§ 4.39 p.m.
§ Lord Winston
My Lords, I beg to move that this Bill be now read a second time. Before I speak about the Bill, I declare an interest as a practising reproductive medicine doctor, working in a sizeable clinic which deals with problems related to reproduction and, on occasion, problems related to the particular circumstances about which we are speaking today.
I do not want for a minute to suggest that we should be changing the law for a single person. I do not think that that would be appropriate. I hope that we shall not hear the rather facile phrase that hard cases make bad law. Your Lordships' House is well known for its ability to make difficult judgments in very hard moral circumstances.
This is an exceptionally difficult issue. It concerns the posthumous insemination of a woman after her husband or partner has died. It is something which was never discussed in detail during the proceedings on the Human Fertilisation and Embryology Bill in 1990. I am therefore grateful to the House for allowing me to introduce this Second Reading debate and to discuss the difficult moral problems that arise from it.
Although we do not and should not be changing the law for a single case, I must inevitably deal in some detail with the circumstances of one case, Mrs. Diane Blood, because it illustrates so well the problems faced by a few people in this tragic predicament. It is a hugely distressing one. It is no exaggeration to say that when I read her affidavit at two o'clock in the morning I was not in an emotional state. I was quite tired and I was about to go to bed. I had never met her. But I was moved to tears in my dining room because I believed that a fundamental injustice was being done. The whole context of the affidavit—every single word of it—rang out a truth which I had heard from other women in that situation.
Had I encountered the case 15 years ago my reaction would have been totally different. There is no question that I would have been horrified at the idea of posthumous insemination. I would not have considered it possible; I would not have considered it moral; I would not have considered it good for the grief and bereavement of the partner and the resolution of that bereavement; and I would not have considered it good for the child. However, my attitude to this problem has radically changed and it has changed because of extraordinary experience.
The clinic I run is one of the largest in the world for assisted reproductive technologies, so we see a huge number of people in quite unusual circumstances. My attitude has changed because I have come into contact with young men who have developed cancers. That may 803 seem odd but it happens that modern cancer treatments, some chemotherapy and most radiotherapy, particularly where it concerns total body irradiation, have the almost inevitable result of sterilising the man. As medicine has slowly improved, the prognosis for cancer treatment has become better and better. When we treat Hodgkin's Disease or leukaemia there is a high probability that men, particularly young men, will survive. The depository at Queen Charlotte's Hospital has been a depository for the Royal Marsden Hospital for a long time. For many years we have stored the sperm of men undergoing cancer treatment at the Marsden and elsewhere because we know, and they know, that later on they will be sterile but they may want to have a child once they are restored to full health. Medicine is by no means perfect and some of those men have died. Before 1990 we could take a decision—a medical decision—based on the evidence in front of us, perhaps with reference to our ethics committee, whether or not to allow the posthumous insemination of the widow if that was being requested. Over the years I have seen a regular small number of these cases. Since 1990 it has been a requirement that we have written consent. In general that has not been a problem and it is only recently that the cases we are discussing have started to emerge.
In every single case, after counselling of the widow and proper medical management has been conducted, we have seen women produce entirely happy children and bring them up well without any evidence of deprivation. On other occasions they have gone on to produce happy families because, having lost their first husband, after a period of time they have remarried and the child has taken to the new wedded relationship perfectly happily. That is not unreasonable and seems in many ways, for those people at least, to be a memorial for the man they have lost.
Mrs. Blood is in a very similar situation. Things have gone differently in her case because her husband died extremely suddenly after a short, vicious illness. I do not know, but I think it was rather like the short, vicious illness that is going on at the moment in Cardiff—the attack of very serious meningitis. There was never time for him to give formal written consent because he became comatose. Because he became comatose and did not give written consent, his wife is barred by law from access to her husband's stored sperm. That to my mind is ridiculous.
I say that so strongly because there is the strongest possible evidence that this is what Stephen Blood desired. They were married in accordance with what is now regarded as a rather archaic version of the marriage ceremony—the 1662 version. They wanted to emphasise particularly the procreation of children and the marriage of a couple as of one flesh. Theirs was an extremely strong, loving relationship. There is plenty of evidence, of that.
There is plenty of evidence, which has never been contested, that throughout the marriage the couple discussed children in detail. When it became apparent that they wanted to plan for children they made certain that they were in financial circumstances that would permit children. More importantly, they considered the 804 possibly of infertility treatment. There is evidence, never contested in any way in the High Court during the judicial review, that they discussed in vitro fertilisation and the new technologies in considerable detail. There is further evidence that Mr. Blood explicitly said that he would want his wife to have his child after his death. However, he did not write it down and therefore Mrs. Blood cannot now have access to that treatment. I believe, with complete clarity, that that is the case and I have seen the situation with other people from time to time.
The ban on the use of his semen comes from the Human Fertilisation and Embryology Authority. It is promoting the ban because it believes that it is implementing the law. I have no quarrel with the regulatory authority. Indeed, I do not want to quarrel with the HFEA. What I want to do is to enhance its purpose. I want to strengthen its purpose. I want it, in the way Parliament intended, to be allowed to use its discretion in these difficult circumstances. That is why I say that the argument that hard cases make bad law is irrelevant.
The Human Fertilisation and Embryology Authority was set up with the good people who run it—people from many different walks of life who have great experience—to decide difficult issues which would be presented to it from time to time. It has done so very successfully. I had personal experience of that with one very controversial case I wanted to treat some time ago, and there are other doctors who have had free access to it. However, one slight fear I have is the risk that if the law is seen to be unnecessarily rigid, doctors might not always be quite so ready to consult the HFEA as they have been in the past. Therefore I want to see the authority helped to come to decisions.
It is worth mentioning that so far as I am aware—perhaps the noble Baroness, Lady Cumberlege, will correct me if I am wrong—there is no other medical treatment which specifically requires written consent. Even transplantation does not require written consent. I was actually below the Bar in 1990, listening with great attention to the debate. I remember that I wanted to leap over the Bar and join in. As I recall, the concern that Parliament rightly had was that gametes are different, that they are special, and that there is a need to protect them in a particular sort of way.
The basic principle for written consent, as the British Medical Association has just said in an ethical judgment, is that in cases like this it is not written consent, but the quality of consent, which is important. I also have to say that when Parliament considered the issue in 1990 it was not actually concerned with arrangements between husbands and wives together. It was mainly interested in regulating donor gametes, donor sperm and donor eggs and in particular the problems related to embryos. In fact, looking at the report of the Second Reading debate, one sees that the discussion in this Chamber was entirely concerned with embryos.
That is why I want to have this matter discussed. Like the case of Mrs. Blood, there are regularly a few couples each year who are faced with this predicament. I know 805 of two cases in the past six months. One man was undergoing in vitro fertilisation with his wife but had not signed consent for sperm storage. Just before the judicial review he was knocked off his motorbike and declared brain dead in a hospital casualty department. I was rung by the hospital in the south of England, asking for my advice as to whether it should try to get sperm from him. That, incidentally, is a fairly simple technique. It is not a new technology: it has been used for 20 or 25 years. I said that I really felt we should not do that; it would be a hostage to fortune as, until the law was clarified, we could have yet another widow who would be in this agonising position. I said that I thought it was probably better to let nature take its course.
Of course, it is necessary that the HFEA considers each case on its merits. I accept that the wording of this Bill may not be perfect; perhaps I may be given help with that if necessary. There must be an undertaking to look at the express interests of the welfare of the child. There are various objections to my thinking. Some people are naturally concerned that a child should not start off life without a living father: that is certainly an apparent disadvantage. I strongly sympathise with that notion, but there is no practical evidence that children in the right circumstances are genuinely harmed by this. In fact there is plenty of evidence to the reverse. Of course single parent families are not something that we should be attempting to produce: I completely agree. However, we are not talking about the usual nature of deprivation here, bringing social problems. We are talking about an entirely different circumstance. In Mrs. Blood's case, as it happens, she is surrounded by the most loving and supportive family. I think it is particularly impressive that her late husband's family have supported her throughout. When the court case took place in London they came down from Sheffield. They have come down to Parliament on occasions to listen to deliberations in another place. They have continued to support her and will go on doing so in the future. In these circumstances I think there is evidence for saying that such a child could actually be even more cherished and more loved. I do not think that such a child in many circumstances need necessarily remain fatherless indefinitely.
Another objection made to my approach is that Mrs. Blood should never have insemination because her husband did not receive counselling. I argue that the person who needs counselling is not Stephen Blood but his widow, Diane Blood. I believe that to be the general rule for most of these treatments. Of course we never insist on counselling in connection with reproductive treatments. It is something which is offered but is never actually regarded as being mandatory.
Since espousing the case of Mrs. Blood I have had a huge and most remarkable postbag, and I have not had a single letter objecting to what I am doing. I would stress that these are not illiterate letters. They are letters from people like vice-admirals, doctors, clergymen and people who are engaged in important support of our society. They are unanimous in their view. They feel that this is a right and moral thing. Some of them even quote religious views. They rightly observe that 806 Stephen Blood did in fact give a form of written consent when he signed his marriage vows, particularly in the circumstances in which he and his wife were married—the nature of their particularly Christian marriage. Other people have pointed out that implementing her wishes in no way threaten public policy; nor does it threaten the moral fabric of our society.
I have what might be called another interest to refer to. As it happens, I am a practising orthodox Jew. Perhaps this is only slightly relevant, but I am reminded that there is of course biblical precedent. Your Lordships will be aware, for example, of Levirate marriage, clearly stated in Deuteronomy. There is a notion that if a man dies prematurely and his wife is without issue, then she is allowed to marry her late husband's brother because that promotes the generation and preserves her lost husband's name in society. Indeed, in biblical law that child is named after the lost father and not after the brother whom she marries. The wife does not necessarily have to do this but it is an option which is open to her.
