bill provides that surrogacy arrangements are to be unenforceable in law. That is not just because the practice of surrogacy creates a situation in which the interests of the child can never be guaranteed, but also because of the difficulties which the surrogate mother herself may face. For example, she may have to pretend to family and friends that she is carrying her own and her husband's child, and, after the child is born and she has given it to the commissioning parents, she may have to pretend that she has lost the child.
Dr. John Dawson, head of the British Medical Association's professional and ethics committee, was quoted in a newspaper on 4th March as saying:We would be appalled if we thought there was going to be a trend towards the widescale use of surrogate pregnancy in this country.".The Government agree with that view.
Commissioning couples and surrogate mothers should be aware of the pitfalls involved in these arrangements. This is recognised in the ethical guidelines issued last week by the British Medical Association. Under those guidelines, doctors will be required to ensure that couples understand that surrogacy agreements are not enforceable, that the surrogate mother will be the child's legal mother, and that they will have to adopt the baby if they want to become its legal parents.
I should like to stress that the arrangements allow that. Therefore, if there is no obstacle and all goes as originally planned, that legal procedure is available by which a legal relationship can at that stage be established between the genetic parents and the child.
207 The BMA has advised that couples will be advised to seek legal advice and be warned that they may not be allowed to adopt a baby born to a surrogate mother. All parties should enter into such an arrangement with their eyes open and with the welfare of the child uppermost in the minds of everybody involved.
I believe that very few people enter into surrogacy arrangements even in comparison with the few who seek the infertility treatments which the Bill will regulate. The rules laid down by the Bill are intended to benefit those who receive infertility treatment involving donation and the children born to them. Clause 27 as drafted will, in my view, in by far the majority of cases reflect not only the intentions of all involved but also the social reality. The few cases where that proves not to be the case can properly be left to the law of adoption and I believe should be so left.
I am very grateful to the noble Lord, Lord Meston, for raising this point and to the noble Lord, Lord Walton of Detchant, for taking up the torch in the noble Lord's unavoidable absence. However, I strongly suggest to your Lordships that the policy as provided in the Bill is the sound policy. In the very few cases where a difficulty of the kind which this amendment addresses arises, the law of adoption applying after the birth appears to be the best way of solving the problem.
I entirely accept that this is an extremely difficult issue and an important one to be addressed. However, I believe that that is addressed in the Bill and is best left in that form. I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment. Of course, this issue may well arise as the Bill goes through another place. It is an important general issue, as is the whole question of surrogacy which will no doubt receive attention as the Bill is further considered.
§ 3.30 p.m.
§ Lord Walton of Detchant
My Lords, I am grateful to the noble and learned Lord for his very full and detailed consideration of this problem. In agreeing with the noble Lord, Lord Meston, that I would draw this matter to the attention of your Lordships' House, I told him that in my view it raised very considerable complex legal and moral issues.
I say in passing that I too take the view that I do not wish to see any major extension of surrogacy arrangements in this country— a measure to which I personally should be very much opposed. Nevertheless, the problems in this case were such that I believed that your Lordships should be aware of them. With that explanation, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor moved Amendment No. 10:
Page 14, line 45, at end insert:
(" (3) Subsection (1) above applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs.").
§ The noble and learned Lord said: My Lords, I shall speak also to Amendment No. 16. Clause 27 208 provides that where a woman carries a child as a result of embryo or egg donation she, the carrying mother, is to be treated as the child's mother to the exclusion of all others. Clause 28 (2) provides that where a child is born to a married woman as a result of gamete or embryo donation, her husband is to be treated as the child's father unless it is shown that he did not consent.
§ These amendments will clarify the territorial application of these clauses. The effect will be that where the law of England and Wales, Scotland or Northern Ireland applies to determine the status of parents and children born as a result of donation, it will be immaterial whether the treatment took place in the United Kingdom or elsewhere. If we do not amend the clauses in this way, I am advised that they will be construed as applying only to treatment in the United Kingdom.
§ That would give rise to some odd results. Let us suppose that an English or Scottish married couple, domiciled in the United Kingdom, go to live abroad for a short time and obtain treatment and the child is born after their return. The child will not in law be theirs because Clause 28 (2) would not apply as the treatment had taken place outside the United Kingdom. The effect would be that the child was, in effect, rendered fatherless. Strictly speaking, the donor would be the father, but he is most likely to be anonymous.
§ This is not a desirable result. The answer is that in circumstances such as those I have described, Clauses 27 and 28 should operate to determine who, in law, are the parents. That is the purpose of these amendments.
§ Perhaps I should add that, as concerns Clause 28, these amendments will only have effect as regards married couples. If the House agrees to Amendment No. 12 the effect will be that unmarried men will in certain circumstances be treated as fathers of donation children. But for reasons which I will explain when we reach that amendment that will only apply where the woman was treated by a person to whom a licence applies. The licensing system can of course operate only within the UK. I beg to move.
§ Lord Ennals
My Lords, I warmly welcome this amendment from the noble and learned Lord. I had not recognised that there was a defect and therefore I am grateful to him for recognising that. The reason that I welcome the amendment is, first, that I believe that anything which removes uncertainties about whether the mother is the mother of the child and the child is the daughter or the son of the mother must be good. With the amendments written in during Report stage, where the interests of the child were always to be taken as paramount, it seems to me that the bonding between mother and child is as important, if not more important, in those births which are not identical to normal and regular births. Therefore, I believe that by strengthening the law in that respect the noble and learned Lord the Lord Chancellor has made an important contribution to that relationship.
§ Baroness Phillips
My Lords, I support the noble and learned Lord the Lord Chancellor on this point but I am rather puzzled. If the woman receives 209 treatment in another country, is there a law which says that she must inform the authorities of that fact when she returns to the United Kingdom? Otherwise, who will know and how will they know?
§ The Lord Chancellor
My Lords, that is the point. If it came to be discovered, that would create an uncertainty about the status of the child. If nothing is found out about that and all is kept private, no problem arises because the child is seen to be born in the normal course of events and no query is raised on that. On the other hand, if a query were raised this amendment would apply and settle the matter.
I am very grateful to the noble Lord, Lord Ennals, for his comments on this amendment. I believe that it removes the possibility of uncertainty in this area.
On Question, amendment agreed to.
Clause 28 [Meaning of "father"]:
The Lord Chancellor moved Amendment No. 11:
Page 15, line 10, leave out ("subsections (4) and (5) ") and insert ("subsection (4) ").
§ The noble and learned Lord said: My Lords, this amendment is simply to improve the drafting. I beg to move.
§ On Question, amendment agreed to.
§ 3.45 p.m.
§ The Lord Chancellor moved Amendment No. 12:
Page 15, line 13, at end insert:
(" (2A) If no man is treated, by virtue of subsection (2) above, as the father of the child but—
§ The noble and learned Lord said: My Lords, Clause 28 provides that where a married woman carries a child as a result of treatment involving gamete or embryo donation, then her husband is to be treated as the father of that child unless it is shown that he did not consent to the treatment.
§ In speaking to Amendment No. 12 I should also like to speak to Amendments Nos. 13 and 14. These amendments, in effect, extend the provision of Clause 28 so that where an unmarried couple receive treatment together the male partner will be treated as the child's father. During the Report stage of this Bill an amendment of a similar nature was proposed by my noble friend Lord Ashbourne and by the noble Lord, Lord Robertson of Oakridge, supported by others. I undertook to consider further the matters raised by the amendment and my noble friend and his supporters kindly withdrew it.
§ The conclusion I have reached is that if it is to remain possible for unmarried couples to receive the benefit of treatment to bring a child into being, both should have imposed upon them the responsibility for the child. I was most concerned that this proposal should not be seen as encouraging unmarried people 210 to use infertility treatments, thus perhaps undermining marriage, or leading to children having unsuitable social fathers because of the difficulty in distinguishing partners to stable relationships from more transitory ones. On reflection, having regard to the other provisions of the Bill, these considerations should not deter us from inserting this amendment.
§ With regard to encouraging unmarried couples to seek treatment, the result of this scheme will be that the man becomes responsible for maintaining the child. That will, if anything, discourage the irresponsible use of the treatments by unmarried couples. Moreover, because the man is not married to the mother of the child, he, like any unmarried father, would receive no benefit in the sense of acquiring parental rights, but only the duty to maintain the child. He could acquire such rights by obtaining a court order under Section 4 of the Family Law Reform Act 1987, or under the equivalent provision of the Children Act 1989 when it comes into force, but the existing demarcation between married and unmarried parents will be preserved.
§ As to the man being unsuitable, as I have said, the imposition of a duty to maintain should discourage irresponsible men and particularly those whose relationship with the mother is not enduring. Furthermore, as a result of amendments which this House agreed to during Report stage, those providing treatment will be required to have regard to the welfare of any child who may be born as a result of the treatment and any other child who may be affected by the birth. That will be an added safeguard against the risk of unsuitable fathers.
§ Conferring fatherhood on the man in these circumstances will have three further benefits for the child. First, an advantage to the child will be that he will be able to seek support from the man's estate if the man should die. Secondly, as the noble Lord, Lord Ashbourne, pointed out during the Report stage, under the Bill as drafted children born to unmarried couples would, in law, have no father. These amendments will mean that there will be fewer fatherless children. And, thirdly, the formal recognition of the man's fatherhood may help to cement and strengthen the relationship within the informal family and reduce the risks of breakdown and its consequences for the child and, indeed, too often the taxpayer. That may well lead to a more formal enduring relationship instead of the informal one from which it started.
§ These amendments will create a new subsection, the effect of which is limited to those treated together by a person to whom a licence applies. The effect of that limitation is that all persons who seek fatherhood in this way will be subject to the regulatory framework provided by the Bill. In particular, as I have already said, the clinic providing the treatment will have to take account of the welfare of the child. And both parties will be given an opportunity for counselling so that they will be fully aware of the legal and other implications of their actions.
§ However, the unsupervised use of artificial insemination techniques outside the statutory scheme, including treatment outside the jurisdiction 211 of the United Kingdom, will not be covered by the new provisions. Without the regulation provided by the Bill, it would be extremely difficult to be certain about who is the mother's partner and who is to be treated, for the purposes of this amendment, as the father.
§ In my view, these amendments give effect to the very important principle that the responsibility travels with the benefit and I commend them to the House. I beg to move.
§ Lady Saltoun of Abernethy
My Lords, I am most grateful to the noble and learned Lord for this amendment. It goes a considerable way towards meeting very grave concerns as to the fate of the donor child of an unmarried couple should any misfortune overtake the mother and consequently the grave risk that the child might be taken into care because he has no family to care for him. I am extremely grateful to the noble and learned Lord for the amendment.
§ Lord Kilbracken
My Lords, I welcome this amendment, but perhaps the noble and learned Lord will explain exactly why paragraph (b) is necessary. It seems to me that if the man's own sperm is used, that is all the more reason to treat him as the father instead of his being disqualified by that paragraph.
§ Lord Ashbourne
My Lords, I too should like to support this amendment and say how grateful I am to the noble and learned Lord for moving it. It will undoubtedly reduce the number of fatherless children being created. I commend the amendment to the House.
§ Lord Ennals
My Lords, I should like to say a brief word with regard to the amendment because once again the noble and learned Lord the Lord Chancellor has achieved a very difficult task. When this issue was first debated I took a different view from that of the noble Lady and the noble Lord who has just spoken. One noble Lord accused me of preaching against the significance and value of marriage. I was not doing that; I was seeking to emphasise— perhaps unsuccessfully— the importance of the responsibility which is placed upon someone recognised as a father whether or not that father is married. Quality of parenthood cannot always be judged by whether or not a father and mother are married.
We should seek to minimise, as this amendment does, the number of fatherless children who are born. I make the same remarks about this amendment as I did before; the closer the link between the father and the child, however unusual are the circumstances of the birth, the better will be the family life of that group and the higher will be the quality of life for the child. Therefore, like other noble Lords who have spoken, I am grateful to the noble and learned Lord for this amendment.
§ Lord McGregor of Durris
My Lords, I too am grateful to the noble and learned Lord for the amendment, which provides a very acceptable 212 solution to the moral, legal and social problems which arise in a very difficult and occasionally inescapable situation.
§ The Lord Chancellor
My Lords, perhaps I can, first, answer the noble Lord, Lord Kilbracken. Unless the condition in paragraph (b) is fulfilled, this amendment is not required. If the man's own sperm is used, the common law makes that man the father. The reason therefore for inserting paragraph (b) is to make clear that it is only required in the case covered by (b).
I should like to thank all noble Lords who have spoken in support of this amendment. As the noble Lords, Lord Ennals, and Lord McGregor, have both said, these are very difficult issues. They were brought to our attention and debated at all stages of the Bill. As the debate has developed, so solutions to the important problems have become reasonably clear. I am glad that those who started with perhaps somewhat different points of view are able to see this as at least a possible solution— it may not be the only one— which goes a long way towards meeting all the concerns that have been expressed.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendments Nos. 13 and 14:
§ Page 15, line 15, after (" (2) ") insert or (2A").
§ Page 15, line 17, leave out ("Subsection (2) above does") and insert ("Subsections (2) and (2A) above do").
§ The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 12. With your Lordships' leave, I move them en bloc.
§ On Question, amendments agreed to.
Lord Kilbracken moved Amendment No. 15:
Page 15, line 37, after ("time") insert ("or parties to a marriage who at that time had been living apart for not less than three years or were legally separated,").
§ The noble Lord said: My Lords, this amendment seeks to take a little further a point I raised on Report and to which the noble and learned Lord said that he would give favourable consideration. The amendment seeks to extend the exclusion from being a father to states where not only have couples been legally separated but where they have been living apart for a period of not less than three years. I felt that if the former point was to be considered favourably it should also be extended to cases such as this. I beg to move.
§ The Lord Chancellor
My Lords, as the House knows, and as the noble Lord has explained, subsection (2) of Clause 28 provides that where a child is born as a result of donation to a woman who is party to a marriage, the mother's husband will be treated as the child's father unless it is shown that he did not consent. Subsection 6 (a) makes clear that the references to the parties to a marriage do not include parties to a marriage dissolved or annulled at that time.
