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6.45 pm

Lord Northbourne: Before the noble Baroness sits down, would she admit that, in the context of achieving the objectives that I was hoping to make part of the Bill, if one wants to go on a journey, the first thing to decide is exactly where you want to go?

Baroness Hollis of Heigham: That depends on what path you are on.

Lord Mackay of Clashfern: I do not have the HFEA guidance in front of me but my recollection of it is—and the Minister will be able to find out whether it is so—that a good number of the issues raised in this debate are actually dealt with in that guidance. The 1990 Act provided guidance that was intended to cover the whole area of welfare, including the point we were discussing earlier.

Lord Warner: As we are going into ex-ministerial confessional mode, I will raise some points both in response to my noble friend Lady Hollis and to some of the arguments consistently made by the noble Lord, Lord Winston. I do so wishing to be particularly sympathetic to Amendment No. 60. I am also pretty sympathetic to the amendment of the noble Lord, Lord Northbourne, although I would not mind it stopping after “welfare” in the third line.

We hear a lot about the problems encountered by doctors when faced by women across the table. We also hear a lot about not being discriminatory towards women, but we still have in this legislation, as the noble and learned Lord, Lord Mackay, has reminded us, the welfare of the child. The doctors may not like it, they may find it difficult to do, they may find it uncomfortable to have these conversations with the people in front of them, but it is the will of Parliament to have that provision. If they are struggling with that, if the present guidance is inadequate to help them make those judgments, as the noble and learned Lord, Lord Mackay, has said, it is probably incumbent on us to amend the legislation about the guidance, and the guidance itself, to make it easier for them to do.

What I like about the later amendments of the noble Earl, Lord Howe, is that, in a sense, they remove some of the doubt. They say that if you go through this process and want the help of the state in providing this treatment, which is regulated, you ought to go for counselling so you fully know what you are getting into. That does not seem to me an unreasonable proposition. The more often he rises to tell me about the difficulties for the doctor actually confronted with the women across the table, the more I say to my noble friend Lord Winston that the doctors need our help here. They are struggling to carry out these responsibilities. If that is the case, we parliamentarians ought to respond to the concerns of my noble friend Lord Hollis—

Baroness Hollis of Heigham: Lady Hollis.

Lord Warner: My noble friend Lady Hollis, I do beg your pardon. We men and women are clearly totally interchangeable in many of the roles that we perform, so I hope I can be forgiven for that.



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Lord Winston: I cannot help but observe that if Parliament makes law that cannot be enforced, it is bound to be the case that the doctors will struggle.

Lord Warner: I wondered how long my noble friend would take to rise to the bait. We need to count how many times he confesses to the difficulties faced by doctors in administering these provisions. The more he rises, the more he challenges me on that, the more I am concerned that we do our best to help him and his colleagues discharge the responsibilities to the welfare of the child.

Baroness Hollis of Heigham: As a former Minister, does my noble friend agree that it is imperative that Ministers, including former Ministers where appropriate, donning the DoH hat, should be advising the House about what is practicable and workable, not saying merely what serves their own moral high ground?

Lord Warner: I am glad to be thought to be on the moral high ground; with me, that very rarely occurs in this world.

I say to my noble friend that we spend our time in Parliament making legislation that may, on occasion, be difficult to administer. That is why we often have secondary legislation, guidance, advice and codes of practice: to help the people who must implement parliamentary legislation to do so. This is a similar provision; we take such an approach with adoption and in relation to children who are taken into care. These are difficult and complex issues; no one is denying that. We try to have sound principles underpinning those issues in primary legislation and carry the matter through in more detailed guidance, involving Parliament as necessary. That is what I am suggesting, as is the noble Earl in this amendment and his later amendment. If we care about the issue of fathers and want to put in legislation, at the point of deciding whether to give IVF, a provision to take account of the child’s welfare, it is clearly incumbent on us to ensure that practitioners are able to implement that. That is all I am saying.

I have a sense that these practical issues are distorting our discussion about the important issue of the unconceived and the unborn child. We take that very seriously in most other legislation and we should be just as serious about it here.

We should take very seriously the amendment of the noble Earl, Lord Howe, and I am pretty supportive of the amendment of the noble Lord, Lord Northbourne. That amendment is deep in the territory that we got to at the end of our previous debate; that is, whether doctors could be subject to disciplinary proceedings under the new Health and Social Care Bill if we retain the “need for a father” wording in the 1990 Act. That legal advice would clearly affect the amendment of the noble Lord, Lord Northbourne.