Finally, some people claim that this could not have happened without the new reproductive technologies. That is not true. Artificial insemination has been here for 150 years; sperm storage for about 40. Nothing about this is particularly new, and I have personally seen these techniques enhance human happiness rather than decrease it. Many of my overseas colleagues say they cannot understand the problem. In many countries, including much of Europe and parts of the United States of America, such treatment is regarded as being accepted. There have never been many cases. Although it has been available in the United States, very few people have applied for this to be done. I think that is important. Britain has a reputation for enlightened, just and appropriately liberal law, promoting the welfare of its people. I hope that in this case Parliament might try to implement justice if possible. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Winston.)
§ 4.57 p.m.
§ Lord Ashbourne
My Lords, the noble Lord, Lord Winston, has just explained to your Lordships how this Bill has been occasioned by the case of Mrs. Diane Blood, who is seeking to be artificially inseminated with her late husband's sperm. It is almost impossible not to sympathise with the desire of this woman, so tragically widowed at the age of 30, to bear her husband's child. It is not the purpose of my argument to seek to restrict the practice of artificial insemination by husband but to draw attention to serious practical difficulties with the Bill, some of which have grave ethical implications.
Will the Bill, as it stands, remove the obstacles facing Mrs. Blood? That is very doubtful. It may, but only if it can be established that Mr. Blood gave specific consent and that his consent was not simply inferred or presumed. There is little information available on that point. Only one report of which I am aware, which appeared in The Lancet of 30th November, specifically 807 states that Mr. Blood "agreed" to his sperm being used after his death. All other reports give the impression that his consent has been inferred from his beliefs and comments on posthumous artificial insemination.
The proposed amendment to the law in the noble Lord's Bill does not obviate the requirement for consent. If, however, such an amendment were interpreted by the courts to mean that no specific consent (as opposed to inferred or presumed consent) were required, that would give the Human Fertilisation and Embryology Authority power to authorise the removal of sperm from men and ova from women without consent or consultation. Nothing in the Human Fertilisation and Embryology Act, or in the noble Lord's Bill, gives the next of kin or any other relative a right to be consulted, to give consent or to stop the removal of gametes from dead or dying relatives.
The Bill also appears to overlook the question of legal paternity. Section 28(6) of the Human Fertilisation and Embryology Act states:Where the sperm of a man … was used after his death, he is not to be treated as the father of the child".The noble Lord's Bill contains no provision to amend that stipulation. It could certainly be most distressing for Mrs. Blood to find that although the courts allowed her to be inseminated after this legislation was passed, her late husband could not be treated as the father of the child.
Furthermore, the Bill makes no provision to obviate the requirements of the Human Fertilisation and Embryology Act that the donor of sperm of ova,must be provided with such relevant information as is properand,must be given a suitable opportunity to receive proper counselling".Reportedly, Mr. Blood indicated his agreement with posthumous conception after he and Mrs. Blood had read and discussed a magazine article. What was the article in question? Did it leave Mr. Blood well informed or misinformed? Certainly, he did not receive counselling about the implications of what is being proposed. It should not be assumed that to grant a request like that made by Mrs. Blood will not lead to psychological problems for mother or child.
The noble Baroness, Lady Warnock, has said that her committee lacked foresight in not anticipating this scenario. However, the Warnock Committee did, in fact, foresee situations where a widow might seek artificial insemination by her husband. The committee said:we have grave misgivings about [artificial insemination] in one type of situation. A man who has placed his semen in a semen bank may die and his widow may seek to be inseminated. This may give rise to profound psychological problems for the child and the mother".The committee recommended that the practice "should be actively discouraged". Whatever one thinks of that conclusion, it should be noted that the man in the imagined scenario, who has placed his semen in a semen bank, would at least have had the information and counselling required by statute, which Mr. Blood unfortunately had not.
§ 5.3 p.m.
§ Lord McGregor of Durris
My Lords, the noble Baroness, Lady Warnock, has recently said:I only wish that the law—that is, the Human Fertilisation and Embryology Act, which her committee of 1984 had shaped—were a little less rigid. I feel we would have … included a loophole if we'd envisaged the situation".It seems to me that if we had been able to listen during that Second Reading debate to the noble Lord, Lord Winston, the result might well have been a suggestion that would have made the Act a little less rigid. No committee can envisage all the circumstances which may arise from its proposals. What matters is the present situation and the fact that the law has been obeyed and the relevant medical ethics observed. We have the assurance of the noble Lord, Lord Winston, on that. There is wide recognition that the law should be adjusted along the lines suggested by the amendment Bill which the noble Lord has brought forward.
I do not intend to take up the time of the House by speaking of the details. I am not a doctor and I am not a lawyer, but I feel strongly that this is a subject on which lay persons ought to testify. In my opinion, Mrs. Blood's difficulties, and those of others who may face similar situations as outlined by the noble Lord, Lord Winston, should be resolved by the proposal to change the Act. The noble Lord has wholly persuaded me that there can be fundamental injustices under the present Act. It seems to me that all the points raised by the noble Lord, Lord Ashbourne, could be dealt with by amendments in Committee. I hope that the noble Baroness, Lady Cumberlege, will give us some hope of government sympathy for the concerns raised by the noble Lord, Lord Winston.
In conclusion, perhaps I may make one point about the nature of discussion in a democracy. The very basis of a discussion of issues of public policy in a democracy is that we must observe the discipline of tolerance and avoid extremes of language which distort and degrade communication among citizens. I was shocked to read in last week's Sunday Times an assertion given quotation marks by the newspaper that Professor Scarisbrick of Warwick University, chairman of Life, had said that the noble Baroness, Lady Warnock,is a very evil and pernicious influence".Such language among citizens drags the consideration of public policy into the gutter, quite apart from providing Professor Scarisbrick's students with a repulsive model of intellectual discourse. It is a fact that some people, when discussing these problems and occasionally unable to control their repugnance for the issues, degrade the discussion and make rational solutions to the sorts of issues which the noble Lord, Lord Winston, put before us, nearly impossible. I hope that when we hear or read comments made by persons representing bodies with such views, we shall make the most vigorous protests and do everything we can to keep alive the possibility of rational discussion.
§ 5.9 p.m.
§ The Lord Bishop of Oxford
My Lords, like other noble Lords, I very much sympathise with Mrs. Blood over the death of her husband and can understand her strong desire to have their child. I am also aware of the distinguished work of the noble Lord, Lord Winston, and of how he has helped so many to conceive and bear children. Indeed, I was at a dinner party only a few days ago at which my hostess said that the noble Lord was one of her heroes.
In this Bill, the noble Lord is of course trying to help people in the position of Mrs. Blood—and it would be good to do that if we could. But we are dealing with legislation which by its nature affects many, not just a few. It has intended and unintended consequences and desirable and undesirable consequences. As I understand it, the question is whether legislation can be drawn up that is tight enough to help people in the position of Mrs. Blood without setting up a whole train of unintended and undesirable effects. It is not difficult to foresee a whole range of agonising predicaments that could arise from the wording of the amendment before us.
Every year thousands of young men die, a very high percentage of them in car accidents. About one in every thousand males between the ages of 16 and 39 dies every year. I understand that in 1994, 125,000 car driver casualties alone occurred and they included people of both sexes. One can envisage a situation in which a couple are very much in love. Perhaps they have lived together for two or three years. Tragically, the man is killed in a car crash. His fiancee desperately wants something of their love to go on into the future. He is an only son and his parents have longed for the time when they have grandchildren. If the law allowed it, there would be huge emotional pressure to extract sperm from him as he lay unconscious on a life-support machine or even when he was dead. As the law stands, for that to happen effective consent must be given. According to Schedule 3 to the Human Fertilisation and Embryology Act, a person who contemplates that step must be given an opportunity to receive proper counselling about the implications of taking it and must be provided with such relevant information as is proper. Furthermore, that consent must be in writing.
Consent is a crucial concept in both medical practice and medical ethics. Religious faith, particularly in its Jewish and Christian forms, underlines the importance of this. First, it is an expression and safeguard of the dignity due to the individual human being whether alive, dying or dead. One does not violate the body unless the individual agrees to the procedures involved. One respects his person, especially in the vulnerable stage of dying or death. Secondly, consent is an expression of respect for the individual's free choice. Even if one disagrees with the choice, it is a fundamental facet of what it is to be a human being that choice exists and the individual must be allowed freely to make it. Therefore, it is right to encourage people to make informed, mature choices, taking into account all the consequences they can foresee, as the 1990 Act lays down.
The Medical Ethics Committee of the British Medical Association has said that it accepts the principle behind the amendment before us that consent need not be in 810 writing. The noble Lord, Lord Winston, has reminded us of that. But what that committee is concerned about, as I am, is the quality of consent and what would count as evidence of it if consent in writing was not mandatory. One cannot simply assume that because a couple were married or in love and that in normal circumstances they would have wanted to have children they would both want a child that they knew would be born and brought up without a father.
It is not romantic or sentimental to think of a man, close to death, not wanting his wife to have their child, for her sake. Because their love is true and deep, he also wants to leave her free to make fresh relationships in the course of time and to have children who can have a father. Although she may say—and probably would say out of love for him—that she wants to bear their child, even though shortly he will be dead, he out of his very love for his wife or girlfriend may be unwilling to give that consent. If there has been no opportunity to receive proper counselling about the implications of taking the proposed step, if he has not been provided with relevant information, as the Act at present states, and if there is no consent in writing, we simply do not know. If the couple have talked it through and, aware of what he is doing, the man has put his consent in writing, we then know what he wants. But if there is nothing in writing, how do we have access to his mind and on what basis can one discriminate between serious claims, on the one hand, and unfounded and rather thin claims, on the other, that he wanted his wife or girlfriend to bear their child when he was dead?
