Human Fertilisation and Embryology Bill [Lords]

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Dr. Pugh: I just want a simple clarification, but a more basic one. The clause states that if the man has agreed in advance and the woman chooses this within 42 days of the birth of the child, the man can be identified as the father of the child, provided, as the hon. Gentleman has said, that the woman is agreeable. If, as in that case, the sperm of a deceased person is being used, is there any limitation, whether biological, physical or legal, on how long that sperm could have been around? Theoretically, in legal terms we could be talking about a 10 or 15-year period and I wonder whether the law allows any possible period to be used. That could have significance for all sorts of inheritance issues.
Dawn Primarolo: There are no inheritance issues here.
Clause 39 replaces, for future cases, provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. Those provisions relate to the use of a man’s sperm to create a child with his consent after he has died. The clause provides that, where a woman conceives a child using the sperm of a man who has died, or where an embryo was created with his sperm before he died, but was transferred to the woman after his death, and the man had consented to the use of his sperm in this way after his death and the woman who carried the child gives notice in writing within 42 days—or in Scotland, within 21 days—after the birth of the child that the man is to be the father, then the man is to be treated as the father of the child, for the purpose of birth registration alone. That applies whether the assisted conception treatment of the woman was in the UK or elsewhere. Clause 39(1)(d) encompasses the right of the woman to choose to record the man on the birth certificate, which is symbolic. The man will be deceased, and that is why the woman has the right to choose.
The difference between Scotland and England and Wales is connected to birth registration, which is a devolved matter. The provision in the Bill reflects the fact that the standard time period in each country for birth registration is different—before the hon. Gentleman asks me, I do not know why, but it is—and it reflects the difference on devolved matters. That is what we are seeking to ensure. It is a standard part of the HFEA’s consent forms to ensure that such consent has been given when embryos and gametes are stored. The measure builds on the Act to which I referred, which I hope clarifies—
5.45 pm
Dr. Pugh: Will the Minister give way?
Dawn Primarolo: I have not concluded my remarks. I was going to give way at the end of my sentence but I have forgotten what I was going to say.
Dr. Pugh: I think that the Minister answered my question. I heard her say that the measure is for birth registration purposes only and that it will not affect inheritable rights whatever.
Dawn Primarolo: I can confirm that that is the case—the measure is for birth registration. It allows parenthood only to be recorded symbolically on the birth certificate and confirms no other legal status to the father—nor could it—and therefore no inheritance rights for the child. If a father wished to leave some of his estate to his unborn child, he could make that clear in his will. That is how such a situation would be dealt with.
Mark Simmonds: I am grateful to the Minister for her response but, unusually, she did not answer one of my points—I may have misunderstood or misheard what she said—on paragraph (d). It appears that a biological father who donated sperm prior to his death could, by the choice of the woman who has the child, never be placed on the birth certificate in the first place. He would therefore not be the father even if he consented for his sperm to be used for the purposes of creating the child. I do not understand what the defence for paragraph (d) is. The Minister explained what it does, but not why, nor why it is in the Bill. If the woman does not choose the biological father to be named as the father, and the mother has not remarried and, therefore, under common law, found a new father, who will be the father of the child?
Dr. Harris: I remember the debates on the 2003 Act, which began life as Tony Clarke’s private Member’s Bill—many of us remember him. It was predicated on the fact that Diane Blood, in that famous case, was keen to ensure that her late husband’s name could be on the birth certificate, prospectively at least, even if she were to receive treatment abroad. It was the view of the Committee that considered that Bill that the woman should be able to reflect on that issue after the birth of the child. The legislation was designed to provide maximum flexibility to a woman in a difficult situation, who was recently bereaved or who only recently became a mother, so that she could decide whether she wanted to put her late husband’s name on the birth certificate.
Mark Simmonds: I am grateful to the hon. Gentleman for that helpful intervention—it shines some light on the measure. I was in the House in 2003, but the private Member’s Bill to which he referred passed me by. Will the Minister confirm what the hon. Gentleman said, because I did not get the impression that she put forward a defence of paragraph (d)?
