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28 Mar 2003 : Column 604—continued
Ms Shipley: I am pleased that my hon. Friend has drawn to the attention of the House the action of that single Member of Parliament who came in on Third Reading, after the Committee, on which I had the pleasure to serve. That hon. Gentleman had made no speech and given no indication of what he intended, unlike his honourable colleagues who made valid and interesting points. Instead, as my hon. Friend said, in those last few seconds the hon. Gentleman basically blocked what was a supported Bill.
Mr. Clarke: I entirely agree with my hon. Friend.
Chris Grayling (Epsom and Ewell): I believe that it is usually the convention of the House that hostile comments should not be made about hon. Members who are not present. However, the hon. Gentleman would surely accept that it is two years since that event took place, and there has been ample parliamentary time, had the Government chosen to make time available, for the Bill to have passed long ago.
Madam Deputy Speaker (Sylvia Heal): Perhaps we can now return to the content of the Bill that is before the House.
Mr. Clarke: It is not my intent to be hostile. I mean only to put the record straight on previous
parliamentary proceedings. It is my belief that we would not be here today were it not for the actions of the hon. Member for New Forest, West. He said at that time that it was a matter of conscience—
Mr. David Wilshire (Spelthorne): On a point of order, Madam Deputy Speaker. Can you confirm that it is a matter of courtesy in the House that someone who is to be attacked in person should be given notice of it? Perhaps the hon. Gentleman might say whether he did give notice to the hon. Member concerned.
Madam Deputy Speaker: That is indeed the case.
Mr. Clarke: As I said, I do not wish to be hostile or to attack the hon. Member for New Forest, West. I intend just to put it on the record that this is not a matter of conscience. I am not talking about the hon. Gentleman or his behaviour, but the fact that he decided on that occasion to say that this was a matter of conscience. As my hon. Friend the Member for Birmingham, Hall Green said, this Bill does not deal with aspects of embryology and fertilisation. It simply addresses the fundamental wrong that does not allow a father to be included on the birth certificate of his children after his death.
I welcome the minor changes that have been made to the original Bill since 2001. In particular, clause 3(6) allows children born prior to the enactment of the Bill the same rights as those born afterwards, but it does not impose on them unnecessary conditions that turn the clock back and ask them to provide evidence that will not be available in many cases. The Government have shown their compassion by making an amendment that can draw a line while allowing those who were previously affected to seek comfort and redress.
The other issue of great concern in relation to the original Bill was that hon. Members sometimes tried to use it as an opportunity to introduce other measures relating to aspects of the Human Fertilisation and Embryology Act 1990 with which they were unhappy.
I believe that we have a once-only opportunity for the House to regain its reputation and correct the matter before it returns to the High Court, and I hope that hon. Members across the House will allow the Bill speedy passage in Committee and on Third Reading. I hope that we can right a wrong and that hon. Members will join me in congratulating my hon. Friend the Member for Birmingham, Hall Green on bringing this matter before us so swiftly.
12.31 pm
Mr. Christopher Chope (Christchurch): I was not going to speak, but in view of the comments of the hon. Member for Northampton, South (Mr. Clarke) about my neighbour and friend—my hon. Friend the Member for New Forest, West (Mr. Swayne)—I wish to say that it is absolutely wrong for the sponsors of this Bill and the previous one not to lay some blame and responsibility at the hands of the Government. It was the Minister who said in November 2000 that the Government would introduce legislation on the matter, but nothing was done. As will be apparent today, the issue is not controversial, and the Bill is also very short, so it is amazing that a Government with such a large majority
were unable to give the proposal the priority that it should have had. They could have introduced the measure using Government time and without taking up much of the time of the House.As my hon. Friend the Member for Epsom and Ewell (Chris Grayling) said, since the general election the Government have had plenty of time and a large majority that they could have used to introduce such legislation. If they had done so sooner, they would not have received the rap over the knuckles and the very strong criticism in the High Court from Mr. Justice Sullivan on 28 February this year, when he made a declaration of incompatibility and ruled that the Human Fertilisation and Embryology Act 1990 was incompatible with the Human Rights Act 1998 and article 8 of the European convention on human rights, which requires respect for a person's family and private life.
The Government had the opportunity to amend those provisions under fast-track procedures. I do not know whether the Minister will suggest that the Bill that is before us satisfies everything that the High Court had to say in relation to the Human Fertilisation and Embryology Act and the Human Rights Act 1998 or whether amendments will have to be made to cover the situation. None the less, it is unfair and unjust to pillory my hon. Friend the Member for New Forest, West, whom I think spoke only for a minute or two, while at the same time giving the impression that the Government have been keen to proceed.