A great many young men die every year and leave a great number of grieving wives, girlfriends and parents. It would be entirely understandable if a high percentage of them wanted to carry something of the person they loved into the future in the form of their child, if the law allowed it. But in the absence of written consent and serious prior discussion, it is difficult to see what would count for and, no less important, what would count against the assertion that consent had indeed been given. There would be grave danger of the concept of consent being evacuated of all meaning in such circumstances, for a woman who was desperate enough would allow nothing to count against the notion that consent had been given by the man she loved.
As the law stands, the clinical judgment that was made to remove sperm from a dying or clinically brain dead man was, as I understand it, a mistake, if not explicitly illegal, and would be unlikely to be repeated. If the law is amended in accordance with the proposals in this Bill, clinicians may feel obliged to store sperm in case appeals were made later based on the notion that consent need not in every case be in writing and they would be blamed if such sperm was not available. To protect themselves from possible legal action in future they would need to err on the side of caution and take sperm if there was any possibility of a loved one wanting it. But that would place many more people in the distress in which Mrs. Blood now finds herself. She is in particular anguish, not only because of the death of her husband but because, sperm having been taken from 811 his body, there is a possibility of conceiving their child. That may be what Mr. Blood would have wanted but we cannot know for certain.
Do we really want hundreds, if not thousands, of women to be placed in that anguished position? Furthermore, there would be two consequences if they were. The first concerns the role of the Human Fertilisation and Embryology Authority. It is difficult to see how it could possibly adjudicate in all these cases. Secondly, if its authority was to continue to be a real authority, it is likely that there would be a significant number of requests that it would refuse. So the distressed relative would have the further anguish that the possibility of bearing a child by the person they loved was extinguished by a human decision which many would find very difficult to accept with equanimity.
Researchers in America have found that a number of fertility clinics in the United States and Canada take sperm from dead men at the request of their partners or families. This is possible in the United States because the law concerning the extraction and use of sperm from cadavers is unclear. The researchers would like American legislators to introduce specific controls on the use of sperm samples as in current British law. The relative clarity of British law at the moment is a great strength and avoids much anguish that would ensue if it were changed.
I am sure that all noble Lords are aware that this is a difficult issue. I shall be listening with great attention to any wisdom that others may be able to offer, as I listened with great attention to the noble Lord, Lord Winston, and his deeply passionate and compassionate eloquence. But, while I am sympathetic to trying to help people in the position of Mrs. Blood, I believe that the present wording of the Bill gives rise to grave difficulties that need to be taken into account. For the reasons that I have sketched out, informed consent is fundamental to medical practice and ethics, especially when genetic material is involved. I should not want to see that consent in any way weakened, let alone evacuated of any real meaning. Furthermore, the relative clarity of the present law should prevent more people being put into Mrs. Blood's position, with all its ensuing anguish. The law can sometimes seem impersonal or hard. But keeping that clarity, so far as we can in this highly complex area, serves human welfare and human well-being.
§ 5.20 p.m.
§ Lord Clyde
My Lords, I rise with all the hesitation of one who has not before had the opportunity of addressing your Lordships' House. I crave your Lordships' indulgence to bear with me with greater confidence when I am conscious that this House is remarkable for the kindness which it demonstrates to those who come here for the first time. Indeed, I suspect that the principal impression which any new arrival has and remembers when entering this part of the Palace is the outstanding civility, kindness and warmth of welcome that he or she receives, not only from the Members of your Lordships' House but from every member and every officer who serves in this building.
812 I come from a family which, according to the heralds, is unorganised. It is legitimate, but it is also legal. Lawyers rejoice in controversy. Having been brought up in a legal household, and having spent my life in the practice of the law, I find it then difficult to discover myself constrained by the rules which quite properly apply to the speech which I must make on this occasion—the rule that requires me not to be controversial. I can only hope that what little I have to offer may not sound simply platitudinous, trivial or dull.
The Bill is admirably brief. I have an anxiety, which I think has already been expressed, that it may be too brief, but it seeks to right a perceived wrong—a wrong which the courts themselves have considered they cannot correct. It seeks to do it by introducing a flexible solution, giving the decision to be made in each case to the authority itself. That will of course be necessarily, in many cases, a hard decision, and it will require to be made on the basis and in the light of the whole evidence which is presented to it. I have no doubt that the authority, already in its history, has been required to make hard decisions, and this may be one which would be within its competence.
Once it is accepted that reproduction can be permitted by artificial means, then is this extending developments unreasonably? So far as concerns the result, there are, and of course can be, cases where the natural father may die before the birth of his child. My concern and interest here would be for the welfare of the child. That is, I confess, the justification which I have for presuming to open my mouth on this subject. When I see that the authority is required to consider, among other things, the welfare of the child, then my mind is substantially set at rest.
There are just two observations which I seek to make about the Bill. This is of course a matter of considerable delicacy and sensitivity. One can understand why, when the Act was passed, it was conceived appropriate that the critical consent should be in writing. A consent is needed for a licence to be given. No alteration is being made to that principle. A consent is still required.
I was interested to hear the noble Lord, Lord Winston, making observations about the reasons for the requirement for writing. I had imagined that at least one of the purposes would be that there would be available then a clear written document which would avoid any room for dispute or doubt about whether a consent had been given. It would serve as evidence of that critical ingredient. If that is part of the reasoning, then perhaps one should not depart lightly from that requirement for writing; but if one is to depart, then I would hope that there would be available some written record of the consent which has been given, albeit given not in writing. That could perhaps be done by the authority keeping the matter as one of written record, perhaps in its register of information or by some other way. However it be done, it would seem to me desirable that there should be written evidence available to establish, either if there were dispute in the present or in the future, that the consent had been given. 813 The other matter which I would seek to raise is that the amendment has been prompted by one particular situation. One can conceive—as indeed the noble Lord, Lord Winston, said—that there can be other cases. I could not conceive that this would give rise, if it be passed, to any widespread increase in the number of cases which would come into its fold.
There are, it must be remembered, requirements other than writing for the consent, as the Act stands at present. As has already been mentioned, under Schedule 3 there is the requirement for proper counselling about the implications of the consent before it is given. That will still stand. There is the requirement that all proper information must be given to the person before the consent is given. There must also be information given to the person about the opportunities for variation or withdrawal.
If those provisions stand, it might well be thought that would give a fair indication that there has been a considered consent. It is, and would be, for the authority to be satisfied on that. If it is satisfied with those details, it may well be satisfied that the consent is a considered, conscious and deliberate one. It does not then seem to me that this amendment will open any wide door which would cause alarm, or breach any great principle so as to cause concern. The occasions upon which all these pre-conditions would be met would not, I suspect, be many.
In those few observations I have sought to avoid controversy. I would commend the proposal. I close by thanking your Lordships for the patience with which you have heard me. I shall look forward to an opportunity in the future when I may speak on a matter of greater controversy—of course still observing all due propriety and restraint.
§ 5.28 p.m.
§ Lord Moyne
My Lords, I must first apologise for missing the start of the debate. I did so owing to a miscalculation of the time that the Business of the House would take, combined with transport difficulties. I hope that the House will forgive me. It is a particular pleasure to follow the noble and learned Lord, Lord Clyde, whose maiden speech was as distinguished as one would expect from someone with a legal career and whose reasoning was both close and humane. I believe that he will be a considerable ornament to this House.
My remarks will not take long. I feel strongly that the Bill ought to pass. I do not understand the concern of the right reverend Prelate the Bishop of Oxford with numbers. I agree with the noble and learned Lord, Lord Clyde, and do not envisage there being a great problem. However, if there were a problem the answer may be that if something is just for one person it is just for many.
It is strange how much attention is being given to the issue of consent. Surely the very marriage service of the Church of England tells us that one important purpose of marriage is procreation. The fact that the deceased husband married the wife is implied consent in about as strong a fashion as one can imagine.
814 If, as some people have said, the grounds for objection are that the procedure might result in too many lone parent families there are two important answers. First, a lone parent who has taken the trouble to obtain fertilisation by her dead husband shows a devotion which is likely to recur in her devotion to the child. Secondly, there is absolutely nothing to prevent such a person getting married again when the period of mourning is over. In that case, there would be a two-parent family. Therefore, that cannot be an objection.
I also see a close parallel between the case of Mrs. Blood and that of a pregnant woman whose husband is unfortunately killed in a car crash. Should such a woman have an abortion? I should like noble Lords to think that matter over.
§ 5.32 p.m.
§ Lord Habgood
My Lords, a large part of me wishes that I could support the Bill. It is compassionate; it is designed to help a few tragic individuals; it seems strictly limited in intent; and it is the kind of Bill which immediately arouses popular sympathy. Nevertheless, I believe that it would be a mistake to change the present stringent conditions for consent, despite the fact that such cases were not envisaged when the present legislation was drawn up, as the noble Lord, Lord McGregor, reminded us.
I see two reasons for being cautious. The first concerns an issue that has been mentioned; namely, the well-being of children. The second has not yet been mentioned. It is the way in which our society understands death. The first reason for caution, which is centred on children and single parenthood, has been much discussed, particularly during our long debates on the Family Law Bill. Unfortunately, public debate on this issue frequently confuses two quite different considerations. I am afraid that our debate tonight is no exception.
One of those considerations is whether we accept the two-parent family as the ideal. If we do, it follows that we ought, in so far as possible, to avoid legislation which implies that in certain, perhaps special, circumstances it is acceptable deliberately to create a one-parent family. I stress the phrase "deliberately to create". I am not talking about misadventures; I am talking about policy. Do we want to encourage the creation of one-parent families or do we not?
The noble Lord, Lord Winston, in his opening speech, interestingly referred to the Jewish practice of Levirate marriages, which one might say was a scriptural precedent for regarding death as a particular exception to this rule. The fact is that Levirate marriages were extremely complicated and raised all kinds of problems. For very good reasons, nobody now thinks of them. Therefore, I am afraid that that was not a strong argument.
