Human Fertilisation and Embryology Bill [Lords]

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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.
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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 The right to decide whether to pass on one’s biological heritage is a fundamental and it should not be taken away or superseded by the wishes of another person, even those of a surviving partner.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.
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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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