Human Fertilisation and Embryology Bill [Lords]


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Mark Simmonds: I join the hon. Gentleman in thanking the Minister for her extremely comprehensive responses, both to my amendments and to the questions I subsequently asked. In that context, I am happy not to press my amendments, which have been superseded by the Government amendments.
I thank the Minister again for tabling those amendments, and I look forward to her clarification of the disparity between Scotland and England. It might be helpful if she circulated that letter to every member of the Committee. I hope she stipulates which parts of the Bill apply to the whole United Kingdom and which only to England and Wales. There are some differences in the Bill, and there is certainly some confusion among those who are concerned with it—not just in Committee, but outside—as to which parts are relevant to which parts of the United Kingdom.
Amendment agreed to.
2 pm
Mark Simmonds: I beg to move amendment No. 30, in schedule 3, page 61, line 32, leave out ‘12’ and insert ‘36’.
The Chairman: With this it will be convenient to discuss amendment No. 31, in schedule 3, page 61, leave out lines 35 to 39.
Mark Simmonds: We have spent a long time discussing schedule 3, so I will be brief. The amendments are probing and relate to the storage time of the embryos. Under the Bill, storage of the embryos is legal for 12 months. I welcome the Government’s introduction of a cooling-off period, when one person seeking treatment or the gamete donor withdraws consent. Why only 12 months? If there has been a disagreement between two people applying for treatment, lawyers occasionally become involved in an attempt to dispute the decision and it could take much longer than 12 months for the process to be resolved. A longer cooling-off period before an embryo is destroyed may well be necessary—at least the option of an extension to the cooling-off period.
Amendment No. 31, which is probing, expresses concern about the cooling-off period. The explanatory notes say that the cooling-off period allows the embryos to remain lawfully stored while a resolution is reached, but proposed new section 4A(4)(b) in paragraph 7 of schedule 3 allows the embryo to be destroyed before 12 months have elapsed if both parties consent. That appears to be a slight contradiction.
The time is a difficult one for both partners, and decisions could be taken that are subsequently regretted. Removing the provision and instead having a mandatory cooling-off period of 12 months would give both parties an opportunity to reconsider their initial decision.
Dr. Harris: I note the interesting points made by the hon. Gentleman, although I do not want to comment directly on their merits or otherwise. I want the Minister to confirm whether it is her view, as it is mine, that the courts made the right decision in the case of Natalie Evans. It was difficult for the lady concerned, and there was a great head of steam built up about whether it was right that she was denied the right to use the stored gametes or embryos when the consent had been withdrawn.
My view is that in 1990 Parliament was clear about its intention in such a case, and I would be grateful if the Minister confirmed that the Bill does not change that provision. Despite everyone’s sympathy for people in the position of Natalie Evans, the decisions of the courts in that case were right as far as Parliament had intended.
Dawn Primarolo: I can confirm that. At all stages, the principle of importance in the last question is that the consent of both gamete donors has to be there. That is what the courts upheld, which is absolutely right. It has not changed. The Bill does not propose to move away from the principle of consent of both parties in such cases. However, we are trying to recognise the fact that, if one party withdraws consent to storage and use, it is only fair that the other should be informed. When that withdrawal of consent occurs, the Bill places a duty on the clinics to inform the second gamete provider.
The clinics also have a duty to keep the embryos safely stored for one year, until agreement has been reached by both parties with an interest in the embryo. That comes on to the point that I will deal with in a minute—the hon. Gentleman’s second amendment—which is that if both parties say “destroy”, the consent is withdrawn and that happens. That is what it means and that is what the principle is. That is the principle that has been upheld by the court.
The Bill introduces a one-year cooling-off period for the storage, which will be activated immediately in the case of one party withdrawing consent if written notification is received by the clinic storing the embryo that one of the gamete providers is withdrawing consent to continued storage and use.
The cooling-off period will ensure that the embryo remains legally stored for a maximum of 12 months to allow the other gamete provider to be informed of the decision and to allow time for reflection on that decision, with the possibility that both parties might reach a private agreement on the future of the embryo. Clearly, that would be a better solution than ending up in the courts, which we have discussed in relation to other examples. The question is how far any statute should reach into the private relationship between two individuals.
The 12-month period recognises the distress that such a situation can cause to the couples involved, but ensures that the process of reaching a conclusion is not allowed to drift and that clinics can deal with storage. The provision also deals with the fact that the individuals concerned have to recognise the importance of both individuals’ consent and recognises the fact that both can withdraw that consent. I understand the point of amendment No. 30: why should the period not be longer? Yet if the situation cannot be resolved in 12 months, why would we expect it to be resolved in a longer period? These are important and direct issues that should not be left for long before resolution.