The clear policy decision of what we want to say about marriages is frequently muddled up with a completely different issue of how single parents should actually be treated. It is urged in favour of legislation that would tend to create single parents that single 815 parents may do a marvellous job; that the children of single parents may develop perfectly normally; that most of those who become single parents are such without wishing to be; and that in any case we should do nothing to denigrate single parenthood or fail to support those who find themselves in that position. Quite so—I agree entirely. But these considerations do not invalidate the ideal nor should they determine decisions about basic policy. These latter considerations are practical issues about helping people to deal with a less than ideal situation.
Therefore, my first point in relation to the Bill is that although the circumstances of some individuals may undoubtedly be tragic it would not be wise to pass legislation which would, however marginally, reinforce the tendency to believe that single parenthood is nothing but one option among others and may be deliberately encouraged by legislative provision.
My second reason for caution about the Bill concerns the way in which our society is beginning to think about death. I want to question the wisdom of trying to push out still further the boundaries of death. In saying that, I am in no way criticising the enormous success which the medical profession has had in defying and postponing death. What worry me are the pressures to deny death or to circumvent it, even when the person involved is clinically dead. As the right reverend Prelate the Bishop of Oxford told us, there are strong pressures of that kind in the United States. There in some clinics sperm is routinely taken from dead men at the request of their partners and families. It is not known whether they have been used for fertilisation, but whether they have or not—and why else would sperm be taken?—there is clearly a danger of moving into a macabre kind of culture in which the dead are clung to as though their potency was still somehow alive.
Admittedly, that possibility is already with us, given the practice of freezing gametes and embryos when proper consent has been granted. I must confess that I do not like this part of our present law, but at least proper consent for it is safeguarded by some clear, precise and relatively high hurdles. As the right reverend Prelate the Bishop of Oxford eloquently argued, it would be a great mistake to confuse that clarity and lower those hurdles even in such a modest fashion as is proposed in the Bill.
Nor do I take the argument that marriage by its very nature implies consent. It is simply not true. The Church might wish it were true when it says that one of the aims of procreation is marriage—
§ Lord Habgood
My Lords, thank you. I am getting carried away. The Church might wish it were true when it says that one of the aims of marriage is procreation. Indeed, in an earlier famous report on the family in 1958, the Bishops of the Anglican Communion said that procreation ought always to be a possibility in every marriage, even though contraception was allowed. But we know perfectly well that in our present society, that is no longer the case. There are many people who either 816 do not want to have children now or do not want to at all, even though they have taken their marriage vows.
It seems to me that if experience in the United States is any guide, there certainly will be further pressures on relaxation. There will be a succession of tragic cases, each of which pushes out the boundaries a little bit further. The HFE authority will find that its discretionary powers contain no clear guidance about where to draw the line.
It has been mentioned already that there is an irony in the whole situation in that legally, although not emotionally, death dissolves a marriage. As the noble Lord, Lord Ashbourne, said, post-mortem conception would, technically speaking, result in an illegitimate child. I know that it would not feel as though it were illegitimate or be treated as such but that point illustrates the kind of legal as well as emotional tangles which are likely to occur as soon as we start to tamper still further with the boundaries of death and the more our procedures imply that the dead are not truly dead.
Doctors can do wonderful things in preserving the living. But I hope that we shall not let them persuade us into still further attempts to preserve the potency of the dead. I am one of those who believe that death is not the end. Because I believe that, I believe that we must let the dead go in order to find them again. That is why my Christian conviction works in this instance against the attractions of immediate compassion.
§ 5.42 p.m.
§ Lord Kilbracken
My Lords, I congratulate the noble and learned Lord, Lord Clyde, on his maiden speech and my noble friend Lord Winston on his maiden Bill in this House. I wish him well with it and hope that it will quickly reach the statute book, although it may need some work in the Committee.
There are one or two small matters on which I cannot help but feel apprehensive; and I hope that my noble friend will be able to reassure me. He has reassured me to the extent that I have already crossed out about half of the remarks which I intended to make because he has given me explanations.
However, I begin by drawing attention, as did the noble Lord, Lord Ashbourne, the right reverend Prelate and the noble and learned Lord, Lord Clyde, to paragraph 3(1) of Schedule 3 of the Act which states:Before a person gives consent under this Schedule … (a) he must he given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and (b) he must be provided with such relevant information as is proper".That section still remains in force. If a donor has died, his consent is still required although under the amendment, it need not be written consent. Therefore, it appears to me that that paragraph would remain applicable, despite the amendment, and it would not be possible to comply with it. Therefore, further amendment to the Bill appears to be necessary.
Secondly, many noble Lords have expressed great concern about the welfare of the child, which I believe we all agree should be of paramount importance. My noble friend emphasises that by including it as one of 817 the circumstances which the authority must take into account. It may be no more than a drafting point but I wonder whether it is necessary to state that in the amendment because Section 13(5) of the Act states:A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth".In other words, it seems to me that the welfare of the child is already taken care of in the Act.
The case of Mr. and Mrs. Blood has been mentioned already by numerous noble Lords and therefore I feel no compunction about referring to them by name. However, perhaps my noble friend will give us some more information about their case. We know that the couple had been married, happily we believe, for a considerable period—seven or eight years—and yet no children resulted. Will my noble friend tell us why there was reason to hope that artificial methods might be effective despite the failure of normal intercourse and/or assisted intercourse, if I may so call it, assuming that that has been used?
As it is, any resultant child would inevitably suffer the extremely serious handicap—and I believe it to be a serious handicap—of never having a father. The mother's expectations of remarrying if, in the fullness of time, she wished to do so, could only be diminished. There are cons as well as pros in the case.
§ 5.47 p.m.
§ Lord Walton of Detchant
My Lords, I am sure that the whole House is grateful to the noble Lord, Lord Winston, not least for bringing this difficult and sensitive issue to debate today based upon the Bill which he has introduced into your Lordships' House. I wish to join in congratulating my noble and learned friend Lord Clyde on his quite outstandingly persuasive and thoughtful maiden speech. I trust that we shall hear from him on many more occasions.
In a lifetime of medical practice, I have become increasingly aware of the fact that medical ethical problems continue to develop and emerge. They are ethical problems which one had never considered as likely to arise when one thought about certain specific situations. I was involved personally to a considerable extent in many of the debates in your Lordships' House on the Human Fertilisation and Embryology Bill some years ago. I agree with the noble Baroness, Lady Warnock. I too thought that the situation which is the subject of our debate today was one that I personally did not envisage as being likely to arise.
Having said that, I am sure that there can be no question that, under the law as it stands at present and under the Bill which became an Act when it finally received Royal Assent, the courts had no alternative but to refuse to Mrs. Blood the use of the sperm taken from her dead husband because that Act is quite explicit in saying that in such circumstances involving issues of human fertilisation, embryology, in vitro fertilisation and artificial insemination, the written consent of both partners is required.
818 As the right reverend Prelate the Bishop of Oxford said, informed consent is at the core of medical practice. When a doctor and a patient meet, it is the doctor's duty and responsibility to advise that patient what measures he or she feels are appropriate to the management of the patient's condition. But it is up to the patient to determine whether or not that advice is accepted. However, there are few circumstances when that informed consent has to be given in writing. It has become a convention—this was referred to in passing by the noble and reverend Lord, Lord Habgood,—that in the case of an individual who is assessed by medical expertise as being brain dead, it is proper for the next of kin of that individual, after considering all the relevant circumstances, to give permission for the respirator to be turned off and to allow the patient's heart to stop shortly afterwards. In those circumstances, subject to the advice and permission of the next of kin, it has then been accepted conventionally that it is proper to remove organs, for example the cornea, the kidneys, the heart and lungs, for transplantation. Of course, many individuals in the world today and in this country carry with them cards which give a clear indication that they wish, should they die, for their organs to be removed for transplantation purposes if the organs are regarded as suitable for that.
I understand from today's debate that it is the legal interpretation of the Human Fertilisation and Embryology Act that the informed consent of the next of kin may not extend to the removal of gametes, either sperm from the reproductive tract of the male or ova from the female. I should wish to be sure that that is the legal advice which our lawyers have given, and that the Minister can confirm that is the case. I am not certain that my interpretation or reading of the Act is correct in that regard, but I am not a lawyer. It is important that that point should be clarified.
However, it has also been a strong convention that any operations upon the reproductive organs of male or female, including vasectomy in the male or sterilisation in the female, must be carried out only with the consent of both parties. That, I hope, we totally accept. However, my understanding is that no one ever requires a man presenting himself for vasectomy to give that consent in writing. I believe that a woman is perfectly entitled to give consent to sterilisation, once the partner or husband has given that consent, without it being in writing. Those other issues have become a common part of medical practice. It is therefore important that we should consider carefully whether it is right and proper, in the light of all these circumstances, to seek to amend the Human Fertilisation and Embryology Act in order to allow—as the noble Lord, Lord Winston, suggested in his opening speech—that gametes removed after death from a male or female subject might subsequently be used with the consent of the other partner. Of course in the future—who knows?—people may be asked to include in the cards they carry offering the right to transplant their organs a provision for transplantation of material from their reproductive organs. That is not feasible at the moment, but it may well occur in the future.
819 This amendment is carefully and sensitively phrased. I share the views of the noble and reverend Lord, Lord Habgood, on the crucial importance of marriage and the family. Nevertheless, I accept that there are special and specific circumstances in which it is proper for the welfare of the child to be born that a single parent may be allowed to have a child. I believe this should be the exception rather than the rule. The amendment before us gives authority to the Human Fertilisation and Embryology Authority in specific and special circumstances to give permission, which need not be in writing provided it is the wish of the other partner in such a relationship, for artificial insemination using for example, as in the case of Mrs. Blood, the sperm taken from her dead husband.
