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General Committee Debates
Human Fertilisation and Embryology

Human Fertilisation and Embryology Bill [Lords]

The Committee consisted of the following Members:

Chairmen: Mr. Roger Gale, †Mr. Jim Hood
Clarke, Mr. Tom (Coatbridge, Chryston and Bellshill) (Lab)
Gibson, Dr. Ian (Norwich, North) (Lab)
Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
Iddon, Dr. Brian (Bolton, South-East) (Lab)
Jones, Helen (Warrington, North) (Lab)
Key, Robert (Salisbury) (Con)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
McCafferty, Chris (Calder Valley) (Lab)
Moffatt, Laura (Crawley) (Lab)
Morgan, Julie (Cardiff, North) (Lab)
Penning, Mike (Hemel Hempstead) (Con)
Primarolo, Dawn (Minister of State, Department of Health)
Pugh, Dr. John (Southport) (LD)
Simmonds, Mark (Boston and Skegness) (Con)
Streeter, Mr. Gary (South-West Devon) (Con)
Turner, Dr. Desmond (Brighton, Kemptown) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Hannah Weston, Celia Blacklock, Committee Clerks
† attended the Committee

Public Bill Committee

Thursday 12 June 2008


[Mr. Jim Hood in the Chair]

Human Fertilisation and Embryology Bill [Lords]

(Except clauses 4, 11, 14 and 23, schedule 2, and any new clauses or new schedules relating to the termination of pregnancy by registered medical practitioners)

Further written evidence to be reported to the House

HF 02 Dr E Allan

Clause 46

Embryo transferred after death of civil partner or intended female parent
9 am
Question proposed, That the clause stand part of the Bill.
Mark Simmonds (Boston and Skegness) (Con): I have one quick question. The clause deals with civil partnerships and it mirrors clause 39, which deals with heterosexual partnerships and the use of a man’s sperm after his death. My understanding of clause 46 is that a woman who was not in a civil partnership—and might therefore not be in an intimate relationship with a women receiving treatment—who has no genetic link to the child, and who is also dead, can be named on the birth certificate as the second parent. Is the Minister comfortable with that?
The Minister of State, Department of Health (Dawn Primarolo): Under the clause, through assisted conception in a United Kingdom-licensed clinic at the time when the woman was not in a marriage or a civil partnership, but her female partner had died before the embryo could be transferred to the woman, the female partner could be registered as the parent in certain circumstances: when, immediately before the female partner’s death, the agreed parenthood conditions under clause 44 were in place; when the female partner had consented in writing, and had not withdrawn that consent, to the transfer of the embryo to the woman and to herself being registered as the parent of the child born as a result; when the mother decided within the 42 days in England and Wales, and 21 days in Scotland, to register that on the birth certificate; and when no else was treated as a father or parent of the child under the provisions of the Bill, or under adoption or legitimacy law. Such circumstances reflect the position of married couples. Yes, I am satisfied that one clause mirrors the other—and no more.
Question put and agreed to.
Clause 46 ordered to stand part of the Bill.

Clause 47

Woman not to be other parent merely because of egg donation
Question proposed, That the clause stand part of the Bill.
Mark Simmonds: I shall again be quick. It would be helpful if the Minister would put her views on record. We talked about sperm donors under early clauses and this clause relates to egg donors. Can the right hon. Lady confirm that a record is kept of egg donors by the Human Fertilisation and Embryology Authority and that those who have benefited will have a right to discover who the egg donors were at the appropriate age? Will it be ensured that the information available for those aged 16 and 18 absolutely mirrors that in relation to sperm donors?
Dawn Primarolo: I am happy to say yes. The hon. Gentleman is correct. The clause gives the access that he described, and it would have to, because the treatment would take place at a licensed clinic that was subject to requirements to trace the donor.
Question put and agreed to.
Clause 47 ordered to stand part of the Bill.

