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CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1308-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE SCIENCE AND TECHNOLOGY COMMITTEE
Human Reproductive Technologies and the Law
Wednesday 12 July 2006 CAROLINE FLINT MP, MR HUGH WHITTALL and MR TED WEBB Evidence heard in Public Questions 1 - 116
USE OF THE TRANSCRIPT
1. This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
2. The transcript is an approved formal record of these proceedings. It will be printed in due course. Oral Evidence Taken before the Science and Technology Committee on Wednesday 12 July 2006 Members present Mr Phil Willis, in the Chair Adam Afriyie Mr Robert Flello Dr Evan Harris Dr Brian Iddon Bob Spink Dr Desmond Turner ________________ Witnesses: Caroline Flint, a Member of the House, Minister of State for Public Health, Mr Hugh Whittall, Branch Head, Scientific Development and Bioethics Division and Mr Ted Webb, Section Head, Assisted Reproduction: Services, Policy and Regulation, Department of Health, gave evidence. Q1 Chairman: Could I welcome Minister Caroline Flint and indeed your colleagues, who you will introduce yourself, Minister. This is an opportunity to follow up the former Committee's report on human reproductive technologies and the law, and indeed the consultation that was put in train during the production of that report and the government's response, and indeed to try and follow on with some of the issues that were raised during the debate last Monday on the floor of the House and the Estimates Day as well. We are very grateful to you, Minister, for coming. Can we call you Caroline? Caroline Flint: That is perfectly all right, Phil! Q2 Chairman: Could you introduce your colleagues to us? Caroline Flint: This is Hugh Whittall, who is the branch head of the Human Tissue Branch, with is part of our scientific development in the bioethics division; and this is Ted Webb, who is section head of Assisted Reproduction Policy area within the same division, and hopefully they will be able to support me this morning where I will need it. Q3 Chairman: Thank you very much and welcome to you both. Could I say that this session is being televised so if you could be careful not to use any unacceptable language, as they say in the Big Brother house! Caroline, the government was rightly consulted widely on updating the HFE Act and has taken time to consider the options, but how close are you now to bringing your thoughts and firm proposals to the House? Caroline Flint: It has been a very interesting exercise for myself, obviously, as when I became Public Health Minister and had responsibility for this area our consultation was already building on the work that this Committee had done, and I think considerable discussion amongst the public and those bodies involved, the HFEA in particular, and other organisations as well about taking stock of where we are in terms of development since the legislation first came into being. We have had a huge number of responses. You will not be surprised to know that a number of those responses were from individuals who have a particular view and concern in this matter, but also I think we had a broad range of organisations too. I think where we are at the moment is that we feel that we are making progress in determining some of our views about the way forward, and in fact I think we tried to indicate in the consultation papers some of the areas where we felt we intended to go. Q4 Chairman: Are we going to get a Bill or a White Paper? Caroline Flint: What I am hoping to do is to announce some more definite proposals later this year. Q5 Chairman: What does "later this year" mean? Caroline Flint: Hopefully over the summer period I will be making some announcements. But at the moment I cannot at this point say in terms of a Bill because that is a matter in terms of discussion within the legislative cycle, but what I can say to you - and I said this last week in the debate - is I think that the process we have been through has been important in engaging people in debate, and I am looking at ways in which we continue that exploration because I do think it is important to this particular area that we achieve, as much as is possible, a consensus on the way forward, and I think that that can be informed by greater scrutiny and parliamentary involvement; so that is something I am giving very serious consideration to at the moment. Q6 Chairman: So you are expecting over the summer to produce some draft proposals either for a Bill or a White Paper with a timetable to that. By Christmas do we expect to have firm proposals as to what in fact you are going to do about amalgamating the Human Tissue Authority and also HFEA? Caroline Flint: What I can say about that particular issue is that we do intend to move ahead to amalgamate those two organisations and we are very clear about that. Already we are seeing joint work between the two organisations in looking at back room functions and how they work together, so that is the direction for which we are on course. What I can say to you is, yes, I definitely would hope that by Christmas, or even before, that we would have some firm proposals that would be part of the ongoing debate. Q7 Chairman: Your main proposals will actually come out during the recess. Caroline Flint: What I am saying is that over the next few months, which obviously is the summer, there may be some particular policy points that I will be looking to make some announcements on. Q8 Chairman: In terms of pre-legislative scrutiny is there an opportunity, do you think, for this Committee, which has taken a very keen interest in this area, to be involved in that process? Is that in your thinking? Caroline Flint: I do consider that scrutiny is going to be important in this and it is one of the areas I am considering in relation to how we develop the debate. I think that the process so far has been very positive and I think it is quite important to have the debate because - and you can see that from the debate we had last week - possibly sometimes if it is too truncated some of the issues that deserve some attention do not get the attention that they deserve against some of the more headline issues within this area. So that is something to which I am giving consideration, about the opportunities for parliamentary scrutiny and further discussion, and that obviously would involve this Committee too. Q9 Chairman: I just think, Minister, that there would be some disquiet if in fact major proposals came out during the recess without the opportunity for Parliament to be able to immediately respond to those. Is that not a concern? Caroline Flint: I think it would be a direction of the way we are going; it is not the end of the discussion, it is the direction we are going. What people have asked me for and asked our department for are clearer indications of our views. This morning I am sure you are going to ask me some questions on particular issues and in some areas I hope I am going to be able to give you a helpful guide to the government's thinking in some of these areas. But, as I have said, whatever I say today or whatever I might say during the summer, I think there is plenty of room for more discussion and scrutiny of those issues, but I think it is important that people have an understanding about the direction of the debate and where it is going. So it is not about shutting down debate but it is about giving a clear indication of that which the debate can form around. Q10 Chairman: With respect, Minister, this has been going on for an awful long time. Caroline Flint: Yes, but I do not think that in itself is a bad thing. I think the previous inquiries into different areas that have raised similar issues, both in terms of the science and also the ethics and principles that this area develops, also have had considerable amounts of time to debate these issues and take these issues forward. I have to say that one of the points that came out of the consultation and the discussions that we had with the different interests in this area has been a view that it is better to get it right than to speed into a process. This may seem a long process but actually I think our chance to change the legislation - and considering that the legislation has been pretty good for the time we have had it - is a serious one, and there are not that many opportunities that come around for that. We also have to think in terms of the legislation what parameters we need to have to cover future changes that we may not know about at the moment or are only just beginning. So I think it is quite a complex area to come through with something that can define certain areas that are practised already in a way that are not covered by the present legislation - and I am sure we will come on to those issues - but at the same time try to create a piece of legislation that has the flexibility in it to deal with changes with science, but that are also mindful of ethical concerns too. So I do not think that the time in itself is a bad thing and I do not think that the time is prejudicing, in any particular way, the functioning of the Act as it is at the moment. Q11 Chairman: In terms of the consultation, did you learn anything from the consultation that you did not know already? Caroline Flint: Interestingly - and we may come on to this, it came up in the debate last week - the issue around the welfare of the child. Before the consultation the view I was getting was that within the organised professions, the medical groups and others, was that there was a desire for this to be removed. Actually our consultation indicated that amongst the medical organisations, whilst they felt that there were some issues around it they thought that there should still be a need for that to be retained. So that is certainly one thing that came out of that process. But, again, part of it is about recognising - and I think you can see from the document that we have produced