The noble Lord, Lord Kilbracken, has had further thoughts and comes forward with an additional suggestion. He suggests that if the Bill includes parties who are legally separated— that was the 213 position at Report stage— it should also include couples who have been living apart for not less than three years. That demonstrates that one can indicate many conditions which would help to show that consent had not been granted. I had not finished considering the first aspect when along came this second aspect. For all I know, there are a third and further aspects to come yet. Possibly a more radical solution is required. I have not been able to complete my consideration, but if the noble Lord is content to leave the matter with me I can assure him that, though the Bill will pass from this House today, the point will not pass out of our consideration. We shall see how we can deal with it.
There may be scope for some machinery which will deal with this question of consent in a way that will be easy to refer to, but I am not in a position to offer my solution to this problem today. The noble Lord's development of the subject shows that it is not as. easy as at first sight it appeared to him when he moved his amendment on Report.
§ Lord Kilbracken
My Lords, I am grateful to the noble and learned Lord. I realise that he may not have completed consideration of the amendment I tabled on Report. However, this is the last opportunity I have of suggesting this development. Therefore, while I have no intention of pressing the amendment in any way I hope that this additional point will receive consideration for inclusion, perhaps in another place. In the light of the undertaking that the noble and learned Lord has so kindly given, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor moved Amendment No. 16:
Page 15, line 42, at end insert—
(" (7) This section applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo of the sperm and eggs of her artificial insemination.").
§ The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 10. I beg to move.
§ On Question, amendment agreed to.
§ Clause 29 [Effect of sections 27 and 28]:
§ Lady Saltoun of Abernethy moved Amendment No. 17:
Page 15, line 46, 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 and 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 was withdrawn at Report stage because, in rejecting it, the noble and learned Lord the Lord Chancellor said:
For those reasons I cannot accept the amendment at present. Perhaps the noble Lady … will want to consider the matter. I
am certainly willing to consider it further".— [Official Report, 6/3/90; col. 1152.]
§ I do not know whether the noble and learned Lord has had time to consider the matter any further, but I have, as has my noble and learned friend Lord Jauncey who is unavoidably prevented, by illness, from being here today.
We have read very carefully what the noble and learned Lord the Lord Chancellor said on Report. My noble and learned friend asked:
Why should testators and trustors have imposed upon them beneficiaries of whom they might never have conceived and, had they conceived, whom they might not have wished to benefit?"— [col. 1151.]
The noble and learned Lord the Lord Chancellor replied:
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".— [col. 1152.]
§ I assume the person in question to be the testator or trustor. Is the child born by sperm donation of the testator's or trustor's daughter-in-law, or the child of his daughter, born by egg donation very closely connected with him? I do not think that he is. If I were a testator and had, in my ignorance of these techniques, left property, possibly family property, to my grandchildren who I naively assumed would be my descendants by blood I should be spinning in my grave with fury at the prospect of a person who is no blood relation of mine taking under my will. Similarly, had I made a trust on the same naive assumption and discovered that, on the passing of the Bill, under the terms of the trust deed my estate would go to the donor child of my eldest son's wife, I should certainly not feel kindly disposed towards that lady. Perhaps I could break the trust and start all over again, but that is easier said than done.
§ On Report my noble and learned friend gave as examples the Succession (Scotland) Act 1964, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968, the Family Law Reform Act 1969, and the Family Law Reform Act 1987. In all those Acts rights of succession granted to adopted or illegitimate children only applied in the case of deeds executed after the coming into force of the Act.
I am aware that in Section 27 of the Family Law Reform Act 1987— the section concerned with donor children— this precedent was disregarded. I believe that it went by default because no one spotted the implicit effect of the clause when the Bill was being debated in this House. I have read all the Hansard reports of the debates on the amendments to that clause at all stages of the Bill in this House. That aspect was never mentioned at all; nor was it the subject of any amendments. However, the then Lord Chancellor, the noble and learned Lord, Lord Hailsham, recommending the clause to the House at Second Reading, said:
If need be, the clause can be amended later if it gives rise to difficulty".— [Official Report, 27/11/86; col. 652.]
§ I suggest that the time has come to amend that clause instead of using it as a precedent. I contend that both that clause and the Bill we are discussing 215 may foist retrospectively on a testator or truster a beneficiary he is likely not to have wished to benefit. I beg to move.
§ 4. p.m.
§ Lord Keith of Kinkel
My Lords, I support this amendment and I am particularly glad to do so in view of the unavoidable absence today of my noble and learned friend Lord Jauncey of Tullichettle. Perhaps I may give a somewhat exaggerated example by way of illustration of the kind of situation with which this amendment is designed to deal. Let us suppose that a noble Earl dies before this clause comes into operation. He is survived by his widow and he leaves two sons, James and John. Under his will he bequeathed to his widow for life his castle and, after her death, to James, whom failing, his sons in order of seniority, whom failing, to John and his sons in order of seniority.
James pre-deceases the widow leaving one son whom his wife conceived by donation. John is still surviving and inherits the title. If this amendment is not passed the result will be that the donor child of James will inherit the castle to the exclusion of John. That is not the kind of situation which is just, right or proper. The testator died without having in contemplation this particular provision to be passed in the future which confers right of succession on this category of child.
That is an extreme example but others of a similar character could well occur. As my noble friend Lady Saltoun has indicated, and as was indicated at earlier debates in the passage of this Bill, there are provisions in various Acts which confer rights of succession on illegitimate and on adopted children. All these Acts contain provisions which save the effects of deeds executed before the legislation came into effect.
I am aware that Section 27 of the Family Law Reform Act 1987 does not have a similar saving clause in relation to rights of succession conferred on donor children. As my noble friend Lady Saltoun has said and as she discovered through her researches, that legislation went through without this particular point of principle being raised and without it being debated in this House. If that is to be a future precedent it is very unfortunate that it should come about without a debate.
I observe in passing that Section 27 of the 1987 Act applies only in England. It does not apply to Scotland, and I believe I am right in saying that there is no similar provision for Northern Ireland. No distinction in principle can reasonably or properly be drawn in connection with this point between adopted, illegitimate and donor children. It is said that if the amendment were passed it would discriminate against donor children. At the moment and without the amendment, there is discrimination in favour of donor children, particularly in relation to adopted and illegitimate children.
I believe it is said that whereas the process of adoption and legitimation might be familiar to a testator who died before the relevant legislation, the possibility of a donor child inheriting would not be 216 in his contemplation. That is a very good reason for agreeing to this amendment. Clearly, one should not bring about a situation where someone inherits who was not in the contemplation at all of the testator in question because it never occurred to him that this piece of legislation might be proposed and passed.
One cannot reasonably infer from that kind of situation that a testator or truster would have wished to include donor children among his beneficiaries. There are some instances and I gave an illustration on opening. That is clearly one of them. Further, it should be kept in mind that this is a purely transitional provision. There is no question of any discrimination in the long run against any category of child. Quite a serious point of principle is raised here and I seriously commend this amendment to your Lordships.
The Earl of Erroll
My Lords, this amendment was tabled at an earlier stage. Because mainly Scots spoke to it, I believe that your Lordships thought that the amendment applies to Scotland. In fact, it applies to anyone in England as well. There has been a great deal of concern as regards some legislation that it should not be made retrospective. I know that that argument has been used by the noble and learned Lord the Lord Chancellor to prevent certain amendments to various Bills because they might be retrospective.
Without this amendment this legislation clearly is retrospective. I am a trustee of an accumulation and maintenance trust which could be affected by this legislation. The trust was set up a few years ago for the granchildren and it could go to one or several of them. I know that it is certainly not the intention of the grandparents who made that accumulation and maintenance trust that it should go to grandchildren born as the result of donation. The simple reason is that it is a family property involved, with strong emotional ties. Therefore, I believe that this amendment is necessary to the Bill.
§ Lord Ennals
My Lords, I would not wish to see an amendment passed or any piece of legislation enacted which discriminated for or against a child because it had been born as a result of insemination. Discrimination either way is wrong. Once it became known that, in terms of inheritance, there was to be discrimination against a child because of the circumstances of its birth, that immediately challenges the admirable amendment that the noble and learned Lord the Lord Chancellor presented.
The interest of this Bill concerns the child. If we create circumstances in which a child is discriminated against because of circumstances over which that child— or for that matter that embryo— had no influence whatever, it would become most unfortunate legislation.
The Earl of Erroll
My Lords, before the noble Lord sits down, can he deal with the point of adopted and illegitimate children? At present they are discriminated against legally and acceptably in this fashion.
§ Lord Ennals
My Lords, if we have a Bill that deals with those issues I might intervene, but they are not affected by this legislation.
§ Baroness Phillips
My Lords, I am not thinking of voting either for or against this amendment which highlights the stupidity of this piece of legislation. If two people are concerned with the birth of a child the position is clear, but if two others are introduced there will be trouble. The issue is irrespective of whether the property concerned is a castle or something that has been left to the grandchildren. I became very worried about this matter and I shall have to reframe my will. I ask myself who is going to have my estate, always assuming that the Government leave me anything to bequeath and that the inheritance tax has not increased.
There is something totally ridiculous about this legislation. I am sorry to say that. I am not referring to this particular amendment, which highlights the unreality of this legislation. I shall say this again when we come to debate whether the Bill do now pass. I cannot let the opportunity go by now without saying something on the subject.
§ Lord Roskill
My Lords, happily the noble Baroness is still with us, and I hope that she will remain with us for a long time. She can deal with the contingency to which this amendment is directed by a suitable alteration to her will and no doubt she would wish to do so. The noble Lord, Lord Ennals, raised the question of discrimination. There is bound to be discrimination one way or the other. Either one will discriminate against the donor child or one will discriminate against those whom it was the intention of the original creator of the trust or testator to benefit.
Perhaps I may give an example slightly less grand than the one involving castles given by my noble and learned friend Lord Keith of Kinkel. It is a perfectly straightforward case of parents or grandparents, father or mother, long since dead, who some years ago sought to benefit their grandchildren and perhaps great grandchildren after their deaths. They created a common form trust. It may or may not have been an accumulator. They died, leaving a son. The son married and had children. The grandson married, but the daughter-in-law who had absolutely no blood relationship with the creators of the will trust then had a donor child. There was no blood relationship of any kind. The whole purpose of trusts, will trusts and so on is to give effect to the intention of those whom the creators of the trust intended to benefit. It is the duty of the courts to do so unless Parliament otherwise intervenes. If this provision goes through unamended it will prevent the intention of those who created the trusts being given full effect. People will come in and benefit whom it was never intended to benefit.
It is perfectly possible to put this right for the future by suitable amendment of wills and trust deeds produced hereafter whether under the law of England or, although I am not competent to talk about it, the law of Scotland. What it is not competent to do is to alter retrospectively trust deeds or wills which may well have been entered into 218 decades ago. That is what this provision unamended will do. It will lead to discrimination against those children who were intended to benefit originally. I support the amendment.
§ The Lord Chancellor
My Lords, the question that arises under this amendment and what is in a way fundamental to its consideration is what a testator or truster would have done if faced with the knowledge that a child was born to his son or daughter by one of these treatments. I said at Report that these techniques were not previously contemplated and that I would find it difficult to believe that it is clear that a parent would want to say that a child born to his son or daughter by this technique was not to inherit with other children born to that son or daughter. That is what I had in mind at that stage. This amendment would take out altogether the possibility of these children being in the deeds.
The problem with which Clause 29 (3) seeks to deal is one of the construction or interpretation of enactments and private deeds and instruments. The problem as I see it with the amendment is that it would limit the rule only to future enactments and instruments. That would be unfortunate enough, in my view, if Clause 28 were an entirely new provision. But it is not. We now have to contemplate three eras, as it were. The first time is before the passing of the Family Law Reform Act 1987, when there was no statutory provision governing the paternity of children born by donation and therefore no need for a rule of construction.
In passing, perhaps I should say a word about the strictures of the noble Baroness, Lady Phillips, on the Bill. I believe that the noble Baroness would like to see these treatments controlled and that therefore she would like to see the Bill enacted; otherwise there would be no control of the treatments. The precise terms on which the Bill should proceed is another matter. I think she may be going too far, having regard to her own wishes, in wanting to destroy the Bill altogether.
Then came Section 27 of the 1987 Act, which conferred social fatherhood in AID cases on the woman's husband. No special rule of construction was included in that Act. I accept that the point was not discussed at that stage but Parliament passed the law in relation to England and Wales. No special rule of construction was included in that Act to exclude children born in this way.
Now we have the clauses of this Bill which in major part repeat Section 27 of the 1987 Act but extend it to all children born by donation to a married woman. On this occasion we have decided to provide a rule of construction. However, unless we are to make distinctions between existing AID children whose paternity is governed by Section 27 of the 1987 Act and future children whose paternity will be governed by Clause 28 of this Bill this Bill, we cannot limit the rule of construction to future cases only. Some rule is required in relation to the past. We have therefore settled so far on a broad rule unlimited in its application by reference to time.
The suggestion has been made, in particular by the noble Earl, Lord Erroll, that such a rule is 219 retrospective and unfair especially to past testators and those who have executed trusts and other instruments. I doubt that in practice there will be unfairness. The rule in Clause 29 (3) is not an iron rule. It will not prevent a person, if he so wishes, distinguishing between children born by donation and others.
§ 4.15 p.m.
The Earl of Erroll
My Lords, we are talking about deeds that have already been executed and cannot be changed. This amendment deals purely with deeds and so on that are already in existence. The amendment does not apply to future deeds. The Bill as drafted applies to such deeds retrospectively. The people who executed them cannot change them.