Mr. Tony Clarke: I repeat that we have no intention of pillorying or being hostile to the hon. Member for New Forest, West (Mr. Swayne); we are simply placing on record the confusion that existed in the House between the position that he took at the Dispatch Box in speaking as a Front Bencher, when he decided that the Bill was a matter of conscience, and the comments that he later made to others in saying that he intervened under orders—I think that those were the words that he used with individuals in private. The issue is not about pillorying him, but an attempt to ensure that, this time, the House is as one in ensuring that the Bill receives a speedy passage and a quick conclusion. It may help the hon. Gentleman if I repeat that there is no intention of pillorying or being hostile to the hon. Member for New Forest, West.
Mr. Chope: I am grateful to the hon. Gentleman for that long intervention. Its contents justified the length, and I thank him for putting those comments on the record. I can now sit down.
12.34 pm
Mr. Andrew Stunell (Hazel Grove): I congratulate the hon. Member for Birmingham, Hall Green (Mr. McCabe) on promoting this short but important measure. I wish it well.
As science and medicine advance, hon. Members are increasingly faced with issues about which our predecessors could not even have dreamed. Many are deeply divisive ethical and moral questions, as the debate has shown. Hon. Members are often sharply divided on them, by no means always on party lines.
Although the Bill clearly relates to such matters, it is much more straightforward. It is needed simply to put right an unintended consequence of the House's first
attempts to legislate on a difficult matter. The courts as well as the House have had to struggle to make sense of the new landscape that medicine and science have created. They have worked within existing legislation as well as they could.The law in the case that we are considering has produced an unexpected, unwelcome and surely unintended outcome that has had serious consequences, which caused grievous hurt to individuals and families. We should put that right. As the hon. Member for Birmingham, Hall Green said, the Bill returns the law to the position where, I suspect, most lay commentators—I am certainly a lay commentator—would have supposed that it was in the first place.
I shall comment briefly on the matter that the hon. Member for Northampton, South (Mr. Clarke) raised. I hope that the measure is kept as simple as possible in Committee and that there will be no temptation to bolt on people's pet ideas—I was about to say "hobby-horses", but I am not sure whether they can be bolted on—about what should be added to a straightforward measure.
The Bill deserves support today. It may have one or two rough edges, but they can be smoothed in Committee. I commend the measure to hon. Members and wish it success on its way into law.
12.37 pm
Chris Grayling (Epsom and Ewell): We have held a brief but important debate on a subject that arouses strong feelings in many people. People undoubtedly feel uncomfortable about such policy, especially since science takes us into realms that previous generations could not have imagined, as the hon. Member for Hazel Grove (Mr. Stunell) said.
However, acknowledging that the issues that surround the Bill prompt anxiety does not mean that it is wrong. As the hon. Member for Birmingham, Hall Green (Mr. McCabe) stressed, the measure is limited and focuses on a specific grievance. It is welcome.
We live in a world where women can legally become pregnant from sperm delivered by an anonymous donor. It is therefore wrong not to recognise the different position that pertains when a child is born through artificial insemination with sperm from a known biological father.
As hon. Members know, the measure arose from the difficult case of Diane Blood and her battle to conceive and register her two sons from the sperm of her late husband. No one could fail to be deeply sympathetic to her and to many others who suffer bereavement before they have the chance to start a family. Mrs. Blood now has two growing children. I am sure that all hon. Members wish the whole family a successful future. It will undoubtedly be tinged with sadness because of the circumstances that surrounded the case.
As the hon. Member for Stourbridge (Ms Shipley) said when she spoke about her constituent, Mrs. Blood's case is not unique. Many other children and families have been affected, and the measure provides a vehicle for dealing with the injustice that they experienced. However, Mrs. Blood's case prompted us to think again about the difficult issue.
As hon. Members have pointed out, the Bill deals with only one part of the debate: the right of babies to have their fathers' names on their birth certificates. It must be right for children to know their parents' identities, especially in an age when genetic knowledge is likely to be important and to revolutionise preventive health care and new treatments in the future. That is not the only issue, however. This is also the right thing to do.
It must be a matter of regret that it has been left to the hon. Member for Birmingham, Hall Green to introduce the Bill. The Government have not seen fit to promote the measure themselves and it has been left to the persistent efforts of Back-Bench Members to bring it to the House. I congratulate the hon. Gentleman on his work in putting together the Bill that is before us today. He set out his case succinctly and effectively in his speech, and he deserves to see the measure pass into law, albeit following some discussion of the detail in Committee.