in relation to the consultation process - that there are a varied number of views and there is not necessarily a consensus amongst different groups on the issues and therefore we still have to take that on board and at the same time think about the way ahead. Q12 Chairman: But with respect, the consultation, which was responded to by a self-selecting group of people or organisations, there was no methodology towards an analysis of the responses; there was no weighting to different responses, so I do not see what that has done in terms of bringing government thinking forward. Caroline Flint: We had 535 formal responses, we had submissions --- Q13 Chairman: I am not debating the number of responses --- Caroline Flint: Submissions from around 100 organisations and of course we look at these and we look at organisations. Yes, as with any consultation that government undertakes, you can have a situation where individuals respond because they represent a particular point of view, and we do take some of that into account and we will be thinking about that in relation to how we make our considered view on what should be the policy direction; that is what consultations do, they hopefully create input from the organisations that are most involved, those who in the end have to implement the law, those who have to practise under the law and other organisations that have an interest in this area. But, undoubtedly, as with any consultation, this particular area does create a large number of responses of individuals who have a particular, often moral point of view about this science and this area of work. Q14 Chairman: And we saw that in the debate last week, but surely the job of government in fact is not to look at where the public opinion is running, but in fact to create a regulatory framework that is based on good, strong scientific and ethical bases. Caroline Flint: Absolutely. Q15 Chairman: What we do not seem to be getting is any sort of clear steer from you in terms of where that ethical direction is going to come from: is it going to come from government, is it going to come from Parliament as a whole? And in terms of the scientific framework the consultation document, I am arguing, did not take you any further forward than you were in August of last year when you actually began the consultation process. Caroline Flint: I think that is unfair because I think consultation plays a lot of roles. Firstly, it is, you are right in saying, to possibly inform us of views that we had not thought about and to consider evidence that maybe we had not given enough weight to, but part of it again is about testing the views and certainly in the consultation document we produced in some areas we were asking questions that were in many respects looking for confirmation of some of the directions we wanted to take. In a number of areas we have already publicly agreed with some of the recommendations made by this Committee in their report, but, again, as I said, we are working through not just the responses to the consultation but the difficult areas in both the science and in terms of the ethics to try and come forward with something that we hope will not only get the support of Parliament, but also be a piece of legislation that is both clear in the areas it needs to be clear but also flexible in order that as changes develop action can be taken. Part of that process is the way in which we are trying to think about Parliament's role in some of these areas and, for example, what more might need to be included in legislation, which currently is not, and I think that is an issue that we have been trying to go through in the best way. Q16 Chairman: Before I pass you on to Des, could I ask you for a straight answer - all your answers are straight, I did not mean that in that sense, Caroline - in terms of the role of Parliament in determining the ethical framework: do you think that is the job of Parliament or is it the job of government? Caroline Flint: I think it is the job of Parliament to have a very important role in that and that is one of the areas we are considering. There are a number of issues - and I do not want to pre-empt too many questions - that were raised in last week's debate and probably will be asked today, where we are considering the right balance between the regulator making these decisions or Parliament having an input in these decisions as well, and the right way to go about that in terms of the issues that should be either on the face of the Bill or there should be secondary powers, or whatever, or regulatory powers. And these are complex issues. I do think, at the same time though, that there does not appear to be enough scope for the regulator to also deal with some of these changes as well, and I think for the most part the regulators work well in these areas. Q17 Dr Turner: You rightly say that it has worked well up to now but it has increasingly in recent years started to run into difficulty in quite difficult areas, some of which are still snarled up in the courts, which is not a good thing, which is one of the motivations in our recommendations to take away from the HFEA or its successor body, RATE, some of these acute policy making decisions. And that is a journey you are familiar with - RATE, as it has obviously been called, and the Bioethics Commission Standing Committee in Parliament. You clearly seem to wish to continue with in principle the model which we currently have, is that correct? Caroline Flint: I think that is correct. We did consider the question of the Bioethics Commission and, as I say, having a remit to cover the entirety of bioethic issues as part of our review of arm's length bodies, and it was something that was given consideration. I think it was felt that the present model of a number of advisory bodies that have a role to play in this area was better because it allowed more specific experience and knowledge to be brought to bear on a range of different issues, and it was felt that just one Commission in itself may not be able to develop dedicated groups in expertise and sufficient time to devote to a wider range of issues. That was one of the reasons, and the main reason why we did not think that was necessary. In terms of the idea of the Parliamentary Standing Committee on bioethics, that really is a matter for Parliament rather than government, but of course you would then have to think about how this Committee and other Committees would work either in parallel or jointly with that Committee as well, but that is a matter, I think, for Parliament to decide. As I have indicated, some of the areas that we are exploring and giving some consideration to is in what ways Parliament, through the legislation, can be clearer about some of these issues where developments emerge but also in what ways Parliament can have more of a say when science changes, when issues come to the fore that maybe are not here at the present, but may become an issue later on. Q18 Dr Turner: This is coming very close to one of the central constitutional issues, is it not, because we have a Parliament that contains within it the Executive and in this particular instance the legislation which governs the area is traditionally by free vote which really makes Parliament the supreme voice in this, would you not agree? Caroline Flint: I think this is one of the areas where Parliament does have to take an important role and that is why it has been very important the last time round to get the support of Parliament for the legislation as it stands. I have to say that, yes, there have been some issues where the HFEA has had to deal with some matters and debates about whether it has the power or it does not have the power and sometimes that has, as you quite rightly say, ended up in the court. But all told I think it has been a pretty robust system and I have to say that other countries around the world look to the way we have regulated as an example of something that is a good model to follow, and I think that should be recognised. Q19 Dr Turner: Absolutely. Caroline Flint: But that does not mean that there are not issues that have happened over the intervening years; that actually in many respects the HFEA in its submission has made comment of where it would like some clarity in terms of its own responsibilities and, as I say, this is something we are thinking about and trying to think about the best way forward in terms of hopefully a piece of legislation that will stand the test of time that the current one has. Q20 Dr Turner: So we have a common measure of agreement then in fact, in that Parliament is going to have to determine some of these strategic ethical issues which are increasingly becoming outstanding because of rapid advances in science, and the Hashmi case was one. The preimplantation tissue typing would not have been possible a year or two ago so naturally no one had to make any regulatory provision for it, but now it is and now it is highly contentious, and there are plenty more issues like that coming down the tracks because the science is moving so fast and so many more things will be possible which, at the moment, are not provided for one way or the other, which is why we suggested the role of a Parliamentary Standing Committee to keep this under constant review so that Parliament could be prepared to rule on these issues and prevent these issues ending up in the courts. Caroline Flint: A Parliamentary Standing Committee, as I say, would be a matter for Parliament to consider. As I have said, in both looking at this Committee's report and the consultation and what is an ongoing discussion - because certainly even in the last week various headlines on developments illuminate some of the points you are making - it is trying to think through how we can have a piece of legislation that has enough clarity in some of these areas that allows a regulator to function properly, and I think that is very important. I do not think we can create a situation where the