On amendment No. 31, where both parties have consented to the destruction of the embryo, that would run completely counter to the whole point of consent, which is about the individual’s responsibilities in coming to those decisions. They cannot be transferred or given a cooling-off period. They are the responsibilities of those two individuals, and once both have said in writing that consent is withdrawn, that is it. That is the right way to proceed.
I understand the desire of the hon. Member for Boston and Skegness to probe this area, which is difficult, but the Government have moved as far as is reasonable, given that in the end—particularly given the circumstances of such treatment—the two individuals have to continue to consent. In distressing circumstances, when one person withdraws consent for a short period, there is at least the opportunity to inform the other donor and for final decisions to be taken. I therefore ask the hon. Gentleman not to press his amendment.
Mark Simmonds: I thank the Minister for her response. Of course, I agree that consent of both gamete donors is essential and it is right that one of the consenters is informed if the other withdraws consent. It is also right that speed is of the essence in resolving these matters. The point I was trying to elucidate with amendment No. 30 is that a dispute, potentially involving lawyers, could last longer than 12 months, and there does not seem to be any option to extend that period. As I understand the Bill, even if such a dispute were still going on at the 12-month cut-off, the embryo or gamete would ultimately be destroyed.
Dawn Primarolo: But that happens now. Where there is legal dispute over the requirement to defer the decision, I do not think that that has changed. We are talking about a new, specific cooling-off period that was not present in that circumstance.
Mark Simmonds: I am aware of that, but I do not think it addresses the point that a dispute may be going on that could be resolved one way or the other and which, obviously, becomes hypothetical once the embryo has been destroyed. Nevertheless, I think the discussion has been useful.
Dawn Primarolo: Perhaps I was not clear enough. Where there is a legal dispute and the courts are involved, the HFEA can defer a decision. I have referred to that before with regard to one of the cases we talked about. That position has not changed. This is not about where there is an interaction with the courts, so it is not an absolute. This is where there is not, and we are hoping that two individuals will simply sort it out themselves.
Mark Simmonds: That is an extremely helpful intervention, if I may say so. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 66, in schedule 3, page 62, line 12, after ‘(b)’ insert ‘, (ba)’.
No. 67, in schedule 3, page 62, line 15, at end insert—
‘(3ZA) If the Authority is satisfied that the parental consent conditions in paragraph 15A are met in relation to the proposed use under a licence of the human cells of a person who has not attained the age of 18 years (“C”), the Authority may in the licence authorise the application of sub-paragraph (3ZB) in relation to C.
(3ZB) Where the licence authorises the application of this sub-paragraph, the effective consent of a person having parental responsibility for C—
(a) to the use of C’s human cells to bring about the creation of an embryo in vitro for use for the purposes of a project of research, or
(b) to the use for those purposes of an embryo in relation to which C is a relevant person by reason only of the use of C’s human cells,
is to be treated for the purposes of sub-paragraphs (1) to (3) as the effective consent of C.
(3ZC) If C attains the age of 18 years or the condition in paragraph 15A(3) ceases to be met in relation to C, paragraph 4 has effect in relation to C as if any effective consent previously given under sub-paragraphs (1) to (3) by a person having parental responsibility for C had been given by C but, subject to that, sub-paragraph (3ZB) ceases to apply in relation to C.
(3ZD) Sub-paragraphs (1) to (3) have effect subject to paragraphs 15B and 15F.’.
No. 68, in schedule 3, page 62, line 16, leave out ‘and (3)’ and insert ‘, (3) and (3ZB)’.
No. 69, in schedule 3, page 63, line 1, at end insert—
‘(2ZA) Where a licence authorises the application of paragraph 6(3ZB) in relation to a person who has not attained the age of 18 years (“C”), the effective consent of a person having parental responsibility for C to the storage of an embryo in relation to which C is a relevant person by reason only of the use of C’s human cells is to be treated for the purposes of sub-paragraph (2) as the effective consent of C.
(2ZB) If C attains the age of 18 years or the condition in paragraph 15A(3) ceases to be met in relation to C, paragraph 4 has effect in relation to C as if any effective consent previously given under sub-paragraph (2) by a person having parental responsibility for C had been given by C but, subject to that, sub-paragraph (2ZA) ceases to apply in relation to C.’.
No. 70, in schedule 3, page 63, line 2, for ‘sub-paragraph (2)’ substitute ‘sub-paragraphs (2) and (2ZA)’.
