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Lord Lester of Herne Hill: My Lords, I am grateful to the noble Baroness for giving way. I just point out that the Government could not have used the fast track procedure, at least I do not think they could, because I do not believe that the Human Rights Act would have applied. But in any case, even if it had, certainly the Human Rights Committee would not have regarded this course by speedy Private Member's Bill as in any way worse than using delegated legislation. So I do not think with respect that that criticism is well founded.
Baroness Noakes: My Lords, in such matters I, of course, bow to the immense knowledge of the noble Lord, Lord Lester. It was my understanding that the fast track procedure could have been used in this case, but if I am wrong, I certainly withdraw that. However, I still maintain my position that this is a matter that should have been dealt with by the Government in government time.
I was about to refer to the Government's previous record in these matters, in particular in the health sphere. We had an example of the use of the private Member's procedure last year when the noble Lord,
But let me now turn to the Bill. It affects only a small number of people, all of whose lives have been touched by tragedy. We cannot fail to feel compassion for the plight of the mothers involved and for their fatherless children. Those children are fatherless in their lives in fact and fatherless on paper. There is nothing that we in your Lordships' House can do about those children being fatherless in fact in their lives, but the Bill does allow us to do something about the paperwork. In that sense, it is a very small measure of symbolic rather than substantive effect. It is hard to object to the Bill in those terms and noble Lords on these Benches do not do so.
I should like in particular to say how much we support the Bill's reliance, at least so far as prospective cases are concerned, on consentboth the documented giving of consent and the absence of withdrawal of consent. The noble Baroness, Lady Hayman, underlined the importance of consent. If consent had not been at the heart of this Bill's provisions, its contents would have been very hard to support.
I have one question for the noble Baroness, Lady Pitkeathley, and two areas of concern to raise. The first question is the detailed one of why 42 days are allowed for registration in England but only 21 days in Scotland. That seems to me to be an unnecessary distinction between what happens in Scotland and what happens in England. New Section (5E) to the 1990 Act refers to Scotland. Does it mean births in Scotland are affected or births to Scottish mothers? If an English mother happens to be in Scotland when she gives birthwhich can happendoes she have 21 or 42 days? I could not work that out from the Bill. I hope that the noble Baroness, Lady Pitkeathley, can answer that question.
I turn to my two areas of concern. The first area of concern is the same as that raised by the noble Baroness, Lady Warnock; namely, that of allowing a mother to register the name of her deceased husband or partner where an embryo is created using donor sperm after the death of the husband or partner. In my opinion this tends to go into the realms of fantasy because we are not recording any real fact about the parentage of the child by using the man's name who was not the genetic father. That does not seem to me to be right. I know that was discussed in another place but I have not heard any convincing public policy reason for it. But I fully accept, as the noble Baronesses, Lady Hayman and Lady Warnock, and, indeed, the noble Lord, Lord Winston, said, that these matters raise important issues of public policy that go
The second area of my concern is retrospection. The noble Baroness, Lady Pitkeathley, anticipated that at least one speaker would raise the issue. It is important that we at least raise this area of concern. In general in legislation retrospection is unattractive. It is particularly unattractive in this case because the retrospection is based on different principles from that of Clause 2. Clause 2 is based on consent, which is a very important element of the recording of the father on a birth certificate. But Clause 3 dispenses with any evidence of consent. I am aware of the publicity surrounding particular cases and I do not doubt the sincerity of the individuals involved in those cases for one moment. The noble Lord, Lord Lester, took us through the history of Mrs Blood. However, it is true that the Bill will apply to those mothers different rules from those that will apply to others going forward, in that consent will not be required. I, for one, find that very difficult to take. I remind noble Lords that hard cases sometimes make bad law.
Lord Lester of Herne Hill: My Lords, can the noble Baroness clear up my puzzlement about the position of those on the Conservative Front Bench? As I have explained, the court gave a declaration that the present law was incompatible with the human rights convention. As I have also explained, but for the retrospective provisions we would have faced humiliation and condemnation on the international plane before the European Court, with damages and costs awarded that the taxpayer would have to bear. In those circumstances, I do not understand why the Conservative Opposition should object to providing an effective remedy retrospectively to avoid that mischief.
It is my understanding that the declaration of incompatibility, which required some retrospective change, could just as easily have been made using consent as one of the criteria for allowing the recognition. I may be wrong on that, but my understanding was that there was still an option as to which way retrospective effect could be given to the use of the registration of the father. That is why I drew the distinction between Clauses 2 and 3. Clause 2 uses consent, which is a very important concept, and Clause 3 dispenses with it in the case of retrospection. I understood that it was possible to comply with the European convention but to rest Clause 3 on consent as well, in effect. If I am wrong, I am happy to be corrected.
Baroness Noakes: My Lords, I beg the noble Lord's pardon. I meant an absence of evidence to consent, rather than an absence of substantive consent. The evidence of consent is the important aspect of Clause 2; it requires written consent. I was drawing a distinction between that form of consent and any other form of evidence of consent.