regulator has to come back to Parliament too often on issues to which we should be able to give clarity in legislation in the first place, but also at the same time what can we think about in terms of flexibilities in the legislation to allow thought to be given to Parliament having a view where other areas do develop in the future, and these are issues that we are discussing, they are issues that we are discussing with legal counsel and so forth, to help us to get some of this right. But, again, I think part of the role of the regulator as well is to carry public support with it, and I think that for the most part that has been the case and I think they have done a good job and that should be commended, even when there have been some quite difficult decisions and quite a lot of publicity. As I say, the HFEA does not just decide on its own, it continues to have an ongoing dialogue with a range of people as well as its own board, a range of organisations about developments and discussions and, as I say, I think for the most part has acted appropriately within the law and has been very helpful. Q21 Dr Turner: Minister, nonetheless there has been an area of conflict, and these areas of conflict are likely to get more acute, are they not, and do you not agree that we should make some provision to be able to take some of that burden away from the HFEA, which may have general public support now but that could go. If anyone is going to take the flak it should not be the HFEA it should be Parliament; yes? Caroline Flint: As I have said to you, what we are trying to consider at the moment in a number of different areas is where we think we should have some more clarity in terms of Parliament but also where there could be a role for Parliament in terms of responding to issues as they develop, and that is something that we are considering in a number of areas to try and get that right. Q22 Chairman: Can you give us an example of that? Caroline Flint: To give you an example of that - and I was trying to avoid pre-empting too many other questions coming up in certain areas - for example, in terms of PGD and tissue typing there have been some issues and concerns about the criteria in relation to that area. So that is one of the areas where we are considering whether we need greater clarity in terms of the legislation and that if that is an example, Phil, that is one I would give because I think in those circumstances there is not any coverage really of that in the legislation, so again that is one of the areas we are considering at the moment. Q23 Dr Turner: Would you agree - and you may or you may not - that since public opinion is so vital in determining this and Parliament is, for better or for worse, probably the best reflector of public opinion that we have, that Parliament should lead on this and be responsible for settling these difficult ethical policy issues ahead of the regulator? Caroline Flint: As I say, I think it is trying to find a balance within this. I would say that obviously Parliament is mindful and should be mindful of public opinion but there are also different public opinions within that public opinion and it is important that we recognise that those people working in this field, the scientists themselves, are part of that public opinion too and therefore how we take on board what is in some of the informed practices that happen, how they develop, how the science develops - which I am not saying should not be questioned, it should be questioned, it should be evaluated - is also part and parcel of this as well. As I say, public opinion takes many forms and is part of this process, and that is why in many respects I think having time to consider these issues is very important because there are complexities in all these areas. You can ask someone one day, who maybe does not have much knowledge of the way that science has developed or protocols are put in place, "What do you think of something?" and they may give you an answer based on very little knowledge, but when there is a debate and that is informed by what actually happens rather than what does not happen or what the safeguards are, someone's opinion can change and that is why, having as much open and considered debate not only within informed circles but with the wider public, it is very important to get these legislation right. Q24 Dr Turner: What you have said, Caroline, in many ways is arguing for precisely what we suggested, which was a Parliamentary Bioethics Committee, which would be the starting and stimulus for precisely this sort of debate and involvement of the public, so why do you oppose our suggestion and what other models do you have in mind? Caroline Flint: I did not say I oppose a Parliamentary Standing Committee, I said that that is something for Parliament to consider, but I think, as I said before, that would have to be considered against other Committees: for example, this Committee, the Health Committees, Committees on Human Rights. We have Committees responsible for the scrutiny of secondary legislation, for example, so I think that would have to be thought about where would that fit in in relation to the responsibilities of all those other Committees in determining a parliamentary view on some of the issues that already are emerging or may emerge in the future. So that is something which has to be considered alongside what we already have within our structures. Q25 Dr Turner: So you are not ruling it out? Caroline Flint: I do not think it is for me to rule in or rule out, I think it is about thinking through how it will work, but at the same time recognising that even with our present levels of scrutiny the Act has worked, I would say, very well and what we have been tasked to do now is to try and see how we can get it right in terms of this next generation of legislation in this area, which allows clarity in terms of what the law says, but also some flexibility within it in terms of Parliament considering issues in the future, and also to a certain extent a recognition that there does need to be some flexibility for the regulator to also deal on a practical day to day basis with what is emerging and how they are regulating and how they are using the law to inform their business; and for all those people who are either wishing to avail themselves of infertility treatment or for the organisations providing it, some clarity for them too. Q26 Chairman: Could I ask a follow-up to that? For 16 years Parliament has had no role whatsoever since the HFEA was set up and an arm's length organisation was set up to answer the very issues which Des has been referring to. Are you going to bring forward a whole series of different models for Parliament to discuss, or in fact are we just going to leave it up to private Members? How is that going to happen? Caroline Flint: We are considering at the moment how the legislation should be framed in order to meet some of the different changes that have happened over the years and that is what we are working through at the moment. Again, I think that the form of regulation we have has not necessarily been a bad model, but I think it is about looking at how we can improve that for the future, and that is about having a balance between --- Q27 Chairman: But with respect, you have said that now a lot of times. Caroline Flint: I cannot say any more than that. Q28 Chairman: No, but what we are trying to get from you is
your thinking about how in fact Parliament is going to be involved in some of
the issues from now on. Are you going
to present us with a set of models which in fact we will be able to debate or
what is going to happen? Q29 Dr Harris: I think, Minister, what the Chairman is getting at - although one never knows entirely the depths of his thought processes! - a fair point would be that, yes, you say you are going to consult Parliament now if there is an Amendment Bill, but does that mean that it is going to be another 16 years or something like that before Parliament is consulted again? In other words, in the intervening period - and this is the question that Des was asking - will there be more scope, because there has been zero in the last 16 years other than the stem cell regulation, for Parliament to be involved? Caroline Flint: Let me give you another example of one of the areas that we are considering in terms of artificial gametes. That is one of the areas where we are considering whether there should be, through regulation making powers, more of a role for Parliament. So that is another example. The other example I gave earlier was in terms of tissue typing and PGD. So we are working through where we think, in line with what is happening and how science is moving on, where Parliament can have more of a say. Q30 Chairman: Through secondary legislation, I think that is right, but would it be in secondary legislation and indeed primary legislation a free vote? Do you trust Parliamentarians sufficiently to allow them to have this on a free vote, on all these issues? Caroline Flint: I think that has been supported in the past and certainly we think that some of these issues raise ethical questions that people have said there should be a free vote. Q31 Chairman: Would you support that, Minister? Caroline Flint: What? Q32 Chairman: Having a free vote on these issues? Caroline Flint: I think some of these areas depend on the nature of what we are discussing and what is involved. I think in terms of regulation and the system under which we regulate then we have to have clarity about what we are doing and the organisation we are creating to regulate, and in those circumstances --- Q33 Dr Harris: Just briefly, the government give a view and the government should give a view because it has all the information, but on donor anonymity, which we will come to the substance of later, there was not a free vote - parliamentarians were not trusted to make their own decision on that - and therefore you get a situation with regard to the merits that the government then