Human Fertilisation and Embryology Bill [Lords]

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Mark Simmonds: I thank the Minister for her helpful responses to a debate that was stimulated by a series of amendments that I tabled. I would just like to pick up one or two of the points that have been made by hon. Members.
My hon. Friend the Member for Salisbury was absolutely right to set out that Parliament must decide the principles, but the HFEA must be allowed to regulate. I think that the job for us in Parliament, as members of this Committee, is to establish where the balance between those two particular principles lies. The Minister certainly put my mind at rest with regard to the regulatory powers and the fact that they will be published in draft for consultation, although I share the concern of the hon. Member for Oxford, West and Abingdon, in that I cannot think of any draft regulations that have been altered as a consequence of such consultation during my time in Parliament. If the Minister and her officials could give an example of when that has happened, I would be grateful.
Dawn Primarolo: As a former Treasury Minister, I can assure the hon. Gentleman that that was the case for Finance Bills. We got to the point where something like more than half of a Finance Bill had been consulted on by being published in draft, amended, brought back and consulted on. The House does that, and there has been very full consultation in this area.
Mark Simmonds: I am sure that the Minister will be aware that that is not the same as altering regulatory powers and draft regulations. Indeed, the Government have problems with the current Finance Bill. I think the concern that I share with the hon. Member for Oxford, West and Abingdon is that there needs to be a genuine consultation, not just—I do not want to go down this road too far—a sham consultation, as we have in some circumstances. The consultation needs to be genuine because this is a very significant and important area.
I thought that it was clear from the Bill that nuclear DNA would be prohibited. Following the exchange that hon. Members have had with the Minister, I am now not so sure, so I am pleased that she is going to reflect on that because I would otherwise be uncomfortable with the situation. There is a big distinction between nuclear DNA and mitochondrial DNA. As I have said, I am comfortable with mitochondrial DNA, and we need to send a message to encourage that particular research.
My hon. Friend the Member for South-West Devon was absolutely right to talk about the possibility of loose language in the clause, so I hope that the Minister said will reflect on that. Concern about reproductive cloning was also highlighted, and if I have time, I would like to discuss that when we consider the next amendment. However, I think the Minister has put on the record some extremely helpful foundations as to why this clause is phrased as it is and why there needs to be a regulatory power.
One of the reasons why the 1990 Act has lasted for so long is because intermittent regulations have been put down to update it to catch up with scientific advancements. If we all want the Bill to have longevity after it comes out of Parliament, we will have to allow regulatory powers in certain areas. However, it needs to be clear what Parliament will and will not allow. I certainly have concerns, which were highlighted by the hon. Member for Southport, about the possible change to the definition of gametes and embryos. However, on the basis of the Minister’s helpful reply and the fact that she is prepared to reflect on hon. Members’ comments, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.15 pm
Mark Simmonds: I beg to move amendment No. 3, in clause 3, page 3, line 29, leave out subsection (6) and insert—
‘(6) (a) A person who places in a woman a human embryo which has been created otherwise than by fertilisation is guilty of an offence.
(b) A person who is guilty of the offence specified in paragraph (a) is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or a fine or both.’.
This is a probing amendment to try to elicit a response from the Minister as to why the exact wording that was set out in the Human Reproductive Cloning Act 2001 is not in the Bill. I do not necessarily subscribe to this view, but there is genuine concern that the Bill might leave a door open to enable cloning to take place. Ministers have said in Committee and elsewhere that the Bill completely supersedes the 2001 Act. Why are the Act’s exact provisions not in the Bill? My amendment would put the wording of the Act into the Bill. It is absolutely essential that Parliament sends a message that we do not approve of reproductive cloning and that it needs to be outlawed and prohibited completely.
Dr. Harris: I am grateful to the hon. Member for Boston and Skegness for tabling the amendment because it gives us an opportunity to discuss this issue. The repeal of the Human Reproductive Cloning Act 2001 has been raised by several members of the public, mainly—perhaps exclusively—by those who are opposed to many measures that the Human Fertilisation and Embryology Act 1990 permitted and that this Bill will continue to permit. It is important that they are reassured that the repeal of the 2001 Act in no way permits reproductive cloning.
