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As far as the right to know the father is concerned, I am sure that there would be no dissent in the Committee with the proposition that a person has the inalienable moral right to know where half his genes come from—quite apart from the question of international conventions, where that right is enshrined in the convention on the child. Can there be a more fundamental human right? Put another way, would anyone wish to deny that right, where it can be reasonably exercised, to any person? If I am right, that forms a very impacted background to what we are considering this afternoon and may be the very beginning of wisdom. If you accept that a child has the right to know who has procreated him, who is responsible for a large part of his personality and half his genes, then I think that it has some light to cast and, indeed, some very impacted influence on the second question—whether there should be a chance of a relationship. There are hundreds and thousands of fathers in England and Wales at the moment who have no intention of doing anything at all with their children. I accept that that is not really the issue with this amendment, but it is a huge problem and one that, some day, I would like Parliament to apply its mind to. There is a limit to what can be done but, for all the furore about fathers being denied rights of contact, hundreds of thousands of fathers have no wish to have contact at all and are depriving their children of that second, massive right.

Going back to the first right, if I am correct about the right to know, then the question that should be asked of the mother—as very properly posed by the noble Baroness, Lady Hollis—is whether she appreciates that it is an inalienable right of the child to know who his father is. If I am correct about that—there may be the utterly exceptional case, where the welfare of the child might reasonably demand that that should not be known, but that would not be so in 99.9 per cent of cases—then it has some relevance to the amendment.

Baroness Finlay of Llandaff: I know that we are all waiting for the Minister to sum up, but I would like to ask a question that would be helpful for him to clarify in the summing up. If the 1990 Act remains, would healthcare professionals working in infertility clinics

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and assessing patients for infertility be in contravention of their professional code of conduct? I am trying to look forward. Would there be a civil or a criminal burden of proof against healthcare professionals called before the General Medical Council? If the law continues as it is and there will be no case against healthcare professionals, it would be very helpful for the version of the noble and learned Lord, Lord Mackay—the current situation—to remain. However, if it becomes an offence for healthcare professionals not to take that as an absolute in assessing women, it becomes very difficult, if not impossible.

I understand that that is not the case, but it would be helpful for the Minister to clarify that, because there are problems for healthcare professionals making so-called value judgments. All kinds of different people come before them as parents in all shapes and sizes. It is very easy for healthcare professionals working in a clinic naturally to gravitate towards people who are a little bit more like them and to empathise a little more with them. Providing that they cannot do that—the Bill and the 1990 Act do not encourage that—that may provide reassurance to people who have concerns.

Baroness Barker: I take us right back to the speech of noble Baroness, Lady Deech, who set us off on this debate some hours ago. In the debate, a number of very different issues have been conflated in ways that are not altogether helpful. Issues about how and whether children should know their genetic identity have been mixed with attitudes towards existing law, such as civil partnerships. When noble Lords go back to read this debate, they will see that two or three different factors are being mixed together.

I want to ask the noble Baroness, Lady Deech, one simple thing. Will she make available to the Committee the 80—the noble Baroness, Lady O’Cathain, cited the figure of 100—pieces of research? The noble Lord, Lord Winston, made a very important point. In areas of social policy, it is extremely important to work from an evidence base. One thing that has worried me all afternoon is that people have made extrapolations from different pieces of research and drawn comparisons that are false. Noble Lords have made extrapolations from the UNICEF report. The UNICEF report showed that in terms of children's well-being, this country was in a very bad way, but it also showed conclusively that economic status of a family had a great impact on the well-being of children in a number of different aspects of their life chances.

The noble Baroness, Lady Deech, made a couple of remarks that I found extraordinary. She talked about studies that showed that same-sex couples—in Sweden, I think—had a median relationship of 25 months. I do not know, because I do not know what the research is, but it is entirely possible that that includes everyone from teenagers through to people who are very old and on to a second relationship. It does not present any kind of data valid to those gay couples who would consider themselves to be the right ones to bring up children and offer stability.

