Human Fertilisation and Embryology Bill [Lords]

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Dawn Primarolo: The hon. Gentleman started his contribution on the amendment wanting to cover scientists who inadvertently went outside the licences. It was not that they set about going outside the licence. He referred to that just a minute ago as the wonder of science, and I have told him that that is covered. Is he now saying that he wants them to have the absolute right to do certain research outside the licence? That is a slightly different proposition.
Dr. Harris: I do not think that it is a different proposition. If it is likely that an embryo will be created, either as the intention of research or as a foreseeable consequence, clearly they should get a licence, and I think that that now applies to eggs in culture. An alternative, to avoid the need to get a licence, would be for there to be a clear defence to cover those circumstances in which, in full knowledge of the law, research artefacts that are not the purpose of the study, are not being described and will not last long, might emerge. That would make the whole question of investigation and prosecution much less likely. That would actually add an extra safeguard with regard to the decision to prosecute, because prosecutors will not prosecute if there is a defence that could be prevailed upon. So that would give researchers more confidence that they are not going outside their licence. It would be wrong for them to go outside their licence, and that is not what I am saying. It would be something that is not obviously licensable and could be done without a licence because it has nothing to do with embryos, but if something that could be described as an embryo in this wide definition is produced as a research artefact, they will be reassured and not scared off the idea of doing the research.
I do not think that it is satisfactory to rely on the DPP discretion, although I understand what the Minister says about that, just as it is not satisfactory to rely on an Attorney-General’s discretion, although it is better than nothing. Researchers will have to get a licence. I do not think that scientists will run the risk of not having one and having complaints made against them. However, that is for them to judge.
The Government have made their position clear on the question of eggs in culture. I repeat that there is a further issue about stem cells, but that probably needs greater reflection. I was not planning to put the matter to a vote, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 ordered to stand part of the Bill.