On another issue entirely, I had the privilege of being the Chairman of the Select Committee on Medical Ethics in your Lordships' House. Among other issues, we considered the role of advance directives. We also considered a principle of substituted judgment. Is that a principle—which of course is not hallowed in law, but nevertheless has in many circumstances been hallowed in practice—that consent, which may not necessarily be given in writing, can be given by one individual, such as the next of kin, based upon the views of the dead partner or the incompetent partner expressed during life, or at a time when they were competent, upon what they would have wished to see happen to them if they became incompetent, or, subsequently, if they were no longer alive? This is a situation in which that issue of substituted judgment should be carefully considered.
The principle underlying this amendment—bearing in mind the crucial importance of the welfare of any child to be born if this procedure were to be allowed—is one that I would wish to support and commend to your Lordships' House. I accept that there may well be technical and legal problems. As the noble Lord, Lord Ashbourne, said, some amendment may be necessary to this Bill if it is to become law. However, I do not believe that it is beyond the wisdom and authority of your Lordships' House to see that this particular problem is dealt with effectively and sensitively, as the noble Lord, Lord Winston, would wish.
§ 5.57 p.m.
§ Lord Meston
My Lords, the report of the committee chaired by the noble Baroness, Lady Warnock, was properly cautious about posthumous insemination and pregnancy. The report stated at paragraph 4.4 that a man who has placed semen in a semen bank may die and his widow may then seek to be inseminated. This may give rise to profound psychological problems for the child and the mother. The report states at paragraph 10.9 that the use by a widow of her dead husband's semen for AIH is a practice which we feel should be actively discouraged. Despite our own views in this matter we realise that such requests may occasionally be made. It is obviously essential that there should be some finality for those administering estates of deceased persons since in such cases posthumous fertilisation could cause real problems of inheritance and succession. Account would have to be taken of issue who might be born years after the death.
820 In the White Paper of 1987 at paragraph 59 the Government shared those sentiments. However, it is significant that the Government declined to prohibit by law a widow attempting to have a child by use of sperm or embryo stored before her husband's death. However, the discussion in the Warnock Report and in the White Paper did not really consider the question in the context of the requirement of effective consent which became an important part of the legislation which was enacted in 1990.
At the Committee stage of the Human Fertilisation and Embryology Bill, as it then was, on 8th February 1990 I moved an amendment concerning embryos which proposed that consent as to future use and storage should cease to be effective in the event of one of the persons giving consent suffering death or legal incapacity. That amendment sought to give effect to paragraphs 10.11 to 10.13 of the Warnock Report, which were concerned with embryos rather than gametes. The noble and learned Lord, the Lord Chancellor responded to that amendment by pointing out that effective consent could extend to the use of embryos after death. That debate was more particularly concerned with embryos; this amending Bill is concerned primarily with gametes.
If the Bill is passed, it will be entirely consistent with the intention of 1990 Act that there must be effective consent and that such consent could extend beyond death. The child produced will still be produced as the result of the considered decision of two living, competent adults exercising the basic right to found a family. The Bill addresses the situation whereby what intervenes to defeat that decision is not infertility but the supervening death or incapacity of one of the parents. The Bill will simply mean that the absence of written consent alone will not frustrate that considered decision. The purposes for which consent is required will still be met by the unwritten consent—the purposes being to ensure the lawfulness of the treatment provided and to avoid evidential difficulty in establishing parentage.
There may well be a stronger case for requiring writing where it is the gametes of a third party that are to be used. But in the case of a married couple it is surely absurd to make the requirement of writing a means of defeating their agreed intentions. It is ironic that a third party's posthumous donation would be all right provided it was in writing.
I do not see the Bill as opening any sort of floodgate. One has only to look at its terms. First, the authority will retain a duty and a discretion to decide whether it is reasonable in all the circumstances to waive the requirement of written consent. Secondly, and importantly, there must still be reliable evidence of consent. There may be only a few cases where there is sufficient evidence of consent. Consent is not the same as acquiescence. Consent will not be inferred where the evidence amounts to no more than an indication that the deceased did not object or would not have objected. Those points were made in a slightly different way by the right reverend Prelate, the Bishop of Oxford. However, with respect to him, I suggest that it is perhaps wrong to prejudge the quality of the evidence in the 821 particular case of Mrs. Blood or to predict the outcome of her case if the Bill was in fact law. Indeed, her case is still sub judice.
The further point to remember is that there is Section 13(5) of the 1990 Act, about which a very great deal has been written and said, not all of it entirely complimentary. Section 13(5) of the Human Fertilisation and Embryology Act 1990 requires clinics which offer assisted reproduction, before offering treatment to a woman, to take account,of the welfare of any child who may be horn as a result of the treatment (including the need of that child for a father), and of any other child who may he affected by the birth".That allows, indeed requires, consideration of the suitability of the proposed parent. It may be that, in the situation that we are considering and if the Bill is enacted, those considerations will be more difficult in the case of supervening incapacity than in the case of death.
People in the situation faced by Mrs. Blood and others who may come after her face enough obstacles. As a widow, she is not barred from conceiving a child by another man whom she never sees again. She is not barred as a single person from seeking adoption. This Bill seems to provide a modest improvement to the law to meet a situation that was not entirely foreseen in 1990 and to deal with it in the context of the 1990 Act. To prevent the Bill becoming law would allow there to continue to be unnecessary regulation of husbands and wives.
The concern of the BMA is a proper concern. It has been echoed by previous speakers this evening. It is that not only is there a requirement for consent, but there is a requirement for counselling. I hope that whether in the form of this Bill, or in guidance to the authority, there will be situations provided for to allow flexibility so that not only the requirement for written consent is waived but also the requirement for formal counselling. I hope that the Bill passes into law, and as quickly as possible.
§ 6.6 p.m.
§ Lord Rix
My Lords, first, I must apologise to the noble Lord, Lord Winston, and to the House generally for my late arrival. Unfortunately I was out of town on MENCAP business and the weight of traffic held me back. For once I was glad to be a later speaker.
I wish to support the noble Lord, Lord Winston, simply because I agree with him. I have no expertise in this area, and neither my former profession nor my role in MENCAP gives me any standing in this delicate personal issue.
I recognise the hazards in proposals for legislation which might seem to be of the "town clerk's pension Bill" kind in so far as they relate to the circumstances of a particular case and the interests of a particular person. However, the noble Lord's modest Bill is clear in its purpose and does not threaten wider repercussions of a kind not intended by the draftsman. Moreover, it contains all those safeguards for which one might look in this sensitive area: the requirement of "reasonableness in all the circumstances"; and the test of "the welfare of 822 the child" that might result. Moreover, the underlying concept is still one of consent. What is waived, in exceptional circumstances, is a requirement for written consent.
Since the noble Lord and others bring expertise, I am content to argue this matter from a lay point of view. As I see it, we are concerned to secure, as the frontiers of scientific possibility are shifted, that science is kept in touch with nature. Given what is theoretically possible either already or at some future date, we want to keep as close as we can to the ideal of a child being born as a result of a loving relationship between a man and a woman, and subsequently nurtured by that man and that woman.
I shall not be side-tracked into exploring the naturalness or otherwise of the huge range of other possible relationships and situations, or indeed into the equally controversial area of the relative priority between spending money on helping people to have babies where they might not otherwise have them, as opposed to spending money on sustaining life and improving the quality of life. I want to focus on the simple issue of a woman, now a widow, wanting to have her husband's child. As a family man, whose marriage has been a long and happy one (despite all the hazards of "theatrical marriages"), I can empathise with someone whose marriage was cut short but who wants to fill a void with her husband's child. That does not seem to me to be unreasonable, or unnatural, even though it has only recently been made medically possible.
I do not know whether your Lordships are well versed in the Book of Ecclesiasticus in the Jerusalem Bible, but those who are (certainly the right reverend Prelates on the Bishops' Benches) will recall Chapter 30, verse 4:Even when the father dies, he might well not be dead. if he leaves his likeness behind him".Surely we cannot deny the late Stephen Blood that vision of immortality.
§ 6.9 p.m.
§ Baroness Warnock
My Lords, I wish to support the modest proposal contained in the Bill. Your Lordships have heard that there are, and may in future be, a few cases where the provision of joint written consent for the use of sperm by a recent widow has been made impossible by the sudden incapacity of the husband before his death. However, all the circumstances suggest that it would have been his wish that a posthumous child should be born.
I wish in some degree to put the record straight about the deliberations of the committee of inquiry, which reported in 1984. The report was largely incorporated in the 1990 legislation. That committee considered the possibility of the posthumous use of frozen sperm by a widow and decided that, while its use should not be encouraged, within certain time constraints it should not be prohibited. We in the committee advised that written consent from both parties should have been obtained, because we had in mind a particular case where a couple would be treated together as a couple where they might wish sperm to be frozen before surgery in case the 823 husband either became infertile or died. The husband and wife were treated together as a couple in such a case.
We did not consider the case of a man who fell ill unexpectedly and from whom sperm might still be obtained during his illness. We did not know of any such procedure at that time, although I believe that it existed. However, I deeply regret now that we did not consider it. If we had, our attitude to a posthumous birth would probably have been the same: namely, that it should not he actively encouraged but, more important, it should not be a criminal offence. I believe that we would have seen the argument for sometimes waiving the written consent requirement, provided that the other requirements were satisfied, especially the general requirement already in the Act that the good of the potential child should he paramount.
A great deal has been made, rather to my surprise, of the second condition that would not be able to be fulfilled in the case of the sudden and unexpected death. That is the condition of counselling. I have a block about the necessity for counselling. The words of the committee of inquiry which were later incorporated into the Bill would never have been my words. People forget that the chairman does not write the report but sometimes has to go along with the views of other members of the committee.
I would regard counselling as desirable perhaps in some cases, but the notion that it should be mandatory to counsel someone who wanted to lay down in writing that he would like to have a posthumous child, should the situation ever arise; or that he should be counselled when, in conversation with his wife, he said that he would like to have a posthumous child if the situation arose, seems to me bizarre. I hope that too much would not be made of the absence of counselling in the case of someone who died unexpectedly and in an unforeseen way.
