Human Fertilisation and Embryology (Deceased Fathers) Bill

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Dr. Harris: The Minister said that she did not think that my example—where birth registration became such a big issue that a woman would go to great lengths to obtain it—would arise. However, the unfortunate case of Mrs. Blood is a clear example of someone who feels so strongly that she has campaigned magnificently on the issue for years—and I do not suggest that her failure to obtain lawful consent was malicious or an effort at trickery. The hon. Lady suggests that that case is a freak and that there will be no more like it. However, the literature, including the McLean report, records tens of cases in north America where questions of that nature have been asked about unconscious men and the extraction of their sperm. The situation is more prevalent than she suggests.

Yvette Cooper: People clearly feel strongly about birth registration, but whether the Bill acts as an additional incentive or disincentive to behave lawfully or unlawfully at an earlier stage is not the main question. The important thing is that people should have proper protection under the law, and that that law should be enforced. The hon. Gentleman's argument is important, but it should be covered in a separate debate. It is separate from whether birth registration should take place under the Bill. The amendment would not provide any additional protection in terms of consent and it could cause additional unintended problems. My hon. Friend the Member for Northampton, South has already raised the issue of the difficulties that could arise if a health practitioner fails to comply with the law. If the parents were not, and could not have been, aware that the practitioner had not behaved lawfully—that might not come to light until after registration—the amendment would not allow for that child to have the father registered on the birth certificate.

Mr. Boswell: Would the amendment not give rise to a situation where a valid registration that had been issued could be later withdrawn or cancelled if a subsequent irregularity came to light?

Yvette Cooper: I suspect that that might well be the case, although I am not aware of the details of what would happen in cases where registration had taken place. Clearly, all kinds of problems would be raised if an unlawful act that had nothing to do with the woman or family involved came to light afterwards.

The hon. Gentleman asked what would happen if a rape had taken place. Yes, the man who committed the rape could be recorded on the birth certificate. It is an interesting point.

Mr. Boswell: Perhaps I could soften the point by giving another context. The putative father could be under age, and his action would therefore be illegal. It might, however, be perfectly sensible and, dare I say, more palatable to wish to put him on the birth certificate.

Yvette Cooper: The hon. Gentleman makes an interesting point. For all the reasons that have been raised, it is right that we take consent extremely seriously and provide proper protection in the law. Equally, however, I am not persuaded that that means that it is necessary, advisable or desirable to introduce the amendments into the Bill, which addresses a specific, narrow issue arising out of the McLean report.

Dr. Harris: I am grateful to the hon. Members for Daventry (Mr. Boswell) and for Northampton, South and to the Minister for addressing some of the points that I have raised. I am satisfied on a couple of matters, but I am not fundamentally satisfied, for the reasons that I shall give.

The hon. Member for Daventry described me as being on the liberal side of Liberal. He is well known to be on the liberal side of Conservative, which is not saying much in many cases, but it is fair in his case. However, that is not the issue, although I know that he was not making a serious point. Those on all parts of the spectrum will have concerns about the matters that we are discussing. Fundamentally, it might come down to how strongly one feels that the rights of the gamete producer come before those of the child under the UN convention.

It is important to tackle the point that was made by the hon. Member for Daventry about the terminology. My amendment No. 7, and, indeed, amendments Nos. 10, 13 and 16, tag on to the end of a statement that reads:

    ``the man shall be treated for the purpose mentioned in subsection (5E) below as the father of the child unless it is shown that he did not consent to being so treated.''

We should be clear about the fact that ``treated'' is in the terms of new subsection (5A)(d). It is consent not to medical treatment, but only to legal treatment. It is not, therefore, covered by the McLean report or, I suspect, the recent debates about the importance of lawful consent—that is, competent consent—being given.

As the Minister understands and has said before, the issue is not the written consent, but the fact that that attests to the view that there had been adequate consideration, explanation and opportunity for discussion. The written nature of the consent is used as a proxy to record the fact that the consent process has been full and proper. If the written consent disappeared in a fire, consent would still be deemed to be lawful because of what was signified, rather than because of the piece of paper itself.

Instead of the amendments tabled in my name, I was tempted to table an amendment with the words, ``a letter to show that he did not lawfully consent to being so treated,'' but that is much more difficult to discuss because it refers not to consent to medical treatment, but to consent to being treated as the father. We will have similar debates, but it is more sensible to be specific about the consent to use of the sperm, which is effectively consent to paternity. It does not say in lines 26-28 on page 1 ``and provided he consented to being so treated''. It is put in the negative. I should like some explanation as to why that clause has been drafted in the negative—``unless it is shown that he did not consent'' rather than ``provided that he did consent''. Can I say to the hon. Member for Daventry that the reference to consent for being so treated, whether positive or negative, does not satisfy me in terms of the consent to obtaining of the gametes, as he acknowledged? That should not be used as an argument against these amendments.