§ The Lord Chancellor
My Lords, I am well aware of that point and I am seeking to deal with it by saying that Clause 29 treats the child as related to the mother or father in question. But I am making a different point now. I am saying that that does not exclude the possibility that a person seeking to construe an existing deed might be able to show that it did not contemplate a child born by donation but restricted the children to children who were born by natural methods. It will be perfectly open to any person to argue that the terms of a past or indeed a future instrument showed a contrary intention to that of Clause 29 (3) and therefore excluded children by donation. This seems to be the correct approach and it applies whether in regard to the large estate referred to by the noble Baroness, Lady Phillips, a castle or whatever may be at issue.
To provide otherwise would mean presuming that testators and others in the past would have wished to exclude from their benefit children born as a result of donation. That is the essence of the amendment. I believe that it is impossible to tell in respect of those who made these deeds in the past whether or not that would necessarily be so. If there are indications in the deed which show that, there is nothing in the clause to exclude such considerations.
If this amendment were passed it would lean towards discrimination against children born by donation. My noble and learned friend Lord Roskill said that you have to discriminate against one or the other. I think that that really is a fundamental truth. If you accept an amendment of this sort, you have to discriminate against one or the other. If that is the problem that is faced, I believe that there is no particular reason why one should discriminate against children born by donation. But I believe that the clause as drafted enables the argument to be open on the terms of any particular deed, or instrument, that the intention of the testator as set out in the deed or instrument would exclude such children. If that is right, then that would be the proper effect.
To provide otherwise, as I say, would lean towards discrimination against children born by donation so that in the same family siblings might be treated differently on a technicality, and it would make the law unnecessarily complicated by distinguishing between the three areas to which I have referred.
220 The three times— the three eras, if one likes— would be the period before the 1987 Act so far as England and Wales are concerned, that during the existence of the 1987 Act, and then that from the time when this particular Act comes into effect.
I am certainly willing to consider this matter further to see whether a better arrangement can be made than we have in this clause. It may be that some saving language would be possible, but certainly as it seems to me at the moment this particular amendment goes the whole way towards discriminating against children born by these treatments, and I believe that that is wrong. On the other hand, I would certainly be willing to see whether there is some way in which it would be even clearer that it is open to argument on a particular deed, or other instrument, what the conclusion should be.
I certainly cannot recommend your Lordships to accept this amendment as it stands. I have sought to consider the matter quite carefully in the light of what was discussed at Report stage and the illustrations given by my noble and learned friend Lord Jauncey of Tullichettle at that time. I am extremely sorry that he is not able to be with us today for reasons of illness. I am sure that I speak for all your Lordships when I say that we hope that he will soon be restored to his place among us again. In the light of these explanations I hope that the noble Lady may feel able to withdraw the amendment.
§ Lady Saltoun of Abernethy
My Lords, I have listened carefully to what the noble and learned Lord has said. I have to say that I simply do not see how someone interpreting a will, or a trust, made many years before this Act— or indeed possibly before some of the techniques now in use were ever thought of— could possibly decide whether or not someone who had not mentioned the possible existence of a donor child in his will, or his trust deed, wished a donor child to take under that deed or did not wish the donor child to take under that deed. With great respect, I think that the most reasonable interpretation would be that he probably did not wish the donor child to take under that deed.
While I am extremely grateful to the noble and learned Lord for saying that he would consider this matter again and see whether it would be possible to do anything, at the same time I really feel that this is a matter of principle, that retrospectivity is involved here, and that I should very much like to test the opinion of the House.
§ 4.25 p.m.
§ On Question, whether the said amendment (No. 17) shall be agreed to?
§ Their Lordships divided: Contents, 65; Not-Contents, 133.222
|DIVISION NO. 1|
|Ackner, L.||Broadbridge, L.|
|Belhaven and Stenton, L.||Brougham and Vaux, L.|
|Brain, L.||Butterfield, L.|
|Carnock, L.||Murton of Lindisfarne, L.|
|Cawley, L.||Norfolk, D.|
|Clitheroe, L.||Perth, E.|
|Cullen of Ashbourne, L.||Pitt of Hampstead, L.|
|Erroll, E.||Radnor, E.|
|Falkland, V.||Raglan, L.|
|Gisborough, L.||Rankeillour, L.|
|Grantchester, L.||Robertson of Oakridge, L.|
|Gray, L.||Romney, E.|
|Griffiths, L.||Roskill, L.|
|Hailsham of Saint||St. John of Fawsley, L.|
|Marylebone, L.||Salisbury, M.|
|Halsbury, E.||Saltoun of Abernethy, Ly.|
|Havers, L.||Selkirk, E.|
|Hylton-Foster, B.||Sherfield, L.|
|Keith of Kinkel, L. [Teller.]||Simon of Glaisdale, L.|
|Killearn, L.||Slim, V.|
|Kinloss, Ly.||Somers, L.|
|Kinnaird, L.||Strabolgi, L.|
|Kuntsford, V.||Strathcona and Mount|
|Lauderdale, E.||Royal, L.|
|Lyell, L.||Swinfen, L.|
|Massereene and Ferrard, V.||Templeman, L.|
|Middleton, L.||Terrington, L.|
|Monckton of Brenchley, V.||Teviot, L.|
|Morris L.||Tryon, L.|
|Morton of Shuna, L.||Whaddon, L.|
|Mottistone, L.||Wilberforce, L.|
|Mountgarret, V.||Winterbottom, L.|
|Mowbray and Stourton, L.||Wynford, L.|
|Addington, L.||Graham of Edmonton. L.|
|Alexander of Tunis, E.||Grey, E.|
|Allerton, L.||Grimond, L.|
|Alport, L.||Grimston of Westbury, L|
|Annaly, L.||Hayter, L.|
|Arran, E.||Henderson of Brompton, L.|
|Attlee, E.||Henley, L.|
|Auckland, L.||Hives, L.|
|Aylestone, L.||Holderness, L.|
|Balfour, E.||Home of the Hirsel, L.|
|Belstead, L.||Hood, V.|
|Bessborough, E.||Hooper, B.|
|Blackstone, B.||Houghton of Sowerby, L.|
|Blatch, B.||Hughes, L.|
|Blyth, L.||Jay, L.|
|Bonham-Carter, L.||John-Mackie, L.|
|Borthwick, L.||Joseph, L.|
|Brabazon of Tara, L.||Kaberry of Adel, L.|
|Bruce of Donington, L.||Kilbracken, L.|
|Butterworth, L.||Kimball, L.|
|Caldecote, V.||Lawrence, L.|
|Campbell of Croy, L.||Listowel, E.|
|Carmichael of Kelvingrove, L.||Llewelyn-Davies of Hastoe, B.|
|Carter, L.||Lloyd-George of Dwyfor, E.|
|Cledwyn of Penrhos, L.||Lockwood, B.|
|Cocks of Hartcliffe, L.||Long, V.|
|Colnbrook, L.||McGregor of Durris, L.|
|Constantine of Stanmore, L.||Mackay of Clashfern, L.|
|Cottesloe, L.||Mackie of Benshie, L.|
|Darcy (de Knayth), B.||Margadale, L.|
|David, B.||Molloy, L.|
|Davidson, V. [Teller.]||Mountevans, L.|
|Dean of Beswick, L.||Munster, E.|
|Denham, L. [Teller.]||Nathan, L.|
|Dilhorne, V.||Nelson, E.|
|Dormand of Easington, L.||Nicol, B.|
|Ellenborough, L.||Norrie, L.|
|Ennals, L.||Northbourne, L.|
|Ewart-Biggs, B.||Northfield, L.|
|Faithfull, B.||Nugent of Guildford, L.|
|Fanshawe of Richmond, L.||Orkney, E.|
|Ferrers, E.||Orr-Ewing, L.|
|Fraser of Carmyllie, L.||Parry, L.|
|Fraser of Kilmorack, L.||Pender, L.|
|Galpern, L.||Peston, L.|
|Glenamara, L.||Ponsonby of Shulbrede, L.|
|Goold, L.||Porritt, L.|
|Prys-Davies, L.||Taylor of Blackburn, L.|
|Quinton, L.||Taylor of Gryfe, L.|
|Reay, L.||Thomson of Monifieth, L.|
|Robson of Kiddington, B.||Thurlow, L.|
|Sainsbury, L.||Tordoff, L.|
|St. Davids, V.||Trefgarne, L.|
|Sanderson of Bowden, L.||Trumpington, B.|
|Sefton of Garston, L.||Turner of Camden, B.|
|Sempill, Ly.||Ullswater, V.|
|Shackleton, L.||Underhill, L.|
|Shannon, E.||Vaux of Harrowden, L.|
|Shaughnessy, L.||Waldegrave, E.|
|Skelmersdale, L.||Wallace of Coslany, L.|
|Stedman, B.||Walston, L.|
|Stockton, E.||Warnock, B.|
|Stodart of Leaston, L.||Wedderburn of Charlton, L.|
|Strange, B.||Wigram, L.|
|Strathmore and Kinghorne, E.||Williams of Elvel, L.|
|Suffield, L.||Wise, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.34 p.m.
The Duke of Norfolk moved Amendment No. 18:
Page 16, line 12, after ("dignity") insert (", coat of arms").
The noble Duke said: My Lords, with your Lordships' permission I shall speak also to Amendment No. 19. We have dealt with a complicated matter upon which your Lordships have just voted. This matter is simple and relates also to inheritance. At the moment the inheritance rules in this country provide that inheritance is by blood descent when born in wedlock. That is how, for instance, one succeeds to being a Member of your Lordships' House. By the amendment I wish to include "coat of arms" as applying also to England and Wales. It is already included in Scotland in subsection (5). We stupidly left it out when referring to England. The result of the amendment being accepted would be that the position in England would be the same as that in Scotland. The subsection would read:
dignity, coat of arms or title".
§ I beg to move.
§ Lord Teviot
My Lords, my name is also down to the amendment moved by my noble friend the Earl Marshal. I shall give a textbook answer and I hope that your Lordships will bear with me. Coats of arms fall within the jurisdiction of the High Court of Chivalry. Since 1521 the court has always been held before the Earl Marshal or his surrogate. The Earl Marshal's right to adjudicate was recognised and confirmed by letters patent of King James I in 1622 and his grandson King Charles II in 1672.
The court last sat in December 1954, and my noble and learned friend the Lord Chancellor relied on the statement of Lord Goddard, sitting as the Earl Marshal's surrogate in that case, that in his opinion the right to bear arms is a dignity. That statement was an aside or technically an obiter dicta— a judge's expression of opinion which is not essential to his decision and therefore without binding authority.
Perhaps I may draw your Lordships' attention to another statement made by Lord Goddard in that case when he said: 223The surrogate of this Court and the advocates who practised in it were always civilians and there seems every reason why the practice which obtained in the Courts of the Civilians should apply here".That means that the High Court of Chivalry is a civil as opposed to a common law court. That means Roman civil law as opposed to English common law. Dignities and titles of honour are a matter of common law. That is why I have the gravest doubts that coats of arms, which come under the jurisdiction of the High Court of Chivalry— a civil law court— are covered by the word "dignities" when dignities are subject to the common law.
My noble and learned friend the Lord Chancellor referred to earlier statutes; for example, the Adoption Act 1976, the Legitimacy Act 1976, and the Family Law Reform Act 1987. He said that if coats of arms were specifically mentioned now those statutes might be put into a certain amount of doubt. If a mistake or an omission were made in the past, there is surely no reason to compound it now. We must consider the present legislation. My noble and learned friend has expressed his willingness to include coats of arms, which are generously included in the kingdom of Scotland. I urge your Lordships to define a dignity as including coats of arms.
§ The Lord Chancellor
My Lords, there is no difference between us on what the result would be so far as concerns coats of arms. We are all, I believe, agreed that they should be treated under this provision. The only question is whether they need to be separately mentioned or whether they are already covered by the word "dignity". The most modern answer to that point of which I am aware is that given by Lord Goddard sitting, as my noble friend said, as the Earl Marshal's surrogate in the case to which I referred— Manchester Corporation v. The Manchester Palace of Varieties in 1955.
I should like to make it clear that dignity includes coats of arms. I am not keen to include it expressly in the Bill because it is not in the other statutes to which reference has been made where it was obviously intended to be included under dignity.
Therefore, if we insert the provision here it is apt to be thought that the word "dignity" in these Acts does not include a coat of arms. I do not believe that that is what either of my noble friends the Duke of Norfolk or Lord Teviot would like. The question is therefore rather a technical one, and no less an authority than the late Lord Goddard, has been produced. He was sitting in the right place, in the Court of Chivalry, bound by that court's rules. I appreciate perhaps as much as anyone here the distinction between the common law of England and the law derived from civilians. I have views about the matter which I need not express at this moment.
On the other hand, consistency in the way in which these matters are dealt with is important. I believe that consistency dictates that we should not insert that provision. If there is any better authority available than the late Lord Goddard I should be happy to reconsider the matter.
The other possibility is to effect some amendments to the earlier statutes. But it would be difficult to 224 affect the earlier statutes in this statute, for reasons which are clear about its scope. Therefore, unless my noble friends wish to create doubt about the scope of the provision for "dignity" in the other statutes, they would be well advised not to press the amendment.
As concerns Scotland, the matter is clear. We have inserted the provision because we believe that in Scotland it is wise to make it express. So far as I know, there is no corresponding problem there on other statutes. When it comes to settling policy, if a court ever had to consider the matter I believe that would be helpful in reaching the view that this expression was omitted by Parliament in the light of Lord Goddard's statement of the position. There is no policy difference between us; it is only a question of the best and clearest way in which to express that policy in all the circumstances.
§ The Duke of Norfolk
My Lords, with the assurance from the noble and learned Lord that Lord Goddard's use of the word "dignity" included "coat of arms" I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 19 not moved.]
§ 4.45 p.m.
§ Lady Saltoun of Abernethy moved Amendment No. 20:
Page 16, line 25, at end insert:
(" (5A) In implementation of the provisions of subsections (4) and (5) above where any question arises in legal proceedings as to the right of any person to succeed or transmit a right to succeed referred to in subsections (4) and (5) above, the Licensing Authority may be required by the Court to certify that such person has not, according to their records been born as a result of any egg or sperm donation.").
