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As the Bill passes through its various stages in Parliament, there will be opportunity for noble Lords to scrutinise very thoroughly the wide range of changes that the Bill brings, and I look forward to participating in its passage.

6.38 pm

Baroness Neuberger: My Lords, like other noble Lords, I begin by declaring an interest as a former member of the Human Fertilisation and Embryology Authority and its two predecessor organisations, as a former member of the Medical Research Council, and as an honorary fellow of the Royal College of Physicians and the Royal College of General Practitioners. As others have declared their religious interests, I declare my interest as a rabbi and the president of Liberal Judaism in the UK. As other noble Lords have also declared, I was a member of the Joint Committee of both Houses on the draft Bill, to which this is the substantive successor. The committee was wonderfully chaired, with considerable time given to discussion of the details, by my honourable friend in another place, Mr Phil Willis. We should all also pay tribute to the Clerks of the committee. They did a stunning job in rather difficult circumstances, because we met so frequently.

I also thank the Minister for the Government’s taking so seriously our comments in the light of the evidence we heard. I am particularly grateful to the Government for recognising that it is not in the best interests of better regulation, or of the kinds of debate on these complex issues which need to take place, to merge the two authorities, the HFEA and the HTA. I am particularly grateful that they took seriously the scientific evidence we heard on the use of interspecies embryos. I believe that the Government are on the way to getting this right, although the definitions—as the noble and learned Lord, Lord Mackay of Clashfern, made clear and other noble Lords hinted at—can and should still be debated in considerable detail. I want to focus primarily on that issue.

Like other noble Lords, in the past 10 days or so I have been submerged beneath a huge pile of letters from many members of the public asking us not to legislate to allow hybrid embryos and, in some cases, comparing this scientific technique to Nazi Germany. As the child of a refugee from Nazi Germany and the relative of many others who perished, I find that comparison particularly odious. Be that as it may, I believe that it is right that we take this strongly expressed view very seriously even if it comes from an organised lobby, as the identical nature of the letters suggests that it does.

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Some scientists would like to dismiss this opposition and are impatient with it. I would argue that that is a mistake. I think that we have to have this debate properly, as we did to some extent in one of the best debates that I have been part of in my three years in this House—that on stem cell research in May, to which the noble Baroness, Lady O'Cathain, referred. We need to lay the issues on the table and, in the face of real concern “out there”, whether we like it or not, we need to be clear about what we think and why. Because of that concern, and unlike the noble Lord, Lord Winston, I believe that regulation is needed and I support it. I think that we are going along the right lines.

Let us try to take the concerns on board. First, there is clearly an irreconcilable difference between those who believe that ensoulment happens at the time of conception and those who believe in a more gradual acquisition of human status over the development of the foetus. Within the main religious traditions to be found in this country, as the right reverend Prelate the Bishop of St Albans made clear, we range from one end of the spectrum which says that this tiny embryo, or pre-embryo as we used to call them—which no one suggests should be used for scientific research beyond 14 days or the appearance of the primitive streak—is in fact a person, a human being in the making deserving of all the respect that we would give any human being, acknowledging the unique status of the human being, through all sorts of other permutations of views about the nature of the pre-embryo, embryo, foetus, newborn or premature baby and new baby. And you can arrive at the traditional Jewish view that does not really recognise the full human status even of the newborn, as evidenced by the fact that the newborn baby does not get a full funeral should it die within the first 30 days of life; it is not a person in the sense of, say, a one year-old. Suffice it to say that that particular bit of legislation could never have been framed by women, who would have felt the existence of the unborn child within them from the time of it “quickening”, kicking, pressing on the bladder, and whatever else unborn babies of six months' gestation or more do. But that was and remains to some extent the position within truly Orthodox Judaism.

Those two positions can never be brought closely together because they come from totally different standpoints. Whatever we do in this area is a compromise. The compromise to which we have come, rightly in my view, is to set an absolute limit of 14 days or the appearance of the primitive streak, whichever is earlier, and to forbid implantation of cloned embryos—no reproductive cloning. And that seems about right.

The real concern that has emerged from this forest of trees under which we have all been sitting for the past few days is about interspecies embryos, the use of an animal egg and a human sperm to create interspecies embryos for research purposes only, entirely for the benefit of human beings. It is here that I have to say that I simply do not understand. I think that I would understand it if we were likely to see an army of half-sheep/half-men walking across Westminster Bridge. That would be horrifying, even if it were possible, and would indeed require enormous public debate; but no

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one is suggesting that. Indeed, what they are suggesting should make those concerned with the unique status of the human embryo feel rather reassured. It is to take an animal egg and, as it were, scrape out its middle—its yolk, for want of a better comparison—and to insert within it human sperm to grow on for a few days to use in order to create stem cell lines for use potentially in the treatment of terrible human diseases such as Parkinson's. Researchers are working on developing a way to replace with healthy cells the dopamine-producing nerve cells that have died in Parkinson’s disease.