feels that it has to dig in on that and not open it to further consultation because, as you said in your letter to us, Parliament has decided and Parliament decided on a whipped vote in a Standing Committee where people troop in to vote, do they not? Caroline Flint: As I say, I do not think there is a one size fits all in this. I think in some areas that government felt a policy was needed to be done on not a free vote basis because we felt that the arguments for the policy were such that it did not fit into that criteria and therefore, as you say, on that one we did not give a free vote. Dr Harris: The criteria that they might lose. Chairman: Could we urge you, as a Committee, Minister, to seriously reconsider the issue of the Bioethics Committee, which would in fact be able to address a lot of these issues and at least give Parliament the advice of an all-party group probably from a Committee and an ad hoc Committee of both Houses? But we will leave in that in the air, which I am sure you will consider. Brian. Q34 Dr Iddon: Minister, in a week when I think it has been announced that Louise Brown has reached the stage of motherhood herself, I think it is important to ask you: do you think that IVF now is so commonplace that it is no longer necessary to regulate it with the intent HFE Act had in the first place? Caroline Flint: I do feel that there is still a need for regulation in this area; I think it is important. Interestingly, I was reading a report the other week where it indicated that this Committee - and you may have some questions about this later - were concerned about issues around treatment plans and prices by different clinics, for example. So I think that there is still a need to regulate in this area. We clearly have an NHS provision that can be provided in terms of IVF but also we have a private market as well, and I do think people still need to be protected. I think also that there are a number of areas where there are some different views in terms of provision of treatment, in terms of age, for example, that have come up over the last week, and I think the need for regulation for people to feel secure and safe about the sort of treatments they are getting, the qualifications of the people providing these services, as well as the protocols in which the health and safety of the standards of organisation have to be incredibly high are important. Although, yes, you are right, I think it is 100,000 children who have been born through IVF here I think it is still the case that it is worthy for it to have regulation and have a regulatory body in the way we have. Q35 Dr Iddon: I agree with you about inspecting private clinics and ensuring that they display their prices and maybe even their success rates along with the National Health Service success rates, but in terms of clinical practice, which is the point of my question, why should we continue to regulate IVF clinically whereas we do not, to the same degree, regulate any other clinical practices to that level and degree? Caroline Flint: As I say, again I think this is one of those areas where there is considerable, clearly parliamentary interest and public interest. I think it is an area that people want to be reassured maybe more so than in some other areas of proper regulation, of services provided and for those reasons it is right to continue to have a form of regulation. I think one of the things we were discussing with the HFEA was what form that regulation might involved in terms of the inspection procedures and also the amount of information that can be provided upfront and so on, because obviously we do not want to necessarily create a burden which is one that is over the top compared to some of the organisations that are licensed, who have been licensed maybe for many years, who have had no complaints and where there have been no problems. So I think it is about trying to get that balance and get it right. But I still think that there is a need for regulation in this area not only because of the view of what is involved but also as science changes very much keeping a close touch on what is happening. Q36 Dr Iddon: Do you think it is right that we publish the success rates of clinics both in the state and private sectors? Caroline Flint: I think some of that is helpful and, as I said last week in the debate, the only issues around this area are that clearly clinics vary and success rates might depend on who they are actually providing the treatment for, depending on the age profile and the particular fertility problems that somebody is facing. So it is could be quite a blunt instrument in terms of comparison, but I think of itself it is not necessarily a bad thing to have some indication about what a clinic is providing and how successful they have been, and I think that should be part and parcel of a good discussion with patients about the nature of IVF, the possible chances for an individual in whatever circumstances they are presenting - and of course that will vary from one person to another - so that they do have a clear idea of what is involved. Also I have to say, as we all know, a clear idea of the potential for it not to succeed as well, and I think that probably links back also to money for people too, eventually. Q37 Chairman: In a recent league table published about the
success rate of European clinics we come pretty low down, quite frankly, which
is an embarrassment to me, at least, because we were pioneers of IVF
treatment. What do you think we should
do about that? Q38 Dr Iddon: Only 25 per cent of IVF treatments are
carried out in the state sector, 75 per cent in the private sector. I put it to you last week in the debate that
this is discriminatory, particularly against the women who live in my
constituency, who cannot afford to go to the private clinics. NICE has recommended three cycles but the
NHS is only offering one cycle, so altogether why are we discriminating against
women from deprived backgrounds so much? Q39 Dr Iddon: But along with infertility more women are choosing not to have children by pursuing their careers and, as a result, the birth rate is slumping. Therefore can I put it to you that we really ought to put IVF much higher up the NHS agenda to alter the demographic changes that are clearly occurring in this country now? Caroline Flint: People make choices about when they want to start families and sometimes when you make those choices the things you may have thought would have been relatively straightforward and simple suddenly do not appear so. I think we have to look at IVF amongst a whole number of competing demands on the health service. That is not to say that we cannot be better at it, and it is not to say that we could not commission better services, and it is not to say, also, that we could not do more about raising the public's consciousness, men and woman - 40 per cent of fertility problems are linked to men, it is not just a woman's problem - about infertility and what they can do to prevent infertility problems down the road. Some of that people can do pretty much nothing about but we do know that lifestyle choices affect people's future fertility and we need to engage in a debate that takes responsibility for individuals playing a role in this and also how to improve the services as well. Q40 Dr Turner: Caroline, does it not worry you as a health minister that there is such a general problem with NICE guidance not being taken up? NICE have recommended three cycles, with some PCTs it has been very difficult for a woman to get one, let alone three, and the reason for this is very basic, that those PCTs are worried about the cost. This is affecting a whole range of NICE guidelines, very often in areas which are particularly pertinent to women. We need to find some way of dealing with this, do we not, otherwise NICE is going to be increasingly superfluous. Caroline Flint: First of all, I think the NICE guideline was very helpful in terms of the focus on infertility and raising awareness of the debate. NICE is not a guideline that necessarily people expected the NHS and the PCTs to provide straight away, by any means, but actually something they could aim for. I think part of what we are trying to do, which I was explaining to Brian, is first of all look at how we could, working with the PCTs but also other groups as well, try to improve understanding and knowledge of the best way to commission fertility services with the most successful outcomes, and I think this comes to some discussion about the point you made about European clinics and some of the issues around different success rates, which, as I say, is not always clear - often some of the clinics with the worse success rates may be taking the more difficult patients and you have to be mindful of that. It is also why we have provided some resources for Infertility Network UK to actually do some work for us, which they will be reporting back to us, and on working with PCTs to again continue the raising of the importance in this area, and both practical ways, hopefully, in which PCTs might improve the way they commission and the sort of services they provide, and how they actually tackle infertility issues locally, and part of that, I have to say for the PCT, is trying to prevent the infertility problems that may occur down the road because that, more than anything, could have an impact on reducing the numbers who will have to call on IVF in the future. Chairman: Minister, could I ask you to try and make your answers a little shorter so that we can try and get through the programme? Q41
Dr Harris: Can I welcome what you have said about success rates and the dangers
of using them as a blunt instrument because of the danger of patient
selection? Are you aware that when NICE
said that there should be two cycles and the government said, "You must do a
minimum of one" that some PCTs who were given two or three just reduced to one
to comply with what you said. Is that a
gain for patients in those areas?
