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The Bill is simple in intent--even though it has a long title. Although the Opposition Benches are sparsely attended, I hope that no Members on either side of the House will oppose the measure. In essence, it corrects an injustice that should never have arisen.
The purpose of the Bill is to permit a man's name to be entered as a child's father on the birth register and on the long birth certificate when a child has been born following infertility treatment or in vitro fertilisation after the man has died. For example, that may be because the man's sperm or an embryo created using his sperm was stored before his treatment for cancer or other medical conditions and he died subsequently. Another reason may be that infertility treatment had already begun, the man died suddenly but the treatment continued.
I can give the House no clearer example of such circumstances than those of Stephen and Diane Blood. In 1995, Stephen lost his fight for life after contracting meningitis; he was 30 years old. He had given consent for his wife, Diane, to undergo fertility treatment, using his sperm, after his death. Diane fought for the right to receive that treatment. It was almost four years--after numerous legal battles and much anguish--that her son, Liam Stephen, was born on 11 December, just before Christmas 1998.
Diane's fight for the right to have Liam Stephen drew widespread media attention and public support. Indeed, in opinion polls--we are all keen on them in this place--on whether Diane should be allowed to continue her treatment, she received 90 per cent. support for that right. Hansard records the involvement of the House on several occasions.
That fight was not limited only to the right for treatment. Even after Liam's birth, his father's name could not rightly be recorded on the birth certificate. The effect of the Human Fertilisation and Embryology Act 1990 is that it does not allow a man to be treated as the father of a child where his sperm, or an embryo created with his sperm, is used after his death.
Currently, the birth certificates of children born in such circumstances show a blank entry or a line alongside the mother's name. A letter from Joanne Tarbuck--a mother thus affected--to the Department of Health in April 1999 points out:
We may ask why the anomaly was not discovered during the consideration of the 1990 Act. Under that Act, sperm can be stored for 39 years. It was thus recognised at the time that if legal rights--for example, those involved in succession or inheritance--were to accrue and a child was born perhaps many years after the death of the father, it would become almost impossible to wind up that man's estate. Under the Bill, therefore, the needs of those children and their families would be addressed without affecting the current law on succession and inheritance.
There are 30 such children today, but that number is expected to grow at a rate of at least 10 a year--it could be much higher--and the Bill is of considerable importance to their mothers. Two of the mothers affected--Diane Blood and Joanne Tarbuck--are with us in the House today, together with their children and families. I take this opportunity to pay tribute to their resilience over the years.
I also pay tribute to my hon. Friend the Member for Stourbridge (Ms Shipley), who has championed the case of her constituent, Marion Jordan, and her son, Daniel, in the House on numerous occasions. I thank her for the work that she has done in allowing us to get this far.
Following the case of Diane Blood, the previous Government instigated a review of the 1990 Act. The review was undertaken by Sheila McLean, who is professor of law and ethics in medicine at Glasgow university. Professor McLean made several recommendations in her report, among which was the proposal that the father's name should be allowed to appear on a child's birth certificate. In recommending that course of action, Professor McLean considered that the current restriction may not be compatible with the 1979 United Nations convention on the rights of the child.
Article 2.1 of the UN convention states that the rights accorded to each child, as set out in the convention, should be respected without discrimination of any kind, including that involving the child's birth or any other status. I share that view.
Ms Debra Shipley (Stourbridge): I thank my hon. Friend for his kind comments about myself in relation to my constituent Marion Jordan and her son Daniel. Does he agree that the rights of the child should be paramount and that the Labour Government have put child-friendly policies--and, indeed, money--where their mouth is? However, there has been no movement on this issue to date, so my hon. Friend's Back-Bench initiative is to be welcomed. Does he also agree that the proposal is the morally correct, the legally correct and, frankly, the humane thing to do?
Mr. Clarke: I entirely agree with my hon. Friend's sentiments. This is more than simply a moral question; legal questions also need to be answered. The Bill, if passed, would easily answer the challenges that may accrue from those parents if the Bill is not successful.
In addition to my reference to the UN convention on human rights, I shall comment on the issues that may arise under articles 8 and 14 of the European convention on human rights. Those articles deal, respectively, with the
The suffering caused to those families is unnecessary and avoidable. We must remember that those women suffer not only from the bereavement of their husband or father of their child, but because they feel that the absence of the father's name on the child's birth certificate robs those men of legitimate recognition.
To assist the House, I shall outline the circumstances in which the Bill can be applied. It mirrors the current provisions in the 1990 Act that provide for a man to be treated as the father of the child when he is still alive. The four circumstances outlined in the Bill are as follows. The first relates to when the couple were married before the man's death and the woman uses his sperm or an embryo created with his sperm to conceive a child after the man's death. Diane Blood would have fallen into that category, and that is covered by the proposed subsection (5A).
Secondly, the circumstance in which 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 using his sperm to conceive a child after the man's death is listed as the proposed subsection (5B). Alternatively, the circumstance in which a couple were married and the embryo was created before the man's death using donor sperm and the woman uses the embryo after the man's death to conceive a child is covered by proposed subsection (5C). Finally, the circumstance in which the couple were not were married but were being treated together in the United Kingdom at a licensed clinic where an embryo was created using donor sperm and it is used after the man's death to conceive a child is covered by the proposed subsection (5D).
Under the Bill's provisions, the mother may elect, within 42 days of the child's birth, for the man to be recorded on the birth register. The registrar will require proof of the treatment undertaken and that can be provided by any medical practitioner. The provisions are also retrospective and can be satisfied in any case, where relevant, on or after 1 August 1991, which is when the 1990 Act came into force.
The Bill would also amend section 10 of the Births and Deaths Registration Act 1953, adding to the categories covered by that Act. That simply means that on a certificate of birth, after the father's name, the words "pursuant to section 10" would be added. Anyone looking at the register in future would be able to discover from the wordings of the proposed subsections (5A), (5B), (5C) and (5D) the reason why the birth was registered under that section.
Under the Human Rights Act 1998, Ministers are required to make a statement expressing whether the Bill is compliant with the convention. I believe that the provisions are not only compliant but support the Act's intentions.
I have sought to highlight the unusual case of families, who under the current provision, are not permitted to write and record the name of the husband or father alongside the name of the child's mother on a certificate of birth.