 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Human Fertilisation and Embryology |
Human Fertilisation and Embryology Bill [Lords] |
The Committee consisted of the following Members:Hannah Weston, Celia
Blacklock, Committee Clerks †
attended the Committee Public Bill CommitteeThursday 5 June 2008(Morning)[Mr. Roger Gale in the Chair]Human Fertilisation and Embryology Bill [Lords](Except clauses 4, 11, 14 and 23, Schedule 2, and any new Clauses or new Schedules relating to the termination of pregnancy by registered medical practitioners)9
am Clause
13 ordered to stand part of the
Bill.
Schedule 3Consent
to use or storage of gametes, embryos or human admixed embryos
etc. Dr.
Evan Harris (Oxford, West and Abingdon) (LD): I beg to
move amendment No. 12, in schedule 3, page 59,
line 19, leave out ‘sub-paragraph 2’ and
insert ‘sub-paragraphs 2 to
2(A)’.
The
Chairman: With this it will be convenient to discuss the
following amendments: No. 11, in schedule 3,
page 59, line 28, at end
insert— ‘(2A) A consent
under this Schedule by a deceased person from whom gametes have been
retrieved posthumously may be deemed to have been given and not
withdrawn if the consultant from whom the couple together were
receiving advice or treatment confirms in writing that the deceased
was, at the date of death, either receiving treatment or receiving
advice in respect of a clear and settled intention to have a child with
his
partner.’. No.
13, in
clause 22, page 18, line 15, at
end insert— ‘(3A) After
subsection (4)
insert— “(4A) In
default of the exercise of the Authority of its power to make a
direction under this section, a judge of the High Court may give
permission for gametes stored under Schedule (3)(1)(2A) of this Act to
be used within the UK or exported and used outside the United
Kingdom.”.’.
Dr.
Harris: The amendment was tabled by my hon. Friend the
Member for Twickenham (Dr. Cable) and it is supported by my hon. Friend
the Member for Southport, who gives his apologies to the Committee
today that he is detained on a constituency matter. They have asked me
to speak to these three amendments, which I am happy to
do. The
Committee should understand—hon. Members might already be aware
from press coverage—that the amendments relate to a case in the
constituency of my hon. Friend the Member for Twickenham, who has taken
an active interest in it. They also raise general issues, however,
which is why I am happy to introduce them so that we can receive an
indication of the Government’s position on these difficult but
interesting matters.
This
case—I am not going to dwell on it at length, because it is the
law that we want to discuss today—relates to a lady, aged 42,
whose husband died suddenly in June last year. He was 30 at the time,
and the cause of his death was unclear, despite a post mortem. They
already had one child, but there were some questions about the
woman’s fertility and they wished to have a further child. They
went to see a consultant obstetrician and gynaecologist to discuss
whether the particular problem that she had might affect her natural
conception. Unfortunately, and tragically, the husband died the week
following
that. Sperm
was then taken from the man posthumously and stored. The legality of
that act was confirmed at the first stage, before it was carried out,
by an urgent out-of-hours court hearing in the High Court by telephone
conference. The Human Fertilisation and Embryology Authority was not
represented, which might be relevant to what happened
subsequently. The
proposal then was for the sperm to be used in treatment, either in this
country or abroad. There are difficulties with the existing law, as set
out by the Human Fertilisation and Embryology Act 1990, and I do not
think that the problems that this woman is encountering under that Act
will be made any easier under the proposals in the Bill. The Government
are pretty clear that they take the issue of consent very seriously.
The term used is “effective consent”, and there are
certain criteria for that. I do not think that anyone could generally
describe the proposals in the Bill as a watering down of what existed
in
1990. In
the Diane Blood case, which is the only legal precedent for this, sperm
was taken from Mr. Blood, albeit not posthumously, but while
he was in a coma. I happen to think that that case raises greater
issues around the removal of sperm, because there is a potential for
assault in such a case, when someone is not dead. It is not possible to
assault a dead body, even though there are obvious sensitivities
surrounding that.
In the Diane
Blood case, the sperm was taken and stored, as I understand it, without
a court hearing, and then the question was whether that could be used
for treatment without the effective consent. Under the 1990 Act,
effective consent for the storage of sperm requires it to be in
writing. Effective consent for the use of the sperm in treatment is
also required in writing. It must be extant and not withdrawn prior to
use. That clearly did not apply in the case of Diane Blood, although
she asserted strongly that she and her late husband had had a
discussion and that had said that he would have wanted her to have a
child after his death. There was certainly no doubt that they wanted to
have children
together. In
that case, the HFEA would not allow the sperm to be used in treatment
in this country and would not allow export, although I understand that
it has the discretion to do so. Following a court hearing, the court
directed the HFEA to reconsider its decision, taking into account
European law. The HFEA, whether or not it did so, decided in the end to
allow Diane Blood to export the sperm to a European country—I
believe that it was Belgium—although I understand that that was
because it had run out of money to fight the case and had been given a
steer from the Government, whether appropriately or inappropriately,
not to pursue the matter much further.
