 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(Afternoon)[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)Schedule 3Consent
to use or storage of gametes, embryos or human admixed embryos
etc. Amendment
proposed [this day]: No. 65, in schedule 3,
page 60, line 1, leave out sub-paragraph
(4) and insert— ‘(4) For
sub-paragraph (2)
substitute— “(2)
A consent to the storage of any gametes, any embryo or any human
admixed embryo must— (a)
specify the maximum period of storage (if less than the statutory
storage period), (b) except in
a case falling within paragraph (c), state what is to be done with the
gametes, embryo or human admixed embryo if the person who gave the
consent dies or is unable, because the person lacks capacity to do so,
to vary the terms of the consent or to withdraw it,
and (c) where the consent is
given by virtue of paragraph 8(2ZA) or 14(2), state what is to be done
with the embryo or human admixed embryo if the person to whom the
consent relates dies, and may
(in any case) specify conditions subject to which the gametes, embryo
or human admixed embryo may remain in
storage. (2A) A consent to the
use of a person’s human cells to bring about the creation in
vitro of an embryo or human admixed embryo is to be taken unless
otherwise stated to include consent to the use of the cells after the
person’s death. (2B) In
relation to Scotland, the reference in sub-paragraph (2)(b) to the
person lacking capacity is to be read as a reference to the
person— (a) lacking
capacity within the meaning of the Age of Legal Capacity (Scotland) Act
1991, or (b) being incapable
within the meaning of section 1(6) of the Adults with Incapacity
(Scotland) Act 2000.”’.—[Dawn
Primarolo.] 1
pm Question
again proposed, That the amendment be
made.
The
Chairman: I remind the Committee that with this we are
discussing the following: Government amendments Nos. 66 to
71.
Amendment No.
32, in
schedule 3, page 63, line 25, leave
out ‘18’ and insert
‘16’.
Government
amendments Nos. 82 and
99. Amendment
No. 9, in
schedule 3, page 65, line 7, at
end insert— ‘Cases where consent not
required for storage and use for
research 12A (1) The human cells of a
person (“the donor”) may be used to bring about the
creation of an embryo or a human admixed embryo in vitro; and any
embryo or human admixed embryo so created may be used or stored for the
purposes of any project of research without the donor’s consent
if the following conditions are
met. (2) Condition A is that
the human cells are lawfully taken from or provided by the
donor. (3) Condition B is that
the human cells were first stored or used prior to the day on which
Schedule 3 to the Human Fertilisation and Embryology Act 2008 comes
into force. (4) Condition C is
that the human cells, embryos or human admixed embryos are used in
circumstances such that the person carrying out the research
(“the researcher”) is not in possession, and not likely
to come into possession, of information from which the donor can be
identified. (5) Condition D is
that it is not reasonably possible to contact the donor to obtain their
consent. (6) Condition E is
that there are reasonable grounds for believing that research of
comparable effectiveness cannot be carried out if the project of
research for which the human cells, embryos or human admixed embryos
are stored or used has to be confined to, or relate only to, material
in relation to which there is an effective
consent. (7) Condition F is
that it does not appear to the researcher that the donor has indicated
any objection to such use or storage (as
applicable).’. Amendment
No. 10, in
schedule 3, page 65, line 7, at
end insert— ‘Consent in relation to
children for storage and use for
research 12A (1) The human cells of a
person (“the child”) may be used to bring about the
creation of an embryo or inter-species embryo in vitro, and any embryo
or inter-species embryo so created, used or stored for the purposes of
any project of research without the child’s consent if the
following conditions are
met. (2) Condition A is that
the human cells are lawfully taken from or provided by the child before
the child attains the age of 18
years. (3) Condition B is that,
at the time when the human cells are first used, the child is not
competent to deal with the issue of consent in relation to either the
storage or use of the human cells, embryos or inter-species
embryos. (4) Condition C is
that the child does not appear to the person storing or using the human
cells, embryos or inter-species embryos to have indicated any objection
to such storage or use. (5)
Condition D is that a person who has parental responsibility for the
child has given their consent in writing and signed
it. (6) Condition E is that
there are reasonable grounds for believing that research of comparable