Although we hear much about the use of cells from cord blood—I absolutely agree with the noble Lord, Lord Alton, that we should collect cord blood as the norm—and although we hear a lot about adult stem cells, and indeed should look at the possibilities that adult cells give us, it does not mean that we do not have still to use these interspecies embryos where we can for research until new techniques are established that make that unnecessary. If we want to continue with research that is very promising, despite some of our correspondents throwing doubt on how valuable it is, we need to do it in this way for the alleviation of present human suffering. That is the point.

No one is suggesting implanting these eggs into any woman. No one wants to create hybrid creatures, half-man/half-cow. This technique of interspecies embryos is to be used to protect women from having their ovaries over-stimulated, of which there is a minor but not insignificant risk in fertility treatment, to get more eggs. The standard treatment now usually produces more eggs than are needed for fertility treatment per se, but the custom is to share eggs, which allows women with fewer financial resources to access treatment and leaves precious few human eggs for use in research. I wholly agree with the noble Baronesses, Lady Deech and Lady Jay, who have been pressing for making more in vitro fertilisation and fertility treatment available on the NHS. Part of the reason that the eggs are not available is that the treatment is not available on the NHS, so people are having to pay for it.

Those who dislike the use of human embryos for research purposes should be celebrating the fact that fewer eggs are available for such purposes. What is to be created between human sperm and an animal egg is in no sense a person. Surely it does not require that same concern about the uniqueness of the human being that a fully human embryo does. Indeed, it seems preferable, given the desire to respect the human embryo, to use such interspecies embryos for research. When we debated these issues last May, the noble Baroness, Lady O’Neill of Bengarve, asked us to think differently about what it means to have these clusters of cells, what is truly human, and what is in fact animal. Do those terms still apply as we used to think that they did?

The Christian Medical Fellowship has expressed its concern, arguing that such a technique blurs,

and undermines,

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I beg to differ. The use of such eggs for research and not for cloning in no way blurs the difference between animals and humans but merely provides material on which to conduct research; material which is not fully human and therefore, according to this line of argument, less deserving of respect. The biblical prohibition on mixing would indeed be transgressed by this, but that was designed—as those who read the Bible and biblical and rabbinic literature will know all too well—to prevent the ploughing of a field with an ox and an ass yoked together and to prevent the wearing of clothes made of two fabrics, such as wool and linen. The Hebrew term for that prohibition—following the noble Lord, Lord Winston—is called shatnes. I wonder if those who cite the biblical transgression of mixing wear a mixture of wool and silk or linen and wool; and if they do, whether that gives them cause for ethical alarm.

As for damaging the concepts of historicity and lineage, that is true only of any embryos that are to be placed within a woman and lead to live births. Such arguments are simply irrelevant when discussing research and would come to the fore only if we were ever to allow, as the noble Lord, Lord Walton, said, the creation of embryos with three lots of genetic material: the father's and the mother’s with the mitochondrial material scraped out because of severe mitochondrial disease.

I do not have to time to say any more but I would like to ask the Minister two questions. First, given the concern expressed around the House, will he support the idea of a parliamentary ethics committee that can debate these issues on an ongoing basis? Secondly, will he in some way respond to the challenge thrown out by my noble friend Lady Williams of Crosby? As we are the leaders in regulation and legislation in this area and this research, how can the UK press for more global guidelines and a global ban on the implantation of cloned human embryos in the future?

6.50 pm

Baroness Warnock: My Lords, I greatly welcome the Bill. It is timely and necessary to update the 1990 Act. Like other noble Lords, I am especially pleased that the Government have decided to keep the HFEA—whose creation was the cornerstone of the 1990 Act—in being as a separate entity, thus preserving its continuity and its authority.

It is worth remembering—as many noble Lords have remembered—the history of the Bill, and the changes that have taken place since 1978 when the first IVF baby was born. I shall not bore your Lordships with the familiar details. However, it is worth remarking that when the committee of inquiry that I had the honour to chair was set up in 1982, we were concerned primarily with IVF and other remedies for infertility. It was in that context that the question of the moral status of the early embryo in the laboratory became the centre of moral controversy. Such an entity—a live human embryo outside the human body—was wholly new to the lay public, though not to the scientists who had been working for many years to make such an embryo possible. It was because of that novelty that regulation seemed necessary at that time and has

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continued to seem necessary to many people. I share the view of the noble Lord, Lord Winston, that it should not be heavy-handed but, as a result of the history of the legislation, we are in a position where regulation will continue. It is futile to suggest that we now go back and have no regulation, nor would I advocate that.

