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Human Fertilisation and Embryology (Deceased Fathers) Bill

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Dr. Harris: Will the hon. Gentleman repeat his comments on what was not tested? I could not follow them.

Mr. Clarke: In the Diane Blood case, the High Court did not establish whether the removal of sperm was lawful—it was not tested. The Court of Appeal emphasised the importance of consent, but it was not tested and there was no substantive outcome from the case.

Dr. Harris: I am a little confused about the hon. Gentleman's reference to the High Court. I understood that the High Court ruled against Mrs. Blood, that the obtaining of the gamete had been unlawful under common law and that the Court of Appeal dealt only with export thereafter under the European law on freedom of movement to seek medical services.

Mr. Clarke: The hon. Gentleman is correct inasmuch as the High Court established that the removal of sperm was unlawful, but that was not tested in the Court of Appeal. That is all that I am saying, so he is correct inasmuch as I am prepared to go along with his interpretation.

I have already said that there will be a considerable burden on women to show that the removal of sperm was lawful, particularly if it is carried out overseas. Medical practitioners who carry out the procedure might provide evidence, but the lawfulness of their actions may not be tested at all. Again, we can refer to the Diane Blood case, which was difficult because of the question of consent. As we said, the question of lawfulness was a matter of debate for both the High Court and Court of Appeal, but if a woman were unable to register a man as the father because of a practitioner's failure, one would have to ask who should be punished for that breach of legality. Should that be the woman or the child? Should the child be denied the right to have his or her father's name on the birth certificate? In terms of legality, any punishment should be against the person who has committed the offence.In that case, an unnecessary burden would be placed on the victim of the offence, rather than on the person who committed the act in the first place.

Dr. Harris: That sounds like a good argument, but the universalisation of that would not be a good thing. It is clearly incumbent on those who seek treatment or, indeed, goods and services not to be reckless as to whether they have been obtained lawfully. There is some responsibility on such people. I am not an expert, but I think that the same arguments apply to the purchase of goods that are stolen or derived from nefarious activity. In a sense, the purchaser is a victim, but if he knows that a nefarious act is involved even though he did not commit it, he is not only a victim.

Mr. Clarke: I respect the hon. Gentleman's opinion, but I disagree in that an unnecessary burden would be placed on the mother to try to find out such information in advance and whether she could trust the answer that she received. She may find out that a practitioner is unlicensed and acted unlawfully only after the event.

Mr. Boswell: Will the hon. Gentleman look into what would happen in the following, admittedly rather extraordinary, combination of circumstances? I genuinely do not know what would happen. Let us say that a woman is raped, but for some reason wishes the name of the child's natural father to appear on the birth certificate. Both parents would then be registered, albeit the child is the result of an illegal act. I cannot imagine that such a case would arise, but it might. I wonder whether the law provides for or precludes registration arising from an illegal act. That may be germane to this debate.

Mr. Clarke: I am afraid that the hon. Gentleman's question was so complex that I will have to study in great detail what the outcome would be in such a case.

To return to the amendments, I must tell the hon. Member for Oxford, West and Abingdon, with the greatest respect, that were it my intention to try to implement all Professor McLean's recommendations, that task would have been far beyond the scope of a private Member's Bill. Although I believe that his points are valid and the Government will have to address them, we cannot at this stage introduce amendments that go beyond the narrow scope that I have mentioned. In mirroring the Human Fertilisation and Embryology Act 1990, we are trying to ensure that the rights of mothers who have undertaken treatment in cases in which the fathers are deceased are brought into line with those granted by legislation already on the statute book.

Dr. Harris: I accept that the Bill cannot implement all the McLean report's recommendations, even if the hon. Gentleman agrees with them and there is Government support for that. However, does he accept that there would be merit in ensuring that the Bill and other amendments to the 1990 Act are consistent with the McLean report if he agrees with it? Should the Government not also agree that amendments to that Act should be consistent with the report if they endorse its recommendations? I am talking about implementation with consistency, rather than simply mirroring the 1990 Act.