effectiveness cannot be carried out if the project of research for
which the human cells, embryos or inter-species embryos are stored or
used has to be confined to, or relate only to, persons who have
capacity to consent to it. (7)
Condition F is that the research is directed towards a serious medical
condition from which the child
suffers. (8) In relation to
Scotland, in sub-paragraph (2), for “18” substitute
“16”.’. Amendment
No. 8, in
schedule 3, page 65, line 7, at
end add— ‘12A After
paragraph 8 insert—
“Cases where consent not required for use in research
to preserve fertility 9A (1) The
gametes of a person (‘the child donor’) may be kept in
use without the child donor’s consent if the following
conditions are met. (2)
Condition A is that the gametes are lawfully taken from or provided by
the child donor before the child donor attains the age of 18
years. (3) Condition B is that,
before the gametes are used, a registered medical practitioner
certifies in writing that the child donor is expected to undergo
medical treatment and that in the opinion of the registered medical
practitioner— (a) the
treatment is likely to cause a significant impairment of the fertility
of the child donor, (b) the use
of the gametes is in the best interests of the child donor,
and (c) the use of the gametes
for research is necessary to preserve the fertility of the child
donor. (4) Condition C is that,
at the time when the gametes are used,
either— (a) the child
donor has not attained the age of 16 years and is not competent to deal
with the issue of consent to the use of the gametes,
or (b) the child donor has
attained that age but, although not lacking capacity to consent to the
use of the gametes, is not competent to deal with the issue of consent
to their use. (5) Condition D
is that the child donor has not, since becoming competent to deal with
the issue of consent to the use of the
gametes— (a) given
consent under this Schedule to the use of the gametes,
or (b) given written notice to
the person keeping the gametes that he does not wish them to be
used. (6) In relation to
Scotland, subparagraphs (1) to (5) are to be read with the following
modifications— (a) in
subparagraph (2), for ‘18’ substitute
‘16’, (b) for
subparagraph (4),
substitute— ‘(4)
Condition C is that, at the time when the gametes are used, the child
donor does not have capacity (within the meaning of section 2(4) of the
Age of Legal Capacity (Scotland) Act 1991 (c. 50)) to consent to the
use of the gametes.’,
and (c) in subparagraph (5),
for ‘becoming competent to deal with the issue of consent to the
use of the gametes’ substitute ‘acquiring such
capacity’.”’. Government
amendments Nos. 100 to
102. Amendment
(a) to Government amendment No. 102, in proposed new paragraph
15G(1)(a), leave out ‘to a significant
extent’. Amendment
(b) to Government amendment No. 102, in proposed new paragraph
15G(3)(b), leave out ‘have any reason to believe’
and insert
‘know’. Amendment
No. 7, in
schedule 3, page 66, line 5, at
end add— ‘13A After
paragraph 15 (as inserted by paragraph 13 above)
insert— “Cases where
consent not required for storage and
research 15A The human cells of a
person (‘the donor’) may be used to bring about the
creation of an embryo or a human admixed embryo in vitro; and any
embryo or human admixed embryo so created may be used or stored for the
purposes of any project of research without the donor’s consent
if the following conditions are
met: (a) Condition A is that
the human cells are lawfully taken from or provided by the
donor; (b) Condition B is that
the human cells were first stored or used prior to the day on which
Schedule 3 to the
Human Fertilisation and Embryology Act 2008 comes into
force; (c) Condition C is that
the human cells, embryos or human admixed embryos are used in
circumstances such that the person carrying out the research
(‘the researcher’) is not in possession, and not likely
to come into possession, of information from which the donor can be
identified; (d) Condition D is
that it is not reasonably possible to contact the donor to obtain their
consent; (e) Condition E is
that there are reasonable grounds for believing that research of
comparable effectiveness cannot be carried out if the project of
research for which the human cells, embryos or human admixed embryos
are stored or used has to be confined to, or related only to, material
in relation to which there is an effective consent;
and (f) Condition F is that it
does not appear to the researcher that the donor has indicated any
objection to such use or storage (as
applicable).”.’. Government
amendments Nos. 103, 107 and 109 to
114. Mark
Simmonds (Boston and Skegness) (Con): I do not want to
rehearse points that the Minister raised this morning and go over old
ground, but I have a couple of questions on the Government amendments.