I cite those as two examples; there may be more. The noble Baroness talked about the need for children to see parents of the opposite sex and the importance of their being brought up in relationships in which

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there is no denigration of the opposite sex. I assume from that that she is assuming that in gay relationships, there would be denigration of the opposite sex. I do not know the basis on which she makes that assertion. I simply ask her to make her evidence available to all noble Lords, so that we can come to a conclusion.

I want to make one point that has not been made all afternoon. Bear in mind that we are talking about clinicians carrying out one particular treatment. I trust that clinicians use the same basis to judge any person who presents to them for that treatment. That is what clinicians do across the board. They do not make sweeping judgments about groups within the population; they look at the needs of the person presenting to them. When they do that, one judgment that they make is the consequence of their not providing that treatment. I hope that noble Lords will accept that I think that the welfare of children is paramount in all this. If single women and gay couples are intent on fulfilling what for them is—I accept the point made by the noble Lord, Lord Tebbit—not a right but an understandable urge to have children, it is better for them to have access to health treatment that is safe for them and for the children who result. That is all that is being asked for: equality of consideration.

Lord Darzi of Denham: Once again, this has been a fascinating and informative debate, building on the excellent speeches that we heard from both sides of the House at Second Reading. I must begin by repeating some of the important points that were made then. However, before I do so, I should also say that this is a wide-ranging group of amendments and that, if there is a vote on one of them today, we will not necessarily consider that all the later amendments in the group can be taken as being consequential on the decision on the earlier amendment.

I stress that the Government’s decision to propose the removal of the phrase,

is not motivated by any attack on fathers or the concept of fatherhood. Nor is it an attempt at political correctness. The Government recognise clearly the extremely important role played by fathers in their children’s lives and the serious consequences that can follow where a relationship breaks down. That is why the Government have taken action to strengthen the role of fathers and to ensure that fathers are aware of their responsibilities.

However, we are dealing here with a very specific context, and other factors come into play. As the noble Baroness, Lady O’Neill, said at Second Reading, we are all clear that the legislation does not in any way abolish the biological reality of fathers. That is quite correct: the Bill will not sweep away the biological need for men, but nor will it change the social reality of fathers for the overwhelming majority of families in this country, either now or in future. The idea that the Bill in any way sounds the death knell for fathers is very far removed from the truth.

The question that we are dealing with is the duties placed on clinicians by law to examine and judge their patients. As a clinician, I am well aware of the difficulty of making such judgments about people’s circumstances

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and predicting with certainty what may happen at a later date. The Government came to the view that, on balance, the reference in the 1990 Act to,

should be removed, but that the general duty to consider the welfare of the child in a broad sense should remain. Clause 14(2)(b) removes the words,

from Section 13(5) of the 1990 Act.

There is no ban on single women or same-sex couples receiving assisted-conception treatment. There is no requirement in law that there must be a father or any man involved in the upbringing of the child. Nor is it a matter of policy that single women or same-sex couples should not be able to access clinics.

The outcome intended to be achieved by the wording of the 1990 Act is therefore unclear. As the noble Baroness, Lady Warnock, has previously remarked, it is ineffective and wishy-washy. To retain the provision would be to perpetuate a confusing and potentially discriminatory situation. I echo the lucid analysis of my noble friend Lady Hollis, at Second Reading, that fathers belong in children’s lives but that the phrase does not belong in the Bill. Either the question is meaningless, or the answer is ignored, or both are meaningful and therefore discriminatory.

6 pm

Amendment No. 55, tabled by the noble Baroness, Lady Deech, would retain the existing requirement for consideration of a child’s need for a father to be a condition of a treatment licence. Amendment No. 56 adds the requirement to consider the child’s need for a mother.

The Bill retains the provision that requires a clinician to take into account the welfare of any child born as a result of treatment services when providing treatment. By removing the requirement to consider the need for a father, we are recognising the existence of a wider range of family arrangements. It is vital that children are raised in a loving and supportive family environment. The evidence suggests that the quality of parenting is the factor of prime importance and not necessarily the gender, or even the size, of the family. The Government fully recognise the important role that fathers play in their children’s lives. The proposal does not detract from that role but it does recognise the crucial role played by all parents.