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The hon. Member for Northampton, South is in an awkward position, which, as sponsor of the amendment, I share, because if a hierarchy of things from the McLean report were to be implemented, consent should be higher than this issue. This issue will not go away: the children will be able to be registered if this is enacted next year. They will still be able to do it in two years' time because of the retrospective action, which is unlimited in terms of the recent past if the Government brings in a Bill.

Mr. Tony Clarke: The hon. Gentleman is right insofar as if there were a hierarchy in terms of the McLean report, those things would have been higher up the agenda. They are not. This is the opportunity to deal with points specifically relating to registration. Delay is important. Children of those mothers, such as Liam Blood, are now reaching an age where they are starting to question, and their mothers are trying to explain to them the circumstances in which their fathers died prior to their birth. At every stage of the Bill, including on Second Reading, we have said that there will be times in a child's life when he will want answers to such questions. For that reason, time is important; we want to place on statute as soon as possible the right for the father's name to be recorded on the birth certificate, to ease the passage of those children's lives. While I accept that the matter may not be a top priority, it is important for those children.

Dr. Harris: I understand the hon. Gentleman's point but I do not accept it. It is difficult for people in my position because our view might seem not to recognise the hurt and concern that exist around the case of, for example, Mrs. Blood. Given the fact that there was sympathy from the public and the media for the stance that she took from the start, it makes it more awkward. Nevertheless, I have a duty to say that I do not believe that the circumstances that he describes are so urgent that we should make that a higher priority than the issue of consent, for reasons that I am about to give.

It is difficult for me, as a third party, to comment on and question the motives and emotions of Mrs. Blood, who was so tragically bereaved. However, it could be argued that in similar cases the main issue is to describe to the child who his or her father was and what he was like as a person, rather than to hold out the importance of a piece of paper over the fundamental values that might be put across to the child in terms of his or her inheritance. One's inheritance comes from an individual's personality, not from a piece of paper and legal recognition. Clearly, in Mrs. Blood's case, that is important, but I do not believe that her difficult and stressful case should be the basis of a law that clearly has shortcomings.

If we cannot make progress because those in either House who share my view cannot be satisfied, the Government will have an opportunity during the next Session to introduce a larger Bill, which could deal with a series of issues, including the McLean report. I have received no answer to my question about the context in which these things will be done, and it seems likely that there will be other situations in which the issue of the right to reproduce after the incapacity of a husband or partner will arise. Again, that is referred to in the McLean report.

Section 2.8 says

    ``Although the reasons for maintaining the written consent requirement outweigh those in favour of change, other issues in respect of the regulation of assisted reproduction arose from the Consultation Document. The Court of Appeal's judgement in the case of R v. Human Fertilisation and Embryology Authority ex parte Dianne Blood was based in part on the expectation that such a case would not arise in the future. However, since the judgement was made, the HFEA has been approached on a number of occasions by doctors seeking advice as to whether or not they may lawfully remove gametes in precisely the same factual circumstances. That this is so may be the result of a misunderstanding of what the Court of Appeal's judgement actually said''—

in that it asked the HFEA to reconsider its discretion on the export, but did not make a ruling to overturn the High court judgment on the lawfulness of the removal of the gametes—

    ``but it also reflects the reality that, were the common law requirement for consent to be developed, such cases would arise in the future. In the US, where infertility treatment is barely regulated, one survey has shown that 14 of 273 fertility clinics in the US and Canada had taken sperm from a total of 25 dead men. Moreover, it was also found that demand is rising: between 1980 and 1994 the clinics reported 39 requests for the procedure, while in 1995 alone there were 43 requests. It is of interest that New York State is currently considering a Bill which would require prior written consent to be given before sperm could lawfully be removed from a dead man.

    Whatever the reason for this increased demand, it is a trend which may be echoed in the UK, and it may extend to men who are comatose and dying as well as to those who are already dead.''

It seems to me that there is potential for more than just an isolated case. As I have already said, I am content for Mrs. Blood's requirements to be met without sending out a signal or legislating for the future.

The Bill is flawed in the way that I have already mentioned, and the Government will have the opportunity to introduce their own law. I accept that the removal of sperm is a matter of common law, but it is law. The fact that the 1990 Act is statute law, which does not cover the removal of sperm, does not mean that any subsequent development of the 1990 Act—I do not share the view of the hon. Member for Northampton, South on this—should not take into account subsequent interpretations of common law and expert advice on how the law should be developed. Indeed, my understanding is that the Government are being asked to consider, post Alder Hey, that the common law basis of medical consent should be put on a statutory basis. The approach that one thing is covered by statute law and another by common law, and never the twain shall meet in the development of statute law, is liable to be thrown off by that approach.

I am concerned that there will be circumstances in which sperm obtained from comatose men—without, necessarily, a major medical intervention through more orthodox means of generating sperm—could be taken, without the consent of the man, and used abroad. My other amendments seek clarification, which I have not yet received, on why, in some circumstances, the measures apply only where a licence is given in the UK, but in other circumstances, they apply any time, any place, anywhere.

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