My understanding—the Minister will obviously go into this in detail—is that there is a new helpful structure in clause 3. That is a clever way of dealing with things because it specifies that the only thing that can be implanted is a permitted embryo, and that a permitted embryo can be created only from a permitted sperm and a permitted egg, and defines that in the Bill. Therefore, nothing else, clearly including a cloned embryo—that is not a permitted embryo because it has not been created by the fertilisation of a permitted egg by a permitted sperm—is going to be implanted. It is incredibly important for that provision to be set out clearly, which the Bill does. It is a red herring for people to suggest that a repeal of the Human Reproductive Cloning Act 2001 somehow allows reproductive cloning.
It is also unfair to argue that treating mitochondrial disease by cytoplasmic or mitochondrial transplant is in any way cloning. It is not: cloning involves the nuclear transfer of a nucleus, not cytoplasm. It is thus a complete misreading and an incorrect interpretation of this Bill to suggest that treatment of mitochondrial disease is somehow reproductive cloning. Certainly, the 2001 Act would not need to be repealed to allow what we discussed earlier. It is being repealed because it is inconsistent with the regime that the Government have set up.
There is duplication in the penalties applied, because there are penalties that exist around this area anyway, without needing the Human Reproductive Cloning Act 2001 to lock people up and throw away the key. The important point must be made that the HFEA would not license anything like this, even if there were not a ban in primary legislation. I did not think the 2001 Act was necessary in practice, even it was felt necessary politically, and I do not think that there are any scientists or researchers in this country who would dream of implanting a cloned embryo. Anyone around the world who says they are seeking to do it—whether they are maverick scientists seeking publicity for other purposes or fantasist cults in Canada—should not be taken seriously because the technology is nowhere near there, and they would not be able to succeed even if they were serious. We should not be panicked by the prospect of reproductive cloning.
Dr. Gibson: The hon. Gentleman says that the technology is not yet there. Is he insinuating that if it were there, we would need to have a rethink? Is his annoyance and repugnance of the technology based on something else—morality, ethics, or whatever?
Dr. Harris: The hon. Gentleman raises a good question that was covered in the report by the Committee that he chaired. I do not have the report to hand but, if I remember correctly, there were several grounds for arguing for a ban. One reason was ethical, another was that the practice was not possible, and another that even if it were possible, it would not be safe and could never be done ethically. Informed consent would not be given for something that was not required or necessary and did not have sufficient justification. His report laid down a challenge to politicians to come up with strong, ethical arguments against the practice—now is not the time to do that but there are many—in case there came a point where, under another jurisdiction, it was shown to be safe and effective. I do not think that we will ever get to that stage and there are good ethical arguments against it, but I will not hold up the Committee by going into them. However, the hon. Gentleman raises the good point that when we talk about a ban on reproductive cloning, we must consider all the reasons why that is not a good idea.
Dawn Primarolo: The 1990 Act set out to regulate the creation, keeping and use of embryos outside of the human body, both for treatment purposes and for research. The Act referred only to the creation of human embryos by fertilisation—embryos created using an egg and a sperm. We have already touched on that debate this morning. Since then, technology advanced to the point at which it could be possible to create embryos by other means, namely cloning. That led the Government to introduce the Human Reproductive Cloning Act 2001, which made it an offence to place in a woman an embryo created by a process other than fertilisation. This takes us back to the key debate about fertilisation in clause 1.
In reviewing the 1990 Act, the Government had to take account of emerging technologies that could be used to create embryos and that could go further than just reproductive cloning. Modern science can be used to create gametes using adult or embryonic stem cells—so-called artificial gametes—and the technology exists to genetically modify those gametes, which, when used, would create an embryo containing germ line genetic modifications.
The Bill will permit the creation, keeping and use of genetically modified embryos for research purposes only under licence, and it will enable research on artificial gametes, subject to regulation. However, the Government do not intend that such embryos and gametes should be used in treatment. For that reason, as the hon. Member for Oxford, West and Abingdon pointed out, the Bill introduces the concept of permitted sperm, permitted eggs and permitted embryos. Permitted sperm and eggs are the only gametes that may be used in reproductive treatments such as artificial insemination or in vitro fertilisation.
To be permitted, a sperm must have come from the testes of a man, and an egg from the ovaries of a woman. Additionally, the gametes must not have been genetically modified in any way. It follows that a permitted embryo is an embryo that may be created only by the fertilisation of a permitted egg with a permitted sperm. In essence, that means that no embryo may be used in treatment unless it is created using natural unmodified gametes and by fertilisation. As the hon. Gentleman says, it is quite clear how we have approached this subject. I hesitate to say this but I will: I cannot see how that can be interpreted in any other way.
