Joint committee on the Human Tissue and Embryos (Draft) Bill

Joint committee on the Human Tissue and Embryos (Draft) Bill First Report

Chapter 7: part 3 (parenthood in cases involving assisted reproduction) and part 4 (miscellaneous and general) of the draft bill

Parenthood

263. Part 3 of the draft Bill seeks to take a new approach to parenthood, moving towards the concept of parenthood as a legal responsibility rather than a biological relationship. As Andrew Bainham, Reader in Family Law and Policy at the University of Cambridge notes, more children will have legal parents who are not also their biological parents and more 'social parents' will acquire the full status of legal parent automatically, as opposed to merely acquiring parental responsibility through legal process (Ev14, para 3). In particular:

Clauses 42 and 43 replace provisions of the 1990 Act which enable an unmarried man to be the father of a donor-conceived child if he is 'treated together' with the mother in a licensed clinic. Clause 42 sets out circumstances in which a man is to be treated as the father of the child where agreed 'fatherhood conditions' apply. These 'fatherhood' provisions are set out in clause 43.

Clauses 48 to 50 amend section 28(2) and (3) of the 1990 Act to include the situation where one member of a female same-sex couple is treated with the consent of the other (whether or not they are civil partners), and would confer legal parenthood on the consenting partner.

Clause 60 extends the procedures under section 30 of the 1990 Act (which currently enables a commissioning married couple to acquire a 'parental order' in surrogacy cases) to civil partners and to unmarried commissioning couples whether of the opposite sex or the same sex.

264. This is an approach that has proved controversial and we have had a significant amount of evidence that is quite divided on the merits of this approach. Many witnesses gave general support to the Government's approach towards legal parenthood and the benefits this would bring to the area of assisted reproduction.[140]

265. We heard evidence of some specific concerns. Tom Ellis, a donor-conceived person, argued that a man or woman whose gametes are not used to create a child should be referred to not as a 'parent' but as an 'adoptive parent' or a 'step-parent'. (Ev16, para 16) The HFEA were concerned that clauses 42 and 43 could allow a woman to ask her own father or brother to be the father of the child (Ev12(a), Appendix A). Brenda Almond, Emeritus Professor of Moral and Social Philosophy at the University of Hull, noted that although provisions had been put forward in the name of equality, the provisions were "couched entirely in terms of women". (Ev21, para 2.2)

266. We also received much evidence from those opposed to the Government's approach. For example, Professor Almond told us she found the proposals "confusing and ambiguous" and that in seeking to replace biological parenthood with a legal conception the Government "do not do this either overtly or consistently". (Ev21, para 1.1) Others had a more ethical objection: for example, the Christian Institute argued that the provisions were "a radical and dangerous new departure in family law" (Ev61, para 13) and the Family Education Trust were deeply concerned at the "lego-kit model of family construction" in the draft Bill. (Ev69, question 16(a)) CORE argued that it was hasty to push through such recommendations without proper discussion. (Ev79, para 5)[141]

FEELINGS OF DONOR-CONCEIVED PEOPLE

267. While the provisions of Part 3 take a legal approach to parenthood issues, we have sought to take into account a more human angle, including the views of donor-conceived people about parenthood. We were struck by the evidence from David Gollancz who told us that when he first spoke publicly about his experience of being donor-conceived "it was as though someone had taken my autobiography and torn it up". (Ev44) We also heard oral evidence from Joanna Rose and had written evidence from several other donor-conceived people.

THE RIGHT TO KNOW AND THE NEED TO BE TOLD

268. The draft Bill does not provide a donor-conceived person with a legal right to be told that they were so conceived, but only the more limited right to inquire, once they reach the age of 18, whether this is the case (see Chapter 6). Neither does the draft Bill place legal parents under a duty to tell a child he or she was donor-conceived. Professor Almond argued that the parenthood provisions would create a sizeable minority of people legally and formally disadvantaged by being deprived of knowledge of their own genetic origins. (Ev21, para 2.1) Andrew Bainham noted that the provisions were similar to those in the Adoption and Children Act 2002 which do not give the adopted person the right to know that he or she is adopted but do give the right to access certain information at the age of 18, including the right to access his or her original birth certificate. (Ev14, para 5) We heard much powerful evidence on whether the draft Bill should provide a legal right for a donor-conceived person to know of his or her genetic parents.[142]