Clearly it is not. Do you regret it? Q42 Dr Harris: But that has happened. Caroline Flint: I think that is important but I think the fact of the matter is that what the government was saying at the time was that given that the NICE guideline was three was not something that they expected to happen in the short span of time. At the time the Secretary of State was trying to indicate that there should be every effort to make at least one cycle available. That was not meant to be seen to contradict NICE but, again, as I have said, in the last year we have been trying to look at how we can improve and to get evidence of where services have been provided and where they are not provided so that we condition tackle some of the issues. Q43 Dr Harris: The guidance and indeed the government's guidance says that these services should be given to appropriate patients. Are you aware that every PCT has a its own eligibility criteria about whether women are married, whether there is already one child living there, they all have different age limits. NICE and indeed the government were supposed to end those postcode variations in the provision but it just depends on how old you are, where you live, who you are living with and what your marital status is. Is that satisfactory? Caroline Flint: Again, some of these decisions do have to be made by PCTs in line with how they develop local services and that does present, I know, some difficult issues for both the families involved and also some of the organisations who are concerned about improving services. But we do look at these areas and we have meetings with different organisations about some of these problems and issues and we are always looking at it and thinking through, "What shall we do next?" But ultimately PCTs, as in a whole range of other health areas, have to decide how it is going to spend its budget and therefore will set parameters in some areas for that expending, and that is something that needs to be taken up locally and that is why Infertility Network UK has been asked to work with local people to raise these issues with their own PCT. Q44 Dr Harris: Dr Patricia Rashbrook wanted to have treatment to bring a wanted child into a loving family and she, as an intelligent woman, knew the chances of success, knew how much it was going to cost and she knew the success chances were limited but was prepared to do that with informed consent as an adult person. Do you think it is unfortunate that she could not do that in this country and that women like her are not able to bring healthy wanted children into a loving family in that way? Caroline Flint: There is no legal age limit on the age at which women can be treated but there is a general view amongst UK clinicians that they do draw a line at or around the menopause and that is something that has come from clinicians themselves. I think that is a matter for clinicians and patients to take these matters into account of providing treatment in these areas. Dr Harris: That is very helpful because that was the thrust of the Select Committee's report, with informed consent the GMC and Healthcare Commission are already acting in this area and it should not be for government, regulators or even the media to say what treatment individual people should get within that framework of existing regulation. It is helpful you have clarified that. Chairman: Thank you. Brian. Q45 Dr Iddon: When we published our report last year, Caroline, the Press focused on one thing above any other and that was on sex selection, so I think we had better ask you a few questions about that this morning. What is the government's current thinking on allowing or disallowing sex selection for non-medical reasons? Caroline Flint: It has been established government policy that sex selection should only be allowed for serious medical reasons. There is no legal ban as such on non-medical sex selection. The consultation I think certainly backed up our view in terms of serious medical conditions and I have to say that I do not think that we are of a view that that should be changing, so we are minded to pursue a clear and explicit ban in the law which covers all assisted reproduction treatments in relation to sex selection, where it is not for serious medical conditions. Q46 Dr Iddon: So are you going to regulate sex selection by
sperm sorting? Q47 Dr Iddon: If it were proven - and I think it possibly could - that sex selection does not cause harm, what are the reasons for disallowing people to choose clinical treatment for sex selection, particularly for family balancing reasons? Caroline Flint: I do believe that there is an understanding around using sex selection for where there are serious medical conditions and I think that that is something that has been backed up by the responses to our consultation, but I think on family balancing the problem is that it can be a slippery slope in terms of people deciding that one gender is more important than the other, and the problem in this area is that there will be many individual cases that people might bring forward but the problem is in trying to have a law and a system that can deal with where we feel that that would be an inappropriate use of sex selection. So I think we have to be mindful about opening a door potentially to what I would consider and I think what most people would consider is not an appropriate use of sex selection in terms of gender priorities. Q48 Dr Iddon: You used the term "slippery slope" there. Is it your main concern that if we allow sex selection, even for family balancing reasons, and assuming it was entirely safe, that people would then start to demand babies with other desirable characteristics like blue eyes - the blue eye syndrome. Caroline Flint: We are certainly not into that sort of designing. I think the issue around sex selection is an issue for us nationally in terms of the appropriateness of prioritising one gender over another, but I also think that there is a wider impact in terms of allowing this in law, which goes beyond our own country, and the message it sends out around the worth of boys and girls. Q49 Dr Iddon: Can I also put it to you, Minister, that it is not unknown for people who cannot get a baby of the right gender here in Britain that they go abroad? So what is the government's view on reproductive tourism? Caroline Flint: Again, we can only do so much in our law and we have seen in other aspects of IVF that people have gone overseas for certain treatments, so we can only do so much in what we do. But I think one of the things we do do, by being clear about our own law, is to send out a message about what we believe is right at any given time and what is appropriate. We cannot manage the law around the world, but certainly in terms of the organisations we are involved with around the world in this area and also in other areas of health we have our own view, which we bring to discussion in those forums. But we cannot control what other countries do and we cannot necessarily control what an individual wishes to do by going overseas, and that is the same for other matters beyond this area, whether it is plastic surgery or anything else - we can only do so much. But I think what we need to be sure about is alerting people to the dangers of going overseas for medical treatment, that they may not have the safety and the quality as they do at home. Q50 Adam Afriyie: So you are saying that if someone has enough money to travel abroad to have sex selection, then you are satisfied with that and there is nothing you are looking to do to change the situation? Caroline Flint: No, the starting point of this discussion is whether we would believe that sex selection should be allowed for non-medical reasons, and purely in terms of family balancing it could be in one case that someone could make a case for that; it could be for other less worthy motives, maybe, if that is the right word. Q51 Adam Afriyie: But you are saying that you are not going to prosecute somebody who goes abroad to make a sex selection choice? Caroline Flint: I do not believe that is something that we would have the remit to do. If somebody goes to another country in which for that country it is legal to take part in that - and I take your point about money, but that is the same for a lot of things, I am afraid to say - the question is whether or not we believe that sex selection for non-medical reasons is something that we should allow to happen, and our view is that we should not. There are some practicalities that are not easy in this area that we are going to have work through and think through about how we are going to deal with those. But certainly we cannot control everything beyond the bounds of our own borders. Q52 Dr Iddon: But who will take the final decision, Caroline? Will it be the regulator or will it be parliament, and which factors will we take into consideration the most? Are you basing what you said just now mainly on public opinion or is it the practicality of regulation or is it the potential for harm? Caroline Flint: As I say, public opinion in that includes a number of different organisations who have also made known their views on this, from a range of standpoints, and what we have seen is that there is a view that sex selection for medical reasons is something that we should be looking at, but not for non-medical reasons, and we will be looking to see how we can make that clear in the law so that there is a very strong steer to the regulator about how that could be applied. But there are some practicalities, as you have said, some of which have been raised this morning, which we have to work through as to how we deal with that. Q53 Dr Iddon: So Parliament will decide, that is what you are saying? Caroline Flint: We will have some legislation that Parliament will decide upon. Q54 Chairman: Can I move on to PGD, and you mentioned earlier that this might be an area in which you would want to see Parliament take a more specific role in terms of determining it. At the moment, are you content for the HFEA and its successor, RATE, to make decisions on conditions for which screening can be undertaken using the PGD? Caroline Flint: As you know, there are no criteria in