Dawn Primarolo: I referred to paragraph (d) and the right of the woman to choose to record the man’s name on the birth certificate, and said that it would be symbolic in the sense that it would not convey any further rights.
The hon. Member for Oxford, West and Abingdon asked what needs to happen. Both the man and woman would need to consent to the former’s name being put on the birth certificate. That allows the woman to decide finally whether to do that and gives her the final choice. That is not a right that can be enforced against another without their consent, so if there was not consent, it could not occur.
Question put and agreed to.
Clause 39 ordered to stand part of the Bill.

Clause 40

Embryo transferred after death of husband etc. who did not provide sperm
Dawn Primarolo: I beg to move amendment No. 58, in clause 40, page 39, line 15, leave out ‘a’ and insert ‘the’.
The amendment makes a minor drafting correction to clause 40 and is purely technical in nature. It changes the words in the clause to read “the man”, rather than “a man”, as currently drafted. That only recently came to light and was considered the appropriate drafting.
Amendment agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Mark Simmonds: We are getting into the nitty-gritty of the Bill, as the clause relates to the transfer of an embryo after the death of a man who was treated as a father in cases where donor sperm was used. There is a great deal of concern among the public about that, and certainly a large number of people have written to me about the clauses that we are about to discuss. I want to understand two things about the workings of the clause. I will not repeat the arguments that were made on the Floor of the House and in this Committee about the importance of the male in bringing up children, because members of the Committee have different views about that, but perhaps the Minister will explain how subsection (2)(b) relates to clauses 42 and 43 and whether there is an exact mirror and read-over from different-sex relationships to same-sex relationships and from marriages in heterosexual relationships to civil partnerships in same-sex relationships.
It seems to me that clause 40 will enable someone who is not married, has not provided the sperm and so has no genetic relationship with the child and who is not alive to be the parent of that child on its birth certificate. It might be that no intimate relationship at all took place between the two people who would potentially be the parents of that child, whether they are a heterosexual or a same-sex couple.
Dr. Pugh: My concern is about what birth certificates are now intended to do. Normally, they are indicative of someone’s assumption of legal responsibilities or biological connection with the individual named on the certificate, or both. In this case there appears to be a suggestion that the person named on the birth certificate should fulfil one criterion: a previous willingness to take part in an IVF programme with the person whom they pre-deceased. That is a big extension, therefore, in our view, of the role of birth certificates. The Minister said that birth certificates can do something symbolic. I certainly did not realise that. Perhaps there is scope for birth certificates in respect of all sorts of strange, exotic things, but we ought to stick to a more rigid view of what they should do.
What is the Government’s reason for such an obvious and quite definite extension of the use of a birth certificate? What is the thinking behind it? Is it to provide an explanation to the child about their origin? If so, and if the child does not look any further, it would clearly give an inaccurate explanation of the child’s origin. It is obviously preferable to talk about storks and gooseberry bushes, but is putting the child off the scent by not letting them think any further than that they were conceived with the person named on the birth certificate as an agent in some way in the interests of the child? If so, is that obvious?
I accept what the clause does and I am not necessary agin it. However, I see it as extending what birth certificates do and I want to know the Government’s rationale for doing precisely that.
Dr. Harris: I heard what my hon. Friend said and the fair way in which he put it. Obviously, I could come up with an example that was far removed from the intention of the clause and a direct consequence of the 2003 Act. When that was made law, and if it was to apply to a married couple who may have been married for a year, it would have been wrong not to apply it to a couple who may well have been receiving IVF because the man was infertile, but who had been in a non-married relationship for 20 years and, indeed, had had other children before infertility intervened on the man. There would therefore have had to be a parallel provision for unmarried men in the case of deceased fathers.
We must remember that such a provision was sought by Diane Blood, who campaigned hard for it. She was supported by the newspapers that often worry about fatherhood, but they were very clear that it was appropriate in those circumstances. We can always say that that means that such provisions could apply to someone who was not in an intimate relationship, who had known the woman for only a short time, but who had been treated together with her and then died. I do not know whether there would ever be such a case. In the end, we cannot design legislation to fit the most extreme cases.
