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Moreover, as the noble Lord, Lord Darzi, made clear at Second Reading on 19 November, the redefinition of family relationships has the effect of denying some children a legal father, from conception and for the whole of their childhood. In the context of same-sex male partnerships, Clauses 54 and 55 make provision for bringing children into the world who will be denied a legal mother for the duration of their childhood. On this point, it is interesting to note that the option favoured in the responses to the government consultation about the 1990 fathers provision was that it should stay and have added to it a new reference to the child’s need for a mother.

Some may say that, despite the implications of both recent research that I have mentioned and public

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opinion, Part 2 must become law because the impact of the current law discriminates against some adults. I submit that that is not the case at all. Whatever you think about current arrangements, the truth is that single women can and do access IVF and that, where the woman is in a same-sex partnership, her partner can subsequently adopt the child. The same is true of a man in a same-sex partnership who, according to the new HFEA code, can now use surrogacy arrangements to produce a child who can effectively be brought up by two fathers. My amendments would not change that.

It is not entirely clear to me why same-sex female partnerships should effectively be able to access IVF, given the current obligation to have regard for the child’s need for a father. I suppose that it is a function of the fact that a woman seeking IVF presents herself as a single woman and is treated by the obligation to have regard for the child’s need for a father in the same way as any other single woman is treated. That that takes place at all is, in my view, wrong, given the balance of recent research and what it shows about the distinctive roles of parents and how the child’s interests are best served by access to both a father and mother.

Part 2 further streamlines, automates, authenticates and thereby encourages what can currently take place as a result of the combined effect of the HFEA code and adoption law. We can only endorse Part 2—and Clause 14(2) of Part 1—if we are prepared to institutionalise the compromising of the rights of the child to a mother and a father. That would involve adopting a total disregard for the best interests of children. Remember, once more, that the best interest is not just the absence of harm but putting the child’s welfare first and recognising that part of that includes the child’s need for a father. I am not prepared to do so and I encourage your Lordships to join me in asking the Government fundamentally to rethink Part 2, bearing in mind both the balance of recent research and public opinion.

Lord Sewel: I have listened very carefully to the argument of the noble Baroness, Lady Deech. As far as I could follow it, it went something along the lines that children derive great benefit from having a father. The examples were products of the social relationship of the parenting role between the child and a male parent, which led to great benefits in psychological, intellectual and social development. I do not necessarily disagree. But then the argument proceeds with an enormous jump. The jump then is that because of those benefits derived from a social relationship, the child has a right to a father. That is an enormous jump. It creates a right that is unenforceable.

In a very simple example, what happens in the case of a child who is born to a posthumons father and whose mother decides not to remarry?

Baroness Deech: I was not aware of having said that a child has a right to a father. I was only arguing for the existence of the current law, which states that the commission should take account of the child's need for a father—no more than that.

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Lord Sewel: I am very grateful for that clarification; I think that it slightly changes the argument, but the emphasis that we have heard generally—not just today but in the surrounding debate—is couched in terms of rights, and children's rights. The right to a father, as is clearly demonstrated by the example of a child born posthumously whose mother decides not to remarry, is completely unenforceable. It is regrettable that in many circumstances a child does not have a father figure available, but that cannot in any sense be a right.

Lady Saltoun of Abernethy: I am not remotely interested in the rights of children or the rights of women or anybody else to have children. I am concerned only with the best interests of the children. As the noble Baroness, Lady Deech, said, Section 13 of the 1990 Act was the response of the noble and learned Lord, Lord Mackay of Clashfern, the then Lord Chancellor, to my amendment which would have made illegal the provision of in vitro fertilisation services to unmarried women and which was disagreed by this House by one vote on a free vote. The point about Section 13 is that it puts the interest of any children resulting from those services first and above the interests of the woman who wants a baby, where those interests conflict.

