Human Fertilisation and Embryology Bill [Lords]


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Dr. Harris: I have six brief issues to raise. I apologise to the Committee for having read the schedule, which is where I went wrong. I was hoping that the Committee could get away earlier.
My first question relates to the provisions on page 60 of the Bill, which amend paragraph 2 of schedule 3 to the 1990 Act. I was hoping that the Minister would explain the purpose of that measure and, in particular, whether it conflicts with a later paragraph—paragraph 6(4) of schedule 3 to the Bill, which is also on page 60 of the Bill and which introduces new sub-paragraph (3) to existing paragraph 4 of the 1990 Act. It states:
“Where the terms of any consent to the use of an embryo...include consent to the use of an embryo or human admixed embryo whose creation may be brought about in vitro using embryo A, that consent to the use of that subsequent embryo or human admixed embryo cannot be varied or withdrawn once embryo A has been used for one or more of the purposes mentioned in sub-paragraph (2)(a) or (b).”
Sub-paragraphs (2)(a) and (b) relate to treatment services and projected research.
Substituted sub-paragraph (5) on page 60 of the Bill states:
“In the case of a consent falling within sub-paragraph (4)(b), the terms of the consent may be varied, or the consent may be withdrawn, in accordance with this Schedule either generally or in relation to—
(a) a particular embryo or particular embryos, or
(b) a particular human admixed embryo or particular human admixed embryos.”
I just want reassurance. I do not have significant doubts that the Bill as amended is correct and that the Act will be correct, but it is not obvious—nor was I able to find it in the explanatory notes—why it seems that people can pick and choose their consent and withdraw consents around embryos, whereas elsewhere it says that they cannot withdraw once the process has been started.
I can understand why people do not want the expense of a research project doing something and consent being retrospectively withdrawn in the middle of the project. It just seems to me that there may be some inconsistency. I hope that I have explained that.
Mark Simmonds: Has the hon. Gentleman noticed in the explanatory notes the phrase “chain of consent”, which relates to paragraph 14 of schedule 3 to the Bill? It may go some way to shining light on the area he is discussing.
Dr. Harris: I am grateful to the hon. Gentleman for suggesting that this issue is more complex even than that. That may be the solution or it may be an extra complexity. I am sure that some reading will have to be done.
My next point relates to the concern around proposed new sub-paragraph (5), which is inserted by paragraph 6 of schedule 3 to the Bill. It can be found at the top of page 61, in line 5. The distinction is between the way that this is dealt with for embryos and the way it is handled for human admixed embryos. Paragraph 4(2) of schedule 3 as it will be amended states:
“Subject to sub-paragraph (3), the terms of any consent to the use of an embryo”
—that is, not human admixed embryo—
“cannot be varied, and such consent cannot be withdrawn, once the embryo has been used—
(a) in providing treatment services”,
which clearly does not apply to human admixed embryos, which is why it is a different construction in sub-paragraph (5) of the measure as it will be amended, or
“(aa) in training persons in embryo biopsy, embryo storage or other embryological techniques”,
which is the problem.
2.15 pm
Dr. Ian Gibson (Norwich, North) (Lab): Could the hon. Gentleman take it more slowly, please? It is impossible to follow, and we are trying hard to do our job.
Dr. Harris: I will try to oblige. I would like to refer to paragraph 6 of schedule 3, in particular to draw attention to the impact of sub-paragraph (3) in amending paragraph 4(2) of the schedule to the Act, because the schedule to the Bill amends the schedule to the Act. I would like to contrast that with what paragraph 6(5) of schedule 3 to the Bill does to the same paragraph—that is, paragraph 4 of the schedule to the Act—when it inserts sub-paragraph (5). This can be found near the top of page 61 of the Bill. It deals with human admixed embryos.
My point was that paragraph 4(2) of the schedule to the Act, as amended, would say that
“the terms of any consent to the use of any embryo, that is, not human admixed embryo (“embryo A”)”
—that is, not “human admixed embryo”—
“cannot be varied, and such consent cannot be withdrawn, once the embryo has been used—
(a) in providing treatment services”.
That, rightly, does not appear for the human admixed embryos in paragraph 5, because there is no question of human admixed embryos being used for treatment services,
“(aa) In training persons in embryo biopsy, embryo storage or other embryological techniques,”
which is not covered in sub-paragraph (5) and which I am suggesting could usefully be done, and
“(b) for the purposes of any project of research.”
Paragraph 5(4), which is shorter, now states:
“Where the terms of any consent to the use of a human admixed embryo (“human admixed embryo A”) include consent to the use of a human admixed embryo or embryo whose creation may be brought about in vitro using human admixed embryo A, that consent to the use of that subsequent human admixed embryo or embryo cannot be varied or withdrawn once human admixed embryo A has been used for the purposes of any project of research.”
I may be wrong, because that deals with a chain of embryos and “any embryo” may cover “human admixed embryo”, but what concerns me is that there does not seem to be provision for human admixed embryos to be used for training people in the handling of blastocysts, if it is possible to create a blastocyst, and in things to do with embryological storage. One of the reasons for introducing human admixed embryos is a shortage of eggs, and it may well be that there is no better use of a human admixed embryo than for training, since it preserves the use of eggs and precious embryos, which should be used in treatment services, for those purposes.