269. Many of those who supported such a legal right did so on the basis that as the state was involved in assisted conception, it should not be actively involved in a deception. Walter Merricks, Chairman of the Donor Conception Network said that assisted conception was "licensed by the state and authorised by the state". (Q 689) David Gollancz argued that "where the state intervenes … it has a duty to protect that right not to be deprived or deceived" (Ev44). Similarly, Joanna Rose argued that "the more people who are complicit in that the worse." She told us she felt that it was "an assault on somebody's personhood to misinform them about their ancestry" and that "the Government's responsibility [is] to lead the way in the right way to parent children and not to deceive them, and certainly not to be complicit in that". (QQ 695, 696, 705)

270. Andrew Bainham told us that the draft Bill should be amended to give donor-conceived people the legal right to know and the legal parents the legal duty to tell because "the right to information at the age of eighteen is largely illusory in the case of donor-conceived children unless they know they are donor-conceived". He also noted that international law increasingly recognised that the child has a right to knowledge of biological origins and that there was a 'very strong trend' in English domestic law to get at the truth of biological origins. (Ev14, paras 5-9) He also noted that the draft Bill as it stands "is capable of discriminating in favour of the donor-conceived children in same-sex relationships and against those who have opposite-sex legal parents" because it becomes clear to the child of same-sex parents at an early age that those parents cannot both be the biological parents.

271. Several witnesses who did not necessarily support a legal right or duty, argued that parents of donor-conceived children should be open and honest. For example, Susan Golombok, Professor of Family Research and Director of the Centre for Family Research in the Faculty of Political Sciences, University of Cambridge, thought "it is better for children to be told, and if they are going to be told, they should be told as young as possible". (Q 902)[143] Walter Merricks said that the driving philosophy of the Donor Conception Network was "that children who are conceived through donated gametes or embryos should be told the truth about the origins of their conception". (Q 675) Some witnesses were firmly against making it a legal right or duty. For example, Dr Françoise Shenfield, Clinical Director in Obstetrics and Gynaecology, University College London Hospital Reproductive Medicine Unit, argued that it would be an "infringement of parental autonomy and responsibility". (Ev105)

272. In keeping with our approach in paragraph 239 we believe that the rights of the child should always be taken into account. We have grappled with the questions of whether it is in the best interests of the child to tell them about their biological parents and who should decide this. We note that many of the provisions in Part 2 of the Bill are illusory if the fact of donor-conception is not known. We believe that it is in the best interests of the child to know of their donor conception. Parents should be encouraged to be open and honest, and counselling and intermediary services should be available to them. However, we do not support those who call for a statutory duty on parents to tell their child of his or her donor-conception.

BIRTH CERTIFICATES

274. Those who argued in favour of registering the fact of donor conception on the birth certificate did so for a number of reasons. For example, Søren Holm, Professorial Fellow on Bioethics at Cardiff Law School, and Professor of Medical Ethics at the University of Oslo, told us that "fertility treatments have created a split between genetic/gestational and legal parent status. We have to decide which of these the birth certificate should reflect. My view is that it should reflect both" (Ev111). Tom Ellis, a donor-conceived person, argued that it "must be required to be indicated on the birth certificate" because a person must know they are donor-conceived (Ev16, para 19). Professor Almond argued in favour because it would "give a parent strong motivation for finding a way to let the child know". (Q 901) Others also gave general support.[144]

275. However, we also heard from those who were against such proposals. The Donor Conception Network told us that "It is no way to force people to tell their children by putting it on the birth certificates" and also argued that the law would be evaded and "would lead to fewer people telling their child." (QQ 676, 687) Laura Witjens, Chair of the National Gamete Donation Trust did not see the point of putting it on a birth certificate because it would force people to tell rather than feeling they have to tell because it is in the child's interests. (Q 691) Sheila Pike from Sheffield Teaching Hospitals NHS Trust, and Kate Grieve from University Hospitals Coventry and Warwickshire NHS Trust, argued that birth certificates were about parental responsibility not genetic origins and that families should have freedom to manage information for themselves. (Ev22)[145]

276. We recognise the force of the argument that the fact of donor conception should be registered on a person's birth certificate. This would create the incentive for the parent(s) to tell the child of the fact of his or her donor conception and would go some way to address the value of knowledge of genetic history for medical purposes. Moreover, unlike where children are born through natural conception, assisted conception by its nature involves the authorities and we are deeply concerned about the idea that the authorities may be colluding in a deception. However, we also recognise that this is a complicated area involving the important issue of privacy, as well as issues of human rights and data protection. We therefore recommend that, as a matter of urgency, the Government should give this matter further consideration.

