The
Minister of State, Department of Health (Dawn Primarolo):
I am grateful to the hon. Member for Oxford, West and Abingdon for
speaking to the amendments so clearly. I absolutely understand his
views on this, which are on record. However, the amendments raise a
series of important points, and as we start this debate around consent,
they go to absolutely the key points.
The key
principle of the Human Fertilisation and Embryology Act 1990 was that
gametes, including gametes used to create an embryo, should be stored
or used only in accordance with the wishes of the man or woman who
provided them. To remove any question of doubt concerning those wishes,
the Act requires that consent to storage and use of the gametes and
embryos must be given in writing. That is what the hon. Member for
Oxford, West and Abingdon referred to in terms of “effective
consent”, and that requirement is brought forward in schedule 3
to the
Bill. 9.15
am The
hon. Member for Boston and Skegness touched lightly on United States
case law. The principle of control by consent, rather than ownership,
was taken from the recommendations of the Warnock committee, and I
believe that that remains valid today. That is why we have continued
with
it. Amendment
No. 12 would allow consent to be given for posthumous storage and use
by a man’s surviving wife or partner, if a clinician who was
giving the couple treatment or advice on infertility at the time of the
man’s death testified to the couple’s wish to have a
child together. With the greatest respect, it cannot be automatically
assumed that the deceased would have been willing for his gametes to be
recovered, stored and then used by his partner after his death. That
raises quite different issues, and is a very different situation from a
couple seeking advice and treatment to have a child together in the
expectation that they would raise that child
together. My
difficulty is that, even if it were known that the deceased would have
had concerns about the use of his sperm to conceive a child after his
death, the amendment would render those concerns valueless. In such
incredibly difficult circumstances, that cannot be allowed. The right
to decide whether to pass on one’s biological heritage is a
fundamental and it should not be taken away or superseded by the wishes
of another person, even those of a surviving partner. The Government
are firmly of the view that, in this context, the protection of an
individual’s autonomy cannot be allowed to lapse, except in the
very specific and narrowly defined circumstances set out in schedule
3. I
recognise, as I am sure every member of the Committee and of the House
would, that becoming a parent is the most rewarding and probably the
most overwhelming thing we can ever do. It is not difficult to
understand how the loss of the chance to have a family that has been
planned together can intensify the pain and grief felt at the sudden
death of a loving partner. But it is surely right that if a child is
conceived after the death of one of their parents, using that
parent’s gametes, there must be no doubt whatever that it was
the wish of the deceased that the child should be born. The decision to
rest on written consent then becomes
crucial.
Robert
Key (Salisbury) (Con): Perhaps the Minister might mention
what consideration will be given to the child who is born in these
circumstances, because she has not done so. I feel very
strongly—on religious, moral and ethical grounds—that the
child’s interests should come first in any consideration of
these matters. It is one thing to satisfy someone who has suffered the
tragic loss of her partner, but we simply should not ignore the fact
that a child will be brought into the world who will never have a
father.
Dawn
Primarolo: The hon. Gentleman makes an important point
about how we, as individuals, view that. Although we all recognise that
this is about the quality of parenting and how the parent relates to
the children, such decisions will raise issues for the parent, and I am
sure that those concerned will have thought carefully about
that. I
have some sympathy with the hon. Gentleman’s point, but we are
looking at whether there is a legal right and what consent means in
this difficult area, where there is doubt because written consent has
not been provided. I entirely understand the complexities of the debate
about explaining the issues involved to a child and the issues that
that raises about the child’s right to know. Inevitably, such
things would need to be addressed, and I acknowledge that. I was not
moving on to make that point, because I was concentrating
specifically—particularly given that there is a live legal
case—on what the requirements in the Act are, and why they are
phrased and presented in the way that they are.
Amendment No.
11 is intended to allow a court to make a decision on the use of
gametes when the HFEA has decided to defer a decision. As the hon.
