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General Committee Debates
Human Fertilisation and Embryology

Human Fertilisation and Embryology Bill [Lords]

The Committee consisted of the following Members:

Chairmen: Mr. Roger Gale, Mr. Jim Hood
Clarke, Mr. Tom (Coatbridge, Chryston and Bellshill) (Lab)
Gibson, Dr. Ian (Norwich, North) (Lab)
Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
Iddon, Dr. Brian (Bolton, South-East) (Lab)
Jones, Helen (Warrington, North) (Lab)
Key, Robert (Salisbury) (Con)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
McCafferty, Chris (Calder Valley) (Lab)
Moffatt, Laura (Crawley) (Lab)
Morgan, Julie (Cardiff, North) (Lab)
Penning, Mike (Hemel Hempstead) (Con)
Primarolo, Dawn (Minister of State, Department of Health)
Pugh, Dr. John (Southport) (LD)
Simmonds, Mark (Boston and Skegness) (Con)
Streeter, Mr. Gary (South-West Devon) (Con)
Turner, Dr. Desmond (Brighton, Kemptown) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Hannah Weston, Celia Blacklock, Committee Clerks
† attended the Committee

Public Bill Committee

Thursday 5 June 2008


[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 3

Consent 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by a deceased person from whom gametes have been retrieved posthumously may be deemed to have been given and not withdrawn if the consultant from whom the couple together were receiving advice or treatment confirms in writing that the deceased was, at the date of death, either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?
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