§ 11.15 a.m.
§ Baroness Pitkeathley
My Lords, I beg to move that this Bill be now read a second time. I am very glad to be taking this Bill in your Lordships′ House. It is a small but very important piece of legislation for the families concerned. I am grateful to my honourable friend the Member for Birmingham Hall Green for introducing the Bill and for his successful stewardship of it through the other place. I read with interest the debates held there and was pleased to note the very broad cross-party support generated for the Bill. I hope that noble Lords will similarly feel able to support it.
It is a short Bill with simple intent. It is limited to a single objective which is largely compassionate in nature. Its purpose is to allow a man′s name to be entered as the child′s father on the birth register and on the birth certificate when a child has been born following fertility treatment after the man has died. In my view, this measure is long overdue. I hope your Lordships agree that it is not a controversial proposal.
That is not to say that there are no contentious issues underlying or associated with these matters. There are enormously important and difficult ethical and legal matters in this area. It could hardly be otherwise when we are talking about something so fundamental as human reproduction. The names of noble Lords on the speakers′ list for the debate remind us of that. However, the Bill is not deeply involved in those issues and debates. It seeks only to make a simple and straightforward change for the purposes of birth registration.
I accept that the deeper philosophical and ethical issues should be thoroughly debated—there is no doubt about that—and that they should be kept constantly under review, especially given the pace of technological advance in this area. That does not mean that consideration of the Bill is the appropriate place to resolve those issues, important and emotive though they are.
The law currently is that when a man dies during a pregnancy he may be treated as the father of the child with all the legal rights which follow from that. But under Section 28(6) of the Human Fertilisation and Embryology Act 1990, a man may not be treated as the father of a child for any purpose where his sperm or an embryo created using it was then used after his death. For example, it may be the case that a couple were undergoing fertility treatment, but the man died before that treatment was completed. Or it may be that a man′s sperm, or an embryo created using that sperm, was put into storage while he underwent treatment for a condition such as cancer, during which he tragically died, and the sperm or embryo was subsequently used 1149 in fertility treatment for his wife or partner. I am also aware, and I believe many noble Lords will know this, that many servicemen who served in the recent military action in the Middle East took the same precaution.
In these cases there is no doubt that the child was wanted by both parents, and no doubt about who is the father. Nevertheless, the current law prevents the man′s name being recorded as the father. The legislation was originally framed in this way to prevent difficulties in winding up a man′s estate. Because sperm can be stored for up to 39 years—although the statutory storage period is only 10 years—there is no doubt that if rights of inheritance or succession were to arise, this could be a substantial problem.
The aim of the Bill therefore is to give only a symbolic recognition in law to children who, as the law stands, have no legal father. I wish to make it very clear that its purpose is no more than that. The Bill is not concerned with matters of inheritance, nationality or any other legal status. It is deliberately limited to allow the name of the father to be put on a child′s birth certificate where currently the law insists there must be a blank space. I know your Lordships will understand that a blank space on a birth certificate is distressing for a child. It is an unfair situation which should never have arisen. We now have a chance to put matters right.
The Bill outlines four circumstances in which deceased men may be registered as fathers. The first relates to a situation where a couple were married before the man′s death and the woman uses his sperm, or an embryo created by using his sperm, to conceive a child after the man′s death. This is covered by proposed subsection (5A) within Clause 1. The second circumstance is where a couple were not married but were being treated together before the man′s death and the woman uses his sperm, or an embryo created by using his sperm, to conceive a child after the man′s death is listed. This is covered by proposed subsection (5B).
The third circumstance is where the couple were married and the embryo was created before the man′s death using donor sperm and the woman used the embryo after the man′s death to conceive. This is covered by proposed subsection (5C). The final circumstance is where the couple were not married but were being treated together and where an embryo was created using donor sperm which is used after the man′s death to conceive a child. This is covered by proposed subsection (5D).
I am sure that your Lordships will know of mothers and children who have found themselves in such circumstances and who have campaigned long and hard for a change in the law. I pay tribute to them for their determination. It is doubly unfair that they have had the tragic loss of their husband or partner compounded by this injustice to their child or children.
The Bill is retrospective in so far as its provisions deal not only with future cases but also with existing ones. I believe that it is right that it should do so. It applies to cases where the sperm or embryo was used on or after 1st August 1991, which is when the 1990 1150 Act came into force. I understand that there are between 30 and 40 children in this situation today and that the number will grow by perhaps 10 every year. So we are talking about very small numbers.
