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
(Morning)
[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
“treated...as 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
“treated...as the father” or
“treated...as 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.