But, lying behind the details of the arguments about the Bill, somewhere there lurks the feeling that it could never be in the interests of a child to be conceived after the death of its father. I find that proposition difficult to articulate because the child does not yet exist, so it does not have an interest. However, noble Lords will understand what I mean in saying that there are people who think that for a child to be conceived after the death of the father must always be a disaster.
The issue here is not whether that conception is a good or an evil. It is whether such a conception can be permitted without the written consent of the parents. That is why I speak of the objection to posthumous children lying behind the arguments that turn specifically on the question of consent and counselling. I cannot believe that anyone supposes that any posthumous birth is immoral. Being a posthumous child myself, I probably would not think that a posthumous birth was immoral. Therefore, I believe that there is no intrinsic reason why an "assisted" posthumous birth—one that would not have been able to take place before the freezing of sperm was possible—should be intrinsically immoral, if a posthumous birth itself is not immoral.
825 The supposition that it is particularly bad deliberately to bring into the world a posthumous child carries the implication that there is something wrong with posthumous children. Otherwise, I cannot see what the difference is between allowing that posthumous children may be born and deliberately assisting the birth of a posthumous child. That is the point at which I find it difficult to follow the argument. It would be a natural consequence that if one believed that posthumous children should not be allowed, it would follow that a mother who was pregnant with a child when her husband died should be counselled in order to ascertain whether she would like an abortion.
I believe that there is nothing special about the deliberate bringing into existence of a posthumous child, nothing especially dangerous or wrong with that deliberateness, provided that the child will be born, if it is born, in favourable circumstances. I do not believe that we ought to accept the presupposition that being the child of a single parent is the worst fate that can befall a child and therefore it cannot be right deliberately to cause such a child to be born. Once again, we must notice that to cause such a child to be born is already permitted in law. The sole issue is whether written consent and counselling has been obtained.
It is difficult to predict how his life will be when the child is born. The father who gives consent to the posthumous child by the use of his sperm, should he die, must guess that it will be all right for the child. It cannot be more than a guess. But we would all agree that the most important points for a child are, to quote Tennyson, that he should be the object of admiration, hope and love. There are many cases where that is the kind of environment in which a posthumous child may grow up. His father, though not present, will be held up to him as an object of love. The father will not be the visible and existing father that everyone would wish; but the child will be the visible and existing sign of the love that his parents bore towards each other. That is the essential of the family. The child will be the hope for the foreseeable future.
I argue that if those circumstances seem to the Human Fertilisation and Embryology Authority likely to surround the child, if he is born, then it should have the power to allow the insemination of the widow, within the existing legal time limits, even though there is no joint written consent and there has been no counselling. The authority will be guessing about the good of the child and it will doubtless be cautious in using its power. But, as I have suggested, guesswork about a child's future is not at all uncommon.
Finally, having argued that there is nothing intrinsically immoral in permitting and indeed assisting in the birth of a posthumous child, I also argue that in the Bill there is nothing that would set public policy in a new undesirable direction. Here I should like to take the opportunity to say that I agree with what was said in the maiden speech of the noble and learned Lord, Lord Clyde, to which I listened with enormous admiration. I agree that this is not a public policy issue. I must regretfully disagree with the noble and reverend Lord, Lord Habgood, who suggested that if we allowed this Bill to go through we would signal a belief that one 825 parent was as good as two parents. I feel that if anything this Bill, if passed, would be a signal of our belief in the power of love in looking after a child in a family rather than that one parent is as good as two.
I do not believe that there would be a great rush of new cases to come before the authority. I suppose it goes without saying that no one would choose to have a posthumous child from frozen sperm rather than have a child in the ordinary way with the father still alive. I do not believe that the number of cases likely to arise, and certainly not the number of cases likely to satisfy all the criteria that the authority would have to use, would be very great.
So I believe that there is no moral objection to allowing this slight flexibility in the powers of the authority, nor do I think that it constitutes a public policy issue. For those reasons, I very strongly support the Bill.
§ 6.21 p.m.
§ Lord Kennet
My Lords, I speak in the gap and do so reluctantly because I had hoped that my point would have been made earlier. As it has not been made, I take a moment or two to detain your Lordships with it. It concerns the position of the HFEA in this amending Bill.
The Bill has been precipitated by an extremely famous case, described most eloquently by my noble friend Lord Winston. It is known to the entire British people, and widely abroad. I believe that there is nobody present who would not wish that the law should permit Mrs. Blood to have the child that she desires. However, the Bill will not only affect the Mrs. Bloods of this world. It will affect a very large class of persons, the probity, the veracity, and so on, of whom will vary widely.
Let us consider the enormous spread of people concerned. To begin with, the Bill affects women as well as men. It affects donated ova and, if they are to be used for procreation, that automatically involves three people at once; namely, one dead party and two living parties. That is considerably more complicated than the case we have been considering so far of two people: one man and one woman. I confess that I have not had the time to think through the ethical ramifications of that. However, the HFEA would be required under the Bill to think out the ethical ramifications, and it might be that the evidence would be contested in easily imagined and very complicated ways.
I was struck by what the right reverend Prelate the Bishop of Oxford said about young men in car crashes at night. Young men do drive about rashly late at night. Typically they are young men who have not yet had families and who look forward to having families. Typically also they are young men who have girlfriends or young wives. Let us imagine a case in which such a young man is killed and his wife is present or arrives on the scene immediately, calls for a doctor and says, "Quick, quick, we need the sperm." Those are unpleasant imaginings but the law is the law. My noble friend corrects me. Then let us assume that the matter can be left until the next day. Let us also assume that at the same moment another young woman disputes the evidence that the young man truly wished to have a baby with the first young woman to appear, and not with her.
826 That places the HFEA in a judicial situation. It lays upon it a duty of obtaining evidence, which may be difficult and complicated. At this point I should say that I am in no sense speaking on behalf of the HFEA and that these are just considerations which appear to me rather obvious. There will be emotional urgency even if there is no physical urgency, and telephone calls in the middle of the night will not be unexpected. Is the HFEA to be staffed to remain open all night to take such telephone calls? That is a practical point.
I should like to make one general observation. If this Bill fails—I do not know whether it will fail; indeed, I do not know whether or not I wish it to fail—it will not have been in vain, because it will at least have procured a much wider knowledge among men, and women, of the desirability of writing their wishes down sooner, rather than leaving it too late.
§ 6.26 p.m.
§ Baroness Robson of Kiddington
My Lords, I am grateful to the noble Lord, Lord Winston, for introducing this Bill of amendment to the Human Fertilisation and Embryology Act. He told us that we should not make a change in the law because of one case, and that is quite right. But he also told us of some of his experiences in the past.
Inevitably, in what we say today we are all influenced by the case of Mrs. Blood. But that is not to say that we want the law changed purely for that reason. My noble friend Lord McGregor said that he was speaking not as a doctor or a lawyer. Neither am I a doctor or a lawyer. But I am a woman and that is very important.
When I first saw the list of speakers, I was astounded not to see more contributions from the women in this House. So far we have heard only from the noble Baroness, Lady Warnock. She, of course, had to contribute to this debate. We all admire her for her work in the late 1980s and up to the introduction of the Act.
As a woman, I feel that I can have a rapport, perhaps on a different level, with Mrs. Blood and other women who are faced with that kind of choice. I have been a widow for a great number of years. I was lucky to have children and I even have eight grandchildren. Every time I see one of those children or grandchildren I see part of my husband. That is what is important. And it is important that we should enable Mrs. Blood to have that experience, though obviously in a different way because her husband will not be there to enjoy it with her. But we owe it to her nevertheless.
I want to go back and talk a little about the intention of the Bill when it was first introduced. During the Second Reading debate in 1990 in another place, the Government indicated that they intended the Human Fertilisation and Embryology Authority to be able to act independently and to use discretion. In that debate the Government stated:The code of practice of the authority will have to be submitted to the Secretary of State and laid before the House, but some independence in medical and scientific matters is in the interests of Parliament and the Secretary of State".—[Official Report, Commons, 2/4/90; col. 919.].827 So the intention was always that there should he a certain amount of independence allowed to the authority.
That is particularly relevant in Mrs. Blood's case. That must have been in the mind of the chief executive of the authority when she was telephoned by Professor Cooke of the Infertility Research Trust and gave her agreement that the semen of Mr. Blood could be stored. I believe she acted as I would expect the authority to act—compassionately. She may have been wrong, but in my view it was the right thing to do. The permission that she gave must have given Mrs. Blood great hopes that she would be able to carry her husband's child. The subsequent refusal by the authority must therefore have been doubly devastating for her.
Much has been said about the necessity for consent to be in writing. It is obviously desirable that it should be obtained, and it is extremely important that it is obtained if a third party is involved. But this situation did not involve a third party. The consent was given, albeit not in writing, in the way that the couple lived their lives prior to the husband's death. The wishes of both Mr. and Mrs. Blood were well known.
There is an additional safeguard in the case of Mrs. Blood—I am sorry to use her case to such an extent, but it is important to enable us to look at any amendment of the Act as it stands. As I understand it, the parents of both Mrs. Blood and of her husband are fully supportive of her request. We know in modern society how much family life has lost because of the dispersal of children from parents and grandparents and how important is the extended family. Mrs. Blood will be a single mother. However, she has the support of the whole of her family and that is extremely important. Also, the decision not to allow Mrs. Blood to use her husband's sperm is a refusal to give effect to their simple vows in the marriage ceremony; that is, that marriage is for the purpose of the procreation of children. In that case the law has proved itself to be both uncaring and bureaucratic.
Another consideration in these cases is the future of any child which may result from the procedure. There has been no suggestion that there is any threat to either the embryo or the mother. Mrs. Blood herself has been counselled and fully understands the responsibilities she will be taking on if she is allowed to go ahead in her attempt to carry her husband's child. As I said, additionally, she has the support of her extended family.