The Bill is of great importance to the mothers of these children. It will be of increasing importance to the children themselves as they grow up and begin asking questions about who they are and where they have come from. The Bill will give them a symbolic recognition of their legitimacy where they currently have none.
As your Lordships will know, it is unusual to make legislation retrospective. I would understand any Member of your Lordships′ House feeling uneasy at the prospect. However, I believe that in this case it is right to do so.
The Bill also makes very clear the need for proper consent. This is made explicit in the circumstances contained in proposed subsections (5A) to (5D), which I have outlined. Except in the case of men who died before the provisions of the Bill came into force, it is required that the man who is to be registered as the father must have consented in writing and not have withdrawn his consent. This means consent to the use of his sperm, or an embryo created by using his sperm, after his death by his wife or his partner. It also means consent to being regarded as the father of any resulting child on the birth certificate. Where donor sperm is used, the man must have consented in writing, and not have withdrawn his consent, to the placing in the woman of the embryo after his death. Again, he must also have consented to being regarded as the father of any resulting child on the birth certificate. This is a clear safeguard in the Bill in terms of consent.
In addition, the registrar will require proof of the treatment undertaken in the form of a certificate of a registered medical practitioner. The registrar may also require other documentary evidence if it is considered appropriate.
I have tried to give an outline of a tightly focused Bill which seeks to correct an injustice which I am sure all noble Lords recognise. I have referred to symbolic recognition. I do not under-estimate the importance of what is symbolised or signalled in the House. If the Bill becomes law, it will signal a proper recognition of the rights of children who are growing up today and provide a clear process for such cases in the future. While narrow in scope and consequence, as I have emphasised, the Bill will make a real difference to mothers and children who find themselves in a situation where, as the law stands, there is no legal father.
Your Lordships may be aware of a declaration of incompatibility of the law as it stands with human rights legislation. In my view, that provides an additional impetus to change the law. But, fundamentally, the Bill represents the right thing to do, the decent thing to do, for those mothers and their children who find themselves in these tragic circumstances. It represents an opportunity for Parliament to put right its earlier attempts to legislate in this area. It would be of great comfort to a child′s 1151 wider family, and to future generations of the family, that the truth should now be recorded. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(Baroness Pitkeathley.)
§ 11.26 a.m.
§ Baroness Warnock
My Lords, I rise warmly to support the Bill and to congratulate the noble Baroness, Lady Pitkeathley, on the clarity with which she has set out its provisions.
As she said, the main provision of the Bill is that a posthumous child, born as a result of using the frozen sperm of his dead father, may be registered as a child of that father, with the father′s name appearing on the birth certificate, without thereby the child being able to claim any legal rights or legal status in consequence. I am pleased that the legislation should be retrospective. That is absolutely fair. It will not cover a very large number of children; it will cover those born from 1991 onwards.
It seems such a simple and satisfactory provision that I can only wonder why the committee of inquiry, of which I was chairman and the report of which led to the Human Fertilisation and Embryology Act, did not think of it at the time. I believe that it is absolutely right that the name of a child′s biological father should, wherever possible, be part of the registration of the child′s birth.
The committee of inquiry was fairly strongly opposed to the use of assisted conception to bring about the birth of a posthumous child largely on the grounds of the possible psychological damage that might be caused if, for example, a widow who had remarried and had other children decided to use her first husband′s sperm and to have a child by that husband after all.
Looking back, it seems to me that the committee spent a great deal of time inventing these kinds of rather fanciful cases in order to protect its back and to prevent people bringing them up later. It was trying to forestall criticism. However, such objections seem to be rather fanciful now.
We were also alarmed by the thought that if a posthumous child were, so to speak, lying in wait to be born, it would be impossible to wind up the father′s estate or to settle the succession to a title or whatever else might be at issue. We therefore recommended that its paternity, if it was ever realised, should be disregarded altogether. That recommendation became part of the 1990 Act.
We never even thought of separating the registration of the biological father from the legal implications of his paternity. To make that separation now seems to me an admirable and simple solution, as it preserves the crucial aim of registration; namely, to record the historical truth.
However, I have reservations about one aspect of the Bill, contained in proposed new subsections (5C) and (5D) of the proposed amendment to the 1990 Act. 1152 Those provisions allow for the dead man′s name to appear on the register of births as the father, when the sperm used to produce the posthumous child was not his but that of a donor. That is when the embryo is a result of AID, the dead man having been himself infertile. I strongly believe that in any case of AID, the birth certificate of the child should bear the words, "by donor". However, I fully understand that the Bill is not concerned at all with the general moral considerations on which my objection to these clauses rests, but is far more narrowly focused—and properly so.