the law at the moment to determine when screening selection --- Q55 Chairman: No, are you content for them to do it? Caroline Flint: I think what we have felt is that we are giving some very serious consideration to criteria which should be available in the legislation in the future, and that is something that I know this Committee was in favour of. It has come across strongly in the responses to the consultation and I have to say was also recommended by the HFEA. So that is something that we are giving some serious consideration as to what that criteria might be; and as a general rule I think that even if we have that criteria we will still need to see a role for the regulator in terms of making sure that that criteria is used in practice. Q56 Chairman: I think if you talk about slippery slopes, which you mentioned earlier, when, in fact, the regulator came in, in terms of looking at PGD, there were a number of known conditions for which screening would take place. We have now got the situation over the river at St Thomas' and Guys where hundreds of conditions can be screened using PGD techniques, for instance about the potential to get a cancer later on in life. Do you really think that is the job of the regulator to be making those decisions and not Parliament itself? What do you think? Caroline Flint: I think what is important is that the law is clear in terms of the criteria and in terms of how this can be applied. That may involve some general principles which have to be applied, it will have to allow some flexibility for the regulator to apply the law. Q57 Chairman: Who makes those principles? Who decides? Caroline Flint: What we are suggesting is what we are looking at, and giving some consideration, to is how we can have those general principles as part of the legislation. At the moment there is nothing there and I can understand why there is disquiet at that because there are no general principles there per se. What we are working through is thinking about how, through legislation, those general principles, that criteria, can be part of the legislation but which does allow some role for the regulator in being able to respond to some new developments as they occur. Obviously, as and when our proposals come forward, I am sure we will have debate about whether the general principles are sufficiently robust enough to cover, as much as possible, the ability to both give some clear direction but also to be able to respond to some developments as they emerge. Q58 Chairman: Why should the regulator be involved at all? If you find that Parliament sets down the clear grant which PGD can be offered, why is it not then just up to clinicians and patients themselves? What has the regulator got to do with it? Caroline Flint: The regulator acts on behalf of government to make sure that practices are carried out properly and that criterion is used properly, and that is part of their job. I think that is something in this particular area which the general public would want but, I have to say, some of the organisations, like the BMA and others, also still see a role for the regulator in playing a role in these areas. It is not like the regulator does not have ongoing discussions with clinicians about these issues, with scientists about developments in this area. They are informed through their advisory panels in relation to all these areas, there is an ongoing discussion as there would be. The idea that the regulator should have some role in terms of supporting or informing developments by their role as the regulator of the law, because that is their job, is important in these areas. It is not something that I have particularly found some of the professional bodies to have a problem with. Q59 Chairman: It does not happen in any other area of medicine, does it? Caroline Flint: Again, we talked earlier about the importance of this particular area of medicine compared with others in relation to decisions about life and the creation of life. That is why it has that special place in terms of Parliament's considerations and also in terms of the public's consideration and ultimately about creating a framework and legislation which has confidence and can be useful, both in terms of regulating present practices and procedures but also being able to respond to changes as they occur. 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. Q80 Dr Harris: I do not think you are, that is my view. The Government has just brought in under the Equality Bill provision whereby there will be regulations to prevent discrimination of the provision of goods and services against people on the basis of sexual orientation. Do you think that clinics being able to discriminate, as they do, citing this provision, the welfare of the child with or without the need for a father, could survive such legislation which says, "You should not discriminate in the provision of goods and services, state or otherwise, in NHS services, health services and other services in respect of this, on the basis purely of sexual orientation without any evidence"? Caroline Flint: We are looking at a number of areas in relation to the equality legislation, and we are trying to work through a number of areas about advice in relation to goods and services. Q81 Dr Harris: It creates a challenge, does it not? Caroline Flint: It depends on if there is a challenge. In relation to NHS services, one of the considerations is about if there is a clinical infertility problem in terms of determining the priorities for fertility treatment. I wanted to clarify that. As I said, part of what we want to try to do through these discussions is to have a debate about what is necessary. The role of the state to intervene and the role of the state to pre-judge what may or may not happen is all part of this particular area. Q82 Dr Harris: Finally on this section, is your movement and thought on this influenced in any way by the fact that in this country clinics do discriminate against solo women - a baby wants a parent - against lesbian women and against older women, so effectively we have given carte blanche to being misogynistic in various ways? Are you happy that we have a law at the moment which gives carte blanche for discrimination against almost every kind of woman except the young heterosexual married woman? Caroline Flint: As I said, what we are looking at is what we think is appropriate in terms of the consideration given to providing fertility treatment but also the welfare of the child. What is important is that children are going to be, as far as we know, part of a loving family and that family may take different forms. Q83 Dr Harris: You agree with me that we should get rid of unnecessary sexism? Caroline Flint: Discrimination, if cases are brought forward, needs to be answered for. Clearly, in all walks of life there is still a certain amount of that, including sexism as well. Q84 Adam Afriyie: The decision to withdraw donor anonymity was before my time, and I understand it was not on a free vote. It was a major change from the 1990 Act and there is a risk to donor supply. What has been the impact of the removal of donor anonymity on the donor supply? Caroline Flint: I will ask Ted if he can say something a bit more about the donor supply, but the context of the discussion around donor anonymity was particularly about the representations made by a number of organisations, such as Barnardo's, the Children's Society, the British Association for Adoption and Fostering, the Church of England Board of Social Responsibility, who all, along with many grown-ups who were born through donors, wanted access to details about their donor parent. Adam Afriyie: Was the BMA among them in those representations? Were they of the same view? Dr Harris: They opposed it. Again, I will declare an interest. Q85 Adam Afriyie: What I am particularly interested in is the statistics you are tracking or collating since the decision was made? What has been the impact? Mr Webb: When the decision was made it was recognised from the start that there was a likelihood that donor numbers would drop. That is why the Government had its campaign to recruit donors. In some areas where steps are being taken to appreciate and value donors, you can see donors who are prepared to be identified can be recruited. Manchester is a case in point where they have got 40 sperm donors at the moment who are prepared to be identified. Q86 Adam Afriyie: But the numbers of donors have dropped since this decision was made, is that correct? Caroline Flint: That is correct. What we have seen as well is some areas where there has been successful recruitment. Manchester Fertility Services have got 40 sperm donors at present and part of that is because they have been working very hard in the way they recruit and the reassurances they give to donors. Again, this is an area that we are working with the National Gamete Donation Trust to do some work in terms of awareness. I understand in other countries - correct me if I am wrong on this, Ted - that brought in similar legislation donors dropped but then they picked up again. Clearly what we need to do is look at how we can work to improve donor's knowledge. One of the issues around donors was a concern that there would be financial liability in the future and that clearly is not the case in the law. We need to get some of those messages across more clearly. Q87 Adam Afriyie: It is the right of a donor conceived child to access information. Is that right absolute, even if it does mean that donor supply is cut off? Mr Webb: It is a right to approach the HFEA. They can ask for information on the register. Q88 Adam Afriyie: The rules have not been changed? Mr Webb: It is a right to get information from the register. Q89 Adam Afriyie: But I thought in the 1990 Act one already had that right to ask if there was information and the information could then be withheld if the donor did not want it provided. Mr Webb: No, it was an important change as the right was to be told if you were donor conceived. Caroline Flint: But nothing more. Q90 Adam Afriyie: What might cause you to review the decision on donor anonymity? I appreciate it is not open for review at the moment in your consultations, but