Human Fertilisation and Embryology Bill [Lords]

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Dr. Gibson: The point is that there are difficulties. It is not just around the corner.
Dr. Harris: The hon. Gentleman says from a sedentary position that there are difficulties and it is not just around the corner. Those difficulties are what the research is dealing with. He says the process is not just around the corner and I accept that, but the Government have not made the argument—I do not believe that the Conservative party have made the argument either—that it is not necessary because it is 10 or 20 years off.
To respond to the hon. Gentleman’s intervention, I hope he accepts that it would be better to have a regulation-making power that provides for the process if it is needed. If it is not needed, because the research does not work, we are in exactly the same position as with mitochondrial donation, where regulations were not brought forward. It is important to show researchers and funders that we do not have a ban in primary legislation, especially an irrational one, that is not based on legitimate concerns because they are dealt with in the regulations.
I just want to explain where we are with the issue of discrimination. When it was raised by Lord Patel in the House of Lords on Report on 15 January 2008, with the provision that regulations must provide, for example, that sperm are developed from genetic male cells, this was welcomed by Baroness Jay and also welcomed by Earl Howe, who said
“The noble Lord, Lord Patel, has made a powerful case and I support him.”
That was because the concern he had raised in Committee had been addressed. Baroness Royall, the Minister, said in response to the specific amendment:
“I realise that the scope of this amendment is not as wide as the one moved in Committee”—
including the provision that sperm is only from male cells and eggs from female cells—
“and that many concerns have been removed.”—[Official Report, House of Lords, 15 January 2008; Vol. 697, c. 1200-01.]
However, she raised an important point about whether there is a problem with discrimination law, which is what I want the Government to address in their reply, because her concern was that it would be discriminatory not to allow same-sex couples to use the technology to create children using their combined genetic material, and whether it would be proportionate to prevent them from benefiting from the treatment in the future.
I would like the Minister to set out whether that is her view—that is, the legal advice she has had. I think it is highly arguable that there would not be a legitimate purpose in that indirect discrimination, but it would be entirely proportionate to insist that infertile or same-sex couples treat their infertility through gamete donation—that is the option available to them; it is not closed down. It is thus entirely proportionate to say that the process should be providing for specific male germ cells from male cells and that it is not, in fact, discriminatory. I question whether that is the case and I have seen no information about the matter from the Government.
The Government’s position has evolved and I would like them in their response to explain the basis for their evolving position. I have already set out the question raised in the 2005 consultation, that
“the Government proposes that the use of artificial gametes in assisted reproduction treatment should not be permitted but that the HFE Act should contain a regulation making power giving Parliament more flexibility to allow the use of artificial gametes in future should it wish to do so.”.
Dr. Pugh: Is my hon. Friend arguing that legislation or regulations should allow for us to address cases where there is infertility or does he think that they should be allowed in cases where people are not biologically infertile but may not wish to go through the normal processes that human beings go through for reproduction?
The Chairman: Order. I have been listening carefully to the argument of the hon. Member for Oxford, West and Abingdon and it seems to me that 98 per cent. of what he has said so far is covered by clause 3(2). He is now beginning to move into entirely different areas.
Dr. Harris: I shall just clarify matters, for the assistance of the Committee. The proposal is that there could be a regulation-making power to allow the definition of the term “permitted eggs” to be wider than is provided for in subsections (2) and (5). The latter defines permitted sperm as only those that
“have been produced by or extracted from the testes of a man”.
I want to argue in this stand part debate that that is not a wide enough definition to look after the interests of scientists working in the field of stem cell-derived gametes, or of patients who could benefit from a wider definition.
In the last part of my speech I am trying to deal with the point that was raised in another place—this has been the only opportunity to do so: that is the argument of my hon. Friend the Member for Southport about whether the provision would allow same-sex couples to reproduce using their own gametes. I say no, because the amendment proposed on Report and Third Reading in the House of Lords clearly said that regulations must provide that sperm could come only from male cells, and eggs could come only from female cells. Something else that was discussed in the House of Lords, which I urge the Committee to consider, is the fact that the intention is to treat infertility, and the HFEA would regulate that.
Will the Government explain the basis on which, in the White Paper, they changed their view on the provision? The White Paper stated:
“The Government has considered whether such a ban on the use of artificial gametes should be capable of being removed through secondary legislation ...This would provide a ready mechanism to alter the law if safety concerns were allayed in future. The Government has decided, on balance, not to recommend such a power, proposing instead that this would be a matter requiring primary legislation.”
I think that the Government did that on the basis of a response to the consultation from people who opposed all the other things, such as hybrid embryos, that the Government have decided to stick with, and mitochondrial transplantation. I urge the Minister, even if her reply is not a positive one, to set out her advice on whether a regulation-making power such as I have described would be discriminatory against same-sex couples.
Dawn Primarolo: The Bill introduces the concept of permitted gametes and embryos. That is to distinguish between those that are created and used in the course of research and those that are created and used in the course of someone’s treatment. Although it is possible to create embryos and gametes in several ways, some of which are necessary and desirable for research purposes, only those embryos that are created by fertilisation and those gametes that are produced by and extracted from testes and ovaries are allowed to be used in treatment. The Bill defines those as “permitted”. That is crucial, both in the 1990 Act and in the amendments to it in the Bill. It raises enough issues in itself.
One of the major challenges that we as parliamentarians encounter in Committee and that we encountered in all the pre-legislative scrutiny of the Bill and on the Floor of the House is to study the scientific evidence and try to work our way through the possibilities—where the scientific development will take us and thus how we should legislate. Sometimes it is not possible for us to answer all the questions, and in those circumstances and at that point in time we back away.
There is currently research into in vitro maturation and in vitro growth of gametes. That involves taking immature eggs or sperm and maturing them in vitro. That would allow eggs to be matured from ovarian tissue.
The Chairman: Order. The Committee will sit again at 4 pm and the room will be locked until then. Hon. Members may leave their papers in the room if they wish. In the meantime we shall try to do something about the air quality in the room.
It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four o’clock.
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