The centre of our report was the regulation of remedies for infertility, but we ventured to put in a single chapter listing the possible future uses of the new embryology in the wider context of genetic disease. In those days, we had no concept of stem cell research. In the more or less six years that passed between the publication of the report and the passage of what became the 1990 Act, the emphasis shifted considerably, and during the passage of the Bill in your Lordships’ House many of those who voted in favour of it did so on account of the wider applications of the benefits. Although they are perhaps more distant now than seemed probable then, they have so vastly increased that they constitute a positive moral imperative upon government to allow research to continue, to be properly funded and to be regulated with not too heavy a touch. The passionate commitment to the research shown by the noble Lord, Lord Walton, did a lot to change the minds of many Members of Parliament at that time.

It is often remarked that since 1990 there have been huge changes not only in knowledge and technology but in social and moral attitudes among people at large. The passage of the Human Rights Act may be taken as symbolic of those changes. There has certainly been a change in the readiness of society and government to countenance a variety of different forms of family, including same-sex partnerships. It seems consistent with such attitudes to remove from the Bill the requirement that, for assisted conception to be offered, account must be taken of the need of the child for a father. However, this is already highly controversial. It is a clause that is capable of being interpreted as discriminatory, and with that I have a certain, rather mild, sympathy. However, judging by the huge piles of correspondence that I, like other noble Lords, have received, it has been taken to be a statement that the old forms of family are no longer necessary and, particularly, that men have no use in the procreation of children. That does not seem the intention of the Government, but if that is how it is widely interpreted it ought to stay in the Bill, partly because it has always been a pretty ineffective bit of legislation. That and the reference to the welfare of the child seemed pretty wishy-washy in 1990 and still do now, and I doubt whether that consideration has ever caused a change in a decision on whether to offer in vitro fertilisation. On the committee, we used to spend many happy hours inventing cases where we would think it wrong to allow a couple who wanted IVF to have it—known child abusers or people who were more interested in their own careers for whom the child would be an accessory—so we put the stuff about the welfare of the child in the report. It has done no harm. I do not think the bit about the need for a father has done any harm either, but I very much doubt it has made any difference. Therefore, I would be quite happy to see it still there.

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At the centre of the moral thinking behind the 1990 Act was a broad utilitarianism. Changes may have come about, and we may all be much more rights-oriented than we were before the passage of the then Human Rights Bill, but in that moral thinking there was very little consideration of human rights. It was much more a broad utilitarian consideration, and I must say a few words in favour of utilitarianism as the right reverend Prelate the Bishop of St Albans spoke rather slightingly about it. As legislators, parliamentarians have to be utilitarian in the broadest possible sense. They have to consider the consequences of any legislation they propose and carry through and, in considering the consequences, they have to weigh up the harms that may be done to society as a whole against the benefits to society as a whole. It is a morality that gives thought to the common good in so far as it can be ascertained. That is an important principle. On the committee, we thought that utilitarianism in this broad sense was the philosophy that must lie behind any legislation—weighing up harms against benefits, which in the sphere of animal experimentation is rather misleadingly called cost-benefit analysis.

The fact that there was no emphasis on human rights—there is none in the Bill—is one reason why it would be so deplorable to confuse the issues before your Lordships’ House if an amendment concerned with abortion policy were tabled. Although it is true that the Abortion Act and the Bill are concerned, in different ways, with the status of the embryo, in the case of abortion the question of rights seems inevitably about to arise. Some of your Lordships will remember that in 1990 the noble and learned Lord, Lord Mackay of Clashfern, reminded the House that we were in danger of losing the Bill altogether because of the amendment referring to abortion that was tabled at a very late stage.

At this stage, I must in justice call attention to the enormous part that the noble and learned Lord, Lord Mackay of Clashfern, played in getting the 1990 Bill through this House and on to the statute book. When I was in Cambridge teaching about this issue, all I used to do was read aloud the speech that he made from the Woolsack when he was putting the issues before the House in the clearest possible way. Ever since, I have had the greatest admiration for that bit of parliamentary procedure.

We must resist any attempt to foul the waters now with talking about the Abortion Act, even though we may passionately feel that it needs to be revised. We must, in fact, continue to do as we did in 1990, with our admirable philosophical practice of distinguishing things that differ.