No. 71, in schedule 3, page 63, line 17, leave out ‘paragraph 4A(4)’ and insert
‘paragraphs 4A(4), 15B and 15F’.
No. 72, in schedule 3, page 63, line 20, leave out ‘(“the child donor”)’ and insert ‘(“C”)’.
No. 73, in schedule 3, page 63, line 21, leave out ‘the child donor’s’ and insert ‘C’s’.
No. 74, in schedule 3, page 63, line 24, leave out
‘the child donor before the child donor’
and insert ‘C before C’.
No. 75, in schedule 3, page 63, line 27, leave out ‘the child donor’ and insert ‘C’.
No. 76, in schedule 3, page 63, line 31, leave out
‘the fertility of the child donor’
and insert ‘C’s fertility’.
No. 77, in schedule 3, page 63, line 32, leave out
‘the best interests of the child donor’
and insert ‘C’s best interests’.
No. 78, in schedule 3, page 63, line 36, leave out ‘the child donor’ and insert ‘C’.
No. 79, in schedule 3, page 63, line 39, leave out ‘the child donor’ and insert ‘C’.
No. 80, in schedule 3, page 63, line 43, leave out ‘the child donor’ and insert ‘C’.
No. 81, in schedule 3, page 64, line 4, leave out ‘he’ and insert ‘C’.
No. 82, in schedule 3, page 64, leave out line 7.
No. 83, in schedule 3, page 64, line 10, leave out ‘the child donor’ and insert ‘C’.
No. 84, in schedule 3, page 64, line 17, leave out ‘(“the patient”)’ and insert ‘(“P”)’.
No. 85, in schedule 3, page 64, line 18, leave out ‘the patient’s’ and insert ‘P’s’.
No. 86, in schedule 3, page 64, line 20, leave out
‘the patient after the patient’
and insert ‘P after P’.
No. 87, in schedule 3, page 64, line 23, leave out ‘the patient’ and insert ‘P’.
No. 88, in schedule 3, page 64, line 27, leave out ‘the patient’s’ and insert ‘P’s’.
No. 89, in schedule 3, page 64, line 28, leave out ‘the patient’ and insert ‘P’.
No. 90, in schedule 3, page 64, line 30, leave out
‘the patient is likely to regain’
and insert
‘P is likely at some time to have’.
No. 91, in schedule 3, page 64, line 31, leave out ‘the patient’s’ and insert ‘P’s’.
No. 92, in schedule 3, page 64, line 33, leave out ‘the patient’ and insert ‘P’.
No. 93, in schedule 3, page 64, line 34, leave out
‘the patient has not, after regaining’
and insert
‘P has not subsequently, at a time when P has’.
No. 94, in schedule 3, page 64, line 38, leave out ‘the patient’ and insert ‘P’.
No. 95, in schedule 3, page 64, line 40, leave out ‘the patient’ and insert ‘P’.
No. 96, in schedule 3, page 64, line 42, leave out ‘the patient’ and insert ‘P’.
No. 97, in schedule 3, page 64, line 45, leave out ‘the patient regaining’ and insert ‘P having’.
No. 98, in schedule 3, page 64, line 46, leave out ‘the patient no longer’ and insert ‘P not’.
No. 99, in schedule 3, page 65, leave out lines 3 to 5.
No. 100, in schedule 3, page 65, line 29, at end insert—
‘(4) If the Authority is satisfied that the parental consent conditions in paragraph 15A are met in relation to the proposed use under a licence of the human cells of a person who has not attained the age of 18 years (“C”), the Authority may in the licence authorise the application of sub-paragraph (5) in relation to C.
(5) Where the licence authorises the application of this sub-paragraph, the effective consent of a person having parental responsibility for C—
(a) to the use of C’s human cells to bring about the creation of a human admixed embryo in vitro for use for the purposes of a project of research, or
(b) to the use for those purposes of a human admixed embryo in relation to which C is a relevant person by reason only of the use of C’s human cells,
is to be treated for the purposes of sub-paragraphs (1) to (3) as the effective consent of C.
(6) If C attains the age of 18 years or the condition in paragraph 15A(3) ceases to be met in relation to C, paragraph 4 has effect in relation to C as if any effective consent previously given under sub-paragraphs (1) to (3) by a person having parental responsibility for C had been given by C but, subject to that, sub-paragraph (5) ceases to apply in relation to C.
(7) Sub-paragraphs (1) to (3) have effect subject to paragraphs 15B and 15F.’.
