7 Review of the Act
304. On 21 January 2004, the Parliamentary Under
Secretary for Public Health announced at the Human Fertilisation
and Embryology Authority's annual conference that the Government
had decided to review the Human Fertilisation and Embryology Act
1990. The review will be undertaken by the Department of Health,
and will include a full public consultation exercise in 2005.
The extent of the changes needed to update the Act will not be
determined until after the consultation. The Department does not
intend that its review will address fundamental aspects of the
legislation that are generally accepted in our society, such as
the creation of embryos through IVF. Nor is the review intended
to address issues that Parliament has recently debated and approved,
such as embryo stem cell research and the creation of embryos
by cell nuclear replacement for research purposes ('therapeutic
cloning').
305. We are pleased at the Department's belated recognition
that the HFE Act needed urgent attention. The Minister's recognition
of the value of our inquiry is sensible and welcome. We have several
comments about the process and scope of the review. First, the
fact that the review will not consider fundamental aspects of
the legislation. We believe that the Minister is correct that
IVF and embryo research are generally accepted in our society;
nevertheless we see dangers in conducting a review in which around
20% of the population feel that their view that the embryo is
entitled to full human rights at conception is ignored. We have
found the comments made by those with a principled opposition
to assisted reproduction stimulating and valuable, even when we
have not agreed with them. Furthermore, the Government is naïve
if it thinks it will not need to address the concerns of a significant
number of Parliamentarians. The House divided 366 to 174 in favour
of the Human Fertilisation and Embryology (Research Purposes)
Regulations 2001on 19 December 2000 and while the composition
of Parliament may well have changed by the time the House votes
on revised legislation after the next General Election, the Review
of the Act will be a more robust process if views on all aspects
of the legislation are welcomed.
Abortion
306. The basis for UK abortion law is the Abortion
Act 1967. The issue's inclusion in this report stems from an amendment
to the Act in Section 37 of the 1990 HFE Act, which changed the
criteria on which abortions could be offered, principally limiting
abortions beyond 24 weeks to cases where the mother is at risk
of serious injury or death or if the child would have severe abnormalities.
Its inclusion here - however briefly - stems from the fact that
the status of the human embryo is at the heart of debates about
abortion, assisted reproduction and embryo research. At the beginning
of this Inquiry, we decided to keep an open mind as to whether
to include an assessment of current legislation on abortion. In
July 2004, we decided that addressing the abortion issue could
hamper our ability to give adequate consideration to reproductive
technologies.[406]
Nonetheless, discussion of abortion does give a valuable reference
point to discussions on preimplantation genetic diagnosis, which
was discussed in paragraphs 118-120.
307. Our decision not to include abortion should
not be seen as a reluctance for Parliament to discuss the issue
again. It would also be wrong to assume that pressure to review
legislation on abortion comes exclusively from those with a principled
opposition to assisted reproduction. The Family Planning Association
argues that it is "inappropriate for law in this area to
be primarily governed by legislation laid down over thirty-five
years ago". It advocates several changes to the 1967 Act,
principally loosening the requirements on those who control access
and undertake abortions and the environment in which they take
place.
308. The Department of Health is under the impression
that revision of the HFE Act would not require it to address abortion.
It told us:
"the position as the Department sees it
is that section 37 of the 1990 Act does not deal substantively
with abortion. It took effect by deleting the existing section
1(1)(a) and (b) of the Abortion Act 1967 and inserting four new
grounds for abortion into section 1(1) instead. This happened
immediately that section 37 came into force."
It is not yet clear before the Bill is published
that the Department's view is correct. In any event, we anticipate
well supported amendments to any new legislation unless the Government
indicates that it is prepared to give Parliamentary time to an
abortion bill. There have been no votes on abortion since 1990,
yet this is an issue about which many people, on both sides, feel
very strongly about. Given that both sides of the debate wish
to see change, it is regrettable that this issue will not be considered.
It would also be unfortunate if Parliamentary debate was a polarised
battle between entrenched positions. We
call on both Houses in the new Parliament to set up a joint committee
to consider the scientific, medical and social changes in relation
to abortion that have taken place since 1967, with a view to presenting
options for new legislation. This committee should be broadly
based and should include nominees from the Commons Select Committees
for Science and Technology and Health and the Lords Science and
Technology Committee.
309. We started on this Inquiry with the recognition
that legislation on assisted reproduction and embryo research
needed more regular Parliamentary scrutiny. Professor Allan Templeton,
President of the Royal College of Obstetricians and Gynaecologists,
told us that abortion law should be decoupled from assisted reproduction
and embryo research.[407]
We agree that legislating for these activities together,
however convenient it may have seemed in 1990, was a mistake and
has led to an even greater disincentive to reopen legislation.
