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
40Embryo
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.
The context
of this and the prism through which we must look at all the debates on
these clauses is that the
welfare of the child must be paramount. I just question at this stage
whether a couple that did not even have an intimate relationship,
certainly were not married, might not even have been in a civil
partnership, had no genetic contribution to the child’s make-up
and are not alive would be appropriate people to have as an official
parent of a child, and that is in the context of the importance of the
child’s
welfare. 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
(1) provides that if an embryo was created with donor sperm while the
woman was married, but her husband died before the embryo could be
transferred
to her, the man can be registered as the father of the child in certain
circumstances: the husband 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; the woman must have decided
within 42 days of the birth of the child, or 21 days in Scotland, that
the man will be registered; and there must be no other
parent—for example, the child must not have been
adopted. 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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