Human Fertilisation and Embryology Bill [HL]

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Session 2007 - 08
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Other Bills before Parliament

Human Fertilisation and Embryology Bill [HL]

Human Fertilisation and Embryology Bill [HL]
Part 1 — Amendments of the Human Fertilisation and Embryology Act 1990
32

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Inspection, entry, search and seizure
(1)
Before section 39 of the 1990 Act (but after the heading “Enforcement”
immediately before that section) insert—
“38A
Inspection, entry, search and seizure
(1)
Schedule 3B (which makes provisions about inspection, entry, search
5
and seizure) has effect.
(2)
Nothing in this Act makes it unlawful for a member or employee of the
Authority to keep any embryo, human admixed embryo or gametes in
pursuance of that person’s functions as such.”
(2)
After Schedule 3A to the 1990 Act insert the Schedule set out in Schedule 5 to
10
this Act (inspection, entry, search and seizure).
(3)
Section 39 of the 1990 Act (powers of members and employees of Authority)
and section 40 of that Act (power to enter premises) (which are superseded by
the amendments made by subsection (2)) cease to have effect.
29
Offences under the 1990 Act
15
(1)
Section 41 of the 1990 Act (offences) is amended as follows.
(2)
In subsection (1)(a), for “4(1)(c)” substitute “4A(1) or (2)”.
(3)
In subsection (2)—
(a)
after paragraph (a) insert—
“(aa)
contravenes section 3(1B) of this Act,”,
20
(b)
after paragraph (ba) insert—
“(bb)
contravenes section 4(1A) of this Act,”, and
(c)
in paragraph (d), for “section 24(7)(a)” substitute “section 24(5D)”.
(4)
In subsection (4), omit “, other than an offence to which subsection (4B)
applies,”.
25
(5)
In subsection (5), for “section 33” substitute “section 33A”.
(6)
In subsection (8)—
(a)
for “or the nominal licensee” substitute “or the holder of the licence”,
and
(b)
for “or embryos” substitute “, embryos or human admixed embryos”.
30
(7)
In subsection (9), omit “(6), (7) or”.
(8)
For subsection (10) substitute—
“(10)
It is a defence for a person (“the defendant”) charged with an offence of
doing anything which, under section 3(1) or (1A), 4(1) or 4A(2), cannot
be done except in pursuance of a licence to prove—
35
(a)
that the defendant was acting under the direction of another,
and
(b)
that the defendant believed on reasonable grounds—
(i)
that the other person was at the material time the person
responsible under a licence, a person designated by
40
virtue of section 17(2)(b) of this Act as a person to whom

Human Fertilisation and Embryology Bill [HL]
Part 1 — Amendments of the Human Fertilisation and Embryology Act 1990
33

a licence applied, or a person to whom directions had
been given under section 24(5A) to (5D), and
(ii)
that the defendant was authorised by virtue of the
licence or directions to do the thing in question.
(10A)
It is a defence for a person (“the defendant”) charged with an offence of
5
doing anything which, under section 3(1A) or (1B) or 4(1A), cannot be
done except in pursuance of a licence or a third party agreement to
prove—
(a)
that the defendant was acting under the direction of another,
and
10
(b)
that the defendant believed on reasonable grounds—
(i)
that the other person was at the material time the person
responsible under a licence, a person designated by
virtue of section 17(2)(b) of this Act as a person to whom
a licence applied, a person to whom a third party
15
agreement applied, or a person to whom directions had
been given under section 24(5A) to (5D), and
(ii)
that the defendant was authorised by virtue of the
licence, third party agreement or directions to do the
thing in question.”
20
(9)
Omit subsections (2A), (4A), (4B), (6) and (7).
(10)
Section 41(2) of the 1990 Act as amended by subsection (3) is to be treated as a
relevant enactment for the purposes of section 282 of the Criminal Justice Act
2003 (c. 44) (increase in maximum term that may be imposed on summary
conviction of offence triable either way).
25
30
Regulations under the 1990 Act
(1)
Section 45 of the 1990 Act (regulations) is amended as follows.
(2)
After subsection (1) insert—
“(1A)
Subsection (1) does not enable the Secretary of State to make
regulations by virtue of section 19(6) (which confers regulation-making
30
powers on the Authority).”
(3)
In subsection (2), after “regulations” insert “under this Act”.
(4)
For subsection (3) substitute—
“(3)
The power to make regulations under this Act may be exercised—
(a)
either in relation to all cases to which the power extends, or in
35
relation to those cases subject to specified exceptions, or in
relation to any specified cases or classes of case, and
(b)
so as to make, as respects the cases in relation to which it is
exercised—
(i)
the full provision to which the power extends or any less
40
provision (whether by way of exception or otherwise);
(ii)
the same provision for all cases in relation to which the
power is exercised, or different provision as respects the
same case or class of case for different purposes;
(iii)
any such provision either unconditionally, or subject to
45
any specified condition.