COUNSELLING/INTERMEDIARY SERVICES

277. The 1990 Act is amended in several places in the draft Bill to cover a requirement for persons to be given "an opportunity to receive proper counselling" in circumstances of accessing the register to find information about donor-conceived siblings or genetic parents (new sections 31ZA and 31ZD in clause 32 of the draft Bill), and as part of the conditions for licences for treatment (new section 13(6), 13(6A) and new section 13A).

278. Most of those who gave evidence were concerned to ensure that such counselling and intermediary services were available and free at the point of delivery (for example, Ev22, para 11). Lady Julia Tugendhat, Vice-President of the British Association for Counselling and Psychotherapy told us that it would be easy to make a token gesture and say that counselling was necessary and argued that it really was important. The National Gamete Donation Trust argued that counselling should be made available to those who are informed that a donor-conceived person has requested identifying information about them. (Ev101, note 126-127-131) We recognise that, given the issues involved in the practical application of these provisions, counselling is important and we recommend that the Government should ensure that counselling services in these areas are available and have sufficient funding to provide services to all who require them.

Sperm sorting kits

279. Clause 65 of the draft Bill provides a power for the Secretary of State to pass regulations making it an offence to advertise or supply a "sperm-sorting kit" (designed to apply a process to human sperm to determine the sex of any resulting child). Under any such Regulations, the maximum punishment for such an offence would be an unlimited fine, two years' imprisonment, or both. The Explanatory Notes to the draft Bill explain that "The Department of Health is not aware of the existence of such kits at present, but it is possible that 'DIY' means of sex selection … may be developed for home use in the future". (para 171) In evidence, different views were expressed both about the policy intention and about the desirability of legislating in this way for unknown future developments.

280. Of those who expressed a view, most witnesses supported the provisions in clause 65 largely for the same reasons they supported a more general ban on sex selection for non-medical reasons[146]. A few witnesses thought that the advertisement or supply of such kits should be banned now in the draft Bill.[147] However, Professor Sir Ian Kennedy, Emeritus Professor of Health Law, Ethics and Policy, School of Public Policy, University College London, and Chairman of the Healthcare Commission, thought that, given the horizon scanning efforts of the HFEA, it should be a matter left to the regulator. (Ev108)

281. On the question of the desirability of legislating in this way for unknown future developments, there were more mixed views. Some, such as the Scottish Council on Human Bioethics, felt that it was both desirable and appropriate for Parliament to seek to legislate for future technology both generally and in particular cases. (Ev25, para 17)[148] Roger Brownsword, Professor of Law at King's College London, thought that, subject to the provisions being sufficiently clear and fully debated and authorised at the time of enactment, these provisions were desirable and appropriate. (Ev98, paras 9 to 11) The Royal College of Pathologists acknowledged the balance of issues but concluded it may be wise to leave this as an option. (Ev06(2), part 4)

282. Others argued that there were real legal and practical problems in seeking to legislate in this way. For example, Hugh Whittall, Director of the Nuffield Council of Bioethics, felt that it "would be almost impossible to hope to legislate in advance for future developments" for three reasons: it is highly unlikely that all future developments could be anticipated; the significance of any developments is hard to predict; and, more generally, "legislation that seeks to address highly specific issues in a prescribed way is unlikely to be ideal. (Ev15(b)) Similarly, the MRC felt that "to attempt to legislate for these unknown developments is unlikely to be effective". (Ev09(a)) In addition, the British Fertility Society expressed concern that availability of such kits over the internet would make it practically impossible to prohibit their use in the United Kingdom. (Ev23, section M)

283. The Department of Health told us that "It is an attempt to be consistent on the policy of not allowing sex selection for social reasons" but acknowledged that beyond prohibiting their sale "we are pretty limited in what we may be able to do about things". (QQ 268-270)

284. We have sympathy with the intention behind clause 65, but we take seriously concerns that this legislative provision would be unenforceable in practice and we note the comments from the Department of Health in this regard. We recommend that clause 65 should be removed from the draft Bill.