The noble Lord, Lord Alton, referred to a man being pursued by the Child Support Agency after providing sperm to a lesbian couple. My understanding is that the sperm was donated through a private arrangement—outside the scope of the Bill—and the removal of the provision on the need for a father will seriously encourage that in future. He did not come under the provision of the 1990 Act. Therefore, legally, the sperm provider, or the donor, is the father of that child.

The noble Baroness, Lady Finlay, talked about the responsibility that will be placed on a clinician. It will be interesting to debate that when we discuss—next April, I believe—the Bill on professional regulation.

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However, I doubt that any clinician would take responsibility for that assessment if the Bill remained with the provision on the need for a father.

The noble Baroness, Lady O’Cathain, has signalled her intent to oppose clauses in Part 2 and the associated Schedule 6. She has made clear her views about the importance of parenthood and the foremost interest of the child within the family setting. She has been supported by many noble Lords, who have expressed their concerns most forcefully. I fully understand the points made about the general principle that children should be brought up in a supportive family environment. No one would disagree with that. However, it is essential that we do not become sidetracked by general principles, important as they are, and risk losing sight of precisely what the Bill seeks to achieve.

In essence, the Bill seeks to address current anomalies in the law in which parenthood is bestowed following treatment involving donated sperm. Addressing these anomalies is in the best interests of the child. Let me be clear what those anomalies are. At present, if an unmarried man and a woman, who may have known each other only for a short time, have treatment together at a licensed fertility clinic using donated sperm, the man will, as a matter of course, be regarded as the father of any resulting child. He will be recorded on the child’s birth certificate as such. In comparison, where two women in a civil partnership, who have been in a stable relationship for many years, have treatment in a licensed clinic using donated sperm, they are treated very differently. First, although the civil partner who gives birth is regarded, quite rightly, as the mother of the child, the other civil partner has no parental recognition or rights in respect of the child at all—this is a child, let us not forget, who is born to her legal partner. Secondly, the child would have only one parent, the mother, recorded on their birth certificate. These anomalies do not serve the best interests of the child. The Bill addresses them by enabling the child in such a situation to have two legal parents instead of one, both of whom could be recorded on the birth certificate as the mother and a parent.

Let me take this opportunity to clarify that it is our intention that the child will have one mother and a parent, not two mothers. The woman who gives birth to the child will be the mother of the child. Clause 33 is absolutely clear about this. I hope that this clarification will put your Lordships’ minds at ease, knowing that it is not the Government’s intention to allow for a child to have two mothers.

We must keep in mind that the legal parenthood provisions in the Bill appear only where donated sperm is involved. The 1990 Act ensures that sperm donors are not regarded as the father of any children born from their donation. Recognition of a same-sex couple as the parents of the child born following treatment with donor sperm does not take the parenthood from the father or oust him from the birth certificate, because there is no legal father. On the contrary, it enables the child to have two legal parents. Surely that must be in the best interests of the child.

On Amendments Nos. 57A and 59B, tabled by the noble Baroness, Lady O’Cathain, the Bill sets out that any woman shall not be provided with treatment

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services unless she, and any man or woman treated with her, has been given a suitable opportunity to receive proper counselling about the implication of any treatment services being received. This provision is in the 1990 Act relating to a woman and a man, but the Bill now includes reference to two women being treated together.

Before providing treatment using donated sperm, clinics are required to offer counselling to a man and woman who are treated together. Further to this, the Bill sets out that any woman shall not be provided with treatment services unless she and an intended second parent have been given a suitable opportunity to receive proper counselling about the implication of signing up to a parenthood agreement in respect of a child who may be born as a result of that treatment. I feel that it is of prime importance for couples to be encouraged to receive counselling in these situations in order to give them an opportunity to consider all the implications and consequences of treatments. The Government believe that it is highly desirable for any person undergoing fertility treatment or undergoing a parenthood agreement to receive counselling, in order to give them this opportunity. It is important that, when two people are signing up to a parenthood agreement, they are both fully aware of what this means at all stages of the process. We do not want to restrict this only to men and women being treated together, as the Bill also makes provision for two women to be the legal parents of a child. It is equally important that the intended second parent also has a chance to receive these services in order to understand the serious and lifelong commitment of the parenthood agreements that they are entering into.