Dr. Pugh: I do not regard the introduction of the Diane Blood case as at all helpful in our discussions. In that case, the name of the father was on the birth certificate and thus would have shown the biological origin. That is what birth certificates have traditionally done in part, although not exclusively.
Dr. Harris: Birth certificates do not reflect the genetic origin. They reflect the legal father, who is often the social father. Now is not the time to go into the issue of non-paternity, but lots of milkmen, even in Southport, would be very afraid of the implications of genetic fatherhood—if I can use that term in its general sense, even if it is a bit “Carry On”. Birth certificates are not a reflection of genetic parenthood. I am not claiming that he does, but if my hon. Friend wants that to be the case, there would be a lot of paternity tests and a lot of frightened milkmen.
Dr. Pugh: I referred to an either/or situation. I am sure that my hon. Friend would accept the proposition that, in the past, a birth certificate traditionally showed people who should take legal responsibility for the child or someone who had a biological connection with the child. We have a proposition where neither of those things happen.
Dr. Harris: My hon. Friend is correct. It is a consequence of the 2003 Act. The explanatory notes state:
“Clause 40 makes similar provision to clause 39 for the case when donated sperm has been used.”
He is right to identify the fact that it is the coming together of two slightly incompatible things: first, the wish to ensure that men who are infertile, but treated together with a woman, are treated fairly and equivalently to men who are using their sperm when that is required, which is the general, uncontentious theme of the clause.
Secondly, in significant circumstances, the deceased father should be recognised. Those circumstances have to be met in order to satisfy the need for bereaved women in such situations to recognise the relationship that they had and that had brought about directly or indirectly the birth of the child. However, I accept my hon. Friend’s point. It is a slightly uncomfortable marriage of the two issues, and he is right to draw out the difference. I am keen to say that I support the clause, for the reasons that I have given, although it is a difficult translation of two different provisions.
6 pm
Dawn Primarolo: Clause 40 relates to the registration of a father when a child is born to a woman as a result of the transfer of an embryo created with donor sperm when her husband or unmarried male partner died before the embryo was transferred. It contains two measures, relating respectively to married women and to women who were not married, but had a fatherhood agreement with a man. It enables the child to have official recognition of the father. The clause replaces the existing measure in the 1990 Act and recognises the new provision in the Bill for unmarried couples to have a fatherhood agreement when donor sperm is used.
Subsection (2) provides that if an embryo was created with donor sperm through assisted conception in a UK-licensed clinic at a time when the woman was not married or in a civil partnership, but her male partner died before the embryo could be transferred to her, the man can be registered as the father of the child in the following circumstances: the man must have consented in writing, and must not have withdrawn that consent, to the embryo’s transfer to the woman and his registration as the father of the child born as a result. Additionally, immediately before his death, the agreed fatherhood conditions set out in clause 37 must have been in place, the woman have decided within 42 days from the birth of the child, or 21 days in Scotland, and there must be no other father—for example, the child must not have been adopted.
The provisions will ensure equivalence between heterosexual and same-sex couples. The intention is to achieve equality, but the hon. Member for Boston and Skegness is absolutely right to pick up the point that underpinning it is the additional key requirement that under section 13(5) of the 1990 Act, clinics must consider the welfare of any child born before providing the treatment.
The hon. Member for Oxford, West and Abingdon is right that the 2003 Act established that a deceased person could, in certain limited circumstances that I have described, be the parent of a child for the purposes of the birth certificate only. The Bill updates that principle only to reflect equality for same-sex couples. Yes, there is a read-across. The provisions address cases in which a couple has created an embryo using a woman’s egg and a man’s sperm. They provide for the woman to proceed with treatment using an embryo that was created by the woman and her partner as a couple. It does not introduce any new requirements; it brings the equality requirements together, ensuring that the 2003 Act that established the principle follows through. I hope that I have clarified the matter.
Question put and agreed to.
Clause 40, as amended, ordered to stand part of the Bill.
Clause 41 ordered to stand part of the Bill.
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