We recommend
that any new legislation introduced to amend the HFE Act should
not include abortion, which should be dealt with in a separate
Bill.
Surrogacy
310. Existing legislation covering surrogacy arrangements
- the Surrogacy Arrangements Act 1985 as amended by the Human
Fertilisation and Embryology Act 1990 - is based in part on the
conclusions of the 1984 Warnock Report. The Warnock committee
took the view that although surrogacy arrangements were to be
discouraged because of the potential difficulties, where they
did take place, there could be no question of the surrogate mother
being forced by any contractual obligation to give up her child.
It is illegal to advertise for surrogates or intended parents.
Thus surrogacy is legal in the UK. The main proviso is that no
money other than 'reasonable expenses' should be paid to the surrogate.
There is no strict definition as what constitutes "reasonable
expenses", thus it is left up to the individuals involved
in a surrogate arrangement to come to an agreement regarding these
expenses. Any costs incurred by a surrogate that are as a result
of the pregnancy would be regarded as expenses. The law does not
recognise surrogacy as a binding agreement on either party. There
is very little that the intended parents can do to secure their
position prior to the birth, even in the case of gestational surrogacy
where the baby is genetically related to both intended parents
and not the surrogate.
311. Professor Margaret Brazier was asked to chair
a review of surrogacy arrangements in 1997. The terms of reference
covered three specific aspects. First, should surrogate mothers
be allowed to receive payment; second, should an agency be established
to regulate surrogacy arrangements; and third, do the findings
on these issues suggest that existing legislation needs to be
changed. Among its recommendations were:
a) Payment to surrogate mothers should be restricted
to legitimate and documented expenses - including loss of earnings;
b) Any payment over and above legitimate expenses
would result in ineligibility for parental orders;
c) Surrogacy agencies should be registered by
the Department of Health;
d) A code of practice should be drawn up setting
out good practice for surrogacy arrangements and this should be
binding on all agencies;
e) The Government should consider introducing
new legislation.[408]
These recommendations were not acted upon by the
Government. She told us that "I would certainly like to see
the question of the regulation of surrogacy looked at again. The
report that Alastair Campbell, Susan Golombok and I issued was
in 1998, and a great deal has changed" "It would be
equally regrettable, I think, now just to pick it up six years
later and say, "Let's do something about it," because
everything has moved at such a pace."
312. The Government hints in its evidence that surrogacy
arrangements will be considered as part of its review of the Act:
"The legislative framework for assisted reproduction includes
other primary legislation, such as the Surrogacy Arrangements
Act 1985 and the Human Fertilisation and Embryology (Deceased
Fathers) Act 2003, and several statutory instruments (see Annex
A). A number of these are likely to fall for consideration within
the Department's review of the Human Fertilisation and Embryology
Act.".[409] A
key concern of COTS (Childlessness Overcome Through Surrogacy),
a voluntary surrogacy organisation, has been the payment issue.
It claims that the expenses paid to surrogates are significantly
higher than the figures declared and argues that payment should
be permitted to avoid illegal surrogacy arrangements. It wishes
to see binding contracts between the commissioning family and
the surrogate. We
recommend that the Department includes with its review of the
HFE Act an assessment of surrogacy arrangements. This should use
the Brazier Report as a starting point and consider what developments
there have been since 1998. We regret the Government's inaction.
Consideration should be given to introducing separate legislation
covering surrogacy.
Prelegislative scrutiny
313. Revised legislation will be complex and must
be subject to intense scrutiny. Professor Margaret Brazier has
concerns about the nature of the 1990 Parliamentary debates. She
argues in her written evidence that "The limited nature of
the debate on the original Human Fertilisation and Embryology
Bill in 1990 meant that some of the basic questions relating to
the regulation of fertility treatments were never fully addressed.
An emphasis on the legitimacy, or otherwise, of research on embryos
distorted debate on the bill as a whole […] The compromise
of "respect" for embryos embodied in the 1990 Act helped
to create a philosophical limbo which (in my view) hampered the
HFEA in engaging with the tough moral and legal questions that
arose between 1990 and 2004".[410]
Parliamentary debates will focus on the more controversial issues
and these are not necessarily the most important ones from a legal
perspective. This problem cannot easily be resolved but a first
step should be to submit a draft Bill to prelegislative scrutiny.
The Government will be acutely aware of the problematic passage
of the Human Tissue Bill through Parliament. We
recommend that the Government publish any revised Bill on assisted
reproduction and embryo research in draft. We recommend that this
Bill, and any new Abortion Act, be subject to pre-legislative
scrutiny.