I have no doubt that when, later, the issue of the status of donors, whether of sperm or eggs, falls to be discussed, if Parliament were then to decide that the words "by donor" or "by donation" should appear on the birth certificate of a child born by donation, the present Bill could be suitably amended. My anxiety about those provisions is therefore in a way irrelevant to the present debate. I mention them only as a marker for an issue that may come up for debate in future, in the hope that the outcome will not seem to have been pre-empted by these clauses in this Bill. Meanwhile, I hope that the Bill has a swift passage.
§ 11.32 a.m.
§ Baroness Hayman
My Lords, I shall speak very briefly on a Bill which, as the noble Baroness, Lady, Warnock, said, was introduced very ably and with great clarity by my noble friend Lady Pitkeathley. My noble friend made it clear to us that this was not an appropriate occasion to deal with the enormous underlying moral and ethical considerations involved in IVF and assisted conception. The noble Baroness, Lady Warnock, made the same observation. Like her, however, I shall put a marker down on one issue that is of concern to me.
At the beginning, however, I want to make it clear that it is absolutely appropriate that the Bill should deal with the anomaly in question. I fully support the introduction of the Bill. Unusually, for a legislator, I welcome the retrospective nature of it and am in some ways more comfortable with those retrospective provisions, as my concerns are for the future. Those children and families already exist; from all we have heard, there is undoubtedly a strong feeling among those families that the paternity of the children involved should be properly recognised. They want the compassionate cases in relation to human rights legislation to be recognised, and it is absolutely appropriate on this occasion that we should act retrospectively.
I wish to address the issue of consent, and to flag up that I was reassured that consent was dealt with so comprehensively in the Bill, as it was not in earlier versions of the legislation. I am concerned about consent because of the momentous nature of the decision involved in deliberately bringing into the world a posthumous child. I speak with great trepidation, because those of us who have not experienced the pain of infertility or bereavement, let alone the agony of the combination of the two, should tread very delicately when it comes to dictating to others what they should do. I would not want to do 1153 that in any way, but these are enormously difficult as well as momentous decisions. They have tremendous implications for the children who will be born and need to be considered in every aspect. Therefore, an assurance for the children who eventually ask about their origins—that the decision was taken not only by the widowed mother but by the potential father—is an important safeguard that should be in the Bill.
Equally, I would not wish there to be taken from what is an appropriate piece of legislation to ensure that we do not mistreat children in this situation an assumption that the healthy, normal and absolutely expected course of action were someone to be found in these terrible circumstances would be to go ahead. In the late 1980s, I served on the ethics committee of the Royal College of Obstetricians and Gynaecologists that was set up to examine the issues and prepare evidence for the committee on which the noble Baroness, Lady Warnock, served. In my own mind, I found that a helpful way in which to consider the issues was that the purpose of assisted conception treatment should be to enable people whose choices had been taken away from them to have the same choices as those whose fertility was normal. That always helps me with the issues relating to very late—post-menopausal, for example—pregnancies.
Exactly the same is true in this case. The choices should be available, but we have an overwhelming concern with the welfare with the child. We acknowledge that existing families come in all shapes and sizes and that spectacularly good parenting goes on in single-parent families. Equally, however, we have a concern that when society puts an imprimatur of ethical acceptance on a practice, the deepest consideration should be given. It is wrong to lecture people about how they would behave, because of course that very small number of people who are in this desperate situation will have that consideration. Equally, however, we know that in the first flush of bereavement and distress, people are always told not to make decisions, not to decide for 12 months where they are going to live or make major life changes.
We are talking about an enormous and major life change, not only for the widow but also for the child to come. I believe that the climate in which those decisions are made by individuals, by their clinicians, the HFEA and ultimately by us as legislators should be one in which we give the utmost scrutiny to individual decisions. For me, it is very important that the consent provisions in the Bill are so clearly laid out. On that basis, I welcome it.
§ 11.39 a.m.
§ Lord Winston
My Lords, I shall speak very briefly following three very eloquent speeches in support of the Bill. First, I am grateful for the excellent appraisal given by the noble Baroness, Lady Pitkeathley, who introduced the Bill with clarity and eloquence. I also thank the noble Baroness, Lady Warnock, and my noble friend Lady Hayman for their support of the Bill.
