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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

(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 3

Consent 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—
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;
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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