§ The noble Lady said: My Lords, at Report stage I withdrew an amendment to give the College of Arms or the Lord Lyon King of Arms the right to obtain relevant information from the licensing authority where any question arose under Clause 28 (3), now Clause 29 Subsections (4) and (5). I withdrew the amendment because I accepted the argument of the noble and learned Lord the Lord Chancellor that it was so widely drawn that it would have enabled those two august bodies to obtain confidential medical information far in excess of their requirements, with no obligation of confidentiality.
§ However, I return to the point that, without some power to elicit from the licensing authority a bare minimum of information as to whether a person might or might not be a donor child and therefore excluded from the right to succeed or transmit the right to succeed under Clause 29 Subsections (4) and (5), no court will be able, should a dispute arise, to determine that person's right to succeed or otherwise.
Upon carefully reading what the noble and learned Lord said in col. 1483 of Hansard of 13th March, I cannot help thinking that he and I envisage the situation from different ends. He said:
If there is a question about a particular treatment and succession, the person asking the Lord Lyon or the College of Arms to make a grant or declaration could well be asked to deal with the matter. After the age of 18 a person affected has the
right to obtain such information. In that situation the College of Arms could make it a condition that the information should be disclosed by the person making the request in order that a check can be made.
§ I think that the noble and learned Lord envisages a situation where a donor child claims a title, honour, dignity, coat of arms or whatever, possibly or possibly not aware of being a donor child.
§ I envisage the situation where the heir apparent is a donor child and the next heir, having reason to suspect this, challenges his right to succeed. I presume that where the donor heir apparent has reached the magic age of 18, the body having the duty to decide the case could require him to divulge such information as he had obtained from the licensing authority in support of his claim. However, where the donor or suspected donor heir apparent is a minor, possibly a baby, it would appear that the next heir, possibly an uncle, possibly a cousin, would have to wait for up to 18 years before he could prove or disprove his right to succeed in place of the donor heir apparent. That must surely be a very unsatisfactory state of affairs and not one calculated to make for happy family relationships, particularly where property may devolve along with the honour, dignity, title or coat of arms.
The noble and learned Lord said at col. 1479 of Hansard on 13th March:
The amendment would not affect the question of succession to peerages which is, of course, a matter for your Lordships' House".
§ In the case of Scots peerages, the Committee of Privileges accepted in January 1964 the matriculation of arms appropriate to that peerage as sufficient evidence of entitlement to that peerage for the purpose of issuing a writ of summons, unless the Lord Chancellor had information which, in his opinion, threw doubt upon the validity of the entitlement. If the Lord Chancellor cannot obtain information for possibly up to 18 years, it seems rather hard on the rightful heir, should the heir apparent turn out to be excluded after all that time. I beg 1o move.
The Earl of Erroll
My Lords, I also put my name to this amendment because your Lordships decided by Clause 29 of the Bill that certain matters should be excluded so that donor children or grandchildren could not succeed to them.
There is no point in having a law unless it can be enforced. There is absolutely no point in having the clause unless it is somehow possible for the barest minimum of information required to make this clause effective to be made available to the courts or someone in order that a proper judgment can be made under it.
The noble and learned Lord the Lord Chancellor was worried that many cases might arise where people were forced to produce evidence that they were not donor children or, alternatively, that there would be vexatious cases. Inserting in the amendment that this applies only where any question arises in legal proceedings limits the provision immediately to only those matters where evidence has already been acquired from some other source or aspect that there may be some doubt as to 226 the genetic parentage of the person who claims the title, honour or property. I think that goes a long way towards answering one objection of the noble and learned Lord the Lord Chancellor to the previous version of the amendment which went at an earlier stage.
As my noble friend Lady Saltoun said, it is ridiculous to wait 18 years. We could have problems because I seem to remember that in Scotland if certain things such as clan chiefships are not challenged successfully within 20 years they automatically devolve upon the person who claims them. In the case of a father dying when the child was very young, say a year old, it is possible for a question to have to await resolution until the child is 18 years old. By the time the information can be obtained, the time limit might have run out. That could give rise to a lot of misgivings as to how one should pass on dignities and titles and decide at what stage they had devolved upon the heir apparent. Such a measure as this would strengthen the hand of the court to obtain that information and ensure a speedy resolution of these problems so that proceedings were not dragged out. I cannot see why making the minimum of information available to the court could possibly be objectionable. We are not seeking information to reveal the identity of the parents, but merely to state whether it is all right for the person involved to inherit. That is the only information that needs to be divulged.
§ The Lord Chancellor
My Lords, as the noble Lady, Lady Saltoun, has pointed out, this amendment brings us back to ground that we have to some extent trodden before. It would require that where a dispute arose in the course of legal proceedings about a person's right to succeed to a dignity, title of honour or entailed property, the licensing authority would be required to provide where appropriate a certificate stating that according to its records the person had not been born as a result of egg or sperm donation. We are therefore considering an amendment which is concerned with the disclosure of information. Of course, if the person had been born after donation the authority would not be able to provide the declaration and one supposes the conclusion would be drawn by the outside world that the child had been born as a result of donation. For the reasons I have explained on earlier occasions "after" does not in fact necessarily mean "as a result of, but the inference would be there. That is rather a technical aspect of the matter. In other words, the authority is not really in a position to certify exactly what is provided there. That is the first point.
As I pointed out on Report, under the Bill as it stands, the disclosure of information held by the licensing authority is very strictly controlled. Clause 31 provides for the special case where the Registrar General is concerned with a claim that a man is not the father of the child. With this one exception, release of information which shows that an individual was or may have been born as a consequence of treatment services may be made only to a person who was or may have been born as a result of licensed treatment services in two types of case. The first is when, after age 18, the child seeks 227 information about his or her genetic origins. The second is if the child needs information about whether he or she and an intended spouse are genetically related. There is no provision for the disclosure of information to individuals who are "third parties", if I may use that expression.
It is important that we should be clear that Clauses 27 to 29 of the Bill do not affect the fact that dignities and titles of honour pass through the blood line. We must also remember that the information which we are discussing is personal medical information and we must therefore ask ourselves if its disclosure can really be warranted when the price to pay is interference in the rights of the individual to privacy. It might also be helpful to consider what, in real life, leads to infertility treatment. A couple only seek treatment when they have not succeeded in having a baby by natural means: that fact will often be known to their family and friends. When undergoing infertility treatment there is likely to be a long journey between referral to a specialist and having a baby. Drug treatment and corrective surgery may be among the steps along the way to egg or sperm donation. By the time the journey has been completed the wider family will often be aware of the treatment. Yet an isolated infidelity, a night— or less— of adultery, could easily remain unknown forever to everyone except the two people involved. We have no way of compelling disclosure of the traditional method of corrupting the purity of the blood line.
In view of that I think it would be wrong to invade the privacy of a record kept by the licensing authority to check on the intimate details of a modern method which will, in most cases, already be known in substance to the family.
I have already mentioned the point about the certificate that is predicated by this amendment. The best thing to deal with is the question of whether a person was or may have been born in consequence of treatment services. The certificate would tend to undermine the presumption that a child conceived in a marriage is a child of the marriage— a presumption which can be important in holding a family together.
It is also important to note that there are other ways of obtaining information about this matter than going to this public record. The people who are involved, the parents for example, are witnesses who could be forced to attend the court and give evidence in the situation that is contemplated here. In a sense, the records of the licensing authority are only records of matters which will be available to be attested by others.
I referred to the age of 18 as being the age at which a person could obtain access to the information concerned. However, as regards someone else proving this information, which is the point with which the noble Earl, Lord Erroll, was particularly concerned, the information which is available would also be available to the court, whether or not the child whose antecedents were in question had reached the age of 18. It seems to me that the evidence involved in this issue, as in any other issue, would be available.
228 The only question that arises here is whether the register that is compiled for public purposes in order to control these treatments adequately— that is the purpose of the licensing authority— and which is essentially private in relation to the individuals concerned, should be made available to the court. Nothing has been said as regards the fact that in a good case there may be other evidence available which may be better, more direct and first-hand than the evidence in question.
I suggest that the same approach would be taken in cases involving donation as would be taken in any other case where there is a question about the right of succession. Information about the circumstances surrounding the birth would be useful but not conclusive in reaching a decision. That information would have to be considered as a matter of inference from all the surrounding circumstances. It is not as if the register was the only way of dealing with this matter. I hope that the noble Lady may feel in the circumstances that she should not press her amendment.
§ Lady Saltoun of Abernethy
My Lords, before the noble and learned Lord sits down, I should say that I am still not quite clear how he would envisage enforcing Clause 29 (4) and (5). He said that a minor would have parents who could be forced by a court to disclose information. However, in such circumstances certainly one parent would be dead, and very possibly both. I am not quite clear how, in those circumstances, the clause would be enforced.
§ The Lord Chancellor
My Lords, it does not necessarily follow that the parents would be dead when the question arose, as the earlier amendment of the noble Lady shows. The question might arise, for example, in relation to a trust under an existing deed. However, the evidence that would be available in the ordinary case of a question about an illegitimate birth would be available in the same way in this case. I do not think that one should make special provision for this situation just because we happen to have created a record for the purpose of controlling these treatments.
The amendment of the noble Lady seeks to use these records for another purpose; namely, for determining a matter of succession. The purpose of these records is to ensure that the treatments are being properly supervised by the licensing authority to ensure that the conditions set out in the Bill, and as set out by the licensing authority in its carrying out of the Bill, are being properly complied with. That is the principal purpose of the records. The records are made available for the child himself or herself to determine his or her own status in this matter so far as the records can be helpful for that purpose. They may also provide information about whether a prospective spouse is or is not genetically connected with the person in question.
The amendment goes outside that purpose and I believe, that, just as in other cases where questions of this sort arise, the evidence that should be used is evidence that is available from some other source.
§ 5 p.m.
§ Lady Saltoun of Abernethy
My Lords, I think that I understand what the noble and learned Lord is getting at. I am not altogether happy, but in the circumstances I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 21 not moved.]
§ Clause 37 [Offences]:
Baroness Hooper moved Amendment No. 22:
Page 22, line 2, leave out from beginning to ("authorised") in line 3 and insert ("gives or receives any money or other benefit not").
§ The noble Baroness said: My Lords, the amendment was spoken to with Amendment No. 5. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 1 [The Authority: Supplementary Provisions]:
§ Baroness Hooper moved Amendment No. 23:
Page 26, line 34, at end insert:
(" (1A) The Authority shall secure that any employee whose function is, or whose functions include, the inspection of premises is of such character, and is so qualified by training and experience, as to be a suitable person to perform that function.")
§ The noble Baroness said: My Lords, the amendment has been spoken to with Amendment No. 2. I beg to move.
§ On Question, amendment agreed to.
§ An amendment (privilege) made.
§ 5.1 p.m.
§ Moved, That the Bill do now pass.— (The Lord Chancellor.)
§ Lord Kennet
My Lords, I predict that the Bill which now leaves us will need major amendment or repeal quite soon. I shall give the reasons. The first is the lack of knowledge we have suffered from in discussing the Bill. We lack knowledge of three areas. I shall take them in turn.
The main benefit that we have been offered in return for breaking our taboo on using humans for experiments has been the circumvention of infertility. However, we have been given no proper information on the prevalence, the causes or the nature of infertility in this country. The Warnock Committee did not find that evidence, perhaps because it did not look for it. The Medical Research Council does not have it, nor has the interim licensing authority. The only available paper, of 1985, is statistically primitive: infertility is defined as not conceiving within 12 months of attempting to do so, and it therefore shows a substantial number of "patients" going on to conceive normally, without 230 any treatment. Figures are now, incidentally, to be collected by OPCS, but that can be no substitute for a medically informed survey. The lifetime of any law made in such ignorance is likely to be short.
The second area of ignorance is the possible drawbacks of IVF/ET treatment. We have had no information of any medical follow-up of IVF/ET children or of their families, although in 1987 the Medical Research Council was saying that that would be desirable. The noble Earl, Lord Jellicoe, who is chairman of the MRC, has very courteously written to me recently saying that a joint survey with the Economic and Social Research Council might indeed be a good idea. I am glad of that. However, at the moment there is, I understand, no centrally held information, or if the data are there, they have not been analysed. They ought to be, before the law is made. We also have no account of any psychological problems after IVF/ET procedures, either successful or unsuccessful. I gather, from the papers of the great Euro-meeting on these issues held in Paris last October— of which again we have heard nothing— that those problems have been studied in other countries.
The third area is costs. We have had no account of the inclusive costs of the procedures— neither the ILA nor the MRC seems to have them: all they have disclosed is the marginal cost of securing a pregnancy in one NHS clinic, in the Hammersmith Hospital. That includes the cost of salaries, drugs and materials, but no other overheads. The true cost would also include the apportioned share per healthy baby born of accumulated research costs, the cost of special post-natal care whether in the clinic or later, of extra care for the higher incidence of multiple births, of any defects which may later turn up, and of anything else one can think of. I have asked both the MRC and the ILA for the UK costs comparable to the £ 25,000 published by Wagner and St. Clair in the Lancet last October, but they have not been able to produce them. They have produced only the Hammersmith Hospital's figure of £ 1,600 per pregnancy achieved. Why is there that colossal gap?
So on all those three points we have passed this Bill in the dark, and ignorance makes bad law.
We should note that we have heard very little indeed from those practitioners in the field who believe that much of what is now being done is both bad science and bad medicine. We have heard so little that we have forgotten the existence of those practitioners. I shall not try to express their argument for them, but I appeal to them to have it put in the House of Commons before it is too late, and put with all the vigour with which the pro-researchers have put their case. We passed this Bill because of a barrage of exhortation from the pro-researchers, to which there can be no objection, but one-sided information makes for bad law.
The Bill is incompatible with the Helsinki Declaration of 1964, as revised in 1975, which makes recommendations guiding medical doctors in bio-medical research involving human subjects. It says:
the interest of science and society should never take precedence over considerations related to the wellbeing of the subject".231 The declaration also requires the:
investigator or the investigating team to discontinue the research if in his/her or their judgment it may, if continued, be harmful to the individual".The research which the Bill, as it leaves this House, proposes to permit is conclusively harmful to the embryos.
