Joint Committee On Human Rights Eighth Report

Human Fertilisation and Embryology (Deceased Fathers) Bill

31. The Human Fertilisation and Embryology (Deceased Fathers) Bill,[42] introduced by Mr Stephen McCabe MP, published with Explanatory Notes prepared by the Department of Health, would address a declaration of incompatibility made by the High Court as part of the settlement of an action brought by Mrs Diane Blood against the Department of Health. The case concerns the refusal of the Registrar of Births to include the particulars of the late Mr Blood (Mrs Blood's deceased husband) as the particulars of the father of a child born to Mrs Blood.[43] The child had been conceived after the death of Mr Blood, using frozen semen taken from Mr Blood without Mr Blood having consented in writing to the use of his semen. Under the Human Fertilisation and Embryology Act 1990, the donor of semen in such circumstances is not to be regarded as the father of the child for legal purposes. By a consent order dated 3 March 2003, the court declared this to be incompatible with the right to respect for private and family life under ECHR Article 8 and/or the right to marry and found a family under ECHR Article 12.

32. The Bill, which had its Second Reading in the House of Commons on 28 March 2003, would amend the Human Fertilisation and Embryology Act 1990 by inserting several new sub-sections in section 28. These would allow a man's particulars to be entered as the particulars of the child's father in the register of live births or still births kept under the Births and Deaths Registration Act 1953 and equivalent legislation in Scotland and Northern Ireland (see new section 28(5I)), if the child was carried by a woman as a result of the placing in her of an embryo or sperm and eggs or of her artificial insemination, where the sperm was used after the death of the man who produced it or the embryo was implanted after the death of the man whose sperm was used. Different provisions would be made depending on whether the woman and the man had been married, or had been jointly provided with fertility treatment services, or the embryo had been created using the sperm of a third party: see new section 28(5A)-(5D).

33. The provisions would apply retrospectively, to children conceived before the Bill is passed and comes into force using semen from men who died before that date, in such a way as to make it possible for a woman in Mrs Blood's position to elect to have her late husband treated as the father of the child: see clause 3 of the Bill. This would allow the Bill to remedy the incompatibility identified in the case of Mrs Blood and affecting other similar cases.

34. For the future, the position would be somewhat different. The Bill would make it absolutely clear that a man whose frozen semen is used to conceive a child, or whose semen contributes to the conception of a gamete that is frozen and later implanted in a woman, and who dies before the child is born, would be treated as the father of the child only if he had given his consent in writing to that use of his semen or the gamete. Thus a person in Mrs Blood's position, whose husband or partner has died without giving written consent to the use of his sperm or gametes for reproductive purposes, would not be able to have the man's particulars included in the register of births or the birth certificate as the particulars of the father of a child born after the Bill is passed and comes into force. In addition, the Bill would not make it possible for the child to be treated as Mr Blood's son for other purposes, including inheritance and succession.

35. The rule applying for the future would interfere with the right to respect for private and family life under ECHR Article 8.1. However, it is likely to be justifiable under Article 8.2 (unlike the law held to be incompatible with Convention rights in the case of Mrs Blood), for the following reasons.

  (i)  The requirement for written consent would be clear, whereas it was argued that, under the previous law, it is not clear on the face of the Human Fertilisation and Embryology Act 1990.

  (ii)  The rule would serve a legitimate aim, namely to encourage discussion of the consequences of donating sperm before procedures are undertaken, thereby protecting the rights of donors.

  (iii)  It would reflect a clear judgment by Parliament about the appropriate balancing between rights and interests, so would be likely to be held to be necessary in a democratic society (proportionate to a pressing social need) for the legitimate purposes. The Warnock Committee recommended in 1984 that the use by a widow of her deceased husband's sperm should be 'actively discouraged', but not, apparently, prohibited.[44] It recommended that after the death of one member of a couple, the right to decide how to store or use any of their stored embryos should pass to the survivor.[45] In such cases, it recommended that a child who was not in utero at the date of the death of the father should not be entitled to inherit from him, and that among children who were born or in utero at the time of the father's death rights of succession should be settled according to the principle of primogeniture, taking the date of birth rather than the order of fertilisation of the embryos as deciding how the principle of primogeniture should apply.[46]

36. In our view, Parliament could legitimately conclude that these considerations would justify the rule proposed in the Bill for prospective application, in terms of ECHR Article 8.2. We therefore consider that the Bill does not require to be drawn to the attention of either House on human rights grounds at this time.

42   House of Commons Bill 25 Back

43   Lord Lester of Herne Hill declared an interest in respect of this part of the Report, having represented Mrs Blood in earlier litigation concerning a related matter Back

44   Committee of Inquiry into Human Fertilisation and Embryology (Chairman: Dame Mary Warnock DBE), Report, Cmnd. 9314 (London: HMSO, 1984), p 55, para 10.8 Back

45   ibid., p 56, para 10.12 Back

46   ibid., p 57, paras 10.14-10.15 Back

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