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Dr. Stoate: Does not the hon. Gentleman agree that if the reasoned amendment were to persuade the House to refuse the Bill its Second Reading, it would give succour to those who want to continue with reproductive cloning, as it would allow them to exploit the current legal loophole?
Mr. Leigh: With respect to the hon. Gentleman, I do not know how much of the debate he has taken in. All hon. Members, on both sides of the House, have pretty well established that it is extremely unlikely that anybody will engage in human cloning this week, next week or next month. It is not going to happen and is not technically possible. The cells, facilities and all the rest of it could not be found. The fact is that there is time to consider these matters seriously. All hon. Members are opposed to human cloning. That is not what the debate is about. Everybody here should be seeking to frame legislation to ensure that various problems are addressed. The Minister has sought to wave those problems away, but they are serious.
Mr. Cash: Does my hon. Friend agree that the answer that I received earlier from the hon. Member for Oxford, West and Abingdon (Dr. Harris) illustrated the real problem that we face and that my hon. Friend is so expertly explaining now? It is absolutely clear that in the absence of a full-blown Select Committee to investigate all the questions that are arising, report to the House and produce proper definitions, it will be impossible for the Government to introduce legislation. Indeed, the Minister's comments made it clear that she was unable to give a clear answer on the legal definitions. Would it not have been a good idea to have placed in the Library of the House the legal opinion that was produced?
Mr. Leigh: Why cannot we just try to deal with these difficult matters, which give rise to serious moral, ethical and medical concerns? We do not have to deal with them
in this confrontational way. We could deal with them through proper pre-legislative scrutiny, and by appointing a Select Committee and calling expert witnesses before us. There is time to do that. It is accepted on both sides of the House that we are going to have to return to the subject anyway, whatever the result of the court case. Given the debacle of the debate on the regulations, and of the Government losing their court case, and given that the Government have already had their fingers burned in this matter, would it not have been better for them to proceed in the way that I am suggesting?
Mr. Ian Taylor: Does my hon. Friend agree that it is clear that no one in the House is advocating human reproductive cloning? That is the will of the House. If the Human Fertilisation and Embryology Act 1990 had to come back to the House, would he respect the fact that the House had previously endorsed the purposes of the amendments that were introduced to allow cell nuclear replacement?
Mr. Leigh: Of course I respect the will of the House. Some of us are opposed to therapeutic cloning, but we respect the will of the House and we know that we are in a minority on that issue. All that we are trying to do now is to get legislation that works and closes all the loopholes, which is surely a perfectly sensible thing for Members of Parliament to do. If I am given a moment, I shall try to outline some of those loopholes, but before I do so I had better give way.
Glenda Jackson: Surely the hon. Gentleman is arguing for the abolition of judicial review, if what he desires is legislation on which, if any group were to test it in court, a judge would automatically find for the Government. I find that ironic, given that hon. Members on both sides of the House have argued, in relation to the Anti-terrorism, Crime and Security Bill, that the issue of judicial review is vital to our basic civil liberties and human rights.
Mr. Leigh: Of course, we all accept that judges have the right to interpret legislation. The problem with the way in which the Government addressed this matter through unamendable regulation is that the provisions were completely unenforceable. The problem is that it might not just be a question of a judge dealing with an aspect of this legislation in six months or a year's time; a judge might completely sink it, or ensure that it has no effect whatsoever in a whole area of research. We should be concerned about that.
I shall attempt briefly to deal with some of these problems, because, although they have been mentioned by the Minister, they have been dismissed with a wave of the hand. The Bill leaves the cloning of human embryos completely unregulated. Of course it will prevent implantation; we know that. It is a short Bill, and that is quite clear.
Miss Begg: Will the hon. Gentleman give way?
Mr. Leigh: I would like to try to develop my argument, and the hon. Lady has already intervened.
People can create—or attempt to create—cloned embryos, experiment on them and keep them for as long as they like. They Government claim that they will appeal
against the judgment, but for the time being, the law is as Mr. Justice Crane declared it to be. The fact that the Bill deals with implantation does not address the central problem that it leaves the cloning of human embryos completely unregulated.Other points were mentioned, and the Minister responded that they could be returned to if the court case were lost. That is not good enough. We cannot have hypothetical situations when we are dealing with primary legislation. The fact is that cloned embryos can be implanted into animals. The Bill prohibits only the placing of embryos into women. This is not some kind of esoteric matter that nobody has thought of and might never happen. It goes to the heart of the Bill.
In the early days of IVF, Professor Robert Edwards, the creator of the first test-tube baby, conducted experiments implanting human embryos into rabbits and sheep. As a result of that, Parliament placed a ban on placing fertilised embryos into animals. That ban does not extend to cloned embryos. This is a serious point, and if we are going to have sensible legislation to deal with the matter, we should address it.
Professor Winston in the other place claimed that embryos could be implanted in men. The Bill would not prevent it, but the Government wave that aside, saying that it is not likely to happen and that we can return to it, but we should at least discuss the matter, if we have time to debate the Bill in Committee. The point has been made several times that cloned embryos could be exported for implantation. The Bill would not prohibit that. A clone could easily be created in the UK, then exported for implantation. The Bill would not prevent that. Again, a gaping loophole could defeat the purposes of the Bill.
Clones could be kept alive in artificial wombs. That is known as ectogenesis and the 14-day limit imposed by Parliament was meant to prevent it.
Miss Begg: Will the hon. Gentleman give way?
Mr. Leigh: I must make progress, but I shall give way to the hon. Lady, as I know she is anxious to get in. She has a particular interest in the Bill.
