Select Committee on Science and Technology Fifth Report

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.


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.


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

407   Q1161-1162 Back

408   DepartmentofHealth,Surrogacy:ReviewforHealthMinistersofCurrentArrangementsforPaymentsandRegulation.ReportoftheReviewTeam,Cm4068,October1998,pp71-73 Back

409   Ev197 Back

410   Ev367 Back

411   Q1300 Back

412   SeeLordsHansard7December1989 Back

413   HCDeb,2April1990,cols915-20 Back

414   Q850 Back

415   Q1241 Back

416   6thedition,para14.23 Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2005
Prepared 24 March 2005