Mr. Clarke: I follow that argument, but I repeat that, although the 1990 Act needs to be amended in many more ways, the narrow scope of the Bill means that this is not the time or place to do that. We are serious about trying to ensure that we do not continue to penalise mothers and children in the cases that were described. The hon. Gentleman asked for numbers. I cannot help him with all the figures that he seeks, but I believe that there have been roughly 30 cases since the 1990 Act was placed on the statute book, but we have no way of knowing how many of those women have been treated in the UK or abroad.

Mr. Roy Beggs (East Antrim): To treat the matter simply, does the hon. Gentleman agree that, when a father can be clearly identified, the child born of that father's seed should be entitled to have his or her father's name on the birth certificate?

11.45 am

Mr. Clarke: That is the very intent of the Bill. I agree with the hon. Member for Oxford, West and Abingdon that Professor McLean's recommendations are valid and need to be addressed, but this is not the time and place for that debate. If we fail those mothers and children, the loss that they have suffered and the victimisation and discrimination that they are suffering will continue until all aspects of Professor McLean's report have been dealt with by the Government. It would be unfair of us to impose that continued burden on them, when we have a real opportunity to correct an anomaly in the Act, which concerns only the narrow issue of the father's name being recorded on the birth register.

I am more than happy to write to Professor McLean to clarify her opinion about the points that the hon. Member for Oxford, West and Abingdon has made. I might be able to consider whether his points could be wrapped up into a simpler amendment, but I feel that that will not be possible if we are to make progress during this Parliament. I am not, therefore, persuaded by his arguments.

The Minister for Public Health (Yvette Cooper): I shall try to put the Government's view briefly, given that there are many other issues to discuss. I have much sympathy with the points that the hon. Member for Oxford, West and Abingdon has made. He has raised important issues about consent. However, I have some serious problems with his amendments.

The Government have a clear position on consent. We accept the recommendations in the McLean report that the existing provisions on consent are vital and should remain: those in common law, in criminal law and in the 1990 Act. We considered the report's recommendations in great detail, and the hon. Member for Oxford, West and Abingdon is absolutely right that the issues around consent are wide ranging and critical for patients across the board, not simply in the area under discussion. That is why common law contains provision on obtaining sperm by consent, and why the 1990 Act covers appropriate consent for storage and treatment.

Nothing in the Bill weakens the law on consent. Nothing in the Bill makes it more acceptable to obtain or store sperm unlawfully, or to carry out treatment unlawfully. It is the Human Fertilisation and Embryology Authority's duty to pursue and to enforce the 1990 Act, and it is very clear that doctors who store or treat without appropriate consent under the Act commit an offence.

The question is whether this is the right place to raise the issue of consent in the way that the hon. Gentleman has done in his amendments. I agree that it is important to recognise and to protect men's interests, and that men should have control over the use of their gametes. However, the amendments do not give men any greater control over the use of their gametes—over the withdrawing, storage or use of their sperm. That is properly dealt with by other laws. If there are concerns about the enforcement of the law, or about consent not being properly recognised under the 1990 Act, we should further debate that. However, the Bill is about birth registration, and accepting the amendment would not increase protection for men's interests and their control over their gametes.

Dr. Harris: Does the hon. Lady accept that a small number of women might exist who, regardless of the man's consent, want their child to have the man's name on the birth certificate? A law that contained no sanction or disincentive against stealing gametes and going abroad for treatment, could, in a minority of cases, breach men's rights and control over paternity.

Yvette Cooper: The Bill will not act as an incentive or disincentive in the kinds of cases to which the hon. Gentleman refers, but we should be wide-eyed about such cases. From his example, it is not clear to me that a name appearing on a birth certificate would act as an incentive or disincentive to people who feel passionately about that situation. However, the law should protect people in such circumstances, and it should be unlawful to extract sperm from a man without appropriate consent, or where it is not in the man's best interests. That protection should exist in law, which should not be about creating spurious incentives or disincentives for birth registration because that is a separate issue. I agree that we should be concerned about protecting men's interests, and it is right that the law addresses that, but I do not think that the birth registration issue would provide any additional protection for men in such circumstances.

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Prepared 25 April 2001