1154 It is clear that currently there is discrimination between children born by artificial reproductive means and those conceived naturally. Clearly that is wrong and needs to be sorted by the Bill, as it will be. These are not common instances. In my own unit at Hammersmith, which is a major cancer centre, we possibly deal with more of these patients than anywhere else in the south-east of England. In one year we might see one or two cases at most in which, during the course of treatment or subsequently where there are embryos or sperm in store, a husband has died of a cancer partly because treatment has not fulfilled its entire purpose. Therefore, this Bill is to be greatly welcomed on their behalf.
Like my noble friend, I have no problem at all with the retrospective aspects of the legislation, dealt with in Clause 3(6)(a) to (c). That seems to me utterly sensible.
Perhaps my only criticism of the Bill is that it has taken so long for it to be presented to Parliament. Some of us recall that the issue really came to public attention in 1995 with the death of Stephen Blood, his wife′s valiant attempts to try to get fertility treatment, which clearly accorded with the wishes of her late husband, and the difficulties she went through. Apropos what the noble Baroness, Lady Hayman, says, in retrospect perhaps we could say that Diane Blood was dealt with in a very heavy-handed fashion. It might have been better had our regulatory authority paid more careful attention to what she was actually trying to tell it. However, that is now past history. I am very glad that this anomaly can be sorted out.
I wish to address one point raised by the noble Baroness, Lady Warnock. Although it is not part of this Bill, we should certainly debate the issue of donor insemination again in this Chamber. There is considerable disquiet about the nature of parenthood. It is a very complicated issue. However, with all due respect, I do not think that it is very easy simply to put on a birth certificate, "Father by donor". In fact, that might inhibit parents telling the truth to their children. Curiously, it could have exactly the opposite effect to that desired.
There is a real problem, I think, in openness. I agree with what the noble Baroness says about donor insemination. But many parents who undergo donor insemination are increasingly hesitant about telling their children the truth. Therefore, anything we can do to persuade people of the openness of the family relationship and the nature of conception must be in the child′s interest. Otherwise the child may find out by mistake, usually at puberty or when a marriage breaks up, that there is a problem. For that reason, it would be welcome if we could debate this issue in some detail. It teases out many important issues about parentage.
This Bill will be welcomed by all of my profession—by the Royal College of Obstetricians and Gynaecologists, which has no problem with it, but particularly by the practitioners who see these difficult cases every day. I very much hope that the Bill′s parliamentary passage will be concluded as speedily as possible.
§ 11.43 a.m.
§ Lord Lester of Herne Hill
My Lords, like every other speaker I should like first to congratulate the noble Baroness, Lady Pitkeathley, on introducing the Bill so powerfully and clearly. For that matter, I should also like to congratulate the Government, through the Department of Health, who have clearly sponsored the Bill although it is in the form of a Private Member′s Bill.
I should begin by declaring an unusual professional interest. I was a legal midwife to two posthumous children of Diane Blood—I am glad that she is in the Gallery today—in the sense that I represented her in the original proceedings against the Human Fertilisation and Embryology Authority. I believe, as I shall now explain, that this Bill really should be known as the Diane Blood Bill. There is no question but that, without her efforts, this Bill would never have been introduced or, I hope, enacted.
The noble Lord, Lord Winston, has already referred to the somewhat heavy-handed approach of the Human Fertilisation and Embryology Authority in that case. Noble Lords may recall that what happened was that Diane Blood was prevented from proceeding as she wished because of the statute and the absence of written consent by her late husband Stephen. We brought legal proceedings which eventually ripened into a judgment by Lord Woolf of Barnes—one of those rare judges who makes both parties feel they have had a fair hearing, the loser as much as the winner. In a compassionate and humane judgment, Lord Woolf essentially said that European Community law would come to Diane Blood′s rescue, that she could go to Belgium in order to obtain the treatment denied to her under English law. She went to Belgium and as a result of that she was able to give birth to her two bonnie boys, Liam and Joel.
That must be one of the most creative enterprises that I as a lawyer have ever been involved with. For once I indirectly helped forensically to create human life. It is good to know that one sometimes can do that. The noble Lord, Lord Winston, as he will recall, was ready to give expert evidence in that case as well. So it was a kind of family occasion. Unfortunately the authority, having lost the case on that aspect, to my astonishment asked for legal costs against Diane Blood. That I thought at the time was a bleak judgment on the authority′s part. Her father had had to mortgage his house in order to pay for those proceedings.
