Examination of Witnesses (Questions 60-79)
CAROLINE FLINT
MP, MR HUGH
WHITTALL AND
MR TED
WEBB
12 JULY 2006
Q60 Dr Turner: Caroline, I think
you must agree that this is probably the most contentious area
that the HFEA can step into at this particular moment. It does
not mean to say that there will not be other equally, if not more,
contentious areas coming down in the future. As it is, the HFEA
is effectively making ethical decisions on exactly what should
be permitted in terms of PGD. At the moment it is fairly clear
cut, only obvious lethal conditions are screened out, but given
the work of people over the water it is now technically possible
to screen for several thousand conditions, many of which the public
might support being screened for, for example Type 1 diabetes
or a whole range of cancers and so on. Are you really content
that in this one area of life, and it is the only area I can think
of, Parliament is effectively continuing to delegate this kind
of moral authority to an unelected body? Do you think that is
a sustainable position?
Caroline Flint: At the risk of
repeating myself, what we have considered, and we are giving consideration
to, is providing something which is not currently available in
the law now, which is a criterion of general principles that can
cover the situation which you described, Mr Turner, something
that can be agreed by Parliament as to the principles under which
PGD could take place. Also, I have to say, you have just said
it yourself, the potential in this area is huge. We have to try
and create a framework which is underpinned by general principles
of how this area should be regulated but, at the same time, does
allow some flexibility for the regulator to deal with some situations
as they occur in line with the principles outlined by Parliament.
Again, the regulator in the work they do has to consistently be
mindful of what Parliament, individual parliamentarians and different
organisations are thinking. That is why we have the board with
lay representatives on it, but also they have extensive discussions
with their advisory panels as these developments occur. I think
it is trying to get the balance right in terms of something that
does give a very clear steer as to what would be the general parameters
and principles in this area, but does allow developments to be
progressed. I think the other issue is, I could say back to you,
as the sites develop, would there be the capacity in Parliament
to necessarily deal with all these issues? I think it is about
getting the balance right, Parliament's role is to set the framework
and we are trying to think about how we will work that through,
but without creating a situation where unnecessarily we potentially
prevent some very good things happening for families.
Q61 Dr Turner: At the moment, of
course, these very good things are not permitted.
Caroline Flint: That was my point.
Q62 Dr Turner: There may be very
good reasons why they should, in fact, be permissible. Can I take
it then that we can look forward fairly urgently, given the pace
of science, to regulations being laid before Parliament which
will set at least clear limits on the range of conditions for
which PGD can be used?
Caroline Flint: I will certainly
think about that and bear that in mind. We are thinking through
about this area and what we should do and, obviously, again, we
will continue to discuss what those parameters might be.
Dr Turner: It is a job where our putative
parliamentary committee would be extremely helpful.
Q63 Chairman: What is wrong with
designer babies, Caroline? Why should we not have designer babies
who will not miss penalties in future years!
Caroline Flint: We have not got
that far down the road, surely!
Q64 Chairman: We are nearly there,
are we not? What is wrong with it? The Italians seem to have mastered
it!
Caroline Flint: First of all,
I think there is always a lot of speculation about what can be
done which creates a lot of exciting headlines. I do not think
they often stand up to a great deal of scrutiny in terms of what
can be done. It certainly sets a story going. I think there are
balances here about how much we intervene and the reasons why
we intervene in terms of life and the creation of life. Personally,
I do not think necessarily it is a good thing that we create a
situation where you can almost put down all the characteristics
you want—as I am saying, this is a scientific impossibility
at the moment but in that potential breaking role—a shopping
list of all the things you want and that should be necessarily
provided or that we should create a situation where that becomes
something which we would have to feel we would have to regulate.
I think there are quite distinct arguments in terms of issues
around tackling some of the conditions that bring a lot of pain
and suffering to children and those that I think are certainly
superficial. I do not think that is something that I or the Government
feel is something we should go down.
Q65 Bob Spink: Caroline, when the
state intervenes to create new life, which is paramount, is it
the wants of those who want to create that new life or is it the
welfare of the new child to be created?
Caroline Flint: I do not think
it is necessarily one or the other. First of all, we know that
for different reasons families find themselves unable to have
children naturally.