I am not aware that the child’s interests have ceased to be paramount in the past 17 years. It is widely acknowledged, as the noble Baronesses, Lady Deech and Lady O’Cathain, have said, that it is the best interests of a child to have two parents, one of each sex. Many unfortunate children do not, but they have been born without the use of artificial processes, often paid for by the taxpayer. I therefore support the amendment of the noble Baroness, Lady Deech.

Lord Patten: It is axiomatic that fathers should be as visible and present as possible. Sometimes conversations off-stage, out of your Lordships, Chamber, can be very instructive. I have heard a couple of conversations outside this Chamber that have pulled me up short. The first was the suggestion that the Bill is concerned with something so tiny—the end of a little finger was pointed to—that it could not be very interesting or important. I expect that others may have thought that in the middle of the last century when the word atom was first entering discourse in this country.

The second conversation—equally surprising, at least to me—was that our Committee’s proceedings were best when they were being conducted by a small group of scientific experts. We have every reason to be grateful to experts. However, on debate of a public Bill in the High Court of Parliament, we owe it to the public to be understandable, and a danger lies the other way. At least this debate on fatherhood is one in which we can all become involved and join in, whether we are experts or not. Everyone has had a mother and father, even, if alas, so many people have not known one or the other.

It is striking that definitions in the Bill are sometimes inexact. Last week in Committee, we had the example of the Government seeking in their Bill, to legislate about some thing—that is two words, not one—which was referred to as an interspecies embryo. The Government and the globally renowned experts to whom they had referred for help could not agree a

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definition. I take the simplistic, non-expert view, as I said earlier, that one should not legislate about that which one cannot define—although that seems to be a minority view among some of your Lordships.

The Government are able to define the meaning of “mother” at Clause 33 (1) on page 35. Yet flip over to page 36 and off we go into a magical mystery tour about what an earth the word “father” might mean in different times and places, as a sign. This leads me to the conclusion that the Government, either by design or, as I suspect, by a muddled series of accidents, have ended up attempting to deconstruct the meaning of fatherhood in the Bill, divorcing male parenthood from biological reality as well as from practical and moral responsibilities. I hope that noble Lords do not find this language too strong, but I find that wrong—not right—if I can use such a tough word in polite discourse in your Lordships’ House.

4.30 pm

Alas, not all children can have a mother and a father who are alive, for a whole host of reasons: the death of the parents; their separation; and the development of circumstances that mean that children must go into care, with the often tragic outcomes which the noble Earl, Lord Listowel, has pointed to on so many occasions in your Lordships’ House. However, if faced with a choice between the hope of adults to become parents or the welfare and best interests of a child, which all the research that I have seen indicates is helped by a father or a long-term male role model, I would pick the best interests of the child every time. That is why it is so very odd to provide that some children can be legally barred at conception from having one of these “fathers”. It seems as though the Government now see fathers as rather curious creatures. Rather, the Bill should emphasise, here as elsewhere, that the best interests of the child, if that child is created through fertility treatment, should be considered paramount.

I know of no expert who gainsays the statistical generalities—to which of course there are many splendid exceptions—that there are close links between fatherless families or families without consistent male role models and the following factors: children living in poverty; children enjoying poorer health; children subject to a higher risk of abuse; children subject to a higher risk of offending—so many excellent civil servants, who have been unfairly traduced in the Home Office, will tell you time after time of the close link between the likelihood of offending and the lack of a father or male role model; and poor school performance.

It is probably clear by now that I rather support the noble Baroness’s amendment. I wonder how much time in his very busy schedule the Prime Minister has been able to give to try to understand the wider social implications of a Bill which, after all, he inherited, as the noble Lord, Lord Darzi, inherited it, and which the Government are seeking to get through Parliament. The Prime Minister seems to me, as an outsider, to be an exemplary father. Yet if his Government’s legislation gets through as it is now drafted, it is likely to lead, whether intentionally or not, to the deconstruction over time of fatherhood in this country, and to the incipient devaluation, by the signs that the Government

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are giving, of the very idea of fatherhood in the United Kingdom. That is an extremely important issue. It is as serious as that.