The next phase of her heroic struggle was that she then sought to be able to register Stephen as the father on behalf of her children. That was refused. However, the Department of Health, entirely properly, eventually after the McLean report, introduced a Bill like this one which failed only because of lack of parliamentary time when the last general election was called. At that point Diane Blood′s lawyers—by this time I was not involved in the case; my colleague Tom de la Mare was involved—had to bring judicial review proceedings and proceedings threatened before the European Court of Human Rights in order to obtain the necessary decision by the Department of Health.
1156 What then happened was quite extraordinary. For two years the Department of Health fought the case tooth and nail, urged that no case be brought before the Strasbourg court, resisted the case in the English courts, and then at the last minute, no doubt instructed by competent counsel, realised that its position was quite hopeless. It was quite hopeless because the European Convention on Human Rights guarantees the rights of these children, to their private life and to non-discrimination. So, very late in the day, the Department of Health appeared with counsel for Diane Blood and also Mrs Tarbuck, the other applicant, and they agreed to a consent order.
The consent order consented to the fact that the statute is incompatible with the European Convention on Human Rights. It has to be retrospective simply because if it were not retrospective, then Diane Blood and Mrs Tarbuck would have to go to the European Court of Human Rights and the United Kingdom Government would inevitably face condemnation before that court. So there is no doubt that the retrospectivity in this case is not only desirable but absolutely necessary.
The Joint Select Committee on Human Rights, of which I am a member, reported on why it considered that there was no human rights issue that needed to be drawn to the attention of Parliament. For those who are interested in reading that report, it is the 8th Report of Session 2002–03, House of Lords Paper 90. I did not take part in those proceedings because I was professionally interested, as the report records.
I have to make two other mild criticisms. One is that, after all this agony and protracted legal proceedings, the question of costs arose. At that point the judge, Mr Justice Sullivan, ordered indemnity costs against the Department of Health. That is a very serious step to take because it means that in the view of the learned judge the department has behaved unreasonably in its pursuit of the legal proceedings.
The other mildly critical remark I need to make is about the Explanatory Notes. I know that this is a Private Member′s Bill and, therefore, no Minister had to sign a compatibility statement under the Human Rights Act that in her or his view it was compatible with the convention. As the Minister will know, however, it is now accepted practice for Ministers to ensure that the Explanatory Notes deal with any human rights convention issue so that parliamentarians can know what they are.
The Explanatory Notes are admirable in explaining the content and general objects of the Bill but they are completely silent about the convention issues. Although the noble Lord, Lord Winston, referred to the convention and the noble Baroness, Lady Pitkeathley, also referred to retrospectivity and to the declaration of incompatibility, I do think that as a matter of good administration some of what I said in this overlong speech should have appeared in the Explanatory Notes so that at least parliamentarians would know absolutely the full position. I in no way criticise the noble Baroness, Lady Pitkeathley, but it seems to me, if I may say so with great respect, that the department ought to have made that all clear.
1157 Noble Lords will now understand, I hope, first, why this is really the Diane Blood Bill and, secondly, why retrospective remedies had to be provided to avoid ultimate international humiliation before the European Court. So speaking as a legal midwife I support the Bill but from the Front Bench on behalf of the Liberal Democrats we welcome the Bill more generally.
§ 11.52 a.m.
§ Baroness Noakes
My Lords, let me start by paying tribute to the noble Baroness, Lady Pitkeathley, for agreeing to shepherd this Bill through your Lordships′ House. Her commitment to the issues underlying the Bill was made very, very clear in her elegant and clear speech.
This is a Private Member′s Bill from another place and as such is fitted into the margins of your Lordships′ business, but it is a real mystery why this is a Private Member′s Bill at all. In all but name it appears to be a government Bill. For example, the Department of Health prepared the Explanatory Notes. Indeed, it should have been a government Bill.
The Bill does two things which are the Government′s responsibility. First, it implements some of the recommendations of the study by Professor McLean that came out in 1998. Those recommendations were accepted by the Government but not acted upon. Secondly, it responds to the declaration of the High Court on incompatibility with the European Convention on Human Rights, which the noble Lord, Lord Lester, just explained in some detail. The Government could have used the fast track procedure to amend the 1990 Act but chose to sit on the sidelines. It is getting to be something of a habit in the health sphere for the Government to use the private Member′s procedure as a way of supplementing their own programme—
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Baroness for giving way. I just point out that the Government could not have used the fast track procedure, at least I do not think they could, because I do not believe that the Human Rights Act would have applied. But in any case, even if it had, certainly the Human Rights Committee would not have regarded this course by speedy Private Member′s Bill as in any way worse than using delegated legislation. So I do not think with respect that that criticism is well founded.