Surrogacy arrangements

285. Clause 66 of the draft Bill provides exemptions from the provisions of the Surrogacy Arrangements Act 1985 for not-for-profit bodies in two areas. First, not-for-profit bodies may receive payments for carrying out activities in two categories: initiating negotiations with a view to making a surrogacy arrangement; and compiling information about surrogacy. It would remain unlawful to receive payment for offering to negotiate a surrogacy arrangement or for taking part in such negotiations (but these activities are not unlawful if there is no charge). Second, such bodies may publish or distribute an advertisement referring to activities that may be legally undertaken on a commercial basis.

286. Both Professor Ann Buchanan, Director of the Oxford Centre for Research into Parenting and Children, and Professor Susan Golombok, Professor of Family Research and Director of the Centre for Family Research at the University of Cambridge, noted that surrogacy shared similar issues with other forms of assisted conception, including issues about the child's need to know of the circumstances of their conception and parental understanding of preparing the child for issues about identity (Q 915). However, Professor Susan Golombok, who told us that she had carried out the longest study of surrogacy families in the world, noted that the one thing that distinguishes surrogacy families from other kinds of families created by donor conception is that from the outset they "have to be open with the children about the nature of their conception because suddenly a child appears". (Q 915)

287. We received evidence from a number of witnesses, mainly faith-based organisations, who were against surrogacy per se and therefore against the provisions in the draft Bill.[149] Others raised specific areas of concern in relation to surrogacy. In particular, several echoed the concerns of Professor Brenda Almond, that advertising and the payment of a range of fees represented "a step towards commercialising surrogacy". (Ev65, para 10)[150] Comment on Reproductive Ethics (CORE) argued that the procedures entailed "significant risks" for the women involved. (Ev79, para 6.1)

288. Others, however, were more positive about the provisions in the draft Bill. Professor Sir Ian Kennedy felt that the balance between maintaining an appropriate response to infertility for some couples on the one hand and prohibiting commercialisation of the practice on the other "does seem about right". (Ev108)[151] Professor Margaret Brazier, from the Centre for Social Ethics and Policy, School of Law, University of Manchester, argued that clause 66 simply sought to legitimise current practices in surrogacy but expressed concern about "legitimising the role of surrogacy agencies without any process for registering or controlling such agencies" (Ev109, question 10). The British Association of Social Workers Project Group on Assisted Reproduction (PROGAR) and the British Association for Adoption and Fostering similarly argued that such agencies should be formally registered with the regulator.[152]

289. We support the balance that the draft Bill is trying to achieve, but we do not think it goes far enough to protect both children born as a result of surrogacy and surrogate mothers. We recommend that the draft Bill be amended to bring the regulation of surrogacy within the remit of the HFEA.

Internet sperm donation

290. Clause 11 of the draft Bill inserts a new license category (following amendments to the 1990 Act by the EU Directive) of "authorising activities in the course of providing non-medical fertility services". This would allow a licence for up to 5 years to be granted to authorise the processing or distribution of sperm, other than the procurement or distribution of sperm to which there has been applied any process designed to ensure that any resulting child will be of one sex rather than the other (Schedule 2, paragraph 1A). This is intended to include a very small number of internet-based businesses that arrange for donated sperm to be delivered to women at home for self-insemination.[153]

291. We had a limited amount of evidence on this. The British Association of Social Workers Project Group on Assisted Reproduction (PROGAR) welcomed the provisions bringing fresh gamete and internet supply services within the regulatory framework (Ev29, para 2.1). The Lawyers' Christian Fellowship and the Church and Society Council of the Church of Scotland both opposed the internet-based sale of sperm and the Lawyers' Christian Fellowship argued that "Society should do all it can to prevent women from conceiving children in this way" in the interests of the child. (Ev52, paragraph 19 and Ev97)

292. We support moves to bring such practices within the regulatory framework.

142 Ev72, para 15, Ev87 para 6.4 Back

143 See also Ev103 Back

144 See also Ev44 , Ev103 Back

145 See also Ev105, Ev108, Ev43 Back

146 Ev56, section 1, Ev106, Ev25, para 17, Ev97, part 4 Back

147 See Ev24, para 17 and Ev26, para 19 Back

148 See also Ev09, part 4 Back

149 Ev24, para 19, Ev25, para 17, Ev52, paras 16 and 19, Ev65, para 10, Ev79. para 6.1, Ev87, para 3.1, Ev74, para 10 Back

152 Ev29, paras 2.9 and 3.10, Ev37, paras 2.8 and 3.14 Back

153 Explanatory Notes, para 8 Back