The BMA wrote to my noble friend Lord McGregor on 3rd December and agreed that the principle of consent need not be in writing if it could be demonstrated in another way. In other words, it is saying that it is not necessary for consent to be in writing if it can be proved that consent was given in some other way. However, it is concerned that no guidance is given in the Bill as to what circumstances may lead to the waiving of the need for written consent. I agree that, as it stands, the Bill could widen the possibilities too much. But this is the Second Reading of the Bill. Subject to this House giving it a Second Reading, we have the whole of the Committee stage to include the safeguards that noble Lords or bodies like the BMA wish to include. I sincerely hope that, with that in mind, this House will agree to give the Bill a Second Reading.
§ 6.36 p.m.
§ Baroness Jay of Paddington
My Lords, I too thank my noble friend for introducing this simple Bill which seeks to resolve a complicated and difficult issue. By bringing the Bill before your Lordships and by what he said, my noble friend again demonstrated that his scientific and clinical brilliance in the field of human fertilisation and embryology is matched by his deep human concern about the legal and ethical human problems involved. I congratulate too the noble and learned Lord, Lord Clyde, on his maiden speech, which seemed to combine great clarity and persuasiveness with an admirable lack of controversy. I am sure that we shall hear from him often in the future.
Your Lordships will understand that, although I speak tonight from the Front Bench, I speak in a personal capacity. This is a subject on which it would be inappropriate to take a party political position. But in my personal capacity I fully support the aims of the Bill for the reasons so cogently argued by my noble friend in his introduction and by several other speakers.
Mrs. Diane Blood's tragic circumstances which prompted this measure have been well explained, and I am convinced that the interests of the child, which must be paramount, would be upheld if she were able to fulfill her personal wish to have a baby. However, as many noble Lords have said—indeed, the noble Baroness, Lady Warnock, confirmed—Mrs. Blood's case raises general questions not foreseen when the committee of the noble Baroness, Lady Warnock, was deliberating and during the passage of the 1990 Bill. Frankly, that does not seem to me as a lay person particularly surprising. I would expect that technology in a field such as this would be almost bound to outstrip legislation. But the general arguments for looking with favour on the legal implications of the exciting therapeutic advances illustrated by Mrs. Blood's case have been well made in the debate. It is not necessary at this stage of the debate, particularly following the extremely helpful and powerful contribution of the noble Baroness, Lady Warnock, to repeat any of those arguments in detail.
My concern is primarily one developed by the noble Baroness, Lady Robson of Kiddington, and I should like to follow her on some of her points. The points I wish to raise concern Parliament being forced to return to primary legislation each time any advance in technology or medical practice makes another therapy possible. It is that concern that we have to revisit these issues in this way which makes me uneasy—though I wholeheartedly support my noble friend's Bill. In other words, I wish we were not starting from here.
It has always been my understanding that the Human Fertilisation and Embryology Authority, which, as the noble Baroness, Lady Robson of Kiddington, explained, was established in 1990, had the specific responsibility to deal with such questions as are now the subject of my noble friend's Bill. In many debates in your Lordships' House and other discussions it has been that understanding of a delegated authority to a well qualified and authoritative organisation that has made people like myself enthusiastic about the unique system 829 of regulation in reproductive technology that the HFEA has been supposed to represent and, as I say, is unique in the world.
This view was expressed again on 30th October by my honourable friend Ms. Tessa Jowell in another place, when she pointed out that one of the explicit purposes of the original Bill was to remove from the political domain the responsibility for decisions on such matters. Like the noble Baroness, Lady Robson, my attention has also been drawn to the Second Reading debate in another place on the 1990 Bill and, like her, I would like to quote an extract. This is from the speech of the then Secretary of State for Health, the right honourable Mr. Kenneth Clarke. He said:It has been argued that, rather than having a completely independent authority, Ministers should be responsible for these matters"—the matters which might be the responsibility of the HFEA—We decided against that, because it would place Ministers and the House in a permanent difficult position if, as a semi-political issue, it was said that Ministers should take this or that view on medical or scientific matters".—[Official Report, Commons. 30/10/96; col. 600.]Today it seems that the HFEA is not happy to exercise discretionary powers. As its chairman has insisted throughout the discussions about Mrs. Blood's case, the authority can only act within the strict letter of the law, which I feel has been extremely narrowly defined and it has been defined by whatever the particular circumstances may be.
However, I believe that we have a difficulty about the anomaly to which the noble Baroness, Lady Robson of Kiddington, has already referred in the case of Mrs. Blood, in that it is clear that the HFEA exercised discretionary powers about the storage of Mr. Blood's semen, even though it had no written consent, as the law technically requires. My attention has been drawn to the note of the conversation between Ms. Goldhill, who was then the chief executive of the HFEA, and Professor Cooke of the Infertility Research Trust. In the note Ms. Goldhill actually wrote:The current situation was so traumatic for the wife"—that is, Mrs. Blood—in that the decision to turn off the life support system would he made in the next few hours that it would appear uncaring and unnecessarily bureaucratic to insist on the provision of proper legal consent at this time".The authority now says, of course, that Stephen Blood's sperm was stored illegally. I would agree wholeheartedly with the noble Baroness, Lady Robson of Kiddington, in saying that the original decision by Ms. Goldhill, which she clearly felt sufficiently confident to record in writing, was the right one and the proper exercise of discretion. So perhaps it would be more helpful in the long term both for patients and for Parliament if the Department of Health could initiate discussions with the HFEA about the precise understanding that the Government have and the HFEA has about the scope of its authority and the boundaries of its discretion. As I said earlier, it seems to me to be more appropriate to pursue that course rather than to 830 face the possibility that Parliament will have to return continually to amending legislation to deal with unforeseen individual cases or unforeseen technical advances.
Returning to the specific provisions of the Bill, I would like to deal briefly with the point which has been made by several noble Lords about the central issue of trying to deal with the special status of genetic material and the impact of that specific status on consent, whether written or otherwise. My noble friend Lord Winston pointed out that what one might, I suppose, describe as ordinary organ donation can take place without written consent, and the noble Lord, Lord Walton, developed that point convincingly. They both implied on the same basis that to deny donation of sperm from husband to wife was unacceptable.
My instinct is to agree with that argument—that consent in writing is not necessary—but I am a little concerned, as were several noble Lords who raised the matter, that the Bill as drafted does not contain positive proposals about what kind of consent is acceptable in the circumstances described. This point has been raised in the context of the BMA's decision that some other demonstration of proof of consent should be provided if written consent is deemed unnecessary. As several noble Lords have said, the BMA feels unable to support the legislation in its present form without that more positive proof; and, like other noble Lords who have spoken, particularly the noble Baroness, Lady Robson of Kiddington, at the end of her speech, I feel that that is an issue to which it would be legitimate to turn in Committee if your Lordships give the Bill a Second Reading.
It would be helpful, when the Minister replies, to have some indication from her of the Government's attitude to later stages of the Bill. I am sure that there will be, as there always is on a Private Member's Bill, departmental concern about the exact terms of my noble friend's proposals. But it would be encouraging if the Minister could say that the spirit, if not the letter, of the Bill is acceptable. As my noble friend said in introducing the Bill, he would be delighted to have official help with the form and wording of his proposals.
I agree with my noble friend Lord Winston that Parliament's overall general intention should be to strengthen the role and authority of the Human Fertilisation and Embryology Authority. I hope that the Government will accept that, by giving this Bill a fair wind, they would be helping to achieve that.
§ 6.46 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)
My Lords, I am grateful to the noble Lord, Lord Winston, for bringing this matter to the attention of your Lordships' House. I am sure that like me no one in this House today could fail to be moved by the sad and tragic case of Mrs. Diane Blood. As other noble Lords have said, we deeply sympathise with the loss of her husband and respect her courage and determination.
As I understand that Mrs. Blood will be taking her case to the Court of Appeal early in the new year, I am advised that the rest of my remarks must be confined to 831 general issues. Before I do that, I should like to congratulate the noble and learned Lord, Lord Clyde, on his maiden speech. It was fluent, perceptive, informed and authoritative, a speech which clearly shows the noble and learned Lord's distinguished and impressive career. We look forward to hearing more from the noble and learned Lord in the future on more controversial issues, although I find it hard at this moment to identify them.
I should like to begin by setting out very briefly the background to the Human Fertilisation and Embryology Act 1990. That Act sets out the framework within which the Human Fertilisation and Embryology Authority, as well as clinicians, have to operate.
Fourteen years ago—in 1982—in the light of concerns about techniques such as in vitro fertilisation and the use of human embryos for research, the Government asked the noble Baroness, Lady Warnock, to chair a committee of inquiry. The committee's recommendations were published in 1984. There followed a consultation period. In 1986 the Government issued its own consultation paper and, a year later, a White Paper which formed the basis of the 1990 Human Fertilisation and Embryology Act.
There are two important things to note about this process: first, the remarkably high level of public consultation; and secondly, that the Act itself was passed on a free vote, after lengthy debate in both Houses. It was the first such comprehensive piece of legislation in the world and provided the parameters within which, as I have said, the HFEA operates.
I share the view of the noble Lord, Lord Winston, that the authority has a difficult task in carrying out its duties under the 1990 Act. Parliament has charged the authority with responsibilities which require very careful judgment—judgments which inevitably arouse strong emotions. I believe that the authority has carried out Parliament's wishes in an exemplary manner and I pay tribute to Mrs. Deech and her colleagues.
The noble Baroness, Lady Jay of Paddington, raised the issue of the necessity of primary legislation to keep pace with medical advances. That is a serious issue. It is one that needs to be addressed, but perhaps on another day. Both she and the noble Baroness, Lady Robson, implied that the HFEA has no room for discretion. But the authority does have some discretion under the terms of the Act. It can issue directions where the Act says it can. But the Act does not allow discretion to waive consent in writing, which has been the burden of a good deal of the debate today.