7 pm

Lord Turnberg: My Lords, it has been a great privilege to have heard such a group of distinguished and expert speakers in the debate so far. I am particularly grateful, if a little humbled, to follow the noble Baroness, Lady Warnock, whose words I listened to with rapt attention. I declare interests as a fellow of the Royal College of Physicians, as a past chairman of its ethics

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committee, a fellow of the Academy of Medical Sciences and a scientific adviser of the Association of Medical Research Charities.

If ever there were a listening Government then this is; at least as far as this Bill is concerned. It is a pleasure to see that they have taken on board the large majority of the recommendations of the Joint Committee, on which I have the privilege to sit for at least part of the time. There is much greater clarity and reason to the Bill, so that it is now much more fit for purpose. It strikes in general a good balance of protecting the safety and confidentiality of patients, including the children, and at the same time opening up the possibility of much valuable research which otherwise would not be possible. The increased flexibility that it envisages by allowing the Secretary of State to modify the regulations in light of new advances is, pace the noble and learned Lord, Lord Mackay of Clashfern, extremely important. I am not going to expand on the positive steps taken in the Bill, but the proposal to keep separate the HFEA and the HTA is a great relief. Although I am disappointed, as is the noble Lord, Lord Jenkin, that the Government do not wish to re-examine the Human Tissue Authority, I understand their reasons, and I hope that we will be able to return to it at some not-too-distant time. There are certainly some issues that need to be examined.

The inclusion in the Bill of greater clarity about the definition of what constitutes an embryo, a gamete and so on, about the regulations under which mitochondrial diseases, for example, might be researched, and under which hybrids and cybrids may be used for research are all major steps forward and are supported strongly not only by the scientific and medical community but by the patient groups that I have dealings with.

Having applauded the Government so loudly, it may seem niggardly to point out some aspects where we need to look again to see whether we have it quite right; nevertheless, I have to do so. Most of the problems that I want to focus on arise from the distinctions that are made between IVF and other forms of fertility treatment. I shall talk about the routine treatment of infertility by IVF, not the other possible uses of human embryos for research, the development of stem cells and so on. I am talking about infertility and the use of IVF. Patients who are infertile usually go through a range of treatments—drug treatments, occasionally surgery, often intrauterine sperm injections—and if they do not work they may go on to a trial of IVF. The point is that IVF is part of a continuum of a range of treatments and it is now well used and documented as a routine therapy in many places. And yet, it is treated quite differently from the other forms of therapy.

While some distinctions may be necessary, a number of gross anomalies arise. The first arises out of the need to take account of the interests of the child, which is very laudable in principle; but in practice a requirement is placed on the obstetrician to assess the suitability of potential parents for parenthood, which is difficult to fulfil. I go along very much with what the noble Baroness, Lady Warnock, said about the practical outcome of having that in the Bill. Leaving aside the practical difficulty of making

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such an assessment in advance, it is quite illogical to single out this form of fertility treatment from the other forms that I have mentioned. Indeed, it is almost bound to be the same patients who, having gone through a range of efforts to render them fertile, suddenly find themselves having to be formally assessed for their suitability for parenthood. What would happen if they were turned down at that last step, which is highly unlikely? If you go along that route, you might in logic need to assess every couple wanting to have a child. It does not seem that we have got this quite right.

There is the issue of data collection, which some noble Lords have mentioned, which is required by the HFEA. It does not, of course, collect data on other forms of fertility treatment, but it requires that not only all successful IVF treatments are reported to it but all unsuccessful cycles of treatment. All the units that practise IVF have to be licensed and collect their own data, but the HFEA collects them as well and then squirrels them away—that is the important point—so that this important body of information is unavailable to anyone. Even fully anonymised data held by the HFEA are inaccessible to legitimate researchers; what a waste. Data collected in the future, as I understand it and if I read the Bill correctly, may now be used for research under strict conditions, but what about the data that are already held over many years? These are rich sources of information, which could provide invaluable help for future patients. I hope that we might consider a mechanism that allows research access, such as through the Patient Information Advisory Group—PIAG—which has been so helpful for research in, for example, the cancer registry field, but which has been denied the HFEA field.

Finally, there is a discrepancy between the treatment of medical practitioners who are in breach of confidentiality in relation to patients’ infertility treatments. A doctor who misbehaves in this way in relation to any other form of infertility treatment is liable to be up before the GMC disciplinary committee and is likely to be struck off and prevented from practising again. You might think that is a pretty severe sentence. However, a doctor involved in a similar misdemeanour in relation to IVF is liable to criminal proceedings against him or her and a jail sentence or a fine, or both. That anomaly seems quite unjustified.

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