The Bill is also out of step with the law of comparable countries. Information about that is contained in the Gunning Report, published by the Government only last month, when the Bill was well on its way. Belgium, Canada, Italy, and the United States have not yet come to grips with the problem. Australia, France, Norway, Spain, the Netherlands, and Germany have all in one way or another decided to permit less embryo research than this Bill allows, or none at all. Only Sweden permits as much as this Bill. Our practitioners will have a good flow of business from abroad, but a law which contains major discrepancies with the law of one's friends and neighbours is a bad law.
The Bill is flawed in logic, and public opinion has a way of catching up with illogicality in time. The flaw is this: the humanity of the human being between conception and various subsequent, genetically programmed, events such as its implantation or the emergence of the primitive streak, has been obscured by the use of the neologism "pre-embryo". The purpose of that coinage has been to obscure the fact that the conceived embryo at one day or six days is no less human, and no less genetically complete, than at 14 days or 14 years. If you kill him or her before 14 days you kill a genetically complete and thus unique human being as surely as if you killed him or her at 14 years.
§ Lord Henderson of Brompton
My Lords, I wonder whether the noble Lord, Lord Kennet, will forgive me. The rules about speeches on Third Reading have been contravened by almost everything that he has said. I wish he would confine himelf to reviewing the Bill as it has been treated in this House, at great length, rather than making these points, which he might well have made at Second Reading, instead of in a very long speech at Third Reading. It is quite out of order.
§ Lord Kennet
My Lords, I am of course in the hands of the House in this matter as in all others, but reviewing the Bill is precisely what I am doing and I have only one or two more points to make. I hope that the House will bear with me while I make them.
We should put one question to ourselves: will biology textbooks now be rewritten using the newspeak word "pre-embryo"?
§ Lord Ennals
My Lords, that word is not in the Bill. My noble friend brought in that word. That is the first time that it has been mentioned in the debate.
§ Lord Kennet
My Lords, it is true that it is not in the Bill, but it was used in the Warnock Report and in discussions.
§ Baroness Warnock
My Lords, I am sorry to interrupt. That word was not used in the Warnock Report. We certainly did not use the word "pre-embryo".
§ Lord Kennet
My Lords, I must apologise to both noble Lords who have spoken. I have made most of my points. Only a few remain. The House decided not to address the question of whether an IVF embryo is a person or a chattel, despite the fact that it has already tied the courts in knots in Australia and the United States. A Bill lacking foresight is bad law. Parliament should have settled the matter rather than leaving it to the courts.
Most of all, I believe that the Bill is bad law because it enjoins deceit. People who are not the genetic parents of individuals are to be deemed to be their parents. The Bill enjoins the concealment from individuals until the age of 18 of their own identity and enjoins the writing of false names on birth certificates. There is enough lying and concealment in the world without Parliament making it a duty to lie.
The best hope is that the Bill will prove easy to alter in the future, preferably immediately in the House of Commons. If not, we shall surely have to replace it within a few years.
§ 5.15 p.m.
§ Lord Ennals
My Lords, I welcome my noble friend to the Benches on which he now sits, but that is the only welcome I have for anything that he has said this afternoon because I totally disagree with every word that he has said.
As to the knowledge of the House on this subject, none of us is an expert, but we have sought to do our homework. It was as long ago as 1982 that the noble Baroness, Lady Warnock, was asked to establish her committee and it was in 1984 that the report was published. There was a succession of White Papers, debates and Bills and we have at our disposal a great deal of evidence if we are prepared to take it. We have been able to draw upon the experience of the Interim Licensing Authority and of individual researchers. Any of us could have visited, as many of us did, the research centres which will be licensed by the Bill. I ask my noble friend: did he visit any of the research centres? If he did not, and his silence suggests that he did not— —
§ Lord Ennals
My Lords, in that case I am surprised that my noble friend is so ignorant. He said that we are all ignorant. We have had the benefit of the advice of the noble Lord, Lord Walton, who has brought into the House refreshingly genuine knowledge. All the rest of us have learnt as we have gone along. We have also had the benefit of the advice of the Medical Research Council. We have tried to understand the Bill as best we can. I want 233 to say how delighted I am— I express this as a personal point of view, not on behalf of all my colleagues; I have said that every time I have risen to speak— that we are passing the Bill to another place in a substantially improved form on the Bill that we received.
I want, first, to thank and congratulate the noble and learned Lord the Lord Chancellor.
§ Lord Ennals
The noble and learned Lord is already held in high regard in this House, both personally and for his professional qualifications. His reputation has even been enhanced by his performance during our debates. We have seen him at his very best— clear in his presentation of a difficult subject and firm in his handling of contentious issues. Every time that he took away an issue which was of concern to a noble Lord and came back with it, he came back with it in an acceptable form, sometimes bringing together those who had profoundly disagreed when the issues were first debated. We have today had an example of the way in which he has enabled the Bill to be improved as we have gone along. I thank him deeply for what he has done because part of our task is to send to another place a Bill in the best possible form.
In congratulating the noble and learned Lord, I must of course congratulate his noble friend Lady Hooper who, in a personal sense, has had a difficult problem and has dealt with it in just that humane and modest way that we expect of her. If I give her that applause, it gives me some hope that we shall see those same qualities when we deal with some of the difficult issues in the National Health Service and Community Care Bill.
The Bill will bring hope that medical science will be able to make a major contribution to those twin scourges of infertility— I almost said infidelity; that has perhaps been touched on in the last debate— which affects roughly 10 per cent. of couples, and the large number of children born with major genetic defects to their own disadvantage and the disadvantage of their parents who bestow upon them so much love but whose lives are tragically affected. If we can bring some relief in the future, that will be a relief for all of us.
I thank God that new obstacles were not created to dash those hopes. I take great pride in the quality of the embryo research effort in this country. I have felt it a privilege to have worked during the passage of the Bill with some of those who are at the forefront of the research— men and women of the highest integrity. It would have been a tragedy for them if we had told them to pack up shop and move on to some other field. I understand that there is a shortage of accountants in the National Health Service. They could have been retrained, but they would instead have taken their skills abroad. I am glad that they are refreshed. I hope that, when the Bill goes to another place, it will be improved yet further, if that is possible.
I am also pleased that we have established a well-conceived system of statutory controls. That 234 has brought satisfaction to all sides of the House who want to ensure the continuance of that strange work. I am thinking of the contributions made by my noble and very friendly friend Lady Phillips who finds it all very confusing and difficult to understand and accept. Like all of us, she wants to see the research strictly controlled by legislation.
§ Baroness Phillips
My Lords, perhaps I may correct my noble friend. I do not find the matter confusing; I find it totally repugnant and unnecessary.
§ Lord Ennals
My Lords, I have a long way to go yet. This is a very important Bill. I am pleased that we have dealt with that part of the Bill.
On the issue of research or no research, it is another area of satisfaction that the forces of progress— with a capital "P" if one wishes or a small "p"if one does not— led to two resounding voting victories of 232 to 80 and 216 to 80. Their importance is not just that they followed significant and well-informed debates, but that they give to another place a certain leadership in the strength of feeling and conviction which has existed in this House. Had the attempt to ban research gone ahead— and indeed the attempt, with which we had expected to deal last week, to ban research on the preparation of contraceptive vaccine to meet needs at home and abroad, particularly as it affects third world countries— we should have seen another major victory. We have not heard from the noble Lord the Chief Rabbi as to why he decided not to proceed with his amendment. We do not know whether it was a change of heart or a serious rethink, or whether it was the prospect of a heavy defeat. But I suspect that it might have been the latter and I do not blame him. To me it is no wonder that these major victories have taken place because of the sincerity and conviction of all Members of this House. Although I disagreed with the noble Duke, the Duke of Norfolk, on many amendments, I want to say how much I felt that his interventions were guided by sincerity and conviction. He conveyed that to us all. In our debates none of us has lost respect for the point of view presented from another side. It has been done with such dignity and conviction. That too must make us all proud.
I have only one disappointment; namely, that the Bill goes to another place with a heavy price tag on funding the authority. As we improved the Bill, we added to the costs of the research. As we insisted that there should be annual reports, properly trained and qualified inspectors and many other conditions, we piled costs on to the authority. We did so rightly because we want to ensure that the work is done properly. But we have done nothing to assist the new statutory authority, the clinics which they will license and inspect, and the patients who will be treated. I am very concerned about it.
There is to be a chairman of the authority and a full-time secretary who will have to be paid. There could not be fewer than 10 members of personnel. There will be sums needed for computing, supplies, 235 telephones and other sundries. We are talking in terms of at least £ 300,000 or £ 400,000 for the running of the organisation. When it comes to the inspections if we send, as I think we must, a clinician, a scientist, a lay person and a secretary, we are probably talking of about £ 500 a visit. Every time that we improved the Bill, we added to the cost. It is very sad that the Government have not given an inch on providing more resources to enable this hopeful research to be carried out, and the costs not piled on to the patients.
We had an assurance from the noble Baroness that National Health Service patients would not have to pay. I am afraid that in most cases it means that many National Health Service clinics will find their work restricted. If the patients do not pay— and I am glad that they do not— the health authority has to pay. The health authorities are strapped for funds for other aspects of patient care. By the care with which we set up our licensing authority we may have made it more difficult for this work to progress as it should do.
I am grateful to the noble Baroness for receiving the representatives of those who have argued from all sides of the House that there should be no fees. We have not at all changed our views. Clearly the noble Baroness has not changed her views. She has not given an inch. She said that they were a listening government and they listened. That is all they did.
We must now consider the costs that we have imposed and how all this will be paid for. We must not have a situation in which the work which should expand will be forced to contract because of the overall costs. That is my only sadness about this legislation. My hope is that in another place it will be looked upon very seriously.
Finally, my thanks go to all those who are involved in this fascinating and, in my view, deeply moral research. My thanks go to the new statutory health authority for the many thousands who will be able to afford treatment that may greatly improve their future. I hope that another place will show the same sense that noble Lords have shown by not allowing this issue to be befogged by a debate on abortion, however important it may have been. I think that we have been wise. I hope that the other place will show the same wisdom.
I nearly tabled a manuscript amendment to the Long Title of the Bill on Third Reading, but then I thought "No, it will create trouble. They will not like it". So I did not do so.
§ Lord McGregor of Durris
My Lords, at this stage in our consideration of the Bill I feel that we should discharge some debts of gratitude. First, our thanks go to the noble Baroness, Lady Warnock, for the report of her committee which defined many of the significant issues of this tangled subject in such a manner that they could be determined, as they had to be determined, by public policy. Her report was certainly the forerunner of the White Paper of 1987.
Secondly, we owe a debt of gratitude for the high sense of responsibility which has been demonstrated by the bio-medical and scientific community in its 236 acceptance of a main recommendation of the Warnock Committee's report in establishing the voluntary licensing authority for human in vitro fertilisation and embryology and subjecting research workers to a self-disciplinary regime under the authority's rules and guidance. Under the chairmanship of Lady Donaldson that authority became the model for the licensing authority which will be created by the Bill.
Throughout the passage of this Bill many noble Lords have emphasised the critical importance of the statutory authority in providing for Parliament and the public regular and reliable information about the research and therapies which it will license. Such information will be the foundation for building general confidence in the control system and giving security that the provisions of the Bill will be rigorously enforced.
Finally, I should like to thank the noble and learned Lord on the Woolsack for his fairness and neutrality from his speech on Second Reading onwards. His cooling stream of even-handed and lucid exposition, did much to ensure that our debates achieved a dignified atmosphere of tolerance for conflicting views. I should also like to associate myself with what the noble Lord, Lord Ennals, said about the sincerity and fairness with which the noble Duke dealt with his opponents on this issue. It is to be hoped that the example of this House will be followed in another place.
The Government deserve high praise for bringing forward this important legislation which I hope and expect will result in much reduction of suffering of parents and children in the future.
§ Viscount Caldecote
My Lords, the noble Lord, Lord Kennet, raised many issues with which we have been grappling over the past few weeks. We have wrestled with our consciences and with very difficult medical and legal issues. I agree with the noble Lord, Lord Ennals. I believe that we have greatly improved this Bill during its passage through this House.
The big issue has been about research on embryos. We said yes to that question, subject to strict control and regulation. But in connection with the importance of strict control and regulation, several people have commented to me that it is not much good having regulation and control because clever people can get round the conditions of such regulation. They can easily be avoided. Illegal activities can be concealed by clever scientists. Such have been the arguments. I believe that that is a view held by many people in this country.
It may be true, and I do not know to what extent it is true, but, to a small extent anyway scientists and research workers in this field may, under the provisions in the Bill, have had tremendous responsibility imposed upon them. The vast, overwhelming, majority of scientists and those involved will discharge their responsibility legally and honestly. But, of course, there are a few black sheep in every sector of society. The onus is on the scientific and the medical community and on their professional bodies to expose and disown anyone who tries to contravene the provisions of the Bill 237 either in the spirit or in the letter or who tries to chip away at its changes.
It is most important that this should be done both for the sake of the high reputation of the scientific community and also in the interests of the nation as a whole. I hope that that plea will be taken to heart because so much of what we have done during the passage of the Bill through your Lordships House has been to ensure that the provisions of the legislation will be strictly enforced.
§ Lady Saltoun of Abernethy
My Lords, I, too, should like to thank the noble and learned Lord and the noble Baroness for their inestimable patience in replying so fully to such manifold and varied amendments; for their attempts to meet our many concerns where they and the Government saw fit to do so; and for their scrupulous fairness and even-handedness throughout the proceedings. I should especially like to thank the noble and learned Lord for the pains he has taken with regard to the welfare of children born as a result of gamete donation where the parents are not legally married. I hope that by this evening, as a result of announcements made by the Chancellor of the Exchequer in another place, there will be a lemming rush of cohabiting couples to the altar or at least to the registry office.