Clause 30

Regulations under the 1990 Act
Dawn Primarolo: I beg to move amendment No. 55, in clause 30, page 34, line 14, leave out ‘4A(5)(e) or (10)’ and insert ‘4A(4A) or (10)’.
The Chairman: With this it will be convenient to discuss Government amendments Nos. 56 and 57.
Dawn Primarolo: I shall make some brief remarks.
4.20 pm
Sitting suspended for a Division in the House.
On resuming—
Dawn Primarolo: I said that I would make some brief remarks, but I had not realised how brief they would be.
The definition of a human admixed embryo was amended during Committee of the whole House to include a catch-all provision. That captures all embryos containing both human and animal DNA in which the animal DNA does not predominate. The amendment was tabled following extensive discussions on definitions during the passage of the Bill through another place. The amendment also removed the power to extend the definitions of human admixed embryos through secondary legislation, as it was no longer required following the introduction of the new catch-all definition. Those amendments were accepted by the House.
In addition, an amendment was passed to insert a new regulation-making power to specify circumstances in which the keeping or use of human admixed embryos would be prohibited. The amendments tabled in this group are consequential to those tabled during the Committee of the whole House. They take out references to the regulation-making power to extend the list of human admixed embryos from clauses 30 and 31, which deal with the exercise of regulation-making powers under the Bill and the power to make consequential provisions in certain cases respectively.
The amendments also insert a reference to the new power into clause 30 to ensure that any regulations under the provision would be subject to debate in both Houses—the affirmative procedure. In that sense, they follow directly on from the decisions made in Committee of the whole House. The amendments extend no further principles in the Bill, but they tidy up the legislation and remove powers that are no longer required.
Mark Simmonds (Boston and Skegness) (Con): I shall ask a couple of brief questions to make sure that I understand the changes that the Minister is proposing in the Government amendments. Do the consequential amendments mean that the exercise of every regulation-making power in the Bill has to be ratified by an affirmative resolution of Parliament, or are there different categories of regulation? It is not necessary to provide the information now—the Minister can give it in writing—but it would be helpful for the Committee to understand which regulation-making powers in the Bill have to be resolved by Parliament through affirmative powers and which do not.
I have a specific question about amendment No. 57. As the Minister has just explained, I understand that the removal of the term human admixed embryo—leaving out lines 34 and 35—removes the regulation-making power to change the definition of human admixed embryos, but how does that relate to the regulation-making power under section 4A(10) and amend section 4A(5) of the 1990 Act, which relate to human admixed embryos? I understood that that meant that the Government could change the definition of a human admixed embryo. Or does the regulation-making power in new section 45A(2)(b), inserted by clause 31, override sections 4A(10) and section 4A(5)?
Dawn Primarolo: A list of the categories are subject to affirmative resolution under the Bill and, rather than list them all into the record, I am happy to point them out in correspondence with the hon. Gentleman and other members of the Committee, for ease of reference in future debates. As for the changes that are being made, the decision taken on the Floor of the House to have a catch-all provision removed the necessity for regulations on definitions of admix, so we are removing it from the Bill. The Government have the power to amend the existing definitions, but they will no longer have the power to add new categories to those definitions. The amendments would remove the power from the Bill because it is not required any more. Changing the existing definitions, if that proved necessary, would be subject to affirmative procedure.
The cross-referencing is different because we made the changes in Committee of the whole House, and we are now tidying up the Bill. It is as though we have been in Committee all the time and are simply amending the Bill in two locations. I hope that I have made matters clear. As I said, the list is long and, rather than delay our proceedings by reading it into the record, I shall circulate it to all members of the Committee. It will not take a moment.
Amendment agreed to.
Dr. Harris: I beg to move amendment No. 174, in clause 30, page 34, line 14, at end insert ‘section 20A; section 20B;’.
Last Thursday, we debated clause 21, which inserted new sections 20A and 20B in the 1990 Act. It resulted in agreement that those regulation-making powers should be subject to the affirmative procedure, and I asked whether they were. The Minister agreed that they should be, but it turned out that they were not. To assist the Committee, I have tabled an amendment that would make them subject to the affirmative procedure. I am not sure that it does the job, but it would be one less thing to cover when we discuss the Bill on Report. That is why I tabled the amendment.
Dawn Primarolo: The hon. Gentleman spoke to me during the break and said that, in the light of events, he would not speak to his amendment. However, I suggested that he move it formally, because he should be given acknowledgement for trying to catch up with the Government’s position. It is true that we debated the appeals procedure and whether or not the regulations would be subject to the affirmative or the negative procedure. I clearly said to the Committee that they should be subject to the affirmative procedure.
I thought that I made a joke, but the hon. Gentleman did not think so. However, I hope that he will allow me to make it once more. The hon. Gentleman is improving his skills as a parliamentary draftsman. He is nearly there—he is doing fantastically well. I have never been able to do as well in my time in Parliament. However, he has not quite made it on this occasion. I would have been willing to accept the amendment if it had been drafted correctly, but I will need to table another on Report to put matters right. However, I will be more than happy for the hon. Gentleman to add his name to it. The amendment will be tabled. The regulations are currently subject to the negative procedure, but we will take steps to make them subject to the affirmative procedure. I know that the hon. Gentleman will not press his amendment to a vote because he knows that it does not quite work, but it establishes the principle.
4.45 pm
Dr. Harris: I am grateful to the Minister for explaining that. It is back to the drawing board for me and my proposed new career. It is sometimes the habit of Opposition MPs to consult the Public Bill Office and then blame them. I cannot do that in this case. The amendment was my own poor work, and I look forward to seeing the Government’s proper amendment in due course. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 56, in clause 30, page 34, line 21, leave out ‘, 3(5)’.—[Dawn Primarolo.]
Clause 30, as amended, ordered to stand part of the Bill.

