HL Deb 18 October 1990 vol 522 cc1116-9

13Clause 30, page 17, line 33, at end insert:

'(4A) Regulations cannot require the Authority to give any information as to the identity of a person whose gametes have been used or from whom an embryo has been taken if a person to whom a licence applied was provided with the information at a time when the Authority could not have been required to give information of the kind in question.'.

14Clause 31, page 18, line 2, after 'man', insert 'is or'.

15 Page 18, line 6, leave out from 'disclose' to end of line 8 and insert

'whether any information on the register kept in pursuance of section 30 of this Act tends to show that the man may be the father of the child by virtue of section 28 of this Act and, if it does, disclose that information.'.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 to 15. With your Lordships' leave I shall move them en bloc.

The amendments concern access to information held by the authority. Amendments Nos. 14 and 15 were brought forward by the Government in another place. They make clear the intended scope of Clause 31, which deals with information which the authority is required to provide to the Registrar General. This is the information which, by Clause 30, the authority is required to keep on the register. It is intended that the information would be made available where there is a dispute over paternity. For example, a man who has been registered as the father of a child because he was married to the child's mother may deny being the father because he believes the child to have been born as a result of artificial insemination by donor to which he did not consent.

Clause 31 enables the Registrar General to find out whether the child might have been born as a result of treatment involving the use of donated gametes and embryos. These amendments extend Clause 31 to cover a case where a man who is not registered as the father of a child wishes to show that he is in fact the father—the other way round. The authority's register could show that he may be the father because he fulfils the condition in Clause 28.

Amendment No. 18, which is for your Lordships' consideration, provides for a logical progression from Clause 31 by allowing information of this kind to be made Available to a court in the interests of justice. This could he where, for example, there is a dispute about paternity and a woman is seeking to obtain a maintenance order for a child which might have been born as a result of treatment services regulated by the Bill. I hope that your Lordships will support these amendments.

I turn next to Amendment No. 13. The matters which Clause 30 of the Bill addresses are of the greatest importance and sensitivity, and I hope that the House will understand if I take a moment to explain the reasons this clause appears as presently drafted in the Bill.

Clause 30 requires the Human Fertilisation and Embryology Authority to keep information about donors and people to whom treatment services have been provided, and regulates circumstances under which information may be disclosed. If a person aged 18 or over applies to the authority, it must let the applicant know whether there is information on the register indicating that he or she was born following infertility treatment governed by the Bill. If that is the case, the authority must give the applicant certain information about his or her genetic parents which will be specified in regulations to be made by the Secretary of State. The intention is that the information given will tell the applicant something about the genetic parent, but not enough for him or her to be identified.

The Government have given considerable thought to the matter of the nature of information to be given to applicants. They have listened very carefully to all the views expressed, and there have been many. We remain of the view expressed in paragraph 83 of the White Paper, which says: all adults over the age of 18 should have a legal right to find out whether they were born following gamete or embryo donation and that those who were should have the right of access to certain non-identifying information about the donor to be prescribed in regulations". That view supported by 43 per cent. of the respondents to the consultation document we issued. Only 23 per cent. thought the donor's name should be made available to the person born as a result of treatment. However, as paragraph 84 of the White Paper recognised, society's views on the issue may change. We said: Attitudes to the anonymity of donors, however, may well change over time as happened with adoption. The Government therefore proposes to keep the position under review. That is why subsection (4)(a) of Clause 30 is drafted so that a person born as a result of donation may he given as much information relating to the person concerned as is required by regulations. If a future Parliament took the view that opinion generally had changed on the matter, regulations could specify that identifying information could be given to applicants. That arrangement gives a degree of flexibility. It allows for the legislation to reflect society's attitudes at the present time, and if these change over time.

Due to the very sensitive nature of the matter and the fact that strong opinions have been expressed on both sides, the Government have brought forward Amendment No. 24, which we shall come to later, which provides for any regulations under Clause 30 to be subject to affirmative rather than negative resolution. That will require both Houses to give the matter thorough debate before any regulations are made.

I am aware that there are strong feelings on this issue. These have been expressed very forcefully in debate both here and in another place. I know that there are some people, particularly those who work in the fields of social work and adoption, who take the view that a child should have the right to identifying information about his or her genetic parents, and particularly so since it is available to a third party; that is, the authority. They feel that there should be no secrecy surrounding the issue, and that it is important that children can know their true genetic identity in the interests of their personal development and mental health.

They draw an analogy with adoption. However, the policy in the Bill is based on the belief that there is a difference between children who are adopted and those born as a result of donation. The relationship between a child born as a result of donation and the donor is by its very nature less close than that between an adopted child and the natural parents. And although a child born as a result of donation may not share the genetic inheritance of the mother who carried him or her, in a very real sense that child is her flesh and blood.

With egg donation the donor may not even be aware that a child has resulted from her donation of an egg, and a similar situation exists when a man donates sperm. Particularly in the case of AID, there may also be the possibility that the child was in fact born as a result of normal sexual intercourse between its social parents.

Those who take the opposite view, that the anonymity of the donor should be protected by primary legislation, are concerned about the effect that identifying information would have on the number of people willing to be donors. They are also concerned that the Bill does not set out in primary legislation that identifying information will not be made available retro-actively. They fear the effect that this might have on the availability of donated gametes and therefore the availability of treatment. They maintain that potential donors may be deterred for fear that their identity might be disclosed at a later date and that that would inevitably lead to a diminishing service for infertile couples. They also fear that women wanting artificial insemination by donor may try to seek out "unofficial" treatment if there was a shortage of donated sperm or because they too wished donations to be anonymous. In those circumstances, the treatment might not be carried out under proper clinical supervision, the sperm might not be properly screened and they would be at risk of contracting a congenitally transmitted disease and there would be no opportunity for them to receive proper counselling.

When a provision was introduced in Sweden enabling children born following treatment involving donated gametes to have access to the identity of their genetic parents, donations of sperm fell sharply and I understand that some infertile Swedish couples now seek treatment in other countries where donor anonymity is protected. Recent studies suggest some change in attitudes and the category of donor has changed, mainly to older men who have completed their families. But I think that we shall need to wait for the situation to develop fully and settle down before any conclusions can be drawn definitively from the Swedish experience.

When the issue was debated at Report stage in another place a number of options were carefully considered. In the end, the House decided to accept an amendment moved by the honourable Member for Salisbury and supported by my right honourable friend the Secretary of State. This amendment reflected the views of those who felt that, if Parliament decided in the future to make identifying information about donors available to children born as a result of techniques involving donation who requested it, that information should not be made available retroactively. As I have tried to indicate, the arguments are finely balanced, but I hope that this House will feel able to agree with the Commons in this amendment.

Moved, That the House do agree with the Commons in their Amendments Nos. 13 to 15.—(The Lord Chancellor.)

On Question, Motion agreed to.