Free vote
314. The passage of the 1990 Human Fertilisation
and Embryology Bill and the Human Fertilisation and Embryology
(Research Purposes) Regulations 2001 were characterised by passionate
and informed debates in both Houses. A further common feature
was that in both cases there was a free vote. This was sadly lacking
in the First Standing Committee on Delegated Legislation on 18
May 2004, at which the Human Fertilisation and Embryology Authority
(Disclosure of Donor Information) Regulations 2004 were approved.
We asked the Minister whether the Government would allow a free
vote on any future legislation. She replied that "it is a
matter for the usual channels to decide whether there are free
votes on things at the time that the business is being put to
the House […] I do not think we can pre-judge that here".[411]
The Government would do well to reflect on the commitment made
by the Conservative Government in 1987 its White Paper that there
would be a free vote, over two years before the Bill was introduced.[412]
We do not think it unreasonable to ask for such a commitment now
for any future legislation. We
recommend that the Parliamentary parties should give a clear undertaking
that Members will be given a free vote on any new legislation
concerning assisted reproduction and embryo research.
New legislation
315. The HFE Act is a fairly short piece of legislation,
with 48 Sections and four Schedules. Apart from defining a handful
of prohibitions, this leaves a large amount of discretion to the
HFEA. During the Second Reading debate in 1990, the then Secretary
of State for Health said:
"It has been argued that, rather than having
a completely independent authority, Ministers should be responsible
for these matters. We decided against that, because it would place
Ministers and the House in a permanently difficult position if,
as a semi-political issue, it was said that Ministers should take
this or that view on medical or scientific matters . . . The code
of practice of the authority will have to be submitted to the
Secretary of State and laid before the House, but some independence
in medical and scientific matters is in the interests of Parliament
and the Secretary of State.".[413]
The HFEA's room for manoeuvre can be seen as both
its major strength and its biggest weakness. We have seen that
by giving the HFEA jurisdiction over what is a "suitable
condition" for an embryo to be transferred, it has been able
to license PGD despite legal challenge. Professor Kenyon Mason
told the committee that "the very real problem is that there
is too much in this act that is not in the act but is in the Code
of Practice".[414]
The drawback to consolidating more of the code of practice in
legislation is that it is less able to respond to changing circumstances.
Schedule 2 of the HFE Act sets out the activities for which licences
may be granted. Suzi Leather suggested to us that she would like
to see permitted purposes of PGD set out in legislation in a similar
way to research.[415]
These could reflect the eight criteria that the Code of Practice
suggests should be considered when deciding the appropriateness
of PGD.[416] In paragraphs
73-79 we discuss the development of HFEA policy-making on preimplantation
testing. It is instructive to consider what might have happened
since 2001 if the purposes for which PGD could be licensed had
been set out in the legislation. Let us assume that the list of
purposes clearly brought the Hashmi case within the Act but made
the treatment for the Whitakers not permissible. The advantage
would be that the law was explicit and neither family would have
had to suffer the trauma of legal proceedings while looking after
a sick child. The disadvantage would be that if the Government
wished, on the basis of evidence, to remove the distinction between
these cases in law, it would have been necessary to introduce
draft Regulations, which in itself is a time-consuming process.
Depending on how explicit revised legislation was and the degree
to which it permitted regulation-making powers, it is not impossible
that new Regulations would be needed on at least an annual basis.
Given that many of these would warrant debate in the House, there
might be problems in securing sufficient Parliamentary time. While
statutory instruments can be used to update legislation, it would
be foolish not to acknowledge that in such a contentious area
with rapid technical advance in the context of social change,
legislation will inevitably date rapidly. We have heard that the
HFE Act's longevity is attributable to the degree of flexibility
it allows the HFEA. We have recommended that the scrutiny of Parliament
is sufficiently important to reduce that freedom. In
our view, Parliament's ability to revisit contentious issues relating
to the creation of new life and the permissible uses of human
embryos is vital. We recommend that new legislation is more explicit
and provides Parliament with greater powers to debate and amend
legislation. We propose mechanisms for achieving this in Chapter
9.
406 ScienceandTechnologyCommittee,PressNoticeNo.58ofSession2003-04,8July2004 Back
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Q1161-1162 Back
408
DepartmentofHealth,Surrogacy:ReviewforHealthMinistersofCurrentArrangementsforPaymentsandRegulation.ReportoftheReviewTeam,Cm4068,October1998,pp71-73 Back
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SeeLordsHansard7December1989 Back
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HCDeb,2April1990,cols915-20 Back
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