Last year in Japan, researchers managed to gestate goat embryos for several months in artificial wombs. That is not an entirely esoteric point; it is happening in the research world. Clones could be kept alive in artificial wombs. Again, the Bill is silent, as it is on all those matters, because the Government think that they must produce as simple a Bill as possible, get it through the House in a day and draw it as tightly as possible so that it cannot be amended. That makes for a circular argument, which is fine for those in charge of the Government timetable, but altogether more worrying for people who work in this field and want serious legislation covering all those points.
Allowing the creation of cloned embryos will pave the way for live-birth cloning. Once cloned embryos are created, it is inevitable that, sooner or later, they will be implanted in a woman, especially if no restrictions are put on creating or storing cloned embryos. A survey of all the leading IVF practitioners was conducted by The Independent, and the majority recognised that live-birth cloning is inevitable once the creation of cloned embryos is allowed. The Government's failure to control the
creation and storage of cloned embryos is extremely irresponsible and the ban on implantation, which is the centrepiece of the Bill, will be impossible to police.Ministers often come to the House with such legislation, assuming that it will be policed properly, but let us study it for a moment. In the laboratory, there is no effective way to distinguish between cloned and normally fertilised embryos. As the creation of cloned embryos is unregulated, clinics could store cloned embryos next to fertilised ones and no one could tell the difference, but the Government say, "Don't worry. Legislation will cure the problem." I doubt it.
Once a clone has been implanted, no one will be able to tell the difference. Even after birth, it will be possible to establish that a clone has been created only if it is known whose genetic material was used to create the clone and if it were possible to force that person and the clone to undergo genetic testing. That will not happen, so let us discuss a case that did happen.
Late last year, a week after the Human Fertilisation and Embryology Authority inspected a clinic in Basingstoke, approving its facilities and procedures, it was discovered that dozens of embryos had been mixed up or gone missing. As many as 80 women had the wrong embryos implanted. Criminal prosecutions are occurring. In the early 1990s, the first case of the wrong embryos being implanted was reported. Two patients had their embryos mixed up. By the HFEA's own admission, there are huge errors recorded in the collection of basic data.
My point is that the Bill is impossible to police and this is vital: the failure to define the terms "fertilisation" and "embryo" leaves it full of loopholes. We have tabled amendments to define those terms and, if we have a debate in Committee, we would like to discuss them. Neither term is defined, yet that was precisely the problem with the Human Fertilisation and Embryology Act 1990 and it is why were are having the debate today. It is also one reason for the court case being brought and for the ProLife Alliance winning its judicial review.
One cannot say, "We don't agree with the ProLife Alliance. It caused the problem." Surely those drafting legislation and bringing it to the House must assume that it is reasonably watertight. In this Bill—a very short Bill, which deals with a huge, complex, difficult area—no attempt has been made to define its basis. That is extraordinary. Those who think—if anyone holds such a view—that lawyers will not have a field day are fooling themselves.
Members who imagine that this is just my opinion should bear in mind what Lord Winston said in the other place. I shall paraphrase: Lord Winston said that fertilisation was impossible to define, and could encompass a variety of techniques.
Parthenogenesis is one of the cloning procedures undertaken by Mike West of Advanced Cell Technology. He was featured in the newspapers earlier this week, having cloned the world's first embryonic human being—or so he claimed.
The Bill would not prevent the implanting of cloned embryos created by techniques described as fertilisation. That was Lord Winston's point. It should be borne in mind that this is a criminal Bill, in that those who breach its provisions could be sent to prison for a long time. If a case is brought, the benefit of the doubt will lie with the defendant. If the defendant demonstrates that his cloning
technique could be described as fertilisation in Lord Winston's terms, he will be able to avoid criminal sanctions.I should have thought that those wishing to avoid the possibility of defendants driving a coach and horses through their legislation, which would defeat the whole object of that legislation, would want to define their terms. Surely that would be reasonably sensible. No attempt has been made to define the terms, however, because the Government's central and overriding aim is to enact some sort of legislation, however imprecise and ineffective it may be. That is very dangerous. It might result in legislation that could not be enforced, and could not make a successful prosecution possible.
It has been suggested that the Bill may prevent the use of certain established fertility techniques. One is intra-cytoplasmic sperm injection—ICSI. I shall not go into details, but concerns have been raised about it. Furthermore, the Bill fails to define the term "embryo". I have considered the definition of "fertilisation", but the definition of "embryo" is particularly important, because we are seeking to base a whole body of legislation on it. The definition of a one-celled product has been discussed. Mr. Justice Crane agreed with the Government on that, stating that if he had found in their favour a one-celled clone would still not be an embryo. Thus the Bill does not prevent the placing of a one-celled clone in a woman. The Minister brushed that aside, but I think that we should deal with it.
The HFEA has itself subscribed to the view that, until 14 days have elapsed, the product of fertilisation is not an embryo but, rather, a pre-embryo. It is possible, therefore, that the Bill does not prevent the placing in a woman of what some term a pre-embryo. I should have thought that that was an important point—and an interesting loophole.
Just as the Bill makes no attempt to define when the embryo stage begins, it makes no attempt to define when it ends. At some point in the embryo's development it becomes a foetus, but neither the Bill nor the 1990 Act identifies that point. That is a serious lacuna in the Bill.
Is a totipotent embryonic stem cell an embryo? If so, is it covered by the Bill? Fully grown mice and cows have been developed from mouse and cow embryonic stem cells—but, again, the Bill is silent on the matter.
Even if the Government win their appeal, serious problems may arise in all the areas that I have mentioned. We need to frame legislation so that it can cover all those problems, and enable us to fulfil the declared wish of the House to ban human cloning in any shape or form. We need to close all the loopholes, effectively and sensibly. The Bill does not do that, and I therefore urge the House to accept the amendment.
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