Human Fertilisation and Embryology (Deceased Fathers) Bill

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Mr. Tony Clarke: Does the hon. Gentleman accept that it would be wrong for us to pore over the reasons why definitions are so worded in the 1990 Act? If we are to be successful in affording the same rights to cases where the father is deceased as to where the father is alive, anything other than a direct reflection of the 1990 Act would lead to even more debate about the difference between the two laws.

Dr. Harris: I take the point that there seems to be an irrational allocation of restrictions in the four cases that we are discussing in the 1990 Act. I would be grateful for the references, because I do not believe that it is always necessary for new legislation to mirror previous legislation—that would be a wrong step for the House to take—especially when one has not received an explanation for why the original legislation was framed in a certain way. To assist hon. Members, I am now dealing with amendments Nos. 5 to 7, 9 to 12, 14 and 15.

It is not clear why the original Act states—if it does, because I have not checked it—that in case A, of a married woman who is seeking to use her husband's sperm, the procedure can be carried out anywhere in the UK without a licence or anywhere abroad, but that, in case B, in new subsection (5B), where the woman is not married and is using her partner's sperm, the procedure requires a licence if it is carried out in the UK but can be carried out abroad, where, by definition, a UK licence does not apply. It is also unclear why, in the third case, in new subsection (5C), of a married woman who is being treated with her husband and using donor sperm, presumably for reasons of the husband's infertility, the procedure can be carried out anywhere in the UK, with or without the licence—unless the law is broken in another way—or anywhere abroad. In the case set out in new subsection (5D), of an unmarried woman who is being treated with her partner and using donor sperm, the procedure can be carried out only with a UK licence and there seems to be a ban on treatment abroad.

That is most mysterious. I have considered the matter carefully and asked others with more knowledge of the history of the Act to consider the matter carefully, but they cannot give me a reasonable explanation, unless, as the hon. Member for Northampton, South suggested, the idea is to mirror the original provisions. It appears that if the woman is married, the procedure can be carried out anywhere, whether or not the husband's sperm is being used, but if the woman is unmarried, the procedure can be carried out with a UK licence or overseas if she is using her partner's sperm, but only in the UK where she is using donor sperm.That requires some explanation because we need to know the basis on which we are legislating. We should not allow the Bill to proceed unless the reasons for that are understood.

It is also important to ask why new subsections (5A) and (5B) cover artificial insemination by husband or partner, whereas in new subsections (5C) or (5D), where donor sperm is involved, artificial insemination by donor is not covered. How on earth can new subsection (5A), paragraph (a), line 9, state ``or her artificial insemination'', and paragraph (b) relate only to the creation of the embryo, when the definition under the 1990 Act refers only to the ex vivo creation of an embryo?

I quote from page 1 of the 1990 Act. Section 1(2)(a) states:

``(a) references to embryos the creation of which was brought about in vitro (in their application to those where fertilisation is complete) are to those where fertilisation began outside the human body whether or not it was completed there, and

(b) references to embryos taken from a woman do not include embryos whose creation was brought about in vitro.''

I believe, and the matter may be explored when we discuss an amendment not selected for today, that the Bill not only contains inconsistencies but has been incompetently drafted. One cannot have a situation in which

``a child has been carried by a woman''

as a result of artificial insemination and—it is an ``and'', not an ``or''—

``the creation of the embryo''

carried by her was

``brought about''

and so on and so on. It is, it seems, simply an error that needs to be corrected.

12.15 pm

I have two further points to make in reply to the response that I have already had from the promoter of the Bill, the hon. Member for Northampton, South. His main argument is that if an unlawful act occurred, those who carried it out should bear the consequences. Such sanctions as exist should not be meted out to the victims of the offence. That is a neat argument, but the 1990 Act requires people undergoing treatment to behave responsibly and reasonably. It requires people who are seeking treatment—we are talking about the creation of life, so it is a very sensitive matter—not to be reckless about whether their treatment is within the law, and it states that consent is required.

The hon. Gentleman's argument implies that it is a matter merely of rogue doctors and that unlawful treatment would occur despite the best endeavours of a mother to ensure that everything was done by the book. That implies that such treatment occurs only when rogue doctors behave unreasonably. However, we know that people are desperate with regard to these treatments and will often seek treatment outside the law. The Minister herself has spoken clearly on the need to frame legislation on reproductive cloning, because it is important to set an example to other people and to encourage other countries to be rigorous in regulating it.