On Amendment No. 59A, the Bill makes provision for unmarried heterosexual couples and two women not in a civil partnership to enter into parenthood agreements and be recognised as the parents of a child born through assisted conception. Currently, an unmarried man and a woman who are treated together can both be considered the legal parents where donor sperm is used. The Bill introduces a provision that clarifies the fatherhood of the man through a fatherhood agreement and allows for two women to enter into a parenthood agreement when undergoing fertility treatment services so that they are both legal parents of any resulting child. The Bill sets out who the intended second parent could be in each situation: a male or a female partner of the mother.

The Bill also makes provision for the person responsible to give notice to the intended mother or intended second parent where one party withdraws their consent to the parenthood agreement. If the provisions were removed by the amendment, unmarried couples and two women undergoing fertility treatment would still be able to undergo parenthood agreements but would fall outside the notification procedure. It is vital to let the other parent know that consent has been withdrawn.

I entirely understand the concerns expressed in this debate, but I believe that the proposals in the Bill recognise society as it exists and value all parents. I hope that noble Lords will feel able not to press their amendments and have further discussions before Report.



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Lord Warner: Will the Minister do a service to the House before Report? He made the important statement that the retention of the words in the 1990 Act on the need for a father could be in conflict with the Health and Social Care Bill, which will come to this House, and could leave health professionals open to challenge under medical and other disciplinary procedures. It would be very helpful to the House to have the legal advice on which the Government are operating.

Lord Darzi of Denham: I thank my noble friend. I will certainly seek the legal advice. As most of us will know, the other Bill is currently in the other place. I have no doubt that we will get some feedback from the discussions there.

Lord Elton: Could the Minister help me with the concept of making a second woman a parent in statute? That implies a concept and a definition in the Government’s mind of what a parent is that appear to be different from the ones that we have now. Could he tell us what that definition is?

Lord Darzi of Denham: I thank the noble Lord for that point. I will be precise in my definition by writing to him, but I will say that I used the word “parent” because I have no doubt that we will discuss that issue throughout our discussion of fatherhood.

Baroness Deech: Time does not allow me to pay full tribute to the richness and depth of this debate. I am sure that we are all grateful to all those who have participated in it with their particular knowledge. I will touch on a few points. The Bill tells fathers that they are unnecessary. This has symbolic value. If the Government had not decided to remove this provision, clinics, parents and children would have carried on pretty happily as they are now. The attempt to remove it has stirred up this debate and obviously very deep feelings.

There is no such thing as a right to a father, or indeed the right to a baby. The latter may be even more important; I refer to the comments made by the noble Lord, Lord Sewel. As an academic lawyer, I cite the American jurist, Hohfeld, who said that there is no right to a baby and there is no duty to give anyone a baby; it is a privilege. There is a need for a father, not a right to a father or a right to a baby. The law is of course discretionary. We know that the rates of in vitro fertilisation treatment for single women and gay and lesbian couples is going up, probably with no harm done at all, but this is about the symbolism of the law, which is very important. If we were to be totally pragmatic about it, as the noble Baroness, Lady Hollis, argued, we would be leaving birth certificates as they are, but that matter is coming up in a separate amendment. In response to the request by the noble Baroness, Lady Barker, I will be happy to place in the Library the research that I, and others, have relied on.

6.15 pm

We must look at things through a child’s eyes. Do we not call it a tragedy for a child if his or her father is killed, especially during pregnancy? Does the baby appreciate that his fatherlessness is planned rather

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than accidental? In that, I support the noble Lord, Lord Warner. The need for a father goes back millennia. It is a very modern phenomenon indeed, as yet unproven, that there is no need for parents of both sexes. Almost throughout history, the loss of one or the other—not having both—has been regarded as most unfortunate, to put it mildly. We are where we are and the removal of the statement that a child needs a father—the view that a father is a discretionary factor—sends a message. I say that in response to the noble Lord, Lord Turnberg.


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