Human Fertilisation and Embryology Bill [HL]
Part 1 — Amendments of the Human Fertilisation and Embryology Act 1990
34

(3A)
Any power of the Secretary of State or the Authority to make
regulations under this Act includes power to make such transitional,
incidental or supplemental provision as the Secretary of State or the
Authority considers appropriate.”
(5)
For subsection (4) substitute—
5
“(4)
The Secretary of State shall not make regulations by virtue of any of the
provisions specified in subsection (4A) unless a draft has been laid
before and approved by a resolution of each House of Parliament.
(4A)
Those provisions are—
section 1(6);
10
section 3(3)(c);
section 3ZA(5);
section 4(2) or (3);
section 4A(5)(e) or (10);
section 24(4B);
15
section 31ZA(2)(a);
section 33B;
section 33C;
section 35A;
section 43;
20
paragraph 1(1)(g), 1ZC, 3(5) or 3A(1)(c) of Schedule 2.”
(6)
In subsection (5), after “regulations” insert “made by the Secretary of State”.
31
Power to make consequential provision
After section 45 of the 1990 Act (regulations) insert—
“45A
Power to make consequential provision
25
(1)
The Secretary of State may by order make such provision modifying
any provision made by or under any enactment as the Secretary of State
considers necessary or expedient in consequence of any provision
made by regulations under any of the relevant provisions of this Act.
(2)
For the purposes of subsection (1), “the relevant provisions of this Act”
30
are—
(a)
section 1(6) (power to include things within the meaning of
“embryo” and “gametes” etc.);
(b)
section 4A(5)(e) (power to include things within the meaning of
“human admixed embryo”);
35
(c)
section 4A(10) (power to amend definition of “human admixed
embryo” and other terms).
(3)
Before making an order under this section containing provision which
would, if included in an Act of the Scottish Parliament, be within the
legislative competence of that Parliament, the Secretary of State must
40
consult the Scottish Ministers.
(4)
Before making an order under this section containing provision which
would be within the legislative competence of the National Assembly
for Wales if it were included in a Measure of the Assembly (or, if the

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
35

order is made after the Assembly Act provisions come into force, an Act
of the Assembly), the Secretary of State must consult the Welsh
Ministers.
(5)
Before making an order under this section containing provision which
would if included in an Act of the Northern Ireland Assembly, be
5
within the legislative competence of that Assembly, the Secretary of
State must consult the Department of Health, Social Services and Public
Safety.
(6)
In this section—
“enactment” means—
10
(a)
an Act of Parliament (other than this Act),
(b)
an Act of the Scottish Parliament,
(c)
a Measure or Act of the National Assembly for Wales, or
(d)
Northern Ireland legislation,
whenever passed or made;
15
“modify” includes amend, add to, revoke or repeal;
“the Assembly Act provisions” has the meaning given by section
103(8) of the Government of Wales Act 2006.”
32
Orders under the 1990 Act
After section 45A (inserted by section 31 above) insert—
20
“45B
Orders
(1)
The power to make an order under section 8C(1)(c) or 45A of this Act
shall be exercisable by statutory instrument.
(2)
The power to make an order under section 8C(1)(c) or 45A of this Act
includes power to make such transitional, incidental or supplemental
25
provision as the Secretary of State considers appropriate.
(3)
A statutory instrument containing an order made by the Secretary of
State by virtue of section 8C(1)(c) shall be subject to annulment in
pursuance of a resolution of either House of Parliament.
(4)
The Secretary of State shall not make an order by virtue of section 45A
30
unless a draft has been laid before and approved by a resolution of each
House of Parliament.”
Part 2
Parenthood in cases involving assisted reproduction
Meaning of "mother"
35
33
Meaning of “mother”
(1)
The woman who is carrying or has carried a child as a result of the placing in
her of an embryo or of sperm and eggs, and no other woman, is to be treated
as the mother of the child.
(2)
Subsection (1) does not apply to any child to the extent that the child is treated
40
by virtue of adoption as not being the woman’s child.

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
36

(3)
Subsection (1) applies whether the woman was in the United Kingdom or
elsewhere at the time of the placing in her of the embryo or the sperm and eggs.
Application of sections 35 to 47
34
Application of sections 35 to 47
(1)
Sections 35 to 47 apply, in the case of a child who is being or has been carried
5
by a woman (referred to in those sections as “W”) as a result of the placing in
her of an embryo or of sperm and eggs or her artificial insemination, to
determine who is to be treated as the other parent of the child.
(2)
Subsection (1) has effect subject to the provisions of sections 39, 40 and 46
limiting the purposes for which a person is treated as the child’s other parent
10
by virtue of those sections.
Meaning of "father"
35
Woman married at time of treatment
(1)
If—
(a)
at the time of the placing in her of the embryo or of the sperm and eggs
15
or of her artificial insemination, W was a party to a marriage, and
(b)
the creation of the embryo carried by her was not brought about with
the sperm of the other party to the marriage,

then, subject to section 38(2) to (4), the other party to the marriage is to be
treated as the father of the child unless it is shown that he did not consent to
20
the placing in her of the embryo or the sperm and eggs or to her artificial
insemination (as the case may be).
(2)
This section applies whether W was in the United Kingdom or elsewhere at the
time mentioned in subsection (1)(a).
36
Treatment provided to woman where agreed fatherhood conditions apply
25
If no man is treated, by virtue of section 35, as the father of the child and no
woman is treated, by virtue of section 42, as a parent of the child but—
(a)
the embryo or the sperm and eggs were placed in W, or W was
artificially inseminated, in the course of treatment services provided in
the United Kingdom by a person to whom a licence applies,
30
(b)
at the time when the embryo or the sperm and eggs were placed in W,
or W was artificially inseminated, the agreed fatherhood conditions (as
set out in section 37) were satisfied in relation to a man, in relation to
treatment provided to W under the licence,
(c)
the man remained alive at that time, and
35
(d)
the creation of the embryo carried by W was not brought about with the
man’s sperm,
then, subject to section 38(2) to (4), the man is to be treated as the father of the
child.