In the private sector, wealthy and desperate people may well be willing to hand over money to get the desired outcome with less regard than they should have to consent. It is wrong to put the responsibility on people who are already behaving in a rogue way. As we saw in the Diane Blood case, some people are so desperate that they campaign long and hard to achieve a change in the law. Other people may be less scrupulous and less well intentioned and have less basis than Mrs. Blood had for believing that consent has been obtained, and they may try to find ways of achieving the outcome that they desire. The Bill is the first amendment to the 1990 Act by statute rather than regulation, and it is wrong to signal that the issue is not important by rejecting my amendment. People who donate gametes require us to give their views high priority.

The question was raised of whether there was a conflict between the UN convention on the rights of the child and what we are seeking to do. I cannot find the exact phraseology from the McLean report that I mentioned, and I apologise for that. However, I have certainly seen it stated, in terms, that our having signed the UN convention on the rights of the child, with respect to recognising the child's right to a father, should not be interpreted to mean that a birth certificate with a father's name should be given even if that tramples on the equal right, established under several conventions, for people to have autonomy in the use of their sperm. Perhaps we shall be able to explore that argument later.

I am conscious that we are short of time, but I want to emphasise what is set out in the McLean report at section 2.9:

``While it can be assumed that maintenance of the current common law position in respect of consent should preclude the removal of gametes from the incompetent or the dead, particularly where the question of sanctions has been clarified, it clearly cannot be guaranteed. It is even possible that media coverage of the case of R v. Human Fertilisation and Embryology Authority ex parte Diane Blood could encourage some people into ignoring the legal position because they misunderstand the legal effect of that decision. The question before the court was not whether the removal of gametes had been lawful but whether the decision taken by the Human Fertilisation and Embryology Authority to refuse to make a Direction permitting export was a lawful one. The Court of Appeal was principally required to consider the European guarantees concerning free movement within Europe for the provision of medical services. In the light of earlier comments, it is clear that it is entirely in line with European Law that states can regulate to protect genuine moral and cultural issues. One such issue might be the written consent requirement in the legislation, for the reasons outlined above. However, if regulation based on sound policy considerations could be circumvented by the exercise by the Human Fertilisation and Embryology Authority of its discretion under s.24(4) of the legislation, both policy and the legislative control of assisted reproduction could be undermined.

It is thus recommended that s.24(4) of the Human Fertilisation and Embryology Act 1990 be amended to make it clear that the HFEA's discretion cannot extend to the authorisation of the export of gametes which were unlawfully obtained.''

The Government have accepted that we should try, in future legislation, to curb what can be done with, or as a result of the use of, unlawfully obtained gametes. I cannot see much difference—indeed, export is probably less important than paternity; it may not necessarily lead to paternity. I cannot see how the Government can justify supporting a Bill that would, under the 1990 Act, allow greater rights to be accrued in the small minority of cases where gametes were unlawfully obtained.

I am unconvinced by what the Bill's promoter has argued so far, at least with respect to my suggested compromise of framing the measure to permit retrospective effect even when gametes had been obtained unlawfully—which would satisfy Mrs. Blood and those affected by other cases that might emerge, since who knows what may have happened overseas, involving British citizens—but not to allow the same to happen in the future. We must be robust and are advised that we must be robust. I would therefore be unwilling to let amendments Nos. 7, 10, 13 and 16 drop at this stage. I may want to return to the relevant matters later.

Amendments Nos. 5, 6, 9 to 12, 14 and 15 give the hon. Member for Northampton, South or the Government an opportunity to explain their desired state of affairs. Mere reference to the mirroring of an irrational approach in the 1990 Act will not be satisfactory. An explanation of the rational nature of what is set out is needed, or the hon. Gentleman should attempt to make matters rational, at least in one respect. I know that there are limits to what can be achieved in a private Member's Bill, and that he drafted his Bill as a mirror, to make it as simple as possible so that it could make progress. He was fortunate indeed, given his position in the ballot, and there, but for the grace of God, go all of us. I congratulate him on his tenacity in getting the Bill to this point. Nevertheless, simplicity should not be used as an excuse for lack of clarity.

I am concerned that sperm may be obtained by theft of the post-coital contents of a condom and taken abroad to be used. It appears that sometimes such events could, if the person concerned was already being treated, mean that paternity could be entered on a birth certificate. That would perhaps be unusual, but desperate people might, out of desperation or malice, want that to be the law. We know from High Court cases and judgments that private practitioners who run IVF businesses will want to push the boundaries as far as they can, using export as a way around the problems.

The McLean report was very clear about the discretion over export, and it appears that there would in some circumstances be carte blanche for export of even unlawfully obtained sperm. I think that it must be accepted that that would be a consequence of the Bill. Because of that, I will need detailed explanation before I can be satisfied on the matter of the relevant amendments.

 

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Prepared 25 April 2001