Member for Oxford, West and Abingdon said, the amendment relates only
to gametes that fall within the circumstances that he
outlined—that is, those that have had consent deemed for storage
and use after
death. The
HFEA has an obligation to consider any licensing issues put before it,
including whether the use of gametes is lawful and whether export
abroad would be permissible. The HFEA defers making such decisions only
where there is a need for more information. In the case of the
constituent of the hon. Member for Twickenham, to which the hon. Member
for Oxford, West and Abingdon referred, the outcome is still the
subject of ongoing legal action. It is not reasonable to expect the
court to make a decision if all the facts pertinent to the case are not
known. I will not refer specifically to that ongoing case, but export
is a
consideration. The
Government are satisfied—I think we all would be—that the
HFEA remains the appropriate authority to decide on the use of gametes
and embryos for treatment purposes. As we debate the schedule further,
we will probe the issue further, looking specifically at what consent
means and at the strict circumstances regarding whether there should be
any exceptions.
The hon.
Member for Boston and Skegness asked me two
questions.
Dr.
Harris: The Minister may not be able to answer this
question immediately and I do not think that she was about to cover the
issue, but before she moves on,
does she agree that the HFEA, in such circumstances, has the ability and
discretion to authorise the export of
gametes? Following
amendments made by the Human Fertilisation and Embryology (Deceased
Fathers) Act 2003, which was known as Tony Clarke’s Bill, a
man “may
be registered as the father of the child resulting from assisted
conception treatment undertaken after the man’s death.
However...the man must have consented in writing to the use of his
sperm after his death and to being treated as the father of any
resulting child.”
Does that imply that
Parliament contemplated the fact that there may be circumstances, even
after the passage of that Bill, which amended the Act, in which sperm
from a donor might be used after his death without written consent, but
not necessarily qualifying for registration as the
father?
Dawn
Primarolo: The hon. Gentleman takes me into a difficult
area, because that question is being considered in a case. He asks the
direct question whether the HFEA has the power to license export. The
simple answer is yes, but we need to see the outcome of the court
action before we can be clear with regard to further points. At the
moment, the legislation is clear that consent is written consent, as it
would have to be in the case to which he
referred. The
hon. Member for Boston and Skegness asked two questions. First, how
quickly would the gametes need to be removed? I am told that it is
normally within hours of death, up to a maximum of six hours. Secondly,
what is the difference between the law governing gametes and the law
governing organs? I am not qualified in the law, so if he will forgive
me I would rather not go into the vagaries of the matter, but gametes,
including their posthumous removal, are governed by common law. The use
of gametes to create an embryo is tightly regulated by the 1990 Act,
which requires effective consent, so there are two different steps to
govern the process. The removal of organs after death is governed by
the Human Tissue Act 2004.
In practice,
the Human Tissue Act and common law requirements are likely to be
similar. Ultimately, it would be for the courts to decide to regulate
the removal of gametes and to determine its lawfulness. Removal is
under common law; use is set down in the 1990 Act. I hope that that is
clear. For people, like me, who are not legally qualified, and even for
some who are, the common law raises lots of complex
issues. I
hope that I have explained to the hon. Member for Oxford, West and
Abingdon why the Government continue to resist the proposals in the
amendments. Having put our view on record, and bearing in mind the
outstanding legal case, I hope that he and his colleague, the hon.
Member for Twickenham, are satisfied that the Committee has discussed
the matter properly and that he will not press the amendment to a
Division.
Dr.
Harris: I am grateful to hon. Members for their
contributions to the debate, but especially to the Minister for her
considered response. There are difficulties when one is seeking to
legislate and there is a live case, and I understand that the question
of export may come back to court in the near future. However, she has
confirmed what I think is indeed beyond doubt—under the Act
and the Bill, the HFEA has the discretion to license exports, even if it
is not possible to use sperm in this country because the effective
consent requirements have not been met. We must await the outcome of
the court
case. 9.30
am The
hon. Member for Boston and Skegness asked an interesting question: he
wants to know whether there is a difference between taking organs
posthumously and the posthumous taking of gametes. Of course, there is.
The taking of organs is covered by the Human Tissue Act. Organs can be
taken under that Act, but clearly not with the same degree of effective
consent that applies in this case. The Human Tissue Act is about the
necessary processes and consents, but it certainly does not impose the
same degree of consent that is required here, because gametes are
special. We are talking about creating new life, and whatever the range
of opinion is on the matter there is no disputing the fact that gametes
should be treated differently from organs. The consent requirements
must therefore be greater.