One key requirement of the 1990 Act is the need for consent to be in writing for the storage and use of gametes. Over recent weeks there has been a good deal of public discussion as to whether these existing provisions reflect current clinical and lay opinion. The Government's role is to ensure that these issues are debated fully so that all the implications are properly weighed before changes are proposed. I have listened carefully not only to the noble Lord, Lord Winston, but to my noble friend Lord Moyne, the noble Lords, Lord Kilbracken and Lord Rix, the noble Baronesses, Lady Robson and Lady Jay, and indeed other noble Lords 832 who support the Bill. However, it is my view and that of the Government that any possible changes should not be undertaken lightly or without the same full and careful consideration which was given to the framing of the original Act. For that reason the Government propose that there should be an examination of these issues. We do not think that all the provisions of the 1990 Act require reconsideration. However, we think that the time is now right, especially in the light of your Lordships' debate and the national debate, to look at the specific requirement for consent to be in writing and the potential implications for the remainder of the 1990 Act; and, if relevant, other legislation relating to medical interventions.
We will set out in due course how we intend this review to be carried out. Both this and the timing will require careful consideration. What I can say is that in taking forward the review we will seek the views of interested parties to ensure that all the issues are properly explored.
The noble Lord's Bill has been brought forward with, I know, the best of intentions to respond to the distress of a particular woman and to ensure that other women are not put in a similar situation. The effect of the Bill would be to provide a very wide discretion to the HFEA to waive the requirement under the Act for written consent for the use of human gametes; that is, both male sperm or female eggs. It would also enter entirely new territory by making provisions on the taking of gametes. I shall outline some of the concerns that we have with the Bill.
Our first and perhaps important concern is the question of consent. It is one which clearly disturbs many of your Lordships and is a fundamental matter. The Act itself contains a number of important provisions: the underlying theme throughout is the importance of consent by the people involved in the various procedures and, to quote the report of the noble Baroness, Lady Warnock, the need for "fully informed consent". The noble Lord, Lord Winston, asked whether the posthumous use of sperm was discussed in the original Act. It was in Section 28(6)(b) and aspects of Schedule 3 to the 1990 Act which dealt with issues relevant to the posthumous use of sperm. As my noble friend Lord Ashbourne said, it was also addressed in the report of the committee of inquiry. The noble Lord's Bill does not seek to remove the need for consent, but, as the noble Lord, Lord Meston, advocated, to remove the need for it to be in writing.
I share the concern of the right reverend Prelate the Bishop of Oxford and other noble Lords as to how such consent could be given where, in the circumstances mentioned in the Bill, the person providing the gametes is either incapacitated or dead. Is the consent going to be provided by someone else; and if so, who would be able to do that? This issue was also addressed by the noble Lord, Lord Walton, and I believe it needs further thought. For as your Lordships will be aware, English law does not recognise the concept of "substituted consent" whereby one adult may give consent on behalf of another who is unable to do so due to incapacity. If an adult is unable to consent because, for example, he 833 or she is unconscious or otherwise incapacitated, then any medical intervention is governed by the concept of "the best interests of the patient".
There are other important safeguards in the Act to ensure that the consent is fully informed and that the use of gametes is fully in accordance with the person's wishes. These include the requirement to specify the maximum period of storage for the gametes if that is less than the maximum statutory storage period. The consent must also specify what is to happen to the gametes should the person who gave the consent subsequently die or is unable because of incapacity either to vary the terms of consent or to revoke it.
The noble and learned Lord, Lord Clyde, has offered us some fruitful avenues to explore concerning these issues. As the noble Lord, Lord Winston, said, there is a requirement for an opportunity for counselling, as well as relevant information, to be provided before consent is given. That is most important because it provides an opportunity for the person whose gametes are to be used to consider all the implications of the proposed course; namely, to create a new human life with all the responsibilities that that entails. The Act requires counselling to be offered to both where they are to be treated together.
If a person other than the person providing the gametes is to give the consent, should this be restricted to the partner of a married or unmarried couple, or relatives? Should the doctor or other health professional give consent; and what if the relatives disagree about the incapacitated person's wishes? The possibilities are numerous and illustrate the complexity of amending the legislation.
A further consideration is timing, an issue addressed by the noble Lord, Lord Kennet. Under the provisions of the noble Lord's Bill, what is to happen to the incapacitated, or even dead, person while a partner seeks the views of the authority as to whether the gametes may be taken and whether the requirement for written consent to the use of his or her gametes may be waived? Apart from my concerns about taking gametes from people without their consent—and I shall come on to this point in a moment—I am disturbed by the thought that people who are clinically dead may be kept on life-support machines for an undefined period while these questions are considered, or that such decisions may affect the treatment they receive in some way.
The noble Lord's Bill also includes a reference to the provision of gametes. The taking of eggs or sperm is not covered by the Act and this would introduce something entirely new into the Act without any form of public consultation or wider consideration. To take a person's gametes without their consent would represent a most fundamental change in our law on healthcare interventions. At present such interventions can be made only in the best interests of that person.
The noble Lord, Lord Walton, suggested that there is a comparison in Mrs. Blood's case with the decision to donate organs after death. But persons can make a written request during their lifetime—for example, using an organ donor card—or can make an oral request in the 834 presence of two witnesses in the course of their last illness. If they have done neither of these the person lawfully in possession of the body, usually an NHS trust, can authorise the use of organs if it has no reason to believe that the deceased had objected to this, or that the spouse or surviving relative objected. In other words, the relative does not have a role in consenting; rather he or she is entitled to object. But, in any case, there is a world of difference between using organs to preserve the life or health of another person and using someone's genetic material to create a new life.
The noble and right reverend Lord, Lord Habgood, the noble Baroness, Lady Warnock, and other noble Lords have shown real concern about the welfare of the child. There was clearly no consensus. However, I am sure all your Lordships would agree with the 1990 Act which quite rightly attaches considerable importance to children born through in vitro fertilisation. Section 13(5) provides:A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may he born as a result of the treatment (including the need of that child for a father), and of any other child who may he affected by the birth".This requirement is reflected in the Bill. However, these inquiries are usually left to the clinicians concerned, because they are in the best position to know of the patient's background and to have access to their medical records. It is difficult to see how the HFEA could satisfy itself about this requirement in individual cases and how it could resolve any conflicts, such as those that may arise between clinicians and relatives, in the evidence it would be required to consider.
Our debate today has touched on fundamental issues of life and death. I consider the review will provide an opportunity for everyone to explore these complex legal, ethical, practical issues and their implications in depth. I hope that it will be conducted in a measured way, as advocated by the noble Lord, Lord McGregor, and that it will provide a sound basis from which Parliament will be able to consider whether there is a need to amend the 1990 Act.
§ 7 p.m.
§ Lord Winston
My Lords, there is a fine tradition in this House of the best kind of debate, of informed, temperate and careful judgment of the issue, and this debate has been in the very best traditions of your Lordships' House. It has been augmented particularly by the distinguished maiden speaker, the noble and learned Lord, Lord Clyde, and his outstanding maiden speech. We are grateful for that. I am grateful, without exception, for all the contributions. I was pleased to see the Chamber reasonably full, given that this debate is on a rather inconvenient day, and I am grateful that so many speeches were so thoughtfully produced. I do not want to delay the House any further at this late hour. However, I should like briefly to raise one or two points, and particularly to thank the Minister for being available and for saying that this matter would be looked into. We are grateful for that. 835 It is clear that the Bill needs better drafting. As has been pointed out, it is my maiden Bill. It is only a little Bill—I do not have much parliamentary experience—and although there may be one or two deficiencies, I believe that they can be sorted out.
Perhaps I may say to the right reverend Prelate the Bishop of Oxford that we must not lay too much emphasis on written consent. It is not infallible. Indeed, it is only a snapshot. People can forget that they have given their written consent. Gametes can still be used with written consent and without any more validity than the proper verbal consent that we are trying to introduce with this modification to the legislation.
Although I do not want to introduce a new subject into the debate, I should say briefly that the benefits are not only to childless women, but to women who have had one child by a living father and who may want a second child to complete the family. I can advise noble Lords from my professional experience that one of the biggest problems facing my patients is that of secondary infertility. Women often feel that a one-child family is not adequate and that a second child would help that first child's rearing. That is a positive example of where another person would make the family complete and greatly augment its happiness and well being.
I am grateful to the noble and right reverend Lord, Lord Habgood, although I have some difficulty with what he said about opening the floodgates. I really do not believe that we are going down a slippery slope. Indeed, there is some recognition of that fact in the evidence from America. There are over 200 centres in the United States where, rightly or wrongly, there is no particular problem with written consent. In a country the size of the United States, with a population of over 240 million people, there have been only 36 applications for posthumous insemination, so I really do not believe that there would be many cases in a country such as ours which is one-fifth of its size. People get knocked off motorbikes or killed by motorcars in the United States when they are young—and probably to an even greater extent there than in Great Britain. That point should answer one of the concerns raised by the noble Lord, Lord Kennet, about traffic accidents.
Perhaps I may make just another point to the Minister. The HFEA may not have complete discretion with regard to the nature of consent, but it does have very full discretion over the possible export of gametes for use. The provisions are clearly stated in Section 24(4) of the Act:Directions may authorise any person to whom a licence applies to receive gametes or embryos from outside the United Kingdom or to send gametes or embryos outside the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions".However, those directions are not written into the law. They are a matter for discussion with the HFEA. That may be one possible let-out and should be explored in detail. It is a wide discretion. In addition, if written consent were so crucial, why did Parliament expressly authorise the nature of the export of gametes in such circumstances?
836 Finally, I should like to thank noble Lords very much for contributing to the debate on this important matter. I commend the Bill to the House.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.