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Lord Walton of Detchant had given notice of his intention to move Amendment No. 4:
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The noble Lord said: In my speech at Second Reading, I made clear that the purpose behind the tabling of this amendment was to try to clarify the definition of an embryo as defined in the Act. I did that in the light of the judgment in the High Court on 15th November. I now appreciate that, although in that judgment the judge referred to the importance of accepting that the Human Fertilisation and Embryology Act 1990 referred to a fertilised embryo, the judgment made it clear that an embryo produced by nuclear transplantation once it reached the two-cell stage was an embryo.
Hence, in my view, the amendment is unnecessary. Furthermore, it would not be sufficient to preclude the production of an embryo by parthenogenesis which might then be implanted in a human uterus. For that reason, the amendment is flawed and I shall not move it.
Lord Brennan moved Amendment No. 5:
The noble Lord said: The 1990 Act permits the fertilisation of an embryo by the union of a human sperm with a human egg. This Bill makes no cross-reference to the 1990 Act. The 1990 Act does not have a definition section setting out the definition of the word Xfertilisation" and in any event there is no cross-reference.
The Bill provides that human reproductive cloning is prohibited otherwise than by fertilisation. The obvious question is: what is fertilisation? I am grateful to my noble friend, who at Second Reading clarified that in this context it meant the union of a human sperm with a human egg and that anything other than that was to be prohibited by the Bill. My amendment simply seeks to insert into the Bill that intent by a definition provision. If Xfertilisation" is to be so interpreted, there is no reason why the Bill should not say it. It avoids confusion or debate.
If there is some other process of fertilisation of which I am unaware, it should be clear whether the Bill does or does not embrace it. This is a criminal law Bill. If this key word is not defined it will be the subject of argument.
Lord Winston: I am very sorry to cross swords again with my noble friend, but I have a problem in relation to this particular amendment. One of the obvious difficulties is a biological one. It is possible to have fertilisation of a human egg by more than one sperm. Polyspermy is a regular event in human biology and occurs both naturally and within in vitro fertilisation, particularly in those of older reproductive age. I do not refer to those who are very old, but people in their late 30s and early 40s are much more likely to have polyspermic fertilisation with more than one sperm entering the egg. Nearly always this results in an abnormal embryo which is not viable.
As the Committee will be aware, a sperm has a single set of chromosomes, as does the egg. If two sperm enter the egg there are three sets of chromosomes instead of the normal two. Usually this so-called triploidy is non-viable. Sometimes it is possible by micro-manipulation to remove one set of chromosomes so that effectively one has an abnormal fertilisation with more than one sperm. By intricate surgical work someone may, theoretically, remove one set of chromosomes to return to euploidy, which is the normal complement of one set of chromosomes from two parents. For that reason, if for no other, to leave the wording as it currently is must be correct.
I understand that as an excellent lawyer my noble friend wants precise definition, but the notion of fertilisation is itself quite sufficient for the purposes of this Bill. After all, the real problem here is not so much fertilisation but the placing of what we all regard as a suspect embryo into a woman's uterus. Therefore, the problem is the potential to produce a cloned human being. I believe that it is better to leave Xfertilisation" as it stands rather than try to define it. I have concentrated on only one aspect of fertilisation, but biologically there are others.
Lord Brennan: Before my noble friend sits down, can he explain to the Committee what would be his response if a layman asked him what Xfertilisation" meant for the purposes of this Bill?
Lord Winston: That is an extraordinarily interesting question. The noble Baroness, Lady Blatch, looks at me incredulously. I can tell her that every single
Many people do not regard an egg as fertilised until there are two separate cells. That reflects a fundamental problem in biology. The reason it is so important is that some would argue that life begins at the moment of conception. However, biologists encounter a problem in that there is no definitive moment of conception. Conception is a continuous process which takes place over around 24 hours. For that reason, it would be better not to define fertilisation in greater detail than has been set down in the Bill. Furthermore, unless I am mistaken, that would reflect what was set out in the 1990 Act.
Baroness Blatch: The noble Lord remarked that I looked incredulous. Perhaps I have a rather naive understanding of the legislation which passes through your Lordships' House; namely, that when words are put on to the face of the Bill, they should mean something. If the Minister representing the government of the day is asked what certain words mean, we expect to receive a definitive answer. If no definitive answer is available, we may be forgiven for feeling somewhat confused.
The words set down in the Bill state that:
I believe that the argument which has been put forward by the most eminent scientist in our midst was, frankly, unacceptable.
Lord Winston: Perhaps I may respond to the noble Baroness. I do not agree with her comment. In the Bill it is clear what is meant by Xfertilisation"; it means the production of embryos using sperm and egg. That is quite sufficient and is also what is meant in the 1990 Act. I doubt whether it would be sensible to seek to define it in any more detail.
Baroness Blatch: Perhaps I may put one further question to the noble Lord. If that is the definition now being given by the noble Lord, then had the noble Lord, Lord Brennan, specified Xa single sperm and/or sperms", would that have been an acceptable definition for the purposes of the Bill?
Lord Winston: The noble Lord, Lord Walton, has mentioned parthenogenesis, which some would regard as a form of fertilisation. Perhaps the difficulty here is one of semantics. However, I am not sure whether I am helping with my interjection to the debate. Indeed, I
The fundamental difficulty here is that there is no precise biological definition of fertilisation. Having said that, however, what is referred to here is the mixture of gametes; egg and sperm—whether we mean one or two does not matter. What is important is cell nuclear replacement leading to the production of the embryo which is then placed in the uterus. That is what the Bill seeks to avoid.
Lord Hunt of Kings Heath: This has been an interesting debate. It has demonstrated the difficulties of definition when considering biological processes and has highlighted a problem generally encountered in legislation; that is, the more precise the definition, the more that may be excluded. That is certainly true in relation to the issue before the Committee.
The Bill has been phrased in such a way that the only embryos that may be implanted are those created by fertilisation. Embryos created by fertilisation are fully within the remit of the 1990 Act, which states in terms that no person may create, keep or use an embryo using fertilisation without a licence from the HFEA. Embryos that may be implanted under the terms of this Bill are those which are fully subject to the 1990 Act. That legislation is careful to set out exactly when the protection begins to apply, not least because it is important to establish the commencement of the 14-day rule for research.
If the amendment were accepted, we might risk a clash between the definition of fertilisation in this Bill and the careful approach taken in the 1990 Act. That would present the danger of introducing conflict between the 1990 Act and the definition used in the Bill before the Committee. It is essential that all embryos are covered either by the 1990 Act or by this Bill. For that reason, I would ask my noble friend to think carefully before he presses his amendment. Ultimately, the way in which the Bill is constructed ensures that what is not caught by the 1990 Act will be caught by the Bill. That is the beauty of the single focus given in it.
Lord Alton of Liverpool: Before the Minister sits down, perhaps he can help me on a point of clarification. In the principal terms used in the Human Fertilisation and Embryology Act 1990, Section 1(b) states:
X( ) In this Act Xembryo" means Xfemale gamete modified by nuclear transplantation.""
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X( ) For the purposes of this Act Xfertilisation" means fertilisation of a human egg with a single human sperm."
XA person who places in a woman a human embryo which has been created otherwise than by fertilisation".
If an embryo is created in a way Xotherwise than by fertilisation", then the word Xfertilisation" must have some meaning. The noble Lord, Lord Brennan, is seeking to give it meaning. An attempt was made to do that at the end of Clause 1 of the 1990 Act.
10.15 p.m.
Xreferences to an embryo include an egg in the process of fertilisation".
Do the Government uphold that definition in the context of the Bill before us today?
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