Human Fertilisation and Embryology (Deceased Fathers) Bill

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Ms Debra Shipley (Stourbridge): The hon. Gentleman makes some interesting and valid points that should, perhaps, be addressed at a later stage or in another place when we have taken on board what he has said, undertaken further investigation, and considered the ramifications of that.

Will the hon. Gentleman expand on what he said with regard to illegality and legality in the context of the rights of a child and the UN convention on the rights of the child?

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Dr. Harris: The hon. Lady makes a fair point. All the commentaries on the discussion emphasise that a balance should be struck between the rights of the child and the rights of men with regard to their bodily integrity, the use of their gametes and, unless they behave recklessly, their consent to paternity. To express the matter in tabloid terms, men have rights too.

The rights of the child are, of course, important. The ambit of the Bill is to provide those rights, and I therefore wholeheartedly endorse it, subject to the amendments. However, I cannot endorse the assault of someone by the taking of their gametes and the creation of a life without their lawful consent, simply to meet the presumed rights of a subsequent child. Professor McLean describes in detail why those concerns should be accommodated explicitly and in terms. In any ethical code, the principle of chronology should be given consideration, and a child can, of course, be produced only after the rights of the father have been considered. The right to control the use of one's gametes should also have been given a higher priority than the right of a child to have a father's name on its birth certificate: the latter is important, but the former right is critical and fundamental.

Professor McLean addresses the issue in detail, and I want to put some of her comments on the record. Her report was accepted and endorsed by the Government. In the summary, she states:

    ``In these circumstances, therefore, there should be no derogation from the general rules of law.''

That remark refers to the issue of whether there should be exceptions, specifically with regard to the removal of gametes, to the general rule about consent to intervention.

The report continues:

    ``In any event, gametes have a special status and it seems reasonable to conclude that, if anything, they should be accorded increased rather than reduced protection by law.''

Professor McLean goes on to say:

    ``Given the extent to which a written consent can elevate the quality of proof that a real consent has been given, consideration should be given to amending the law to require that consent to all assisted reproduction provided under the terms of the 1990 Act should be given in writing. Since gametes are widely perceived to be special, given their potential to become new human beings, there is nothing in domestic or European law which would preclude the state from making such a regulation in pursuit of public policy.''

The end of the summary answers the hon. Lady's question about balance by stating that if gametes are

    ``used only by the partner of the deceased, indirect succession rights may accrue to the child. However, this must be balanced against the possibility of unreasonably restricting the decision of the donor as to what use may be made of his sperm after his death.''

Hon. Members who are considering the Bill should read the McLean report. Its main message is loud and clear: consent is critical. That message is endorsed by the Minister. I accept that the Bill cannot achieve everything that one might wish, but it is bizarre and unreasonable that its main proposal is not found in full in the McLean report and goes against its main message, which is the importance of lawful consent.

Ms Shipley: I am interested that the hon. Gentleman focused on the McLean report in his reply. I do not have it in front of me but, from memory, McLean said that if the Government—I realise that the measure is a private Member's Bill—fail to take action to change the law, Britain might actually be in breach of the UN convention. The report can be used in several ways to substantiate my argument on behalf of the child, as opposed to the hon. Gentleman's argument.

Dr. Harris: I believe that the hon. Lady is incorrect. Obviously, I cannot ask for the sort of help that the Bill's promoter has, but the relevant section of the report states quite clearly that European case law certainly allows for member states' law on the matter to determine what is and is not lawful. I endorse the majority of the Bill's intention because, if it is lawful in common law and statute law to store and use gametes, it is unreasonable to deny—under UN convention rights, as well as European convention rights and European law—the child the right to have the father's name on the birth certificate. If I am given the chance, I will find the relevant section in the McLean report that states that.

I wish to make it clear that we are not discussing the general case. We are discussing the specific case, in which it has been established that there has not been lawful storage or use, nor lawful removal of the gametes with consent. Prompted in part by the hon. Lady's intervention, I will quote further from the report. In paragraph 1.12, Professor McLean discusses whether the general rule—that lawful consent needs to be obtained for removal of gametes—might be waived in various circumstances. It states:

    ``on the question of in which circumstances derogation from the general rule might be permitted, it might be felt that any diminution of the rule that intervention is permissible only with the actual consent of the individual (apart from the exceptions outlined above) would significantly weaken the values which underpin the law of consent. Singling out the removal of gametes from the general rule would recognise the purported interests (not rights) of third parties in the genetic material of another. It would also potentially lead to additional claims for exempt status being made, resulting in the significant erosion of the principles generally held to be vital in our law. Even if no floodgates are opened by such a move, there are consequences which would flow which would require most serious consideration.''

The context in which we are discussing the Bill is post-Alder Hey, and follows the debate about the importance of consent in the use of embryos for therapeutic cloning, stem cell research and cell nuclear replacement. The Government have sent strong statements and signals about the absolute bar on reproductive cloning, even when people invoke their rights to have children who can be produced, in theory, only by reproductive cloning of a father—or, indeed, a mother—who has since died.

I have not found any source of expert opinion that supports the purpose of the unamended Bill, which is to meet the rights of that very small minority of children for whom there is concern that the obtaining of gametes was unlawful. Clearly, in the majority of cases that does not arise. I do not believe that we are talking about the case in the hon. Lady's constituency about which she spoke briefly but eloquently on Second Reading and about which she has campaigned for a long time. We are talking about cases such as the Diane Blood case. Paragraph 1.13 of the McLean report states:

    ``As has already been noted, gametes are generally seen as having a special status. But that status is designed to protect, by prohibiting their use in certain ways and ensuring that they are accorded maximum respect. Rather than enhancing this protection, placing them in the only category which does not require formal consent for removal is likely to downgrade that special status. It is of note that the clearest majority of those who responded to the Consultation Document''—

a document which preceded the report—

    ``believed that the law should not be changed to permit non-consensual removal of gametes (86 per cent.)''