what might the factors be? Caroline Flint: We keep an eye on it in terms of what is happening. I have met with the National Gamete Donation Trust. We have agreed some funding for them in terms of some work they can do following up from the legislation as well to improve public awareness of the law and what it does and does not say. I have to say, I think that is important in this. Again, some of the issues around donors are more complex and are necessarily around the issue of anonymity. I heard, for example, stories of how donors are not treated very well when they go and it is not necessarily explained to the people what might be involved as much as it maybe should. What we are looking at is organisations such as the one in Manchester to look at why they seem to be more successful than other places in the work they do and how we can share that practice. Q91 Adam Afriyie: Are there any particular factors you have identified which would lead you to review the decision on donor anonymity? Caroline Flint: Clearly, if there was some situation arising where donation became so low we would have to think about that. We had to take a decision about the children who are donor conceived, their needs in terms of wanting to know something about their donor parent, and it was felt, in line with other legislation on adoption and so forth, that we needed to bring this area into line in those other areas. It is not an easy situation, but I think our emphasis at the moment is on trying to make it work and do what we can with different organisations to improve people's understanding about donation and encourage them to come forward. Obviously science as well is moving on in different areas, so that raises another debate. Q92 Adam Afriyie: You spoke about the welfare of the child on many occasions, but what is the evidence that the donor conceived child benefits from having the legal right to know who their donor was? Where is the actual evidence? Caroline Flint: The evidence came through in a number of ways. First of all, from representations made to the Department from different organisations. We were asking clinics and donors about this and their views. We met with researchers, such as Susan Golombok to commission research, for example, on donor attitudes at King's College Hospital to find out what their views were about this. We also met with people who are experts in donor identification, such as the Director of the Sperm Bank of California and the Chief Executive of the Infertility Treatment Authority of the State of Victoria who have made progress in this area. Q93 Adam Afriyie: I am interested in the welfare of the child. Where is the evidence that a donor conceived child is damaged by not having access to the information on their donor? Caroline Flint: First of all, this is about choice here. It is not necessarily that the donor child is damaged, it is about the needs of the donor conceived child, at some point in the future, to have access to information about the person who contributed to their creation in the first place. The evidence for that was from a considerable body of organisations, including donor conceived children themselves, about what they wanted in terms of their rights, which also sits alongside the rights of the adopted children. Q94 Adam Afriyie: If the welfare of the child is your primary concern, then surely that is not the evidence you should be concerned with. The evidence you should be concerned with is what is the damage caused to a donor conceived child if they do not know who their donor is. That is the area we are interested in, surely? Caroline Flint: I think you are mixing up two slightly different issues. The issue around the welfare of the child is an issue we have been discussing in relation to when IVF treatment is provided and what should be taken into account. This issue arose out of a considerable body of opinion, not shared by all, granted, that this was an area, in terms of these individuals' rights of information and access, where there was a gap compared with other children who become adults in other circumstances who want to know something about their biological past. As I said, we had the views of those who are most affected by this as well as organisations that clearly have an interest in this area because they deal through it in other ways in terms of adoption. Also, we took soundings from other countries where they provide this information to see how it would work. This is something which I think has increasingly become an issue where it was felt that these young people, as they grow up, should have some access to some information about their biological past. I think part of our job is to make clear what the legislation says and does not say and reassure both those who want to donate about the limits of it, but also why it is important. Q95 Adam Afriyie: If it was shown that donors who did have access to this information got into more difficulties by receiving such information, or it played havoc with their psychology by learning things that were not helpful for them to know, would you then reconsider donor anonymity on that basis. That is, if the evidence shows that the donor conceived children are being damaged by receiving that information? Caroline Flint: Clearly there is consideration to thoughts about the age at which a child should have access to this information. One would hope that it could be done. It is one of the issues we have discussed with some of the organisations about when a young person comes forward for this information. Are they clear about what it would involve? Have they thought about how it will affect them and their family arrangements as they currently stand? Every case will be different, but that is a risk we need to take in terms of the needs of these children as they grow up and become young adults and want to know more about their past. To be honest, you could apply exactly the same rule in terms of adoption as well, in terms of young people wanting to have access to information about their adopted parents in a situation where we know, in terms of adoption, there may have been a series of very serious issues as to why that child was put up for adoption. This is a totally different situation in that there has been no relationship per se with the donor and the child. That is in stark contrast to an adoption situation where finding out more about your biological parents could raise a whole lot of issues about the relationship which led to your adoption in the first place. Q96 Chairman: Can I lead you on now to the issue of late terminations. The Committee was quite clear that it did not wish to hold an inquiry into this particular area, but did, in fact, recognise that there was huge public concern about the issue of late terminations and made what both the former Committee and certainly this Committee believe was a sensible proposal that there should be a review of the evidence of scientific, medical and social changes which have occurred since 1967. Various attempts by this Committee, and indeed others, to get an ad hoc committee or a joint committee to simply look at the evidence have been rejected by Government, why? Caroline Flint: Any proposed changes would have to be carefully thought through, and there would have to be an issue about whether the evidence is needed. As I have said to you before, when the revisions to the Act were considered in the late 1980s, it was the view of the medical profession that the age at which the foetus should be considered viable should be changed from 28 to 24 weeks. We have not been advised on a change of view on this. Indeed, both the British Medical Association and the Royal College of Obstetricians and Gynaecologists are not convinced that there is currently a need to change the time limits. Q97 Chairman: Minister, they are not opposed to reviewing the evidence. Caroline Flint: Yes, but the issue at the time was that the evidence suggested that there was a need for a change, and both these organisations have suggested that there is no evidence to suggest that there is a need for a change at this time. That is the difference. They have not come forward and said, "The evidence to us suggests that this is the time for a review". That stands in stark contrast to what I understand - obviously I was not in Parliament at the time - was the way in which the debate came forward in the late 1980s. Q98 Chairman: It is interesting that the architect in the original Bill in 1987, Lord Steel, has also called for this issue not to be put to rest but at least there should be a public satisfaction of saying that the evidence has been looked at, the evidence has clearly been put before Parliament and indeed the public to make whatever choices are necessary. If, in fact, the Royal College of Obstetricians and Gynaecologists and the BMA are right that there is no new evidence, then that, in fact, would come out in an inquiry. I cannot for the life of me understand why you would not want that to happen as a representative of the Government; I cannot understand it. Caroline Flint: I cannot comment on Lord Steel's present position but, as I said, the ground on which the Government did seek to take action last time round was because of the pressure from the medical profession for a change based on their scientific and medical judgment. That is not the case today and that is why we see no reason to address this. Q99 Chairman: It does not matter what the public feel at all? They are irrelevant in this provided that the BMA say, "We do not want to change", that is it? Caroline Flint: No, what we are saying is there is not the view from within those organisations that there is medical evidence to suggest there should be a change at this time. There is no indication from them that there is new evidence to suggest that should be changed and, therefore, in those circumstances we do not feel that is necessary. Chairman: We exist as a parliament, do we not, Minister, not to satisfy the BMA or the Royal College of Obstetricians, we are here to satisfy the wishes, the needs and the feelings of our constituents, whether we agree with them or not. I am not making an opinion on this because I am not qualified to