§ Baroness Noakes
My Lords, in such matters I, of course, bow to the immense knowledge of the noble Lord, Lord Lester. It was my understanding that the fast track procedure could have been used in this case, but if I am wrong, I certainly withdraw that. However, I still maintain my position that this is a matter that should have been dealt with by the Government in government time.
I was about to refer to the Government′s previous record in these matters, in particular in the health sphere. We had an example of the use of the private Member′s procedure last year when the noble Lord, 1158 Lord Clement-Jones, on the Liberal Democrat Benches did the Government′s job of implementing their policy on tobacco advertising. Now we have a further example with this Private Member′s Bill from another place. I hope that those outside Parliament will see where the Government place their priorities, for example, on attacking the traditions of our nation, whether it is the right to trial by jury or—dare I say it?—abolishing the right to control foxes by age-old methods. Whatever the Minister says today, it is clearly not the priority of the Government to deal with the issues in this Bill.
But let me now turn to the Bill. It affects only a small number of people, all of whose lives have been touched by tragedy. We cannot fail to feel compassion for the plight of the mothers involved and for their fatherless children. Those children are fatherless in their lives in fact and fatherless on paper. There is nothing that we in your Lordships′ House can do about those children being fatherless in fact in their lives, but the Bill does allow us to do something about the paperwork. In that sense, it is a very small measure of symbolic rather than substantive effect. It is hard to object to the Bill in those terms and noble Lords on these Benches do not do so.
I should like in particular to say how much we support the Bill′s reliance, at least so far as prospective cases are concerned, on consent—both the documented giving of consent and the absence of withdrawal of consent. The noble Baroness, Lady Hayman, underlined the importance of consent. If consent had not been at the heart of this Bill′s provisions, its contents would have been very hard to support.
I have one question for the noble Baroness, Lady Pitkeathley, and two areas of concern to raise. The first question is the detailed one of why 42 days are allowed for registration in England but only 21 days in Scotland. That seems to me to be an unnecessary distinction between what happens in Scotland and what happens in England. New Section (5E) to the 1990 Act refers to Scotland. Does it mean births in Scotland are affected or births to Scottish mothers? If an English mother happens to be in Scotland when she gives birth—which can happen—does she have 21 or 42 days? I could not work that out from the Bill. I hope that the noble Baroness, Lady Pitkeathley, can answer that question.
I turn to my two areas of concern. The first area of concern is the same as that raised by the noble Baroness, Lady Warnock; namely, that of allowing a mother to register the name of her deceased husband or partner where an embryo is created using donor sperm after the death of the husband or partner. In my opinion this tends to go into the realms of fantasy because we are not recording any real fact about the parentage of the child by using the man′s name who was not the genetic father. That does not seem to me to be right. I know that was discussed in another place but I have not heard any convincing public policy reason for it. But I fully accept, as the noble Baronesses, Lady Hayman and Lady Warnock, and, indeed, the noble Lord, Lord Winston, said, that these matters raise important issues of public policy that go 1159 much wider than the Bill. I do not object to the Bill on those grounds, but I wish to flag the fact that I believe that very serious issues are raised. It is a matter to which I hope your Lordships will be able to return on another occasion.
The second area of my concern is retrospection. The noble Baroness, Lady Pitkeathley, anticipated that at least one speaker would raise the issue. It is important that we at least raise this area of concern. In general in legislation retrospection is unattractive. It is particularly unattractive in this case because the retrospection is based on different principles from that of Clause 2. Clause 2 is based on consent, which is a very important element of the recording of the father on a birth certificate. But Clause 3 dispenses with any evidence of consent. I am aware of the publicity surrounding particular cases and I do not doubt the sincerity of the individuals involved in those cases for one moment. The noble Lord, Lord Lester, took us through the history of Mrs Blood. However, it is true that the Bill will apply to those mothers different rules from those that will apply to others going forward, in that consent will not be required. I, for one, find that very difficult to take. I remind noble Lords that hard cases sometimes make bad law.
§ Lord Lester of Herne Hill
My Lords, can the noble Baroness clear up my puzzlement about the position of those on the Conservative Front Bench? As I have explained, the court gave a declaration that the present law was incompatible with the human rights convention. As I have also explained, but for the retrospective provisions we would have faced humiliation and condemnation on the international plane before the European Court, with damages and costs awarded that the taxpayer would have to bear. In those circumstances, I do not understand why the Conservative Opposition should object to providing an effective remedy retrospectively to avoid that mischief.
§ Baroness Noakes
My Lords, as the noble Lord will find, I will not ultimately object to that; I am merely raising the issues of concern.