I look forward to listening to the responses of the noble Baroness, Lady Pitkeathley, on those points. I should be clear: noble Lords on these Benches bear the Bill no ill will. As I have outlined, many aspects of the Bill are very welcome, but some aspects cause us concern. We are mindful of the limited impact of the Bill and, for that reason, we have no intention whatever of standing in its way.
Baroness Andrews: My Lords, the Government strongly support and welcome the Bill introduced by my noble friend Lady Pitkeathley. Many midwives, metaphorical and otherwise, have spoken, but as the latest midwife she did a brilliant job in delivering this wonderful, bonny baby beautifully, elegantly and without harm. We are very grateful to her for that, and for speaking with such compassion as well as clarity and conviction about why the Bill is so important.
I am grateful that we have had such a very distinguished debate. Everyone who spoke brought a different sort of experience to bear. The noble Lord, Lord Lester, had unique experience of being part of facilitating the ability under the Bill to introduce new rights. The noble Baroness, Lady Hayman, and above all the noble Baroness, Lady Warnock, showed their experience of the history of the humane and improving way in which we treat ethical and medical issues on reproduction. The noble Lord, Lord Winston, is of course a unique asset to this House.
We have had an extraordinary welcome for the debate. I am very glad that the noble Baroness, Lady Noakes, welcomed the Bill. I am sorry that we disappointed her and it is not a government Bill, but at least we have the Bill. It has been long in gestation; we are delighted to support it. It was not fast-tracked because the procedure under the Human Rights Act can be adopted only where there has been a declaration of incompatibility. The Bill was introduced in the House of Commons before a declaration of incompatibility, so we were out of sequence. As the noble Lord, Lord Lester, explained, we have had to deal with it in this way.
I also take the point that markers have been put down around the House about the need for a debate on wider ethical issues to do with reproduction. I am sure that the Government would be intent on listening to what has been said. We shall see what we can do.
As my noble friend said, one of the raisons d'etre of the Bill is to put right what is inhumane and discriminatory in the present law. We are very glad to do that. In the cases with which we are concerned, there is no doubt about who the father is or that the child was wanted by both parents. It is unfair to deny children who are growing up today a recognition of that fact in law. The Bill would allow for the father's name to be entered on the child's birth certificate when the child has been born following fertility treatment after the man's death.
The unfairness rests in part on inconsistency. As the law stands, if an embryo created through in-vitro fertilisation had been placed in the woman before the man's death, or if the child had been conceived in the normal way, his name could go on the birth certificate. But if the man dies before the embryo could be placed in the woman, the birth certificate must not record him as the father. That means that the family has to come to terms with not only a tragic loss but with the additional distress caused by the rigidity of the law.
The families affected by that failure have campaigned long and hard on the issue, and I pay tribute to them and to those who have championed their cause, particularly the noble Lord, Lord Lester. As my noble friend emphasised, the Bill is of very narrow scope. It is symbolic recognition only, because to do otherwise would make it extremely difficult to wind up a man's estate. Therefore, the Bill does not propose to allow the child any rights of succession or inheritance, or any other legal status.
Although symbolic, the recognition is very important. Putting the father's name on the birth certificate will, I believe, be of considerable and lasting emotional value to the children themselves. As the noble Baroness, Lady Hayman, said to those of us who have been fortunate in not having to contemplate such circumstances, we can only guess at the significance of that to children as they grow up.
As noble Lords know, the Bill implements a recommendation by Professor McLean, a professor of law and ethics in medicine, in her report published in July 1998, Review of the Common Law Provisions Relating to the Removal of Gametes and of the Consent Provisions of the Human Fertilisation and Embryology Act 1990. As the title suggests, the report was primarily concerned with issues around consent, and rightly so.
We accepted that recommendation and are very happy to support the initiative. However, the Bill goes further than the McLean review, for very sound reasons, as my noble friend emphasised. The Government believe that it would be wrong not to recognise the rights of children who are growing up now and their families, rather than merely children yet to be born. Therefore, the Bill will apply to existing as well as future cases. I am particularly grateful to noble Lords who have welcomed the retrospective elements of the Bill and the humane difference that that will make.
I understand some of the reservations spoken about by the noble Baroness, Lady Noakes. I believe that she was comprehensively answered by the noble Lord, Lord Lester. We have given the issue a great deal of consideration and we think that it is the rightthe humanething to do. It prevents those young people being discriminated against in any way. It confers dignity and it will refer to a very small number of people. We are very careful in the House with issues of retrospection, but we believe that this is an honourable exception and I am very grateful to have the support of Members of the House. I also welcome the emphasis in the Bill on the importance of proper consentwritten consentin prospective cases. It sends an important signal and is an important safeguard.
The Bill will also remedy a declared incompatibility of the current law with the European Convention on Human Rights and sets out a clear process to be followed in future. I must say to the noble Lord, Lord Lester, that that is a fair cop; I am afraid that we are at fault. It would have helped to explain the context if not the content of the Bill. We will take careful note of this for future reference.
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