The first relates to Government amendment No. 65. Will she clarify
whether the expectation under proposed new sub-paragraph (2)(b) of
paragraph 2 of schedule 3 to the Human Fertilisation and Embryology Act
1990 is that the gametes, embryos and human admixed embryos will be
retained unless consent is withdrawn? Is it a presumption of consent or
a presumption of
withdrawal? My
second question relates to Government amendment No. 67. Of course, I
welcome parents being able to consent on behalf of their children, as
we discussed earlier; otherwise, there would be a class of illnesses
that was never researched in this way, as, due to the illness,
adulthood would not be reached and thus consent would not be obtained.
It is absolutely right that these provisions are inserted in the Bill,
but what will happen if one parent consents and the other does not?
What will happen if one parent disagrees strongly with the consent? Can
parents or a parent ultimately withdraw consent after it has been
given? On
Government amendment No. 82, I have a simple question. Under the law in
Scotland, a child is considered to be under 16, whereas in England it
is under the age of 18. What is the reason for that
difference? The
issue to which Government amendment No. 102 relates was debated at
length in the other place. I thank the Minister for tabling this very
long amendment, which I understand supersedes and overrides amendment
No. 7, which stands in my name. I am delighted that the Government have
taken on board some of the concerns that were expressed by me and by
others, but I would like to raise a couple of specific points. One is
the interrelationship between proposed new paragraphs 15C(2) and
15C(6)(a), which limits research on the original debilitating disease.
What will happen if the individual has another disease that is proven
to be scientifically linked to the original disease? That may come
about as a result of scientific advances. Will we have to return and
alter primary legislation or can the change be made in regulations? Is
there a need to alter the Bill?
The other
provision in the Government amendment that I am very concerned about is
proposed new paragraph 15D(3), whereby if a researcher
cannot find a carer who is willing to be consulted on the use of an
adult who is unable to give consent in respect of cells, the researcher
can nominate someone to act on their behalf, who may not know the adult
lacking the ability to consent and may not have that adult’s
interests at heart. I am not sure that there are enough safeguards to
ensure that such people, who will not necessarily be related to the
person who cannot give consent, have the necessary ability and have in
mind the interests of the potential patient and person who cannot grant
consent. It is very important that sufficient safeguards are in place
to ensure that that is the
case. Dr.
Evan Harris (Oxford, West and Abingdon) (LD): As we have
heard, this is an extensive group of amendments, and I have a number of
questions in addition to those that have been asked. I shall try to go
through them in the order of the amendments, but I hope that you,
Mr. Gale, the Minister and the rest of the Committee will
bear with me if my comments end up jumping
about. First,
on Government amendment No. 65, I do not necessarily follow how
proposed new sub-paragraph (2A) links to proposed new sub-paragraph
(2)(c). Proposed new sub-paragraph (2A)
states: “A
consent to the use of a person’s human cells to bring about the
creation in vitro of an embryo or human admixed embryo is to be
taken unless otherwise stated to include consent to the use of the
cells after the person’s
death.” That
seems fair enough, but proposed new sub-paragraph (2)(c) states
that “where
the consent is given by virtue of paragraph 8(2ZA) or
14(2)” it
must “state
what is to be done with the embryo or human admixed embryo if the
person to whom the consent relates
dies”. Proposed
new sub-paragraph (2)(c) adds that the
consent “may
(in any case) specify conditions subject to which the gametes, embryo
or human admixed embryo may remain in
storage.” The
position on proposed new sub-paragraph (2)(b) is straightforward
because the person who gives consent and who then dies is the person
from whom the embryos are taken, but the question is how the provisions
relate to the death of the person who gives consent for that person. My
hon. Friend the Member for Southport raised that question independently
in a message to me, and I hope that I have done his question justice
while raising my own. I hope, too, that the Minister will forgive me if
she feels that she has already clarified how the provisions will work,
but I did not spot her explanation, so it would be helpful if she
clarified the point.
Amendment No.
67 is quite complex. Again, I would be grateful if the Minister
clarified what effect the insertion of proposed new sub-paragraphs
(3ZA), (3ZB) and (3ZC) will have. Those provisions are mirrored in
other amendments, but it is not entirely clear—even reading the
amendment in the context of the Bill and the Act as
amended—exactly what their effect will be.
My next
question relates to some of the Minister’s other amendments. The
schedule raises another issue,
but it is a matter for the schedule stand part debate, so it will be
easier if I return to it then.
I turn now to
the substantive Government amendments. It is appropriate at this point
to speak to amendments (a) and
(b)—
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