Clause 31

Power to make consequential provision
Amendment made: No. 57, in clause 31, page 34, leave out lines 34 and 35.—[Dawn Primarolo.]
Clause 31, as amended, ordered to stand part of the Bill.

Clause 32

Orders under the 1990 act
Question proposed, That the clause stand part of the Bill.
Mark Simmonds: I wonder whether the Minister can explain the difference between regulation, as set out in clause 30, consequential provision, as set out in clause 31, and orders, as set out in clause 32.
Dawn Primarolo: Will the hon. Gentleman repeat the question?
Mark Simmonds: Of course. Clause 32 refers to the Government’s ability to make orders, yet clause 30 refers to regulations, clause 31 to consequential provision, and clause 32 to orders. Is there a difference between regulation, consequential provision and orders? If there is, what is it? If they are the same, why has different terminology been used in three consecutive clauses?
Dawn Primarolo: Clause 30 deals with the regulations made under powers introduced by the Bill that are exercised by the authority—codes and so on. Clause 32 refers to the procedures of this House—whether matters are subject to the affirmative or the negative procedure. There is not a huge difference in practice, but there tends to be a consequential relationship between regulations and orders and the procedures under which they go through the House. One may ask why that is the case, and the answer is that the House has always done it in that way, and there is parliamentary precedent.
Question put and agreed to.
Clause 32 ordered to stand part of the Bill.

Clause 33

Meaning of “Mother”
Question proposed, That the clause stand part of the Bill.
Mark Simmonds: Clause 33 defines the meaning of “mother”. It states:
“The woman who is carrying...a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.”
That definition dates back to the 1990 Act. I want to raise at this point, under a stand part debate on this clause, surrogacy arrangements affecting the mother and the definition of a mother. There are some complex and difficult issues that relate to the mother in surrogacy arrangements, which I do not think will be discussed in relation to any other part of the Bill.
Surrogacy arrangements are recognised in British law as long as no payment is made and only reasonable expenses are reimbursed. In the UK, surrogacy arrangements are not a binding agreement on either party; there is very little that the intended parents can do to secure their position prior to birth, even in gestational surrogacy—where the baby is genetically related to both intended parents and not to the surrogate.
Under the 1990 Act, if a child is being carried by a woman as a result of being artificially inseminated or has had an embryo introduced into her, she is to be treated as the mother for all purposes even if she is not genetically related to the child, and her husband will be treated as the father unless it is shown that he did not consent to the treatment. That parental consent and status can be lost only through a parental order or an adoption, and, I understand, that that is retained in clause 35, to which the hon. Member for Oxford, West and Abingdon has tabled an amendment. In the United Kingdom, parents who wish to use surrogate mothers then have to adopt the child or apply for a parental order, which involves a great deal of state intervention. Parents can be refused adoption orders even though the child is their genetic offspring. That is not the case if the surrogate is not married, as the genetic father can treat the child as his legitimate offspring and apply for a parental order much faster.
When these issues were debated in another place the Minister there promised that the Government would give those anomalies further consideration. Can the Minister state for the record today where those considerations have got to?
I shall put on the record two or three further complexities in this already very difficult area. There is an argument that a single commissioning genetic parent—the women who has had a child conceived from her egg and the single father—are discriminated against under the new provision. The law elsewhere in the world is not the same as it is in the UK, which adds complexity. For example, in the United States of America the legal parents of the offspring are the commissioning parents, not the parent who bore the child. Therefore, a child born by commissioning parents in the United States could be parentless and stateless. That may be considered under other pieces of legislation. The British Nationality (Proof of Paternity) Regulations 2006 may be illegal.
It will be helpful if the Minister could put the Government’s position on the record, especially in the light of the significant immigration into the UK from the European Union since the EU accession countries joined in 2004. Indeed, under EU law there is—correctly—more leeway for individual states to make their own appropriate legislation and regulations in this area of law, because it is so sensitive. There is therefore no consistency across the European Union.
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