Obviously,
everyone recognises the immense campaigning effort that Diane Blood
went through to get to where she was then and, indeed, where she is
now: she has children and has helped to effect a change in the law to
allow posthumous fathers to be listed on birth certificates when the
consent is effective. I remember discussing—I think that it was
in this very room—the need for effective consent, so I find
myself in the curious position of speaking to this amendment when
previously in Committee I felt very strongly that there must be
effective consent for posthumous
paternity. Let
us deal with the legalities. The Minister is probably aware of this,
but for the benefit of the Committee, let me point out that the storage
and use of sperm in the UK is governed by the 1990 Act. It is an
offence to store or use gametes for treatment except in pursuance of a
licence, as we know. Every licence granted under the Act must have as a
condition that the provisions of schedule 3 to the Act are complied
with, and that requires effective consent. Unless a person has given
effective consent, their gametes must not be used in the provision of
treatment services to another; used to bring about the creation or
subsequent implantation of an embryo; or kept in storage. Effective
consent means that it must be in writing, that it must not be
withdrawn, and that it must specify what is to happen if the donor dies
or loses capacity. As I understand it, the Bill provides for similar
provisions, but also for the effective consent to be in writing and
signed by the
donor. The
HFEA can give a direction authorising the licence holder to arrange for
the transfer of gametes overseas under section 24(4) of the 1990 Act.
It can also modify the applicability of the requirements of sections 12
to 14 of the Act in respect of that
direction. In
the case in the constituency of my hon. Friend the Member for
Twickenham, there was no effective consent but leaving aside the
question of whether the court was right to allow the sperm to be taken
and stored for the time being, we must ask whether the HFEA could use
its discretion. The authority is currently unwilling to use its
discretion, and setting out Parliament’s intention in this
respect might be
useful. There
are clearly strong personal factors in this case. There is no doubt, as
testified by the consultant, that the couple were seeking to have a
child. That is why amendment No. 11
states: “A
consent under this Schedule by a deceased person from whom gametes have
been retrieved posthumously may be deemed to have been given and not
withdrawn if the consultant from whom the couple together were
receiving advice or treatment confirms in writing that the deceased
was, at the date of death, either receiving treatment or receiving
advice in respect of a clear and settled intention to have a child with
his
partner.” There
is no doubt that that would apply in this
case. If
the Minister was willing to consider the amendment, that would help the
lady, as long as she can continue to store the sperm. Otherwise, the
further provision that my hon. Friend the Member for Twickenham has
proposed would enable a court to intervene to give a second
view—I guess that that is the best way of putting it. The
question is how rigidly we would like the law to specify that effective
consent must be written and thus given in advance, or whether the
circumstances in a case could give rise to a reasonable
belief—recognised by the law, or a discretionary power—to
give flexibility so that a woman widowed in such circumstances would be
permitted,
even if they could not use the sperm here, to export the sperm and use
it in another country. I think that the question for the Government is
whether they will provide a discretionary arrangement in such cases, or
look to consider wording similar to that in amendment No. 11, which
would enable there to be some testimony as to the intentions and
wishes, and thus essentially the consent, of the
father. Clearly
there is a problem about whether a person’s intention to have a
child with someone when they were alive can be reasonably extended to
including the intention for their partner to raise a child on their own
in that person’s absence, due to their death. It is very hard to
speculate about that. Some people would argue—and I can see the
strength of this case—that it is best to err on the side of
having the child because there is clearly a committed parent there. I
am on record as arguing that children can be brought up very
effectively by solo parents, whether widows or single women intending
to have a child through in vitro fertilisation. I think that the
argument and vote on that matter were won very clearly on the Floor of
the
House. I
find it quite strange that some newspapers that campaign actively
against the removal of the duty on the clinic to consider the need for
a father also campaigned actively for the creation of fatherless
families in the case of Diane Blood. My position is consistent,
assuming the issue of consent can be dealt with. I hope that the
Minister will understand that I have not gone into the details of the
case as there might well be further hearings. We are discussing
legislation, and I wanted to put this as generally as possible while
describing the example.
I know that
the Minister has seen a letter and briefing that my hon. Friend the
Member for Twickenham wrote to the Secretary of State because
she replied on 13 March 2008. I will leave her to state the comments
that she made in that letter, rather than pre-empting her. I hope that
the Minister will understand the point of this proposal and look kindly
upon
it. Mark
Simmonds (Boston and Skegness) (Con): I will just make a
couple of points about these intriguing amendments to which the hon.
Gentleman has spoken. He is absolutely right, and I feel very strongly
that there must be effective consent, certainly in writing, for
posthumous paternity. It would be very dangerous if we did not stick
whenever possible with consent as the cornerstone for the legislation
while, at the same time, being extremely sympathetic to individual
cases such as that highlighted by the hon. Gentleman. We would be led
into the difficult area of property rights and ownership of gametes, of
which there is a significant amount of case law in the United States
and Australia, but very minimal case law here in the
UK. Will
the Minister clarify two issues? First, how quickly do the gametes
deteriorate after death—how quickly would they have to be
removed? Obviously, it would be very stressful and difficult for the
wife or partner of the deceased individual to have to make a rapid
decision, as I suspect that it would have to be.
Secondly, is
there any difference between the consent for the removal of gametes
posthumously and the consent for the removal of organs posthumously, or
do the same criteria and consent have to
apply?
|
| |
| ©Parliamentary copyright 2008 | Prepared 6 June 2008 |