Q66 Bob Spink: Caroline, we understand
that. You have answered the question, thank you. We have got a
lot of questions to get through so if we can be a little more
brief, please. The state clearly has a duty to take into account
the welfare of the child and the state believes it should be doing
that. It is clear from the responses to the Department that those
responses generally favour measures such as the welfare of the
child, do you acknowledge that?
Caroline Flint: Yes, I do.
Q67 Bob Spink: Since the state has
a duty to take into account the welfare of the child to be created,
why does that duty apply to IVF, IUI and GIFT but does not apply
to ovulation induction, tubal and uterine surgery and surgical
management of endometriosis? Why does it not apply to those?
Caroline Flint: I agree, there
are some anomalies in this area; it is a fair point. I think in
terms of IVF, it was felt that this did require more consideration
about the procedures that are involved and what is involved for
the individuals coming forward for that treatment. Certainly,
we have found through the consultation that there is still a view
that taking into account the welfare of the child is something
that should still be there and we are thinking about that.
Q68 Bob Spink: Since you said there
are anomalies in this area, is the Government going to address
those anomalies and remove them?
Caroline Flint: That is not something
we are particularly minded to do, but in terms of the question
in relation to IVF, we are minded to retain a general legal duty
on clinicians to consider the welfare of the child. That was something
which was backed by some of the medical organisations themselves,
such as the BMA.
Q69 Bob Spink: The Government believes
that it is in the interest of the welfare of the child that it
should be considered for that child to have both a mother and
a father. Is that view of the Government based on evidence or
is it just a moral general view that it has taken without an evidence
base?
Caroline Flint: The guidance is
about to take into account and consideration, given to the need
for a father, and that was based clearly on the discussions at
the time of the legislation going through. We have been looking
at different representations on this issue. We are minded to retain
a duty in terms of the welfare of the child to be taken into account,
but we are thinking that there is probably less of a case for
retaining the law in terms of a reference to a father, and that
is something we are giving some consideration to.
Q70 Bob Spink: You favour this sort
of treatment being given to lesbian couples to create new children?
Caroline Flint: I think what is
important, as I think Andrew Lansley said in the debate last week
in the House, is looking at the family, whether it is a couple
in the traditional sense, or a same sex couple, why they want
a child and the family that they want to create. That is important
and that is where I think the welfare of the child is important
in relation to that. There is less of a need for a reference to
a father in that circumstance, but that is not to say that fathers
are not important. I think it is about the combination of the
welfare of the child which can involve a number of things that
we need to work through as to what that might mean so we can give
clearer clarity to clinicians.
Q71 Bob Spink: Do you feel the Government
needs to take further research on this issue of whether a child
is better off with two parents, one of each sex, or not?
Caroline Flint: I think it is
an area where in other respects we do not determine what is necessarily
better off for people. Other people have sex and have children
and the state does not need to—
Q72 Bob Spink: Can I clarify something,
Caroline. What we are talking about now is not people's personal
choice, it is the state intervening to facilitate the creation
of new life and what the state's responsibilities are in those
circumstances. I am not talking about people making personal choices
here.
Caroline Flint: What I have said,
what I think is important is children being part of a loving home,
where the welfare of the child is taken into account, and that
is where the limits of the state are important. That is why we
are considering whether a reference to a need for a father is
something we need to continue to have and is something we are
considering.
Q73 Dr Iddon: I know that the HFEA
have changed their procedures recently, there is a new Code of
Guidance, but certainly when the medical profession and others,
including Ethesis, came in front of us when we took evidence on
this matter, we came to a conclusion that the welfare of the child
provisions in the Act were almost unworkable, and certainly clinicians
saw them as a bit of a humbug. I do not think they were taking
them seriously. What is the current medical profession's thinking
on the new procedures that the HFEA has introduced? Did you get
any evidence on that?
Mr Webb: The feedback we have
had from the profession is that they find the new guidance much
better. It is much more readable, much more practical and recognises
the real life position.
Q74 Dr Iddon: How many women have
been refused treatment under the provision of the welfare of the
child?
Caroline Flint: I do not know
those figures. I do not think we have got them.