It is my understanding that the declaration of incompatibility, which required some retrospective change, could just as easily have been made using consent as one of the criteria for allowing the recognition. I may be wrong on that, but my understanding was that there was still an option as to which way retrospective effect could be given to the use of the registration of the father. That is why I drew the distinction between Clauses 2 and 3. Clause 2 uses consent, which is a very important concept, and Clause 3 dispenses with it in the case of retrospection. I understood that it was possible to comply with the European convention but to rest Clause 3 on consent as well, in effect. If I am wrong, I am happy to be corrected.
§ Lord Lester of Herne Hill
My Lords, the noble Baroness may not be well informed on the matter. The 1160 problem in the Blood case was not the absence of consent, but that the late husband had not filled in the necessary form. Therefore, there was an absence of written consent.
§ Baroness Noakes
My Lords, I beg the noble Lord′s pardon. I meant an absence of evidence to consent, rather than an absence of substantive consent. The evidence of consent is the important aspect of Clause 2; it requires written consent. I was drawing a distinction between that form of consent and any other form of evidence of consent.
I look forward to listening to the responses of the noble Baroness, Lady Pitkeathley, on those points. I should be clear: noble Lords on these Benches bear the Bill no ill will. As I have outlined, many aspects of the Bill are very welcome, but some aspects cause us concern. We are mindful of the limited impact of the Bill and, for that reason, we have no intention whatever of standing in its way.
§ 12.3 p.m.
§ Baroness Andrews
My Lords, the Government strongly support and welcome the Bill introduced by my noble friend Lady Pitkeathley. Many midwives, metaphorical and otherwise, have spoken, but as the latest midwife she did a brilliant job in delivering this wonderful, bonny baby beautifully, elegantly and without harm. We are very grateful to her for that, and for speaking with such compassion as well as clarity and conviction about why the Bill is so important.
I am grateful that we have had such a very distinguished debate. Everyone who spoke brought a different sort of experience to bear. The noble Lord, Lord Lester, had unique experience of being part of facilitating the ability under the Bill to introduce new rights. The noble Baroness, Lady Hayman, and above all the noble Baroness, Lady Warnock, showed their experience of the history of the humane and improving way in which we treat ethical and medical issues on reproduction. The noble Lord, Lord Winston, is of course a unique asset to this House.
We have had an extraordinary welcome for the debate. I am very glad that the noble Baroness, Lady Noakes, welcomed the Bill. I am sorry that we disappointed her and it is not a government Bill, but at least we have the Bill. It has been long in gestation; we are delighted to support it. It was not fast-tracked because the procedure under the Human Rights Act can be adopted only where there has been a declaration of incompatibility. The Bill was introduced in the House of Commons before a declaration of incompatibility, so we were out of sequence. As the noble Lord, Lord Lester, explained, we have had to deal with it in this way.
I also take the point that markers have been put down around the House about the need for a debate on wider ethical issues to do with reproduction. I am sure that the Government would be intent on listening to what has been said. We shall see what we can do.
The Bill was thoroughly considered and, as a result of that scrutiny, improved in the other place. It is a short Bill, but one that the Government believe 1161 presents an opportunity to make a real difference to the lives of a small number of children and families who find themselves in uniquely tragic circumstances. The noble Baroness, Lady Hayman, spoke movingly of that unique combination of the pain of infertility compounded by the agony of bereavement. Because we are a government who put children very much at the heart of what we do, it is important that we look to all types and conditions of children, no matter how small the numbers are, so that we can, whenever possible, improve circumstances for them and their families.
As my noble friend said, one of the raisons d′être of the Bill is to put right what is inhumane and discriminatory in the present law. We are very glad to do that. In the cases with which we are concerned, there is no doubt about who the father is or that the child was wanted by both parents. It is unfair to deny children who are growing up today a recognition of that fact in law. The Bill would allow for the father′s name to be entered on the child′s birth certificate when the child has been born following fertility treatment after the man′s death.
The unfairness rests in part on inconsistency. As the law stands, if an embryo created through in-vitro fertilisation had been placed in the woman before the man′s death, or if the child had been conceived in the normal way, his name could go on the birth certificate. But if the man dies before the embryo could be placed in the woman, the birth certificate must not record him as the father. That means that the family has to come to terms with not only a tragic loss but with the additional distress caused by the rigidity of the law.
