Examination of Witnesses (Questions 1240
- 1259)
WEDNESDAY 19 JANUARY 2005
MS SUZI
LEATHER, PROFESSOR
NEVA HAITES
AND PROFESSOR
EMILY JACKSON
Q1240 Chairman: The Government are
going to review the Act, probably next year or some time soon.
What would you like to see them do in relation to the Act itself?
Scrap it? Rewrite it?
Ms Leather: No. The Authority
thinks that the structure of the Act is sensible; that keeping
the roles that we have together is sensible. There are important
synergies between them. The Act's emphasis on welfare of the child
is important; the emphasis on consent is important. We clearly
have the experience of all the years of regulation since 1991.
There are quite a lot of things which we have put to you that
need to be changed, but those are the first three.
Q1241 Chairman: After we have done
all of that and we, say, scrap you—you are not going to
abolish yourself, are you?—suppose the Government, the world,
say, "Get rid of them", what do you think of that? What
difference would that make to this whole arena of endeavour?
Ms Leather: I think that patients,
first of all, would not be protected as well. I think that offspring
would not be protected as well, and that the public would feel
more uncomfortable and uncertain about embryo research. We have—how
can I put this?—a quieter environment, in a sense, for the
cutting edge research, embryonic stem cell research, in this country
than, for instance, in the United States. I think that some of
that can be put down to regulation. In fact, the DTI, in its recent
annual report, made that quite clear.
Q1242 Bob Spink: You have just said
that, without the HFEA, children would not be protected as well.
In your opening statement you also made a comment that the HFEA
is becoming more sensitive to the views of the public, and needs
to do so. Specifically on the welfare of the child, are you, and
is the HFEA, peddling the view that a child does not need a father?
Have you or the HFEA suggested that this should be reflected in
legislative reform? How can you justify such a view, and how is
such a view more sensitive to the views of the public, who would
find this view repugnant?
Ms Leather: I think that you are
probably referring initially to the consultation that we launched
last week on welfare of the child. That consultation does not
question in any sense the existing legislation. The consultation
is simply about ensuring that the guidelines which we are required
to produce under the legislation for clinics about how they interpret
the current welfare of the child clauses in the Act are done in
such a way that they cover the relevant risks, and they go as
far as they need to and no further. Clearly this is a very sensitive
issue for patients. We have been doing some research with patients
and with clinics, and there are some problems with the current
legislation. We have also drawn attention to the tensions now
between the current clause, particularly the child's need for
a father, and other legislation that has been passed by Parliament,
including the Adoption and Children Act and the Civil Partnerships
Act.
Q1243 Bob Spink: Suzi, you have not
answered my question. Have you or have the HFEA at any time suggested
that the child's need for a father should not be held within the
reform of the legislation?
Ms Leather: The Authority has
questioned the clause in the Act which seems to suggest, although
it is very ambiguous—and this is one of the problems for
clinics—that that should be taken into consideration. Yes,
we have questioned that, because of the inconsistency. Can I bring
in a colleague?
Q1244 Bob Spink: Before I let you
off the hook, I want an answer, if I may. Do you believe that
a child's welfare is best served if the child has a father, or
do you not believe that? Personally, and the HFEA, what is your
position?
Ms Leather: My personal position
is that children flourish best within a stable relationship between
two people. That is my personal view. The Authority's view is
that the welfare of the child is an important principle, and that
the welfare of the child of course should be taken into account
by clinicians when deciding whom to treat. However, the welfare
of the child is much more important than simply a child's need
for a father, or an age cut-off. I think that it has to be looked
at in the round.
Q1245 Bob Spink: So the HFEA then
does not believe that the welfare of the child is best served
if it has a father? That is what you are saying—or you are
avoiding saying the negative, anyway?
Ms Leather: I do not think that
I have avoided your question. I think that I have answered it.
Professor Jackson: May I come
in here? The advice that we have given the Department of Health
on this is that Parliament in two recent pieces of legislation,
the Adoption and Children Act 2002 and the Civil Partnership Act
2004, has expressly outlawed discrimination against people on
the grounds of being a same-sex couple or a single person. So
Parliament has suggested that it is important that same-sex couples
or that single people should be able to adopt children. Obviously
that is then in tension with a piece of legislation from 1990
which suggests, apparently, that there should be discrimination
against single people or same-sex couples. What we have done,
therefore, is not to express a view but to point out a tension
with various statutes which have been passed recently.
Q1246 Chairman: Can I ask you now
to express a view, please? Do you think the child needs a father
or not?
Ms Leather: I have expressed my
personal view, which is that children flourish best with two parents
in a stable relationship.
Bob Spink: I am not satisfied with that
answer. I am not getting an answer.
Q1247 Geraldine Smith: I am not too
clear about your answer. I understand, Suzi, that you have publicly
endorsed a removal from the HFE Act of a clause which specifies
that the child's welfare should include the right to a father.
Is that correct? Have you said publicly that that clause should
be removed?
Ms Leather: I was expressing the
Authority's view. There are difficulties with that clause. It
contradicts other legislation and intentions passed by Parliament—very
clearly contradicts it. It is very difficult for clinics to put
that into practice, and many patients feel profoundly discriminated
against. I think that this must be an issue for this Committee
when considering the review of the legislation.
Q1248 Geraldine Smith: Are you saying
that is currently the HFEA's policy?
Ms Leather: Yes, that is the HFEA's
view.
Q1249 Geraldine Smith: What evidence
does the HFEA have to show that children benefit from being brought
up without a father? You have to accept that, at the end of the
day, nobody has elected you, and you probably are greatly out
of step with public opinion on this.