As the noble Lord, Lord Ennals, said, we have improved the Bill considerably but that is not to say that there is no room for improvement. I hope that Members of another place who may contemplate trying to amend the Bill further will read the Hansard reports of our debates on similar points. I also very much hope that the Government will look again at the question of wills and trusts made before the Bill is enacted. I think that there is an unacceptable element of retrospectivity in that area. I further hope that the noble and learned Lord will keep a very sharp eye on the functioning of Clause 29 (4) and (5) because I have serious misgivings as to whether those exclusions, so generously conceded by him, will turn out to be enforceable. Finally, I should like again to express, my grateful thanks.
§ 5.30 p.m.
§ The Earl of Longford
My Lords, I spoke for a few moments on Second Reading— which seems a long time ago— but I have not troubled the House since that time. Before the Bill leaves this House I should like to offer a few remarks. I speak not as a theologian, a scientist or a lawyer, but as a rank and file Christian and what the noble and learned Lord, Lord Hailsham, on some occasions has called "the man in the pew". I speak without the authority of any of the Churches and, if they were represented today, perhaps they would repudiate me. As I said, I speak as the man in the pew.
However, what does the man in the pew do in such a situation? He is faced with all these incredibly difficult topics which carry him into the very depths of law, theology and science. No doubt he follows his conscience; but his duty is to inform his conscience. I think that he will, if he belongs to a Church, pay much attention to the guidance given by the head of his Church. It was not difficult for me to be 238 convinced by a very powerful argument against research on embryos presented by Cardinal Hume last week. However, if I came before the House and simply repeated his words I might be regarded as an obsequious acolyte. Therefore, I would rather turn to the Church of England, to which I belonged about half a century ago.
Thus I turn to the Church of England. Powerful speeches have been made by the most reverend Primate the Archbishop of York and the right reverend Prelate the Bishop of London. However, the problem for the man in the pew is that they took diametrically opposite positions. Therefore he is still left thinking for himself.
There is one aspect about all this which must be cleared up. At one stage the noble and learned Lord, Lord Hailsham, introduced the evocative name of Galileo. We were given to understand that if we voted against research on embryos we would be adopting the attitude of the Pope who silenced Galileo. We were even told we might be following the example of those who strangled Wyclif for translating the Bible. Such terrible examples were presented to us.
In one of his interventions, the noble Lord the Chief Rabbi pointed out that everyone who had taken part in the debates was in favour of banning research and that it was just a question of when we did so. Everyone is in favour of introducing criminal law but, again, it is just a question of when it is to be done. One of the champions in this respect is my much admired noble friend and active leader, although in an unofficial sense today, Lord Ennals. He would ban the embryo research after 14 days. Therefore everyone is on the same footing; it is just a question of when it is done.
Thus the man in the pew is left feeling very uncertain. He may turn to the most reverend Primate the Archbishop of York and take note of something he said. As we know, the most reverend Primate was a scientist before he became an archbishop. In regard to an amendment put forward by the noble Duke, the Duke of Norfolk, he said that he would ban research after 14 days because at that point, but not before, one can say,that those cells will eventually develop, again given the right conditions, into a human person".He meant that the research should be banned but not before 14 days.
On the other hand, great scientists have pointed out that the embryo is in one sense living from the beginning. On Second Reading I quoted a famous scientist who said that from the very beginning it represented what he called "nascent life". That is the point of view which I take. Therefore, in my opinion, if research is carried out on an embryo from the beginning it is research on nascent life. Thus, as the noble Baroness, Lady Warnock, said on an earlier occasion, in the end this is not a question of facts; it is one of values, and we must all follow our values.
A prominent man, one of our leaders— or a potential leader, if not actual at present— has told us that he cannot imagine any circumstances in which he would take a certain course. Some noble Lords may know to whom I refer. He is a very 239 prominent gentleman. Likewise, I cannot imagine any circumstances in which I would support the Bill. There is tremendous room for argument. Such honest people— Christians, non-Christians or whatever— can disagree so much on the ultimate merits of one course or the other.
There is one point upon which I am most dogmatic. I am quite sure that the right reverend Prelate the Bishop of London was right when he implied— although he made very plain what he thought— that if the Bill is passed the pressure from scientists to carry the period of research beyond the 14-day limit will never stop. Whether or not it is resisted will depend upon how sure we are: whether we are wiser when that issue arises than we are today. In the meantime, I can only hope that for once the House of Commons will show itself to be wiser than this House which, with all its vast merits, is not infallible.
§ Lord Ashbourne
My Lords, I rise to welcome the Bill as it introduces an element of regulation in an area where regulation is sorely needed. If noble Lords will cast their minds back, they may remember the debate which took place on the Warnock Report in the summer of 1984. I recall the occasion well. It was on the last day before the Summer Recess. The Bishop of Norwich, as he was then, Maurice Wood, said how remarkable it was that there were 40 or 50 noble Lords who had put their names down to speak in the debate when it was the last day of the Session and when in normal circumstances people would be slipping off to their castles in Scotland. Indeed, I expect that the noble Baroness, Lady Phillips, would certainly have slipped off to fill her moat or oil her drawbridge. And yet, the interest was such that there were 40 or 50 Members in your Lordships' House. I have been disappointed. As the Bill has gone through this House it seems to me that it has developed into what I may describe as a medical extravaganza. By that I mean that we have gone into the medical details in incredible detail. It is quite clear to me that many of your Lordships are three or four volumes ahead of me in Teach Yourself Gynaecology, obstetrics or whatever it may be.
As noble Lords will know, we are made up of three elements: body, mind and spirit. I believe that the House has not done itself justice by focusing on the medical aspects to almost the complete exclusion of the other two elements.
Furthermore, I have been very disappointed that the clear spiritual lead which I had hoped might come from the Church of England has been so evidently lacking in this Bill. It is true that the most reverend Primate the Archbishop of York made a powerful speech on Second Reading. It is for noble Lords to judge for themselves, but it seemed to me that he spoke more as a medical specialist than as a Primate.
§ Lord Ashbourne
My Lords, that was my view. As I say, noble Lords must judge for themselves, but that was my judgment on the matter. I felt that that 240 was a grave shortcoming and may have been the reason why our discussions developed into a medical extravaganza at the expense of the mental and spiritual facets of the problem.
I end by saying how much I appreciate the wise guidance and counsel of the noble and learned Lord the Lord Chancellor. As has been said before, he has steered us adroitly and skilfully through the many ramifications and pitfalls of the Bill. We are all tremendously grateful to him for that and for the way in which that was done.
§ Lord Robertson of Oakridge
My Lords, I too welcome the fact that we have legislation to control human fertilisation and embryo research. I also join with other noble Lords in thanking and paying tribute to the noble and learned Lord the Lord Chancellor for his sensitive piloting of this measure.
I certainly agree with the noble Lord, Lord Ashbourne, about the absence of a clear spiritual lead from the Church of England on a matter which has involved some of the most important ethical questions since the Abortion Act 1967. I hope that the consequence of this Bill is rather more happy than the consequence of that Act, but that is another matter.
There are a number of flaws in the Bill; namely, the creation of embryos for research purposes only and the surprising fact that there is no lower age limit on donors. That seems to open the way to schoolboy donors, which I believe we shall find to be unappetising and unsuccessful.
I concentrate my remarks on the central issue of the Bill, which has tended to be submerged by unnecessary preoccupation with detailed amendments. That issue is whether it is morally acceptable to perform experiments on embryos which can have no therapeutic consequences for them.
I listened very carefully to the debates and, unless I am mistaken, no Member of your Lordships' House has said that he wishes to jettison the time-honoured principle that a human being should not be used as a guinea pig. If that is so, embryos can only be used for research if they are not human beings and if we do not see in them the beginnings of human life. The emphasis is on people who wish to do research to prove their point. It is no good thinking that human life is not present in the embryo. You have to be absolutely 100 per cent. sure.
To emphasise that point I offer your Lordships an illustration of what I mean. Imagine that you are an army recruit doing bayonet practice on a sack which you know is filled with straw and nothing else. You would have no compulsion about plunging your bayonet into the sack. However, if a seed of doubt were to be sowed in your mind that there might be a chance— albeit a very slim chance, perhaps one in a 1,000— that there could be a live child in the sack, not even the most ferocious sergeant major could persuade you to use your bayonet on the sack.
I fail to see how, in the face of the biblical and scientific evidence, anyone can be 100 per cent. sure that the embryo is not the developing human being made in the image of God which I consider it to be.
241 Accordingly, I do not believe that we have been right to incorporate into this Bill a clause legalising research on the human embryo.
§ 5.45 p.m.
My Lords, I only wish to make a few brief, simple and, indeed, simplistic comments and I do not intend to make a Second Reading speech. First, I should like to associate myself with what other speakers have said in thanking the Ministers responsible for their handling of this very difficult Bill. Above all, I thank the noble and learned Lord the Lord Chancellor on the Woolsack for his masterly piloting of it.
Secondly, I shall be giving up the chairmanship of the Medical Research Council in a few months' time after eight years' service. I feel very honoured to have been able to serve that council. In that time I have seen a good deal of its work in the field of molecular biology, cardiology and expanding our knowledge of that mysterious mechanism, the human brain. I cite those entirely as examples.
I have also seen a good deal of the work in the field of embryo research. I have been deeply impressed by the quality of that research, as have other noble Lords. I have been equally impressed by the quality of the researchers— the men and women engaged on that research. I have been impressed by their dedication, their seriousness of purpose, their gravitas— if I may use that word— and not least by their respect for the sensitiveness of others who may take a different view as to the viability of that research. I am very glad to be able to say that those dedicated men and women will be much heartened by the discussions and decisions in your Lordships' House. I hope that they will mirror discussions and decisions to be taken later on in another place.
That said, I add only one small caveat. Those who, like me, favour this research favour it subject to one very strong qualification; that is, that it is subject to the strict control of the proposed new statutory authority. I must confess— and here I am following the noble Lord, Lord Ennals, and my noble friend Lord Caldecote— that I am just a bit worried about the attitude which I think I detect in the Government towards the proposed new statutory human fertilisation and embryology authority, be it as to arrangements for the transfer of responsibility from the Interim Licensing Authority to the new statutory body, be it as regards the adequacy of the resources which that new authority will be given, be it financial, be it as regards people or be it in the context— again mentioned by the noble Lord, Lord Ennals— of the levying of fees. I have a certain distinct anxiety on that score.
I very much hope that between now and when this Bill becomes law— as I hope it will— the Government will give close attention to this matter and will hearken to the advice of somebody who has almost more practical experience in this field than anybody else, Lady Donaldson, who has successfully chaired the interim licensing authority since its inception. I should also like to repeat my thanks to my noble friends the Ministers responsible for the Bill for the way in which they dealt with it.
The Earl of Halsbury
My Lords, I rise with some trepidation to join issue with a man I much respect and whose absence from our proceedings I regret but who, for constitutional reasons, cannot be here. I refer to an article in The Times of Friday last by the Cardinal Archbishop of Westminster, which attributes motives to your Lordships by which I do not believe your Lordships were activated during the course of our debates, which debates were of a very high quality. He produces the theory that your Lordships were activated by myth. He describes these myths as follows:
The first is the notion that freedom to experiment on human embryos is necessary to help infertile couples".I have been at great pains to explain that in helping infertile couples IVF is a procedure of last resort. It is an experimental procedure, not on an embryo but on an ovum which turns into an embryo, which will either be implanted and, it is hoped, lead to the production of a human baby or, alternatively, will die in vitro after between seven to eight days. I do not accept therefore the first myth to which the Cardinal refers as being either characteristic of your Lordships' opinions during our debates or of the capacity of your Lordships for myth-making.
I also took some trouble to explain that there was an alternative to IVF, known as GIFT. It is not unique. Both I and my noble friend Lord Walton proposed amendments to bring GIFT within the provisions of the Bill. It is therefore not right to describe your Lordships' frame of mind in those over-simplistic terms.
The Cardinal continues in the article:
The second myth is that embryo experimentation is necessary in the fight against inherited genetic diseases".I and others have taken great pains to explain that the diagnosis and establishment of the genetics of these diseases are not performed by research on embryos, but on somatic tissue. Genetic tissue can be obtained in abundance because for every birth there is an after-birth, if one is interested in experimenting on embryonic material. It is only in the matter of selection that experiments on embryos are carried out. Selection and implantation are themselves experiments on embryos. I very much regret that my amendment to try and define "experiment" for the purposes of the Bill was not acceptable to the Government. The second "myth" therefore in which your Lordships are alleged to believe is again an over-simplification.
§ The Earl of Perth
My Lords, perhaps the noble Earl will give way. Is it really appropriate for the noble Earl to comment on an article which appeared in a newspaper which has been referred to and which is of great importance? In a sense it relates to the Bill, but the Cardinal is not here to reply. It is something I would commend to noble Lords to read, and to reach their own conclusions, and leave it at that. It was the article of Friday 16th March.
I hope that the noble Earl will think my suggestion is a better course, rather than trying to answer an article which many noble Lords may not have read and which does not directly relate to this Bill at this moment.
The Earl of Halsbury
My Lords, as to whether I should give way or continue I am in the hands of the House. I arranged with the noble Duke that he would follow me and be the spokesman for the Cardinal, who is not present. I am certain that his counsel will weigh heavily in your Lordships' deliberations.
The third "myth" attributed to your Lordships is described as follows:
The third, and probably the most mistaken and dangerous, notion is that the medical and scientific establishment is not violating the sanctity of human life, but taking welcome advantage of the new-found possibility of researching into fertilized cells before they attain human status".I do not believe that that is true of the medical profession. It is not my belief and I disclaim the attribution of that belief to myself. The period of gestation of a human being cannot be divided into two stages, in one of which it is not human and in the other of which it is. Everything involved is human. A sperm is human; an ovum is human; an embryo is human; and the fetus which results is human. They are all human through from beginning to end. It is quite wrong to suppose that you can divide the period of gestation into these stages.