To respond to
the point made by the hon. Member for Salisbury, I have never disagreed
with him on any matter in the Bill—except this one. I therefore
speak with due caution. I do not think it right to argue that there are
welfare considerations for the child. Even if this was allowed, a child
would be born who otherwise would not be born, and it would be a wanted
child—a child that was
loved. There
is no evidence that children do not grow up well adjusted and happy
when brought up in the home by a widow or widower. That is despite the
drawbacks and disadvantages of losing a parent. Research in this area
has tried to track such families, and that has been shown to be the
case. I know that the hon. Gentleman takes a different view—he
put it well on the Floor of the House. However, the prospect of
bringing a child into the world that never had a living father is not a
fair consideration in the absence of evidence of harm to the
child—real evidence of significant harm—in such
circumstances. None the less, I understand the sincerity of his views
and the clarity with which he brought them to the
fore. We
have probably gone as far as we can with the amendments, and I am
grateful to the Minister for expressing her views. My hon. Friend the
Member for Twickenham, who has worked as tenaciously in this case, as
he always does, will be satisfied that we have discussed the matter. He
will obviously be disappointed that the Minister does not look
favourably on the amendments, but I understand her position. I am sure
that we all hope, at least on the personal matter, that the
consideration of the case by the court or by the HFEA produces an
outcome that brings satisfaction to the lady concerned.
I beg to ask
leave to withdraw the amendment.
Amendment,
by leave,
withdrawn.
Dawn
Primarolo: I beg to move amendment No. 64, in
schedule 3, page 59, line 22, leave
out from ‘disability’ to ‘and’ in line 27
and insert ‘(a “person unable to
sign”), and any notice under paragraph 4 by a person unable to
sign varying or withdrawing a consent under this Schedule, is to be
taken to comply with the
requirement of sub-paragraph (1) as to signature if it is signed at the
direction of the person unable to sign, in the presence of the person
unable to
sign’. The
Chairman: With this it will be convenient to discuss
Government amendments Nos. 72 to 1 and 83 to
98.
Dawn
Primarolo: I shall be brief. The amendments are technical
and are the result of further scrutiny of the Bill. Amendment No. 64
replaces the phrase “the incapacitated person” with the
phrase “person unable to sign” to distinguish those who
are incapacitated due to illness, injury or physical disability from
those who lack the capacity to consent, which is relevant in the
context of later amendments to the
schedule. In
the other place, a query was raised about the phrase “child
donor” in proposed new paragraph 9 of schedule 3 to the 1990 Act
if it refers to a child patient. To prevent confusion, minor technical
amendments have been
made. Mr.
Tom Clarke (Coatbridge, Chryston and Bellshill) (Lab): I
understand what the Minister says about taking on board discussions in
another place. We have moved on from using the words “child
donor” to using “C”. However, that appears
elsewhere in the Bill, and I wonder whether it might create further
loopholes. Has the Minister considered using other words—for
example, “child patient”—rather than simply
adhering to
“C”?
Dawn
Primarolo: I am grateful for my right hon. Friend’s
intervention. On his first point, I do not think that there will be any
confusion in substituting the letter “C” to replace the
words “child donor”. We are clearly talking in the
context of a child. Similarly, I do not see that there is inconsistency
in replacing the word “patient” with the letter
“P”. As we have discussed, in the exceptions in schedule
3, it is important to have consistency. After the discussions and
queries that arose in another place, I was advised that those changes
give greater clarity than the current wording and raise no further
difficulties in
interpretation.
Mark
Simmonds: The Minister has partially answered my point. I
understand that the amendments are about clarity and consistency. In
the original Bill, in some cases the child donor is referred to as
“C” and in others as the “child donor”. The
amendment provides consistency throughout the Bill and I have no
problem with it.
Dawn
Primarolo: I am grateful to the hon. Gentleman for his
intervention. Clearly, in areas as complex as this and the 1990 Act, it
is important to have consistency and clarity throughout the
legislation. I assure my right hon. Friend the Member for Coatbridge,
Chryston and Bellshill that the measure delivers that clarity and
consistency and therefore prevents any further misunderstanding or
difficulty in interpreting the
legislation. Amendment
agreed to.
Mark
Simmonds: I beg to move amendment No. 27, in
schedule 3, page 59, line 35, after
‘storage’, insert ‘, embryo
testing’.
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