The amendment would, by reinstating the wording of the Human Reproductive Cloning Act 2001, make no difference to the Bill. As drafted, the Bill clearly bans reproductive cloning. To put it in simple and direct terms, the amendment would add nothing to the purpose of the prohibition, nor would it add to the fact that cloning is an offence and not allowed.
Mark Simmonds: I understand what the Minister says. She was right to highlight the permitted sperm, the permitted eggs and the permitted embryo, and the prohibition of cloning because of those categories. However, what was in the 2001 Act but is not in the Bill is the offence. I do not know whether the hon. Member for Oxford, West and Abingdon was correct when he said that the offence is covered by other legislation. Will the right hon. Lady explain where the offence is covered, because is not covered by the Bill? It is the main difference between the 2001 Act and clause 3(6).
Dawn Primarolo: The offence is covered elsewhere and I referred to it earlier this morning. Forgive me, I cannot find the reference now, although, as if by magic, I have now found it. It is section 41 of the 1990 Act, as amended. The offence is the same, and the penalty is 10 years in prison. If that is the problem that the hon. Gentleman seeks clarification on, I shall be happy to give him and all members of the Committee a fuller explanation in a letter to make it absolutely clear that the offence is the same and the penalty is 10 years in prison.
Mark Simmonds: I understand that section 41 appears in the 1990 Act. If that is the case, why did the provision need to be replicated in the Human Reproductive Cloning Act 2001? Why is it therefore not set out in the 2008 Bill when the 2001 Act was preceded by the 1990 Act?
Dawn Primarolo: We are becoming a bit techie about how x become a Bill and how the Bill that we are discussing is an amendment to an existing Act. I am happy to provide the hon. Gentleman with such information. The Bill is an amendment to the 1990 Act, which is from where the references, as amended, come. I fear that I am not helping him by giving a particularly clear explanation of the interaction between the 1990 Act and the Bill, so I am happy to write to him. If he is still troubled, he will have an opportunity to refer to that. I assure him that the provision is in place.
Mark Simmonds: I am grateful to the Minister for her response. I look forward to receiving her correspondence as soon as possible to clarify the matter. It is essential that Parliament sends out a clear message that reproductive cloning should be prohibited in totality. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman: The hon. Member for Oxford, West and Abingdon said earlier that he wished to raise other matters. I hope that he will make sure that they are other matters as the clause has been discussed fairly fully already.
Question proposed, That the clause stand part of the Bill.
12.30 pm
Dr. Harris: It is not my intention to cover the issues we have just debated. I want to raise the issue of the use of stem cell-derived gametes or in vitro-derived gametes, also called—I think misleadingly—artificial gametes in treatment.
Let us be clear that the clause as drafted precludes, by primary legislation, the use of in vitro-derived or stem-cell derived gametes in treatment. That has serious implications which this House needs to debate, and I ask the Government—and, indeed, the Conservative Front Bench spokesman—to consider whether there is a good enough reason for not allowing some form of regulation-making power to deal with the concerns and enable this research to proceed without the prospect of being banned in primary legislation and never put into the clinic. Such a power would improve the potential treatment prospects of thousands of patients who suffer from infertility.
When talking about the prospects of stem cell therapies I am always very careful not to claim that this will inevitably lead to treatments or, indeed, that we can expect cures. What I say is that the hope is that the research will deliver insights into causes, new ways of testing and new treatments, and might provide for cures. In this case, however, I think that one can be confident that if the research works, there is very little left to do other than run a clinical trial.
There are thousands of patients who suffer from the inability of their gonads to make gametes, whether sperm or eggs, and new technology offers the promise that such infertility can be treated by the generation of new gametes from stem cells—I am talking about adult stem cell technology. It could be done in other ways, but the leading technology in animal models is adult stem cell technology, so it is not as controversial as other measures such as the embryonic stem cell technologies envisaged elsewhere in the Bill. Nor does it involve the creation of embryos other than those created for the purpose of producing children, which is what the 1990 Act was all about. I would argue that this is less contentious even than the regulation-making power that we have just discussed, which allows for cytoplasmic transfer, genetic contributions from three parents and other such issues which, as the Committee knows, I support, but which, I accept can be considered controversial.
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