do so, but I find it unbelievable that Parliament should simply be bypassed because one particular group of medics say, "There is no reason to do this". It is the only area where that would happen. Q100 Bob Spink: Minister, you will be aware that in the run-up to the last election all three party leaders, including the Prime Minister, said that it was time to review the maximum limit for abortions and that should be done. Are you aware of that? Caroline Flint: All the Prime Minister said was it was parliamentary practice for proposals for a change in the law to be brought forward by backbenchers and decisions are made from the basis of that. Q101 Bob Spink: He said that he would favour a review of the change. Caroline Flint: I think he was asked what he thought about Lord Steel's comment. He said: "It is a matter of free vote of conscience on both sides of the House. If it is cited that evidence has shifted it would be sensible to take that into account". What I am saying to the Committee is evidence has not been brought forward by the organisations. Q102 Bob Spink: Minister, you have said that three times. Caroline Flint: The scientific evidence has not been brought forward by those professional bodies that last time round did bring it forward and asked for work in this area to look at new evidence. If the scientific evidence has not been brought forward then there is no reason for us to change our view. Q103 Bob Spink: We heard that, that is the third time. Are you aware of the MORI research which showed that nine in ten MPs felt that a review of the evidence was appropriate now? Caroline Flint: As I said before, Parliament does allow backbenchers to bring forward bills as and when they might if they want to, and that is something which is open to any Member of Parliament. Q104 Bob Spink: Are you aware of a change in public perception on the matter of timings for abortions? Have you seen the 4D images of children at 18 weeks, 20 weeks and 24 weeks? Caroline Flint: I think some of the 4D images are at 12 weeks, so we need to be clear about some of that. We also have to be clear that clearly abortion for some people is a wrong at any time and, therefore, the context of some of this debate, I think it is fair to say, shows a number of issues around people's views on the totality of abortion, not just in relation to this. Q105 Bob Spink: Are you aware of the change in public opinion as a result of those images being made available? Caroline Flint: Again, in terms of public opinion, when images are presented it is also important to know what information is being given to the public about those images and what they represent. Certainly in some of the depictions of those images that I have seen they have not always been presented in as straightforward a way and an informing a way as I think is relevant to those images. Clearly what we need to get across more is the fact that there are very few abortions at this time. There are particular reasons why women in these circumstances--- Q106 Bob Spink: Can you say how many thousand abortions are taking place at 24 weeks or after? Caroline Flint: A hundred, 120. I will give you the figures, but I think we are talking about 124. A fraction. Chairman: All that is available on the BMA website. You are saying that in this issue Parliament should not be involved nor should the public? You do not take into account what parliamentarians feel and you do not take into account what the public feel? Q107 Bob Spink: Or your party leader? Caroline Flint: What the Prime Minister said was that if the scientific evidence is there, bring it forward. It has not been brought forward to our Department to suggest there should be a change. If parliamentarians wish to raise this issue, the Prime Minister said it was customary that it was a matter for backbenchers to bring these issues forward and find the time and space within the parliamentary calendar to do that. Q108 Chairman: With respect, they cannot bring forward the scientific evidence. All this Committee called for, and indeed the predecessor committee called for, was simply a review of the evidence. If the review of the evidence backs up the position that you are taking, clearly there is at least a body of evidence on which people can have an informed debate. You are saying you will reject that as a proposal? Caroline Flint: What I am rejecting is the sense that there is scientific evidence being brought forward which suggests there should be a change in the time limits. Q109 Chairman: But you will not test that thesis? Caroline Flint: That, to our information and our advice, is not the case. Clearly Parliament, in terms of individual backbenchers and select committees, can decide what they want to do. Q110 Dr Harris: You talk about the BMA but do you not think you are being a little selective because the BMA strongly argued against the removal of donor anonymity, yet you ignore that. The BMA does not oppose a review, as the Chairman said, it does not call for a reduction, and you say we rely on the BMA? How are we to judge in which circumstances medical opinion counts for anything and therefore is it not just politics because people are choosing? Caroline Flint: I think they are slightly different, with respect. The donor anonymity issue was something which was not about scientific evidence changing per se but was much more about a judgment probably from the BMA's point of view, without trying to second guess them because I was not party at that time as the minister in the Department, about the issues around would this lead to a shortage of donors. I think that is somewhat different from a situation where previously when the legislation was last changed organisations like the BMA and others were coming forward to say, "Look, we have looked at the survival rates of children born at 24 weeks plus. We are able to tell you scientifically about the survival rates but also the probability of serious disability or impairment". That is slightly different from your example of donor anonymity. All I can say to the Committee is certainly in the last year in this job I have not had that sort of suggestion from the Royal College of Obstetricians and Gynaecologists to suggest that somehow in the intervening years foetus development has changed in such a way that the percentages - and I do not like to talk about percentages necessarily - have changed dramatically. We know that from the number of neonatal babies who survive in these early 20 weeks as opposed to those over 24, which obviously goes up dramatically and gets better. Q111 Dr Harris: The Select Committee recommendations were not just about time limits, they were about general updates to legislation, some stemming from 1967, for example around the need for two doctors' signatures or where abortions could take place. If the BMA, on the same basis, argue that it is now time - in the interest of recognising that things have changed, medical, science and social - to have easier access to early abortion in respect of some of those provisions, because we are not at 1967 anymore, and we do not need to have special specific named places, would the Government recognise that was an argument to look at whether the 1967 Act should be changed in that respect? Caroline Flint: Again, I think that would be an issue which has traditionally been raised by Parliament. What I would say on access to earlier abortions, that is something we have taken seriously as a Department. I am really pleased to say that the latest data for 2005 shows that in terms of increase to early access 64 per cent of NHS funded abortions took place at under ten weeks and that was compared with 51 per cent in 2002. Q112 Dr Harris: It is much higher in other countries, is it not? It would be a good thing if we could do that compared with later on? Caroline Flint: The parameters of the legislation are something that, people may disagree, are felt should be rightly dealt with in terms of backbencher legislation. What we are trying to do in relation to access to abortion is certainly increase the numbers who get access under ten weeks and certainly under 13 weeks as well. That is why we have got the PCT with a performance indicator in this area to improve it. We can do that and we are getting on with that. Q113 Dr Harris: I understand that point, but it was not quite my question. My last question is how, if you bring forward a HFEA amendment Act, which is what is likely to happen if you are going to make any of these legislative changes, are you going to prevent the backbencher putting in an amendment to section 37 of that Act which deals with time limits? Are you able to prevent that? If so, would it not be a better idea to have a review to inform the debate? Mr Webb: Our legal advice on section 37 is that the amendment to the Abortion Act is a spent provision as far as the Human Fertilisation and Embryology Act is concerned. Q114 Dr Harris: In other words, it cannot be amended? Caroline Flint: Yes. Q115 Dr Harris: My other question is 37(3) talks about the power to approve a class of places for abortion. That would enable family planning clinics to be able to carry out early medical abortion, improve access, reduce costs, reduce suffering and trauma to women. That has never been used. Is there a reason why we have 16 year old legislation to make access to abortion at an early stage rather than a later stage easier which has never, as far as I know, been used? Caroline Flint: We are looking at some issues around settings, if that is the point. Q116 Dr Harris: Yes. Caroline Flint: I am sure you appreciate that there are some issues around safety which we have to work through but it is something we are looking at in the Department with some nurses, doctors and others as to whether there are some settings that could be in line with the law but might be appropriate. Chairman: On that note, can I thank our witnesses. I am sorry we have not heard from you, Hugh, but I am sure you had lots of wisdom to give the Committee. We would like an understanding of what "spent" means; we would like a definition of that. Minister, thank you very much indeed for coming to this session.
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