The families affected by that failure have campaigned long and hard on the issue, and I pay tribute to them and to those who have championed their cause, particularly the noble Lord, Lord Lester. As my noble friend emphasised, the Bill is of very narrow scope. It is symbolic recognition only, because to do otherwise would make it extremely difficult to wind up a man′s estate. Therefore, the Bill does not propose to allow the child any rights of succession or inheritance, or any other legal status.
Although symbolic, the recognition is very important. Putting the father′s name on the birth certificate will, I believe, be of considerable and lasting emotional value to the children themselves. As the noble Baroness, Lady Hayman, said to those of us who have been fortunate in not having to contemplate such circumstances, we can only guess at the significance of that to children as they grow up.
As noble Lords know, the Bill implements a recommendation by Professor McLean, a professor of law and ethics in medicine, in her report published in July 1998, Review of the Common Law Provisions Relating to the Removal of Gametes and of the Consent Provisions of the Human Fertilisation and Embryology Act 1990. As the title suggests, the report was primarily concerned with issues around consent, and rightly so. 1162 As the noble Baroness, Lady Noakes, said, consent is a critical issue. Professor McLean also recommended that children born in circumstances considered in the Bill should have a symbolic acknowledgement of their father on their birth certificates.
We accepted that recommendation and are very happy to support the initiative. However, the Bill goes further than the McLean review, for very sound reasons, as my noble friend emphasised. The Government believe that it would be wrong not to recognise the rights of children who are growing up now and their families, rather than merely children yet to be born. Therefore, the Bill will apply to existing as well as future cases. I am particularly grateful to noble Lords who have welcomed the retrospective elements of the Bill and the humane difference that that will make.
I understand some of the reservations spoken about by the noble Baroness, Lady Noakes. I believe that she was comprehensively answered by the noble Lord, Lord Lester. We have given the issue a great deal of consideration and we think that it is the right—the humane—thing to do. It prevents those young people being discriminated against in any way. It confers dignity and it will refer to a very small number of people. We are very careful in the House with issues of retrospection, but we believe that this is an honourable exception and I am very grateful to have the support of Members of the House. I also welcome the emphasis in the Bill on the importance of proper consent—written consent—in prospective cases. It sends an important signal and is an important safeguard.
The Bill will also remedy a declared incompatibility of the current law with the European Convention on Human Rights and sets out a clear process to be followed in future. I must say to the noble Lord, Lord Lester, that that is a fair cop; I am afraid that we are at fault. It would have helped to explain the context if not the content of the Bill. We will take careful note of this for future reference.
§ Lord Lester of Herne Hill
My Lords, I thank the Minister for that. It is generous. I am sure that it is good housekeeping to do so.
§ Baroness Andrews
My Lords, once reprimanded, in my experience, the Department of Health rarely fails to act.
While it is not possible to guarantee that future human rights challenges will not arise in this area, the Government believe that the Bill strikes the proper balance between the rights and interests of all the parties involved—father, mother and child. Above all, it is about the truth of relationships, which is extremely important.
I am happy to welcome and support my noble friend′s Bill. I congratulate her on the way she introduced it and on commanding the support and respect of the House in so doing. I very much hope that the Bill will receive cross-party support through its remaining stages.
§ 12.12 p.m.
§ Baroness Pitkeathley
My Lords, I am enormously grateful to all noble Lords who have spoken this morning—they are distinguished in this field and made distinguished contributions. It was tremendously important that we were reminded of the history of this issue and given important perspectives—I refer to human fertility and reproduction, medicine and the law, and our view as legislators and midwives. It was also important to be reminded that although this is a very narrow measure, it sits in the context of much broader debates concerning public policy. I am sure that the Government and other noble Lords take note of the importance of debating and resolving some of those issues at a later stage.
I shall answer a couple of questions from the noble Baroness, Lady Noakes. It appears that it is the place of birth that determines the given period of time; where the baby is born is the point. In Scotland, the mother has 21 days because that reflects the time in which birth must be registered, according to current registration procedures.
There were very interesting contributions on the issue of retrospection, and I am grateful to noble Lords for accepting that this is a very unusual case for registration. In response to the noble Baroness′s question, I am not sure that I can help any more in that regard. However, she indicated that in this case she does not object to the principle, although she understands that it may have been done in a different way.
I do not want to keep noble Lords long or to comment on other contributions. Above all, I thank noble Lords for the compassion with which they approached this issue. That reminded us that families in this situation need the utmost support and that there should be the utmost scrutiny and safeguard of the law. When the Bill finally goes through your Lordships′ House, a small but important group of people will be very grateful.
On Question, Bill read a second time, and committed to a Committee of the Whole House.