Clause 48

Effect of sections 33 to 47
Mark Simmonds: I beg to move amendment No. 159, in clause 48, page 43, line 4, leave out paragraph (b).
The Chairman: With this it will be convenient to discuss amendment No. 160, in clause 48, page 43, line 9, leave out paragraph (b).
Mark Simmonds: I acknowledge that the proposals are probing amendments to elicit from the Minister the logic behind the clause, under which a deceased person is to be treated as the father for the purposes of being named on the birth certificate, but for no other reason. Will the right hon. Lady explain what the clause is trying to prevent? Presumably, the deceased person will be the biological father in some instances, so would not normal inheritance circumstances occur? The Minister was right to mention the other day that if someone wanted to leave something after their death to a subsequent child, they could do so in their will. That explains how someone can circumvent the problem, but not why the clause is in the Bill. For those members of the Committee who want to follow this argument, the two parts of the clause that I am particularly referring to are subsections (3)(b) and (4)(b). I would be grateful if the Minister explained the intention behind them.
Dr. John Pugh (Southport) (LD): The clause refers to someone being treated as a father for no other purpose. Elsewhere in the Bill, we read the simple phrase “treated as father”. Does the expression—
The Chairman: Order. Is the hon. Gentleman making an intervention?
Dr. Pugh: I am supporting the amendment.
The Chairman: Had the hon. Member for Boston and Skegness finished moving the amendment?
Mark Simmonds indicated assent.
Dr. Pugh: I want to know whether the expression “treated as father” carries the same meaning throughout the Bill, given that it is qualified in this context. The Minister has explained that when we were talking about someone treated as a father, we meant treated as a father purely for the purpose of recognition on the birth certificate. There is some inkling in this context that it means something different in certain circumstances, so I seek clarification.
Dawn Primarolo: The Bill replaces and extends the provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. We have returned to this point several times as we have gone through the latter clauses in the Bill. The 2003 Act provisions are re-enacted in clauses 39 and 40. Clause 39 relates to the use of a man’s own sperm to create a child with his consent after his death, while 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 male partner was alive and the man dies before the embryo is transferred. Clause 46 extends the provisions to same-sex couples, whether they are in a civil partnership or not, to mirror other provisions. We have had that discussion.
The provisions allow for a man, or a female intended parent, to be recorded in the register of births as a father or parent, but otherwise not to be treated as the legal parent for other purposes in law. The Human Fertilisation and Embryology Act 1990, as originally drafted, did not allow for deceased men to be treated as fathers of children conceived after their deaths. That position was based on the recommendations of the Warnock report and concerns that that might prevent the winding up of a person’s estate if children were born years after their death. In a well known case, of which the hon. Member for Boston and Skegness is aware, there are now several such children. The fear in the Warnock report was that an estate could never be wound up because people would have to wait on whether genetic material from the deceased man meant that any future children could have a claim on the estate.
The 1990 Act was amended by the 2003 Act, a private Member’s Bill piloted through the House by my hon. Friend the Member for Birmingham, Hall Green. That Act allowed a man to be treated as the father for the purpose of birth registration—the matter now under consideration—and for no other purpose, such as decoupling from concerns over the winding up of an estate. That represents a pragmatic and fair approach.
The probing amendments tabled by the hon. Member for Boston and Skegness would remove the subsection that ensures that no further legal status is assigned to those parents. They would have only the symbolic effect of their name being recorded on the birth certificate. I do not think that he will want to do that. On reflection—given the questions that he has asked and the fact that he says that these are probing amendments—I think that he will believe, as the Government do, that it is right, even with explicit consent, that full legal parenthood should not be conferred on a deceased father or parent in relation to children born following their death.
The hon. Member for Southport asked what is meant by the phrase “ the father”, which is used throughout the Bill. It has a specific meaning in relation to clause 48. The term is used to mean treated as the father under the law. When the term is used in a more limited sense elsewhere in the Bill, that fact is expressly conveyed. That is why it is necessary at this point, in a cross-reference to the 2003 Act, to say that it is only for the purposes of registration, which is what we are discussing. It ensures that there is no inadvertent opening up of issues to which the House has already agreed.
Dr. Pugh: Is the Minister saying that in a prior clause, or as a qualification in this clause, that the expressions “ the father” or “ a parent” have the general meaning of a parent in law—a father in the legal sense—except when expressly qualified in the legislation?
Dawn Primarolo: Yes, that is the case, because of the unique circumstances being dealt with in the clause with reference to the 2003 Act. I hope that I have reassured both hon. Gentlemen that the provision is tightly drawn for a good reason. On reflection, I know that they will agree.
Mark Simmonds: The Minister has answered the point thoroughly and with great clarity. The point about it not being possible to wind up the estate many years after the person’s death is the ultimate reason for the provision. That seems to make sense, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: No. 59, in clause 48, page 43, line 13, at end insert—
‘(5A) In relation to England and Wales and Northern Ireland, a child who—
(a) has a parent by virtue of section 42, or
(b) has a parent by virtue of section 43 who is at any time during the period beginning with the time mentioned in section 43(b) and ending with the time of the child’s birth a party to a civil partnership with the child’s mother,
is the legitimate child of the child’s parents.’.—[Dawn Primarolo.]
The Chairman: With this it will be convenient to discuss Government amendment No. 60.
Mark Simmonds: I wish to lift a little more information about the amendments from the Minister. I understand that they relate to circumstances in which written consent was not required as the parties believed themselves to be in a civil partnership or marriage, but later discovered that the marriage or the civil partnership was invalid. Am I right that the amendments apply to marriages as well as civil partnerships, or only to civil partnerships? What is the basis for an invalid civil partnership? Presumably, it is not the same as a void marriage.
9.15 am
Dawn Primarolo: These are consequential amendments related to other Acts, including the Legitimacy Act 1976 and the Family Law Reform Act 1987. They relate to the legitimacy of children born by assisted conception to civil partners and are intended to bring the rules into line with those for married couples.
Since the Bill was introduced, it has been identified that although a child born to a same-sex couple that later entered into a civil partnership would be treated as legitimate in law for all purposes, a child born to civil partners would be treated as legitimate in law only for the more limited purposes set out in statute. For example, many family trusts create classes of beneficiary limited to the lawful issue: the legitimate child of the settlor. That anomaly will operate in the cases before us unless we correct it by means of the amendments.
The amendments are tightly drawn to correct that unintended consequence by making a clear statement that a child born to civil partners will be treated as legitimate in law for all purposes. That comes back to the point raised by the hon. Member for Southport, who asked me to distinguish between a parent or a father elsewhere in the Bill, as opposed to in the clauses before us. The issue is the flip side of the debate that we have just had, and the example that we would use would be trust law.
Provision is already made—there is an equivalent—in clause 49, which we are coming to. That clause sets out the test that is applied when there is a void marriage or civil partnership. These clauses are interlinked to reinforce the point. I hope that that clarifies the hon. Gentleman’s point.
Amendment agreed to.
Clause 48, as amended, ordered to stand part of the Bill.
Clause 49 ordered to stand part of the Bill.
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Prepared 13 June 2008