It is now nearly three years since Professor Sheila McLean published her report recommending that the names of deceased men could be placed on the birth certificates of children conceived through artificial insemination after their death. We believe that the report made sensible recommendations, and they are reflected in the Bill. As we have heard, however, the Government have not introduced legislation on the matter since that point. The hon. Member for Northampton, South (Mr. Clarke) made an important contribution to the debate in introducing his private Member's Bill, which, sadly, ran out of time. I very much hope that that situation will change, this year. I hope that the Government will oil the wheels because, as we all know, private Member's Bills need a bit of a nudge along the way and a supportive eye from the Government to ensure that they become law. I hope that the Government will give the Bill that nudge.
As the hon. Member for Birmingham, Hall Green said, much of the meat of the Bill is in clause 1, which sets out the different criteria that will be applied in judging whether a father's name can be used. It is particularly important that this part of the Bill should set out clear standards for the future. The complexity of the Diane Blood case resulted significantly from the fact that there was no tangible evidence that her husband had consented to the use of his sperm after his death. That was what prompted the original court battle that she went through. My first reaction on reading the Bill was that it did not provide for a case in which, for whatever reason, a man had taken a decision to store his sperm but had then, sadly, died suddenly, without having had the opportunity to make a written statement of consent.
I have talked quite a lot to the hon. Member for Birmingham, Hall Green over the past few days about his intentions in the Bill, and he has made it clear that he believes that it should be a matter of process that the written deposition should be made at the time that the sperm is taken for storage, so the situation that I have just outlined should not arise. I have to say to the hon. Gentleman, however, that I have read his Bill carefully, and I am not totally convinced that that will automatically happen as a result of the measure. Working on the assumption that the Bill will proceed into Committee—as I sense from the mood of the House that it will—I believe that that is an area at which the
Committee should take a careful look. It must ensure that the Bill really does make consent happen at the time that the sperm is stored, otherwise the potential for something to go wrong—as it did for Diane Blood—will certainly exist.The other element of clause 1 that leaves me uncomfortable is the provision that permits a father to be registered even if he is not the donor of the sperm. This is set out in proposed new subsection (5C). Again, I have talked to the hon. Gentleman about his intentions in this provision. He envisages a situation in which an unexpected death occurs while a couple are going through artificial insemination treatment using donor sperm. Under the current law, a child born in such circumstances is legally the child not of the sperm donor but of the husband of the inseminated woman, assuming that he has survived the birth of the child. I know that it is the hon. Gentleman's intention that the same situation should apply to a child born following such treatment if the husband had unexpectedly died.
I am a little uneasy about this provision, even though I understand exactly why the hon. Gentleman has introduced it. Clearly, issues arise relating to the rights of children to know their genetic origins. Those issues might perhaps belong to a separate debate, but I would ask those who serve on the Committee to give careful consideration to the final wording of this element of the Bill to ensure that we fully understand its implications, and to decide whether this wording alone is sufficient to provide safeguards for all possible eventualities.
I also have some reservations about the retrospective elements of the measure. I am not normally sympathetic to the concept of retrospective legislation; it is usually a bad idea and should be used only in the rarest of circumstances. This is the part of the Bill that would have dealt with a case such as Diane Blood's. Her husband died without giving written consent for the use of his sperm, and her evidence was based on reports of the verbal agreements and discussions that had taken place between them. Nobody would doubt her word on that, but the fact is that in enacting retrospective legislation we would be dealing with a much larger number of children in whose cases no written evidence exists. A number of issues arise as a result of that, particularly the circumstances in which the sperm were obtained. Again, the Committee should discuss carefully the wording of the retrospective rights provisions and ensure that the final version of the Bill is carefully structured so that those rights can be used only properly and responsibly.
The many families who have found themselves in these most traumatic and difficult of circumstances deserve to have the issue laid to rest once and for all. We have heard talk of the 28 February court case and the ruling that the Human Fertilisation and Embryology Act 1990 is incompatible with the Human Rights Act 1998 and article 8 of the European convention on human rights, which requires respect for a person's family and private life. That has clearly made the issue all the more urgent. However, although the courts have made a ruling, the measure should be not a response to decisions taken there, but a statement by the House on what is the right thing to do. That is the way forward for it.
I have been a Member of the House for just under two years, and in that time there have been plenty of opportunities to pass such a Bill. It is an illusion that time limits on Fridays prevent Bills from becoming law. If the Government want to make space for a Bill, they can do so. There have been plenty of half-empty evenings in the House and it would have been possible to slot in a couple of additional hours of debate. That will be no different in the coming months. There is no possible reason for the Bill not to be fully discussed, amended if and when necessary, and ultimately passed into law.
I very much hope that, with the support of the House and of parties on both sides, including the Government, the Bill makes speedy progress in righting an injustice and sorting the issue out for all the families affected, once and for all.
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