Q75 Dr Iddon: I put it to you that
it is probably an extremely small percentage of the total number
of women undergoing treatment for infertility. I wonder whether
it is worth all the bureaucratic procedures that are still in
place, even under the new Code of Guidance. For example, how is
the term "serious harm" going to be judged, and by whom?
Caroline Flint: I agree. As I
said earlier, these are issues that we need to work through. The
BMA, for example, does support the requirement for clinics to
take account of the welfare of the child before providing treatment:
" . . . where if third parties are involved on a professional
level the person has some responsibility towards the potential
wellbeing of the child and to ensure that a future child is not
subjected to foreseeable serious harm", that is from their
response to the consultation. Yes, there have been some issues
around how this is interpreted. As my colleague says, the code
that the HFEA has provided does seem to have been helpful in this
regard. In some respects, some of the feedback by clinicians in
relation to this was about just making sure it was not lost in
some of those discussions that they were having with clients and
patients, and that it was important to keep it there so that in
the round this was something that clinicians would feel they had
a duty to explore with their own clinical judgment in terms of
treatment. That would obviously involve also looking at the person
who is seeking treatment, not necessarily in a judgmental way,
but whether they are able to undertake the treatment or whether
they have the right support and counselling to take the treatment
as well. I think it is about making sure that there is something
there which says, "This is something that should be taken
into account". How far we can develop every single bit that
a clinician should ask about is a difficult issue. As I have said,
I do not think it is insurmountable to have it there and find
it in some ways to be some way in which a clinician can take this
into account in the round when they are working with someone and
advising them on the sort of treatments that they should have.
Q76 Dr Iddon: I came to the conclusion,
after looking at and hearing the evidence, that, again, this is
a discriminatory procedure against many constituents who I represent.
In general, it is the great and the good, looking at the lives
of people whose lives they probably do not understand because
they are not living in that strata of society. We do not go around
sterilising people because we regard them as unsatisfactory fathers
and mothers. Everybody who does not fall under this welfare provision
proposal has complete reproductive freedom. Why are we discriminating
against people under the HFEA Act in this way?
Caroline Flint: I would hope the
clinicians would act responsibly in any case that they are dealing
with within the constraints of their own professional ethics and
good medical practice, but I think having the duty written into
the law does provide some reassurance to the public. As I have
said, the view from some of the medical organisations, even probably
with some of the reservations which you outlined, Mr Iddon, is
that they would prefer it in there.
Q77 Dr Harris: First of all, can
I welcome what you have said about potentially dropping the specific
reference to a need for a father. I think, no doubt you will confirm,
that is a welcome shift in emphasis from the Government who, at
least in the last session, appeared to be strongly defending that
for various reasons. Can you confirm that is a change in your
direction of thinking in respect of that provision?
Caroline Flint: As I said, that
is something we are considering, and I think this is part of the
debate we need to have and it is one of the questions we are putting
in consultation.
Q78 Dr Harris: With respect to the
welfare of the child test, I should declare an interest. I was
a member of the BMA body which drew up the paragraph that you
read ending in: " . . . foreseeable serious harm". Foreseeable
serious harm implies that there is some evidence that there would
be serious harm and that it is foreseeable, not some judgment
that someone might not do very well, they might be psychologically
scarred 30 years hence and, certainly, that it is worth giving
them a chance to be born. In that respect, given the lack of evidence
in some of these other areas, do you think this provision would
survive a challenge from a lesbian couple under the Human Rights
Act on the basis of discrimination, Article 14, in respect of
their right to found a family? Is part of your thinking—you
can ask your officials—the fact that is going to be difficult
to defend, given the lack of evidence of any harm, therefore there
is no case for proportionality or legitimate aid?
Caroline Flint: We have been thinking
through a number of issues, both in relation to what is appropriate,
about what is important in terms of the parameters and stakes
set down, but obviously there are other issues which arise in
terms of people's rights as well in relation to other legislation.
Mr Webb: With a human rights challenge,
it would depend on the circumstances of the individual case. If
one came forward, we would have to look at it.
Q79 Dr Harris: You are not optimistic
about being able to say that there is good evidence that the state
has a reason to discriminate in this way against a lesbian couple?
Are you confident that you could defeat such a challenge?
Mr Webb: As I say, we would have
to see what the challenge was.
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