Baroness Tonge: I welcome both these thought-provoking amendments. Of the two, that of the noble Earl, Lord Howe, is my preferred option. The amendment of the noble Lord, Lord Northbourne, proposes that a male adult should be involved in the process. Two

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things immediately spring to mind. The noble Lord, Lord Winston, said that any woman seeking treatment who knew of the provision would bring a man—a friend or anyone—along with her to back up her case. How will a responsible doctor ensure that a genuinely responsible male adult is involved? Are they to interrogate him in the surgery or clinic? How can they ensure that this is not a guy the woman has just met in a bar or at a party who said that he would do this for her?

The only way in which that amendment could be made to be practical would be to put an economic tag on it and say that if the male adult was the named person when the treatment took place, he had financial responsibility for any child subsequently. In that case, it would be very difficult for a patient seeking treatment to find a man who would, off the top of his head, take on financial responsibility for a child. For those two reasons, I therefore do not see how Amendment No. 55A could possibly work in practice.

Amendment No. 60 looks to the general welfare of the child. We have heard many times that the role model for a child—whether it is born by donor sperm or the sperm of its father who later dies or it is born to a couple who subsequently divorce—will eventually be the woman’s social network, family network, the men within the family and her circle of friends. Many males—and, indeed, females—will become role models for the child. Amendment No. 60 encompasses that, is more practical and leaves the situation more open.

The Earl of Listowel: I wonder whether it would be helpful to the Committee to consider whether, if the noble Earl, Lord Howe, has no objection, the next group of amendments might be included in this debate. We are likely to repeat in the next grouping the debate that we have just had, although I am happy to do that.

Lord Elton: While my noble friend is thinking about that, I rise to give him thinking space. We should not immediately cast aside the idea of the noble Baroness, Lady Tonge; if a woman wishes to have state aid to help to conceive a child, the state surely has a duty to that child. If the state considers that a second parent is necessary, it surely needs to ensure that the couple are capable of maintaining the child in the state that it is entitled to expect. That surely requires a signature on a piece of paper and an undertaking by both parties, whatever their sex.

Baroness Barker: To give the noble Earl, Lord Howe, a little more time, I shall seek clarification. Either I am mistaken or the noble Lord, Lord Elton, is; I will find out which. The noble Lord, Lord Elton, talked about state aid. I think I am right in saying that, for the most part, IVF is a treatment for which people go to clinics and for which they pay. The state does not aid the process but it regulates the process.

Lord Elton: I am happy to be corrected in that way but the state is, by legislation, facilitating and regulating that process and should see that it has a happy outcome for the child.



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Baroness Royall of Blaisdon: I want to speak procedurally about the suggestion of the noble Earl, Lord Listowel. I have taken advice and understand that it would be better if we left the amendments grouped as they are. There may be noble Lords who are not present now who would wish to speak in the later debate.

Lord Darzi of Denham: I am grateful for the willingness of the noble Lord, Lord Northbourne, the noble Baroness, Lady Finlay, and the noble Earls, Lord Listowel and Lord Howe, to think outside the box in order to help to improve the Bill. In this House, I have learnt from the noble and learned Lord, Lord Mackay, to get definitions right. I have been struggling with the definitions here but I will try to address the issues; I am grateful to noble Lords for the amendments in this group.

Amendment No. 55A retains the requirement to take into account the need for a father but adds an alternative to the father by adding,

I am grateful for the remarks of the noble Baroness, Lady Finlay, in which—to come back to the amendment—she said that we could possibly look at other suitable male adults as the other suitable parent.

That brings me back to the interesting issue of the definition of parenthood. I have since sought some advice and been told that there is no legal definition of parents but our intention is that someone who is recognised as a parent under this Bill will have the same parental rights and responsibilities as other parents.

Returning to the Bill, the amendments as they stand would signal that treatment services are less accessible where there is not a father or another man fitting the criteria in Amendment No. 55A, or a father and a mother. In considering this, we must be careful not to impose on clinics a duty that represents a sentiment rather than a firm position—there, we are back to definitions. We must also be careful not to drive people away from regulated services and the quality and safety assurances that they provide. I referred to an example earlier in relation to one from the noble Lord, Lord Alton.

7 pm

The Bill as it stands continues the 1990 Act’s provision that the woman who is carrying or has carried a child as a result of an embryo or sperm and eggs being placed in her—and no other woman—is to be treated as the mother of the child. The Bill does, however, extend the range of persons who can apply for a parental order in cases of surrogacy. I am sure that we will discuss those specific provisions in the later amendments.