No. 101, in schedule 3, page 65, line 36, at end insert—
‘(2) Where a licence authorises the application of paragraph 13(5) in relation to a person who has not attained the age of 18 years (“C”), the effective consent of a person having parental responsibility for C to the storage of a human admixed embryo in relation to which C is a relevant person by reason only of the use of C’s human cells is to be treated for the purposes of sub-paragraph (1) as the effective consent of C.
(3) If C attains the age of 18 years or the condition in paragraph 15A(3) ceases to be met in relation to C, paragraph 4 has effect in relation to C as if any effective consent previously given under sub-paragraph (1) by a person having parental responsibility for C had been given by C but, subject to that, sub-paragraph (2) ceases to apply in relation to C.
(4) Sub-paragraph (1) has effect subject to paragraphs 15B and 15F.’.
No. 102, in schedule 3, page 66, line 5, at end insert—
‘Cases where human cells etc. can be used without consent of person providing them
After paragraph 15 (as inserted by paragraph 13 above) insert—
“Parental consent conditions
15A (1) In relation to a person who has not attained the age of 18 years (“C”), the parental consent conditions referred to in paragraphs 6(3ZA) and 13(4) are as follows.
(2) Condition A is that C suffers from, or is likely to develop, a serious disease, a serious physical or mental disability or any other serious medical condition.
(3) Condition B is that either—
(a) C is not competent to deal with the issue of consent to the use of C’s human cells to bring about the creation in vitro of an embryo or human admixed embryo for use for the purposes of a project of research, or
(b) in sub-paragraph (5)(a), for “have capacity to consent” substitute “are not incapable (within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000) of giving consent”, and
(c) in sub-paragraph (5)(b), for “are competent to deal with the issue of” substitute “have capacity (within the meaning of section 2(4ZB) of the Age of Legal Capacity (Scotland) Act 1991) to”.
Adults lacking capacity: exemption relating to use of human cells etc.
15B (1) If, in relation to the proposed use under a licence of the human cells of a person who has attained the age of 18 years (“P”), the Authority is satisfied—
(a) that the conditions in paragraph 15C are met,
(b) that paragraphs (1) to (4) of paragraph 15D have been complied with, and
(c) that the condition in paragraph 15D(5) is met,
the Authority may in the licence authorise the application of this paragraph in relation to P.
(2) Where a licence authorises the application of this paragraph, this Schedule does not require the consent of P—
(a) to the use (whether during P’s life or after P’s death) of P’s human cells to bring about the creation in vitro of an embryo or human admixed embryo for use for the purposes of a project of research,
(b) to the storage or the use for those purposes (whether during P’s life or after P’s death) of an embryo or human admixed embryo in relation to which P is a relevant person by reason only of the use of P’s human cells.
(3) This paragraph has effect subject to paragraph 15E.
Consent to use of human cells etc. not required: adult lacking capacity
15C (1) The conditions referred to in paragraph 15B(1)(a) are as follows.
(a) have attained the age of 18 years and have capacity to consent to the use of their human cells to bring about the creation in vitro of an embryo or human admixed embryo for use for the purposes of the project, or
(b) have not attained that age but are competent to deal with the issue of consent to such use of their human cells.
(8) In this paragraph and paragraph 15D references to the person responsible under the licence are to be read, in a case where an application for a licence is being made, as references to the person who is to be the person responsible.
(9) In relation to Scotland—
(a) references in sub-paragraphs (3) to (5) to P lacking, or having, capacity to consent are to be read respectively as references to P being, or not being, incapable (within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000) of giving such consent, and
(b) sub-paragraph (7) is to be read with the following modifications—
(i) in paragraph (a), for “have capacity to consent” substitute “are not incapable (within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000) of giving consent”, and
(ii) in paragraph (b), for “are competent to deal with the issue of” substitute “have capacity (within the meaning of section 2(4ZB) of the Age of Legal Capacity (Scotland) Act 1991) to”.
Consulting carers etc. in case of adult lacking capacity
15D (1) This paragraph applies in relation to a person who has attained the age of 18 years (“P”) where the person responsible under the licence (“R”) wishes to use P’s human cells to bring about the creation in vitro of an embryo or human admixed embryo for use for the purposes of a project of research, in a case where P lacks capacity to consent to their use.
(2) R must take reasonable steps to identify a person who—
(a) otherwise than in a professional capacity or for remuneration, is engaged in caring for P or is interested in P’s welfare, and
(b) is prepared to be consulted by R under this paragraph of this Schedule.
(3) If R is unable to identify such a person R must nominate a person who—
No. 103, in schedule 3, page 66, line 31, at end insert—
‘(5) References in this Schedule to parental responsibility are—
Question proposed, That this schedule, as amended, be the Third schedule to the Bill.
 
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