Lord Warner: I support Amendment No. 55. I should, however, make it clear that I do not support any of the other amendments in this group. I made it clear in the gracious Speech that I was opposed to the Government’s proposal in Clause 14(2)(b) to remove the wording about the child’s need for a father. I could not argue at Second Reading why I thought that the Government were wrong, so I am afraid I will have to detain the Committee for a little longer today.

Let me make it clear to the House at the outset that my views have not changed since I ceased to be a Minister. The Government’s position shifted while I was a Minister. I made it clear that I could not support that change if legislation had to be taken through Parliament. My views are not based on any religious beliefs; I have none and I hope that this speech will not cause people to approach me to save my soul afterwards.

I am aware that some of my noble friends will not be pleased with what I am going to say. I am in no way homophobic; I have—if I may put it this way—supported the Stonewall ticket on quite a few issues in this House. I disagree with the Government’s amendment for one very simple reason: I consider it to be inconsistent with the Government’s own family policy. That is an area I worked on as an adviser, both in Government and before Government. I believe it to be inconsistent with the great work that the Government have done on pushing the importance of parenting and, in particular, the role of the father.

My position on the wording of the 1990 Act is very similar to that set out by the noble and learned Lord, Lord Mackay of Clashfern, on Second Reading. It is worth remembering, as he clearly explained then, that the provision on the child’s need for a father,

The Government have not made the case for changing that position. I was reinforced in that view by the number of people across the House who spoke in support of that approach. If I may remind the House, even the noble Baroness, Lady Warnock, after what I might call a rather racy tilt at the 1990 wording, concluded that she,

The great majority of people in the debate accept that the research evidence strongly supports the view that children in general—although not necessarily in all individual cases—do much better in later life across a wide range of measures, including education, employment and offending, when a father is involved. I am not going to wade through the research evidence, but the Joint Committee on the draft Bill did. It also took oral evidence from a large number of experts in this field. It concluded that the balance of view on the committee was that,

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The Joint Committee made two other concluding remarks of some significance. The first was that it had,

Secondly, it recognised that:

I think it does have symbolic value and some of the quotes that have been given about public opinion reflect that view.

I shall address the three main arguments that I have heard levelled against the wording of the 1990 Act. First, it is difficult to administer. Secondly, it brings fertility treatment into line with adoption policy. Thirdly, the wording discriminates against single women and gay couples. I am well aware that some doctors involved in fertility treatment are uncomfortable applying the “father test”, if I may call it that. As my noble friend Baroness Hollis said on Second Reading, we should not have,

However, the legislation, even after the Government’s amendment on fathers, still requires those providing treatment to pick and choose.

Fertility treatment is not an NHS service on demand, which is why some people go elsewhere and probably will continue to do so. The legislation now requires those providing NHS fertility treatment to satisfy themselves on the likely welfare of an unborn child and will continue to do so even after the Government’s wording. Some people will be rejected and probably should be. That is the requirement that Parliament is making of doctors as part of the licensing system. It is inescapable that that requirement remains in place. In making those judgments, the grounds for excluding the father provisions as part of the criteria have not been well established. If doctors need more help in making that judgment, let us provide it. We will get on to that in later amendments. That is no ground for ditching the wording in the 1990 Act.

The consistency with adoption policy issue is a poor argument, as the noble Baroness, Lady O’Cathain, said. In the first case, the adoption agency is confronted with a child who already exists. Too often it has found it difficult to place them because of difficulties or disabilities. It has to be able to choose the best home it can in the circumstances it faces or leave the child in local authority care. That is not the situation faced by a person who is licensed to offer fertility treatment. He or she has to decide whether the person seeking help is in a set of social circumstances in which the unborn child’s welfare is likely to be protected. For 17 years, the law has rightly asked them to have regard to the need for a father. The most reverend Primate the Archbishop of York made those distinctions very well at Second Reading.