I assure the noble Earl, Lord Longford, that extending experimentation beyond 14 days— because we have allowed the thin end of the wedge to enter— in the light of present knowledge is not possible. Embryos do not survive more than seven to eight days in vitro.
My Lords, there is one point which has not been sufficiently emphasised in this debate and for that reason I rise to speak.
In Britain we live in a mixed and pluralist society containing different people of different backgrounds with different beliefs, many of whom will inevitably be wholly opposed to the work discussed during the debates on this Bill. However, the Bill does not oblige anybody to participate in this work. That point needs to be underlined. What does the Bill do? It merely enables research— which has been going on for 20 years now— to continue, but to continue under statutory, strict and careful control. It does not compel anybody to participate or acquiesce in that research; it merely allows it to continue.
I believe it is right that that research should continue, but it must be controlled, supervised and monitored by a statutory body. It is that which we have introduced in this Bill. By doing so we have done a service to all; not merely to those who support the Bill enthusiastically, but even to those who were opposed to the Bill. There is no conflict in my mind between people opposing this kind of research and yet believing that it is right that the Bill should go through.
I can pay no higher tribute to the noble and learned Lord the Lord Chancellor than to say that in all of his many admirable and lucid speeches on this Bill it has not been possible to tell precisely what his own views are. I can pay him no higher compliment. I hope that the Bill continues in the same way.
§ 6 p.m.
§ Lord Houghton of Sowerby
My Lords, if I may say so we are in danger of becoming a little too cosy about this Bill. When the Bill leaves our care for a stormy passage elsewhere, it will meet with misrepresentation, abuse, and a ferocity which no sergeant major in my experience has shown. There is no ferocity to compare with that of doctrinaire and fanatical religious persuasion. We will get that on this Bill. It is only passing out of our care temporarily. It has to return and we are all deeply concerned as to its future progress through Parliament.
I rise for one purpose only, and that is to appeal to noble Lords in this House, who have influence elsewhere, to try and transfer to another place and to bodies outside some of the knowledge, experience and restraint shown in the controversy over this Bill in the past few weeks. It has been a model of how a working Parliament should carry out its business. However, it is not one that is easily copied by the representative House of Commons.
I shall not take up the time of your Lordships' House quoting from a recent circular sent to members by the Society for the Protection of the Unborn Child. It has just had a mammoth lobby outside this place. We all saw it last week. The instructions that have gone out to its members in that connection and for the future warfare on this Bill are indeed disturbing.
There are noble Lords who, wittingly or otherwise, have given their names to declarations made by the All-Party Parliamentary Pro-Life Group and by the Society for the Protection of the Unborn Child. Surely they should have considered with greater care before giving their names to tendentious propaganda and misleading and savage comments about the Bill and its proposals, not to mention the attitude towards this House. In those circumstances I hope that the 23 noble Lords who signed the SPUC manifesto, which was published in The Times and the Independent newspapers in January 1988, will not repeat it. I sincerely hope that any Members of your Lordships' House who are members or officers of the All-Party Parliamentary Pro-Life Group will endeavour to persuade the group to restrain its activities to the same sense of responsibility as we have shown in this House.
This is an important Bill. It is a turning point in medical research and in the destiny of mankind. Nothing like this Bill has previously been placed before Parliament. That is why there is deep concern about it. I have supported the Bill throughout its progress, and I still do. I hope that what is good in it and in its intentions will be seen before any of the disquieting aspects emerge. Surely we all mean that, now that the Bill has reached this stage. But this is not the end of the road. The Bill has to come back here if it is amended in another place. We have allowed free entry of the House of Commons to this Bill on the subject of abortion, so it will certainly come back here, probably containing an amendment on abortion and other amendments.
The time may come when we have to be steadfast as well as self-congratulatory on our activities on 245 this Bill. I hope there will not be any weakness if that occasion arises on this important matter. Therefore, I take leave of this Bill with very grateful feelings indeed to all concerned who have taken part in the debates upon it. The noble and learned Lord the Lord Chancellor fully deserves all that has been said about him.
At this moment my thoughts go to the noble Baroness, Lady Warnock, who probably brooded over this problem before we had given it any serious attend an. In those circumstances I am sure she must feel that the end of her task has at least brought the ship into port; but what happens to the ship when it sets sail next week, we cannot be sure. However, our good will and our influence should go with it. Whether or not we agree with the Bill, we should certainly try to have some regard for the reputation of Parliament on this shambles that we have witnessed in Parliament over these moral issues for the past 10 years.
Let us get these matters in order at last and conduct our business in a spirit of high responsibility. In those circumstances I believe that we can part with this Bill with an easy conscience in the sense of duty done; otherwise, we are only passing into another phase of parliamentary controversy, abuse and mischief on matters of great importance to the people.
§ The Duke of Norfolk
My Lords, perhaps I may be permitted to endeavour to restore a moment of calmness. First, I want to thank the noble and learned Lord the Lord Chancellor. I honestly believe that he made a considerable difference to our debates as a mastermind. He was able to explain matters that we wanted to understand and he did so all the time. We owe him a great debt of gratitude. I know that many noble Lords have already said that, but I must say it too.
The noble Lords, Lord Ennals and Lord McGregor, kindly said something nice about me and I should like to say something nice about them. However, I fundamentally disagree with them on the simple point— I cut out all repetition about the embryo being a human being, and so on— that research on embryos has cured genetic diseases. So far no research on embryos has cured a genetic disease. That point was made by my noble friend Lord Walton, or at least he agreed with it. I believe that the only way to cure genetic diseases is to have research on, as I put it, grown-ups— on born, live people.
There is very good news in that respect, As recently as 8th March, Professor Sir David Weatherall, at a lecture to the Royal College of Physicians, said that progress has been made on blood diseases such as haemophilia and thalassaemia. This is to correct genetic abnormality by inserting healthy genetic material into adults who have these diseases and who have consented to the treatment.
The second example of light at the end of the tunnel is Professor Le Jeune who is trying to neutralise the influence of the extra 21st chromosome that causes Down's Syndrome by treating born patients who have this affliction. There is an attempt to try 246 to deal with the third extra chromosome which should not be there.
Thirdly, Professor Williamson hopes to cure cystic fibrosis, using gene therapy, by correcting the defective gene in the lung cells of those patients born with this disease. All these experiments are carried out without using embryos. I understand that medical authorities have set up the Clothier Committee of which I gather the noble Baroness, Lady Warnock, is a member. The purpose of that committee is to set ethics on gene therapy being practised on adults. That illustrates that we are moving towards curing genetic diseases by experimenting on those who suffer from them and not by the sterile path of believing that it can be done by experimenting on embryos. I greatly welcome that progress and I hope that when the Bill goes to the Commons it will become better knowledge and more often quoted in debates.
I am grateful for the way in which your Lordships have taken my speeches in this Chamber. I remain in total agreement about certain points. I should add that I do not speak for the Cardinal. I am not the Cardinal's poodle and I should like to make that quite clear. The Cardinal may have poodles in this House but I am not one of them. He is a great man, a great cleric and a great spiritual leader, and I am sorry that the article caused such concern to the noble Earl, Lord Halsbury. I do not think it was as bad as he suggested and I hope that he will treat it as an article that was not intended to be all that controversial.
§ The Earl of Lauderdale
My Lords, one person to whom gratitude has not been expressed this afternoon but who has played a considerable part in keeping us informed on this delicate and difficult matter is my noble friend Lord Jellicoe. I do not agree with him and have not done so since the moment he used a description of the embryo, "a mere dot". However, he went to considerable trouble to make sure that anyone interested could visit one of the schemes of in vitro fertilisation. I took advantage of that invitation and I was much instructed. I came away deeply impressed with the sincerity, moderation and sense of responsibility of all who are engaged in that research.
Other noble Lords have referred to my noble and learned friend the Lord Chancellor but I must add my own little piece. I salute him for his wonderful clarity, his sparkling ingenuity in dealing with amendments and for such exemplary impartiality that none of us can have known his own views from anything he said. I also express my thanks and of all those who support, and who overtly support, the Pro-Life Group, for the leadership shown by my noble friend the Duke of Norfolk. He has been moderate; he has gone to great trouble to brief himself on the subject. He has worked himself to the bone to make himself very familiar with the subject and to deploy his arguments. We are greatly in his debt.
At the beginning of this process my noble and learned friend the Lord Chancellor invited us all to make up our minds, each one consulting his own conscience. He used the words "in stillness". Despite 247 the cosy mood to which the noble Lord, Lord Houghton, referred— though he quickly broke it himself— of the debates in this matter, my conscience requires that before we send this Bill to another place so I make my protest as briefly as I can.
Quite apart from organised lobbies and so on, the public at large are surely horrified at the enormity of what is proposed, albeit by a three-to-one majority. I believe that this has opened a Pandora's Box of difficulties for the future. My conscience requires that I say that I believe that this legislation is playing God in the most intimate and sacred centre of life itself. If the embryo were not human then experimentation would have little purpose. Thanks to what we have consented to here, life may now be created simply for laboratory experimentation, however noble the purposes of that experimentation may be. The ethics of human vivisection have been condemned ever since classical Alexandria, and I believe that they are implicitly at work here. In exchanging the ethics of the farmyard for those of the family, I believe that human debasement has plumbed new depths. By what astonishing intellectual devices have scientists folded about themselves the mantle of prophecy and have actually foretold what is going to be discovered. The Hippocratic oath has been turned inside out. On the pseudo-moral plane the best we can offer is that prospective patients for treatment services are to be offered what is called "counselling". But counselling in terms of what ethics? What version of right and wrong? That is left open to chance.
I speak not as a Roman Catholic, though I am mistaken for one sometimes. I am simply a traditionalist Anglican. I applaud the final paragraph of the article written by Cardinal Hume which reads as follows:This is an issue of life and death, of fundamental human dignity and of the basic and unconditional respect we are bound to have for one another. Until recently our society has consistently recognised these values. Without them it will in future suffer incalculable damage".
§ 6.15 p.m.
§ The Earl of Perth
My Lords, your Lordships have decided that the human embryo can, up to 14 days, be used for medical research. I remain deeply sad at the consequences for the future of this position. I wish to express one very strong hope, and it is this: if the Bill goes through more or less in its present form in another place I hope that it will in no way discourage or lessen the other avenues of medical research as instanced by the noble Duke who spoke about experimentation on grown-ups. Because medical research is possible on embryos, it would be tragic if there was less research conducted into other avenues. I wish to make that point most strongly.
I was further dismayed at the rejection of the amendment tabled by my noble friend Lord Jakobovits, the Chief Rabbi, at Report stage which prohibited the creation of human embryos specifically for experimental research. I do not quite understand what the noble Lord, Lord Ennals, said in that respect. I believe he said that it was a pity 248 that my noble friend Lord Jakobovits did not follow it up. The amendment was taken to a Division and it was defeated.
§ Lord Ennals
My Lords, I am most grateful to the noble Earl for giving way. There was a third amendment tabled by the Chief Rabbi which he did not move and which he did not take to a Division. That would have prohibited research in an attempt to improve or create a vaccine for contraceptive purposes. He did not press that amendment.
§ The Earl of Perth
My Lords, I still believe that he did all that was appropriate, but I am not going to speak for the Chief Rabbi. I am extremely unhappy at what is going forward to another place. I shall not rehearse my reasons for that. It is well known that I am a Roman Catholic and, like a lot of other people of other faiths, I have been upset at what is going forward.
I commend what should not have been debated here; namely, the article written by Cardinal Hume. However, I leave it at that. I have expressed my unhappiness. I want to thank the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Hooper, as many others have done, for listening to all the suggested amendments that were put forward from all sides of the House. It was very noticeable that not only did they listen, but where they thought that there was any good reason for what we were asking, again and again they would say: "Please let us think about it; let us take the matter away and see whether we can produce an amendment to give effect to what you are saying at another stage". That happened again and again. I, and I am sure all noble Lords, are extremely grateful for that.
I refer, for example, to two amendments about which I was most anxious in relation to the licensing authority. My concern has been very well put forward in amendments today. I am happy at the thought that Parliament will have a chance in future to comment on whatever the licensing authority is doing. I believe that is of great importance and significance. I am most grateful to the noble and learned Lord the Lord Chancellor and to the noble Baroness, Lady Hooper, for having done what we asked of them.
My Lords, before the noble Earl resumes his seat I wish to give him this assurance: he expressed the hope that if Parliament in its wisdom were to decide that research on the early embryo should be continued, subject to strict statutory control, this would not diminish other research which is designed to improve genetic conditions.
I cannot speak for the medical community as a whole. The noble Lord, Lord Walton, is better able to do that. I shall chance my arm and speak for the Medical Research Council. I can give the noble Earl my assurance, as chairman of the council, that in no way will this legislation diminish the kind of research which we would be keen to undertake into those conditions.
§ 6.20 p.m.
§ Lord Walton of Detchant
My Lords, I do not wish in any way to prolong what has already been an exceptionally lengthy debate. I had no intention of speaking at Third Reading today, but I wish to make one or two points. The first relates to the article to which my noble friend Lord Halsbury has referred, written by my friend Cardinal Hume. I share with him the honour of being an honorary freeman of the City of Newcastle upon Tyne, a city from which we both come, and I also share the honour of being a lifelong supporter of Newcastle United. I have to say, however, that I disagree most profoundly with his views as promulgated in the article to which reference has been made. He is fully aware of that because we have discussed it on a number of occasions.
I also wish to make the point, as I have said before during our debates, that I myself am a committed Christ: an. I am a lifelong member of the Methodist Church and have authority to say that the Methodist Church is making public before long a report in which it will express views almost identical to those expressed by the most reverend Primate the Archbishop of York in relation to this issue. It will confirm the view of many other theologians, including several of the Roman Catholic faith, who are in no doubt in their minds that the group of cells produced by the fertilisation of a human ovum by a human sperm within that first 14 days does not develop the individuation in which the first evidence of an individual can be discerned until the primitive streak appears on the 14th day. But it would not be my wish to prolong this argument, save to reply to the noble Duke, the Duke of Norfolk, about the issue of the treatment of genetic disease.