Professor Jackson: May I come
in on this? There is extensive evidence on the psychological well-being
of children brought up by single and lesbian families. In particular,
there has been a great deal of work done by somebody who I believe
has given evidence to this Committee, Susan Golombok, on the well-being
of children brought up in these families, and there is no evidence
of any adverse effects on the children. I would refer you to her
extensive psychological research into the well-being of children.
Q1250 Geraldine Smith: Surely the
ideal situation must be to have a father there. When we are looking
at the State intervening or the State setting regulation, surely
you look at the ideal position.
Ms Leather: One of the dimensions
for the public consultation on welfare of the child that we issued
last week touches on this issue about good enough, perfect, or
minimal standard parenting. I think that it is an issue for this
Committee. Are we going to say that, in order to be accepted for
IVF treatment, you have to have shown that you will be an absolutely
gold-plated, brilliant parent, or are we going to take the view
that being good enough is good enough, or do we take the view
that you simply want to ensure that there are not any gross risks?
Chairman: Could members and witnesses
please ask questions and not express their views? You are being
asked about your view, but we are getting views from this side.
I want questions from this side, please.
Q1251 Dr Harris: Is it the view of
the HFEA that if a lesbian couple sought treatment and were denied
treatment, they might have a claim in law under the Human Rights
Act—if they were denied treatment solely on the basis of
their sexual orientation?
Ms Leather: My understanding is
that this has never been tested, but there are good reasons for
thinking there would be a problem.
Q1252 Dr Harris: Do you think it
is part of your role to advise government, and indeed feed the
public debate, where you think there are questions of possible
incompatibilities in the HFE Act with the Human Rights Act, or
do you think you would be better off brushing it under the carpet?
Ms Leather: No. We have tried
to be as helpful as we can be, and we have submitted to you our
thoughts about how the Act should be reviewed. It includes the
suggestion that, because of this conflict now between this clause
and the HFE Act and other legislation that has been passed, this
needs to be reviewed.
Q1253 Dr Harris: In a sense, do you
accept that you are in a no-win situation? If you do not point
out these problems, those people who feel strongly from a human
rights point of view might well criticise you. When you do point
out these problems, as you did on 21 January, then you get other
people saying, "You shouldn't be saying that".
Ms Leather: Dr Harris, we are
often in what feels like a no-win situation, but there are very
understandable tensions. One of the difficulties for reviewing
the Act is that it would be desirable to try to resolve some of
these tensions. However, this is a matter for Parliament; it is
not a matter for the HFEA.
Q1254 Geraldine Smith: Emily, I understand
that, the day before you joined the HFEA, you published an article
in which you said, "The welfare of children who do not .
. . exist is, in simple and crude terms, none of the law's business".
Could I ask both Suzi and yourself, do you think that it matters
that an Authority member has views incompatible with the current
legislation?
Professor Jackson: I do not have
views that are incompatible with current legislation.
Q1255 Geraldine Smith: Were they
your views that you expressed in that article?
Professor Jackson: I think that
what you are referring to is an article I published before I joined
the Authority. I do not think that the welfare of children does
not matter. I think that the welfare of children is incredibly
important. The thrust of that article, if you had read the whole
thing, is that this particular clause, section 13(5) of the legislation,
is problematic. It is ambiguously worded. It is not clear how
much weight should be given to the welfare of children. Clinicians
are just directed to take their welfare into account. There are
multiple problems with inconsistency in its application throughout
the country. I certainly do not believe that the welfare of children
is unimportant. I think that it is of critical importance to the
HFEA and to patients, and it is important that clinicians take
this into account.
Q1256 Geraldine Smith: Do you stand
by the view that it is "none of the law's business"?
Professor Jackson: No, that is
not what the article says. I think that what—
Geraldine Smith: It is a direct quote.
Q1257 Mr Key: You left out the "yet".
When you read it, Geraldine, you left out the crucial word.
Ms Leather: May I make it clear?
The Authority believes that the welfare of children is a sensible,
central principle in the Act. Of course clinicians, in providing
treatment for people which creates new people, should bear in
mind their interests. That seems to me to be absolutely obvious.
But it is not true that the welfare of children should only be
concerned about the child's need for a father. A child's need
for a family might be another way, today, of interpreting it.
Can I say something about how people are appointed to the Authority?
Who is appointed to the Authority has historically been a matter
for ministers; now it will be the NHS Appointments Commission.
The people who are appointed sit as individuals. Some people sit
as lay members. We have a lay majority and a lay chair and deputy
chair. Some people sit as experts—up to a third, and it
must be a third—clinicians and scientists in the field.
Obviously everybody comes to the Authority with their views, with
their experience and, in making policy, we take collective responsibility.
That seems to me a sensible way of making decisions in the field.
Q1258 Geraldine Smith: How much of
the Act would someone have to disagree with before they became
ineligible to join the Authority?
Ms Leather: It is made clear—
Geraldine Smith: Surely you have people
with one particular viewpoint. If people had different views,
if they are opposed to the Act, then they cannot sit on the Authority.
Q1259 Chairman: Do not worry about
Emily's point. In general?
Ms Leather: In general, I think
that you must subscribe to the acceptability of IVF and the acceptability
of embryo research. I do not think that you could sit on the Authority
and exercise the kind of decision-making that we have to do if
you were fundamentally opposed to the activities that we regulate.
To me, that would be a nonsense. It would be extremely difficult
to make decisions.
| 