Finally, I turn to the contentious issue of whether the “need for a father” wording discriminates against single women or gay couples. As has already been mentioned, the 1990 Act wording has not debarred single or gay couples from accessing IVF on the NHS if they can convince a licence holder with regard to the welfare of a child. So, already in practice, there is no absolute discrimination against them. Perhaps I may

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say that people seem to be arguing that these groups face a harder version of the welfare of the child requirements, so we should knock out the bit about fathers to make it easier for them. That seems to be the nub of the House of Commons Science and Technology Committee’s report against the existing wording. Given the research evidence that has been quoted, I consider it highly questionable whether we should do so, but more particularly because of the Government’s policy on the family and the importance of parenting and fathers.

In any case, if a single woman or a gay couple’s circumstances call into question their capacity to protect the welfare of the prospective child, a licence holder, as I said earlier, would still be required to reject that because of the welfare of the child requirements. By deleting the wording in the 1990 Act, I believe that we are giving an ambiguous signal to licence holders that they do not have to take as seriously the welfare of the child requirements in the 1990 Act. It is a diluted version of the 1990 Act wording.

Lord Tebbit: I do not want to interrupt the noble Lord’s flow, but several times he has referred to the “unborn” child. I do not wish to be pedantic, but in general he was referring to the “unconceived” child. There is a difference. I am sure that I know what the noble Lord meant, but it may not read quite rightly.

Lord Warner: The noble Lord is right. I mean “unconceived”, but by definition I mean “unborn” as well.

In conclusion, I support therefore Amendment No. 55. I make no comment on any of the other amendments, but the noble Baroness, Lady Deech, made the case extremely well. I wanted to supplement that case. I hope that the Minister will take this away, although I realise that this is not much to do with him. He is playing the hand that he was dealt before he arrived on the scene, for which he has my great sympathy. But I hope that he will remind some of his colleagues, some of whom were still in government when the family policy was being developed earlier on in our time, that this is an important issue and that the symbolism should not be ignored.

4.45 pm

Lord Northbourne: My name is on the amendment. I find myself on the horns of a dilemma, because I put my name on it as I thought it would be grouped with my subsequent amendment, which greatly improves it. However, I will speak very briefly to the amendment and more extensively to my own. I think that what I wish to say follows the noble Lord, Lord Warner.

At Second Reading, the Minister was very dismissive of the idea that the wider effects of Clause 14(2)(b) would have a major impact on society. I think he suggested that it would affect only about 1.4 per cent of children. With great respect, I am convinced that he is wrong.

As we sit here today, 24 per cent of the nation’s children are growing up in families without a live-in father. Some of these single-parent families arise from the death of the father, others from family breakdown, but in many cases the father has simply not accepted

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that he has any responsibility for the child or children he has brought into the world. He has often moved on to set up another family. If the Government carelessly give the impression in this Bill that they are downgrading the importance of a committed father in the family, there will certainly be more single-parent families in the future than there are today. If the Minister does not believe that the general public will notice the Government’s apparent change of heart, I suggest he looks at the Sunday papers of three or four weekends ago. The press are watching this space, and so are the public.

I will not say any more except that, after I have had the opportunity to speak to my own amendment, I shall decide whether to follow the noble Baroness, Lady Deech, through the Lobbies.

Baroness Butler-Sloss: I also support Amendment No. 55. I think it is important that this Chamber remember that there are single-sex couples and single parents. When in another life I was a judge, I made numerous orders which had the effect of children living with two fathers, two mothers or a single mother. As the noble Baroness, Lady O’Cathain, said, that is a wholly different situation.

For the Government to remove the requirement in the 1990 Act is to send a message to the public. It is a very important message, and one only the noble Lord, Lord Northbourne, has referred to so far: that fathers are not all that important—that they do not matter. There are a large number of fathers’ organisations out there, and I suffered Fathers 4 Justice over a number of years. However, there are some moderate fathers’ organisations who will feel demoted by the removal of this part of the 1990 Act. The Government may say that they do not intend that that should be the effect. Intentionally or unintentionally, the message will go out to fathers, and the Government cannot ignore that. It is also contrary to the ethos of the child legislation and the ethos of this Government, as has already been said, concerning the importance of fathers in the life of children.

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