The promoter of the Bill—and, almost certainly, other hon. Members—do not suggest that the law on consent should be changed. However, promulgating further laws based on the 1990 Act would, following the High Court judgment, the McLean report and the amount of public opinion, fly in the face of expert advice that the Government and hon. Members should bear in mind. Indeed, the Government made a point of endorsing that advice in their response.

We should consider how that situation can be remedied with some sort of compromise; to do so now will allow the hon. Member for Northampton, South to deal with it in his reply. The hon. Gentleman may want to write to Professor McLean to get her views on the debate. I quote from her report but I do not claim to speak for her—although, because I serve on the medical ethics committee of the British Medical Association with her, I know the direction from which she tends to come. The Bill would allow the father's name to be put on the birth certificate in cases involving the lawful obtaining, storage and use of gametes or embryos. It would also allow it—in future and retrospectively—where those conditions do not obtain, and where there has been unlawful obtaining of gametes or embryo.

We have several cases to consider. I shall deal with ones where there is no problem. The measure is clearly sensible in regard to cases where consent for the removal of gametes has been legally obtained, with a view to subsequent and prospective treatment and therefore paternity. The 1990 Act is in a sense defective. Because it goes out of its way to ensure that estates could be closed, providing that there should be no rights of succession to children born, say, 30 years after the death of a father—usually it is a father—it closed down the possibility of having the father's name on the birth certificate. I have no problem with cases where consent has been legally obtained and other members of the Committee and of both Houses probably will not either.

I also do not have a major problem with the retrospective application, for the very reason that the hon. Member for Stourbridge (Ms Shipley) gave on Second Reading when questioned by the right hon. Member for Bromley and Chislehurst (Mr. Forth) on retrospectivity. There is a general presumption in law that retrospectivity is wrong; indeed, some of the promoter's own amendments show how difficult it is to get the drafting on retrospectivity right. The argument in defence of retrospectivity is that consent was given. The hon. Member for Stourbridge said in that debate:

    ``Surely retrospection is the right course in this instance, because written consent will definitely have been given.''

She then talked about her constituent Marion Jordan, who had wanted children and planned to have them, but whose husband died of cancer before they were able to do so. However, he had consented to his sperm being used. The child is Mrs. Jordan's husband's, but he cannot be registered on the birth certificate. The hon. Member for Stourbridge added:

    ``Retrospection must be right when consent has been given.''—[Official Report, 23 March 2001; Vol. 365, c. 648-9.]

So say I, and so say all of us. That is an accurate and correct response to an untypically important point about retrospection made by the right hon. Member for Bromley and Chislehurst, which I endorse. Although hon. Members must always be concerned about ``retrospectivity'', when consent has been given, ``retrospectivity'' is reasonable because it is prospective from the time of consent. However, to allow such ``retrospectivity'' the Registrar-General must be given some discretion, which we will discuss in later amendments. There are no problems in such cases.

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There are, however, significant problems in two further cases. The first is a prospective case in which even when consent has not been lawfully obtained—it would have been established case by case in common law—the Bill will provide a remedy for a mother who may be a party to obtaining gametes without consent. It would usually be the mother who is involved; it would be surprising if a medical practitioner waded in without a request from the prospective mother, the partner of the gamete provider. That would send the wrong signals. It would not fit in with the spirit of Professor McLean's recommendations, and would not be satisfactory to the HFEA, as recorded in the letter that I quoted from the chairman, Ruth Deech. I know of no remedy for such problems.

The second case concerns a retrospective application when it has been established that there was not lawful consent. It would be a reasonable compromise if the wording could be changed to ensure that the children concerned could benefit from having their father's name on the birth certificate because there was some doubt, until it was established by the High Court in the Blood case, that written consent was required. It may not be easy to frame such a proposal, but it must be possible. If we are to go for retrospective law—that is, an ad feminem creation of law specifically to deal with Mrs. Blood's case—that should be acknowledged in the Bill and should refer only to retrospective cases where proper consent was not obtained. Professor McLean's recommendation is that there should be no discretion for the HFEA to endorse subsequent action—export of gametes—when consent has been lawful. That is an extremely powerful point; I would find it fundamentally difficult to allow prospectivity in amendments to the 1990 Act that do not take account of the importance of consent.

I invite the hon. Member for Northampton, South to consider such a compromise, if there is sufficient parliamentary time to do so, and to take into account the views of Professor McLean and other experts on the matter. Despite the strong terms of the HFEA's representations, it recognises the value of such an approach. In Mrs. Blood's case, I believe that the doctor concerned telephoned the HFEA for advice. There was doubt about whether the sperm should have been removed and there was a ``without prejudice'' permission to store it pending a final decision on whether there could be further use of that sperm. In spite of having huge sympathy for Mrs. Blood, allowing a change in the law to enable her to have Mr. Blood's name on her child's birth certificate should not mean that the House has opened the way, either to sending the signal that I have described, or forcing a situation where, following an unlawful obtaining of sperm without proper consent for paternity, it is possible for that paternity to be registered. That is why the first part of my amendment that talks about the need for the consent to be lawful is even more important than lawfulness in the use of gametes.

That concludes my comments on amendments Nos. 7, 10, 13 and 16. If the argument applies to the case of a married woman using her husband's sperm, it applies to the other three cases: married and using donor sperm; unmarried and using the partner's sperm; unmarried and using donor sperm. That is why the amendment is written in the same terms in those four cases. I may wish to return to the other amendments that deal with substantially different matters once I have heard hon. Members' contributions.

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