Amendment No. 60, tabled by the noble Earl, Lord Howe, would modify the requirements for the HFEA specifically to include guidance about taking account of the welfare of children who may be born as a result

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of treatment. The guidance currently provides that, before providing treatment, the centres—including the clinician—should take all reasonable steps to determine both who will have parental responsibility for any child who may be born, and who will be the person or persons responsible for raising the child.

The guidance goes on to say that the centre should take medical and social histories from each patient, and see each couple together and, where appropriate, separately. Where the information gathered suggests that serious harm may be caused to the child, the centre should investigate the matter further. I agree that it does not require centres to undertake onerous and invasive social assessments of their patients, but it does provide for further consideration of the patient’s circumstances if there are indications of a risk to the child. Amendment No. 60 would add further guidance, saying that the centres should also assess the stability of the upbringing that the child would have, where the prospective parents are not married or in civil partnership. Very careful consideration would need to be given to whether these additional requirements are necessary on top of the guidance already in the code of practice, or constitute a feasible task for clinicians to undertake.

I understand and welcome the clear willingness displayed by noble Lords through these amendments to find solutions to the difficult issues that we are discussing today. I will try to address the issue that the my noble friend Lady Hollis raised about what type of literature is available to patients. There is wide-ranging literature produced by the HFEA, including guidance for patients, but whether it is adequate is another issue. I strongly believe that it is for regulators and professional bodies to try to address that rather than the Government, but I will be more than happy to look into that.

I have no doubt that those discussions should continue. In the mean time, I invite the noble Lords to withdraw their amendment.

Baroness Finlay of Llandaff:Would the Government consider incorporating the spirit of these amendments, if not their exact wording, in any guidance that went with the Bill? One thing about guidance is that it alters clinical behaviour, and over the years doctors have learned to have difficult conversations with patients—partly, because they have had to. We have clear examples from the Mental Capacity Act, with patients now being given information about their diagnosis and being able to discuss their prognosis or potential complications with treatment. That has meant that those conversations have become much more open. Doctors have not found it easier, but more difficult; they have often needed communication skills training to help them.

I am thinking particularly of the sentiment behind Amendment No. 60. Given that many services are outside the NHS and subject to statutory regulation—but not day-to-day administration—it might help all in the private sector to have some gold standard against which they are expected to operate. It may also help the regulator when it comes to inspect services, as it tries to decide which meet the standard and which do not.



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Lord Mackay of Clashfern: The authority lays down the guidance, subject to approval by the Secretary of State. This would therefore be a plea primarily, or at least in the first instance, to the authority, which would have to deal with its practical ramifications.

Baroness Finlay of Llandaff: I thank the noble and learned Lord for his correction.

Lord Darzi of Denham: I am grateful for the comments of the noble Baroness, Lady Finlay. I return to the point that she raised about professional regulation and the era that clinicians are living in. I have no doubt that it will put further moral and ethical responsibilities on to a clinician if we do not get these definitions right. The Government will be delighted to discuss and redefine some of the issues that we debated earlier.

Lord Northbourne: I am grateful to all Members of the Committee who have spoken in this debate. It might be helpful if I read out the definition of parental responsibility in the Children Act 1989. That English Act says in Section 3(1):

I can find no closer definition in English law. However, the Children (Scotland) Act 1995 has this definition in Section 1:

(a) to safeguard and promote the child’s health, development and welfare;(b) to provide, in a manner appropriate to the stage of development of the child—(i) direction;(ii) guidance,to the child”.

It then goes on to two other paragraphs that are not relevant to our debate.

That Scottish definition is a basis on which we could build. Would the Minister be prepared to have a meeting before Report to discuss whether there might be a compromise on including something in guidance or regulations, if not in the Bill?

Lord Darzi of Denham: It would be the Government’s great pleasure to debate that further, and to take some of the advice that was discussed today.

Lord Northbourne: I thank the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 56 not moved.]

[Amendment No. 57 had been retabled as Amendment No. 55A.]

The Earl of Listowel moved Amendment No. 57ZA:



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(a) received information and advice on issues relating to child development, and(b) participated in a discussion with—(i) a specialist social worker,(ii) a paediatrician,(iii) a psychologist, or(iv) such other person as may be prescribed in regulations,about issues relating to child development.””

The noble Earl said: My amendment is on meeting professionals to discuss child development. Its effect is to ensure that each couple or individual seeking a child through IVF has a meeting with a paediatrician, a psychologist or another expert on child development to consider the developmental needs of the child. This is a probing amendment related to the issues raised in the previous grouping on what happens in practice, and how to support families by doing all that we can to ensure that children born through this process have the best life chances.


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