However, I feel that there may be something missing, which relates to the third point I want to make. I may be wrong—I usually am, when it comes to questioning Government amendments to complex pieces of legislation—but amendment No. 66, which I will not be speaking to, does not seem fully to amend the schedule. The Committee will notice that amendment No. 66 inserts “(ba)” into line 12 on page 62 of schedule 3, but it does not amend line 8, and line 8 would appear to have an amendable part—that is, the insertion of “(ba)” into line 8. The effect of not amending paragraph 6 in schedule 3 to the Act as amended is that:
“A person’s gametes or human cells must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo, the creation of which may be brought about with the use of those gametes or human cells, being used for one or more of the purposes mentioned in paragraph 2(1)(a), (b) and (c)”.
That does not include testing. However, the Government are seeking to amend the Act with the amendment to schedule 3:
“An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each relevant person in relation to the embryo to the use of one or more of the purposes mentioned in paragraph 2(1)(a), (b)”
—it is now (ba)—“and (c)”.
Perhaps for training purposes it is a matter of receipt rather than use, but I am not certain of that. I would be grateful if the Minister could clarify whether that is an omission.
My fourth point is to ask the Minister whether she can explain what is meant by paragraph 10 of schedule 3 on page 62. It is about the use of embryos obtained by lavage. The explanatory notes specify that its purpose is to prevent embryos taken from a woman being used in research, but perhaps the Minister could explain why it was felt necessary to have it in the Bill now. Was there a gap? What was the impact of that gap? What could have happened had the provision not been introduced? It was mentioned briefly in the other place, but on reading it in Hansard, it was not entirely clear what it meant.
My fifth point is one that I raised incorrectly in consideration of the amendments, and the Minister did not address it in her comments. On page 64, paragraph 10(3)(b), there is a provision to ensure that consent is not required for storage. It states that the position meant is one where
“the patient is likely to regain that capacity”.
My point was whether “likely” is the right test given that it suggests a greater than 50 per cent. chance, two thirds of a chance, that capacity will be restored. Sometimes it is impossible to say whether it will be restored; in some circumstances it is possible but unlikely. Where is that dividing line to be drawn? It would be helpful if the Minister could give some indication, now or at a later stage, about what she means.
My final point is to draw an issue to the attention of the Minister. This is for information only—I do not expect her to respond. On page 65, proposed new paragraph 13(1) at line 16, the discussion about human admixed embryos describes them as being used for the purposes of “any project of research”, and it is the same in line 21. That provides a mismatch, which we discussed earlier with respect to the earlier part of the schedule in the first group of amendments.
A similar problem arises in schedule 2 about the issue of testing on human admixed embryos. I do not believe that schedule 2 has been amended to provide for the use of human admixed embryos in the testing of embryos. Obviously, I cannot talk about schedule 2 now as it was considered in Committee on the Floor of the House, but I draw attention to the fact that if the Government are right, they are right in both places and if there is a problem, it may apply in both places.
Mark Simmonds: I am sure that hon. Members who thought that they understood how consents were going to work are now completely confused, as indeed am I. I wish to make three succinct points, the first of which is about written consent that will be rightly retained and also the consent that must be signed under the Bill. Can the Minister say whether there is evidence that written, but unsigned, consent—as under the 1990 Act—has led to misuse, or inappropriate use or storage of gametes and embryos? My second point relates to paragraph 4(3) of the 1990 Act and the withdrawing of consent. I see no mention in the Bill of those who are physically incapacitated who wish to withdraw and direct another to sign on their behalf. If I have interpreted the Bill correctly, such people can do so in respect of consent, but not for withdrawal. Why is that the case?
My third point follows that made by the hon. Member for Oxford, West and Abingdon. It would be helpful if the Minister could clarify the specific nature of consents under paragraph 8. Are separate consents required for the storage of gametes and for the embryo created by the gametes, as they are for admixed embryos? Such matters might be explained by the phrase “the chain of consent” that is used in the explanatory notes, which—to be fair—is why the hon. Gentleman could not find it. The reference to that is in paragraph 89 of the explanatory notes.
Dawn Primarolo: I had no idea that the hon. Member for Oxford, West and Abingdon aspired to be a parliamentary draftsman. If that is the career he is heading towards, he has demonstrated his ability well this afternoon, although one of the enormous skills of parliamentary counsel is—thank goodness—to listen carefully and have specific instructions about intent and what is expected under the law, and make sure that it is covered. As the hon. Gentleman progressed through his questions, he answered them.
The hon. Gentleman thought that a reference was missing in respect of training. He is not right. If he passes his mind back to our earlier debate, embryos cannot be created for the purpose of training. The reference is not missing because such action cannot take place. The Government do not intend embryos to be created for training alone; they can be used for training and that is covered under paragraph 6(3). There is no omission there either. Of course, training is part of a treatment licence. It is not possible for a licence to be granted for training in connection with human admixed embryos under schedule 2. That is reflected in schedule 3, which is why there is no consent provision; it cannot be done in the first place.
2.30 pm
The hon. Gentleman returned to a point that we debated concerning amendment (b) to Government amendment No. 102, which specifically touched on a research project. I have already told him that I would consider that point.
The hon. Member for Boston and Skegness—
Dr. Harris: I am sorry, but I think that there has been a misreading. I do not think that amendment (b) to Government amendment No. 102 has anything to do with the issues that I raised about the limitations on research and the threshold that research must reach. I think that the Minister might be referring to another amendment, although I do not think that it was amendment (b).
Is it the Minister’s understanding that it will not be possible for human admixed embryos to be used in a research project for training—they can obviously be used only for research—or does she consider that training is an integral part of research and that there will therefore not be a problem training new researchers in how to manipulate human admixed embryos? It that was the case, it might be helpful if she would specify that.
 
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