Of course every member of the medical and scientific community wishes to see treatment developed for genetic disease. There are indeed many inherited diseases for which treatment is now available; for example, the condition of phenyl-ketonaria which causes severe mental retardation if not identified and treated early in life. There are many other conditions where treatment has become available as a result of research. I would certainly support research being done towards the treatment of genetic disease by gene replacement. This is already happening, as has been said, in diseases like thalassemia, the blood disease to which Sir David Weatherall referred. But in some of the most devastating genetic diseases this will not be possible for at least another 10 or 20 years. In the interim, the prevention of inherited disease by embryo research is becoming feasible and is a possibility. Behind it lie the hopes of many parents who have had disabled children.
Surely it is preferable to identify within that group of cells resulting from fertilisation the presence of a harmful gene and to allow that group of cells to degenerate naturally than for the woman to carry a child with a major, fatal, crippling disease. Surely it is preferable to allow the pregnancy to proceed to 10 or 12 weeks and then to see whether or not the gene is present and carry out an abortion at that stage.
With these few remarks I hope that the Bill, which has been so widely and I believe wisely amended in 250 your Lordships' House with, if I may add to all that has been said, the wonderful advice and support of the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Hooper, will have a fair wind in another place.
§ 6.24 p.m.
§ The Marquess of Salisbury
My Lords, I should like to make some comments on the results of the Bill as it goes forward in its present state. I start with an obvious remark. Without conception this Bill would not have been necessary. We spent the whole of the several days discussing it dealing with the results of conception. Indeed, without conception, noble Lords would not be here.
At Second Reading the most reverend Primate the Archbishop of York set out the process of gradual evolution. He said in this connection:The 14-day rule, with all the safeguards surrounding it, seems to me to be a workable basis for such a consensus".— [Official Report, 7/12/89; col. 1022.]Thus he pointed out that the proposed 14-day rule is in the nature of a compromise. That does not seem to me a very sound way of dealing with the origins of life. It could have major implications for the future. Moreover the decision was not reached as a result of a deliberate attempt to settle this important point but merely as a result of the desire to allow scientific research. Does this decision now mean that life does not begin until after the 14th day?
The most reverend Primate emphasised that he was speaking purely for himself when he said:I think it is fair to say that the Church of England has not yet taken a definite position on these matters". — [Official Report, 7/12/89; col. 1019.]Surely the Church of England ought to have done. It ought to have a view on this important matter. I cannot but wonder whether it has funked the issue and is deliberately waiting before expressing a view until after the Bill becomes law. It is not a very happy record for the Established Church. I rather fear that it is one more nail in the coffin of this more or less moribund institution.
One can but compare the attitude of the Roman Catholic Church, which was very definite in the views which your Lordships rejected so decisively. I should like to add my tribute to those already paid to my noble friend the Duke of Norfolk, who I thought presented his case with great sympathy and moderation. Despite all that has been said— I listened carefully to the views of the noble Lord, Lord Walton, and of other noble Lords— I still believe that the view expressed by the noble Duke is a sound one.
I should also like to refer to the decisions taken with regard to AID. First, the proposals seem to be based on a fiction. It is simply not true to say that a child born by AID is legitimate. The fact that the mother carries the child does not mean that it is genetically hers any more than it would be in the case of a surrogate mother. Yet the law now says that it is. Perhaps I may give an example of what might happen. A case involving this issue comes before the courts. We know that, despite advice to the contrary, many litigants will bring such a case. The judge in his summing up will be bound on this 251 issue to direct the jury that the child has to be considered legitimate, knowing that, in the accepted sense, this is not true. The jury, knowing this also, will have no option but to find accordingly.
Secondly, the Bill makes it difficult or impossible to trace the real parents. It also gives parenthood a new dimension. No longer is it only a genetic connection with children born of mothers. Children like many others will want to know who their parents and grandparents are. The House took the view that it was not in their interests to know. I find that hard to accept. Indeed, one very experienced social worker told me the other day that she and many of her colleagues felt that this was one of the worst aspects of the Bill.
Thirdly, children treated as legitimate are entitled to inherit property. One reason given is that the testator might have wished to include them had he known what was in the Bill. In this connection I must differ from the view expressed by the noble and learned Lord the Lord Chancellor. It seems to me much more likely that the settlor would have excluded the cuckoo in the nest. Fourthly, there would be two categories of AID children— those catered for under the main provisions of the Bill and those who have special rights of inheritance, who are treated differently.
The need for this Bill has arisen for two reasons. One is because the advances of science have made some regulation essential. I think that everyone in this House has accepted the need for it. The second reason, I would suggest to your Lordships, is that the teachings of the Church no longer have the support of the vast majority of the population. In the past, although the rules were often broken, they were accepted as the standard, and breaches were frowned upon. So long as this was so, it proved a satisfactory arrangement. There are many ifs and buts on this matter that are really not suitable for legislation, and what we have decided in the last few days must of necessity have been decided on a degree of uncertainty. However, since the Church has largely lost its influence, Parliament has stepped in. It remains to be seen whether the decisions we have made will turn out to be wise ones.
There is one area to which I would refer as particularly important, and this is the survival of the family unit. This to my mind is of paramount importance. It is already under pressure, and I fear that this Bill will not help it. Certain provisions that have been made force me to this conclusion. One is allowing for AID to unmarried women, and the other is allowing AID to unmarried couples, however long they have associated together.
For all these reasons, while I hope that the Bill will find the answers to the many questions to which it addresses itself, I fear that it may raise more problems than it solves.
§ The Lord Chancellor
My Lords, this is a highly important and complex Bill and one which the Government introduced after a long consultation and deep and careful consideration. It follows from the work of the committee chaired by the noble 252 Baroness, Lady Warnock, which reported in 1984. I should like to join those of your Lordships who have thanked the noble Baroness, Lady Warnock, and her committee for the valuable work which they did then. There followed two further rounds of consultation before the White Paper was published in 1987. The issues have been exhaustively debated in public. Our debates in this House therefore have been the culmination so far of a long but nonetheless essential period of preparation.
It is right to begin by reminding ourselves of the existing position. At present there is no statutory control at all on the new scientific and medical procedures which have developed in the past decade or so in relation to in-vitro fertilisation and gamete and embryo donation. When some who have spoken have suggested that the Bill is undesirable, I think we have usually meant in some of its aspects. I do not believe that anyone in your Lordships' House believes that it is wise to go ahead without a statutory regulation of these matters.
Nor at the moment is there any adequate statutory framework governing the status and legal position of children born as a result of such treatments. We may differ, and in some cases differ quite markedly, about the form of statutory provision and especially on issues of embryo research. But I believe I am speaking for the whole House when I say that it is both necessary and right that this vacuum should be filled, and that there should be an adequate statutory framework in these new areas of scientific and medical development.
It is for this reason that while, in your Lordship's House and in another place, the Government have listened and will continue to listen very carefully to all that is said on matters of detail and remain committed to the principle that the question of embryo research should be decided through free votes, nonetheless, the policy that there should be an Act governing this area of our national life is a Government committment. The Government are anxious to secure, through the debates and decisions in this House and another place, a settled and acceptable framework on these matters.
It is partly for this reason, and partly out of respect for your Lordships, that my noble friend Lady Hooper and I have listened carefully to all the anxieties that your Lordships have expressed, and have endeavoured to find, so far as that is possible, common ground on these difficult issues. It has not been possible to find common ground on all issues. There are some that are still the subject of debate. They are matters of detail. Let me just take one example.
The noble Lady, Lady Saltoun, earlier today took to a Division a question about existing settlements and wills. I had said that we might consider that further, but we had a Division about it at the present stage. Of course that does not preclude our examining these matters further in the hope that, out of the differing views expressed today, it may still be possible to distil a common ground which would satisfy both parties.
On the principal issues in relation to research, and the extent of research, there are diametrically 253 opposed views which it would be impossible to believe could give rise to a common ground. The reason for that, perhaps particularly in the spiritual dimension, is that very different views have been expressed. As one of my noble friends remarked, the Church of England has indicated that not all of those who hold high office in that Church have the same view on these matters. We have had the benefit in our debates here of hearing these different views cogently expressed. Your Lordships have had the benefit of the spiritual dimension as appreciated by these Members of this House and others in considering these questions.
It is against the background that I have just described that I go on to consider briefly the main features of the Bill as it has emerged from the long and thoughtful debates which your Lordships have given to this measure. The Bill seeks to establish a licensing authority' to control and license centres providing certain infertility treatments and, subject to the views expressed in another place, centres undertaking embryo research. This system of control is the centrepiece of the Bill and the new authority will have a very significant and sensitive task to perforin in ensuring that the licensing system operates effectively, and that the public has full confidence in its independence and soundness of judgment in a field of fast moving medical and scientific development. The Government fully support that, and I hope that the very slight doubt expressed by my noble friend Lord Jellicoe on that matter will be resolved.
Thanks to your Lordships' thorough consideration of the authority and its functions, and in particular to my noble friends Lord Jellicoe and Lady Platt of Writtle, the noble Lords, Lord McGregor of Durris and Lord Ennals, and the noble Earl, Lord Perth, the Bill now provides that the authority's reports will be produced annually, and that they should be prospective as well as retrospective. Following the raising of the subject by the noble Viscount, Lord Caldecote, the Bill now provides for annual inspections of licensed premises, and that the people who carry out the inspections should be of such character and so qualified by training and experience as to be suited to perform that function. I could not leave an account of the role and functions of the new authority without pausing to pay tribute to the work of the voluntary (now interim) authority under the distinguished leadership of its chairman, Dame Mary Donaldson.
I am sure that in our work on this Bill we have a great occasion for gratitude to that authority as well as to the scientific and medical community that have voluntarily placed themselves in this field under the guidance of that authority. That is a measure of the responsibility shown in this delicate area by those engaged in this work.
It is not on the issue of embryo research that opinions are most widely divided; and most strongly held. It was the conclusion of the House that the possible benefits of research on human embryos justified its being conducted up to 14 days subject to the strict controls provided in the Bill. The careful scrutiny to which your Lordships subjected the Bill, and the amendment put down by my noble friend 254 Lady Elles, which the House debated, have ensured that it is now drafted to make clear that the controls on research apply from the beginning of the fertilisation process until the 14-day period has expired. Both those who spoke in favour of research and those who took the contrary views— that the possible benefits of research could not justify the violation of the humanity of the embryo— debated their arguments lucidly and with admirable calmness and tolerance.
I was also pleased to see that support which the noble Lady, Lady Saltoun of Abernethy, and the noble Lords, Lord Robertson of Oakridge, Lord McGregor of Durris and Lord Ennals, gave to the amendment relating to the welfare of children. It is clearly a matter which should be most seriously considered by those providing infertility services regulated by the Bill. That will be dealt with in more detail in the code of practice which the authority is required to prepare under Clause 25. That amendment also fits in well with the Children Act 1989, which your Lordships considered in much detail last Session, which makes the welfare of the child the paramount consideration. The Bill also provides that all patients receiving treatment must be provided with the opportunity to receive counselling so that they are fully aware of the implications of the procedure they are undertaking. That is the primary purpose of the counselling. That, too, will help those concerned to focus on the future welfare of any child who may be born as the result of treatment.
A further issue which commanded a great deal of your Lordships' attention was that of information to be given to the children who were, or may have been, born as a result of the treatment regulated by the Bill and to third parties. With the exception of the special case where the registrar general is concerned with a claim that a man is not the father of a child, release of information is for the benefit only of the person who was or may have been born as a result of licensed treatment services in two types of case. The first is when, after the age of 18, the child seeks information on his or her genetic origins. The second is if he or she needs information about whether he or she and an intended spouse are genetically related. That basic policy of the White Paper that only non-identifying information should be revealed, and then only to the person born as result of the treatment to which the information relates, has found favour with the House, subject of course to the possibility that as matters develop that information may be enlarged.
This is an important Bill which deals with questions of great moral, ethical, spiritual and religious significance for our society. It is indeed fitting that those issues have been addressed by those in the House who lead or represent religious opinions such as the most reverend Primate the Archbishop of York, my noble friend the Duke of Norfolk, the noble Lord, Lord Jakobovits the Chief Rabbi and many others. These have often been difficult matters which have aroused much interest and attention. I believe, however, that your Lordships' House has explored very carefully the many issues involved and has debated them skilfully and with a thoroughness 255 that ensures the Bill is now ready for its passage to another place.
I should like to thank all the noble Lords, the noble Lady, Lady Saltoun, and the noble Baronesses who have participated in the consideration of this Bill. It would be invidious to mention individual contributions more than I have done already, but I have always been impressed by the unfailing determination of the noble Lord, Lord Kilbracken, to improve the drafting of the Bill, and of the noble Earl, Lord Halsbury, and the noble Lords, Lord Walton and Lord Zuckerman, to increase our scientific and medical understanding. It is through their efforts that the Bill leaves the House much improved and that is a tribute to the skill, courtesy and tenacity with which all the debates have been conducted.
My noble friend Baroness Hooper has been the Minister with primary responsibility for the Bill. It has been my great privilege to promote the Bill with her on behalf of the Government. I should like to thank on her behalf, and mine, all of your Lordships who have kindly made reference to our efforts. We have sought to obtain the maximum possible agreement on these delicate matters so that the statutory control goes forward on the basis of the maximum possible agreement.
Some of your Lordships have remarked that I have sought to be impartial on the issues where the Government have said that a free vote is appropriate. I have sought to maintain that impartiality. It was clear to me that the main issues would be decided by a large majority. I have felt it right therefore to preserve my own counsel. There is always the possibility that matters will return to the House in a delicate situation, and there may be advantages in that from my point of view. I have therefore imposed that degree of self-restraint on myself. I have the greatest pleasure in moving that the Bill do now pass, without in any way committing myself on the issues upon which a free vote has been given.
On Question, Bill passed, and sent to the Commons.