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Lord Harries of Pentregarth: The noble Baroness, Lady Barker, has just said that she thinks that her amendment is a compromise that will satisfy nobody. However, if I might say so, I believe that it gets the balance right on this very sensitive and difficult issue. I am sure that we are all conscious of the sensitivity here. When I first became a member of the HFEA, I certainly found it difficult to take on board the strongly

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made arguments that children should know all the facts of their birth at the earliest stages, because, like most people born in these islands, I am fairly reticent. I have a great respect for family privacy and I find it difficult to think that everything should be blazoned abroad.

However, over the years I have come to realise the importance of truthfulness and transparency. Amendment No. 68A in the names of the noble Baronesses, Lady Barker and Lady Warnock, and the noble Earl, Lord Howe, gets the balance about right between the importance of truthfulness and transparency, on the one hand, and, on the other, a proper and very important respect for family privacy and the parents’ roles and responsibilities in revealing to children the circumstances of their birth in their own proper way.

Lord Jenkin of Roding: As one who is no scientist, I found, when listening to my colleagues on the Joint Committee talking about their immense experience and expertise in this field, that it came as something of a relief to come to an issue that I felt I could understand as a lay man. I was impressed by some of the evidence that we had from donor-conceived people, in particular the long paper by David Gollancz that appears at No. 44 in the evidence book. When I spoke to Mr Gollancz afterwards, he spelt out in some detail what it feels like to discover that you have been donor conceived. At Second Reading, I mentioned the evidence of Mr Gollancz, who said on the first occasion he spoke publicly about his experience of being donor conceived that,

He was worried that those were overly strong words, but that was exactly how he felt and one can understand that.

We firmly took the view, as the noble Baroness, Lady Barker, and the noble and right reverend Lord, Lord Harries, said, that it is highly desirable that the donor-conceived person should be told about their genetic origin as soon as they are able to understand. That would happen at different ages for different people.

I remember an occasion involving my little brother. My mother was a widow and my brother had a friend at school who had a baby sister. My brother asked our mother, “When will we have a baby sister?”, and she had to explain to him, “Well I’m afraid without a father that is not possible”. He asked, “Do you mean you have to mate every time?”. He was a child of seven and he was probably at an age when he could have understood if necessary—he certainly knew enough about the facts of life to be able to take it on board. I get the impression that the earlier a child is capable of understanding, the less likely they are to be seriously disturbed, because they are unaware of what other noble Lords have referred to as the deception.

Mr Gollancz also mentioned the European Convention on Human Rights. He said:

I cannot think of anything to which that might be more relevantly applied than the question of a person’s genetic origin.

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I took the view, which was reflected in the Joint Committee’s report—my noble friend and the noble Baroness, Lady Barker, have made the same point—that it is highly undesirable that the authorities should appear to connive at deception. There are a number of reasons for that, quite apart from the moral one. There are some practical reasons. How does a person know that they can go to the HFEA and find out their parentage unless they know that they have been donor conceived? When young people begin to engage in relationships or even contemplate marriage, there is a risk that the relationship might be consanguineous or even worse. There are all sorts of reasons why it is highly desirable for people to know. The noble Baroness, Lady Warnock, was absolutely right when she said that public attitudes to this are moving on and there is not the same sense of shame or secrecy that used to surround it.

However, Mr Gollancz, in discussion after our session, told me firmly that we must not make disclosure compulsory on parents, because all sorts of difficult consequences would follow. There might be a deliberate concealment. If parents are subject to a duty and then conceal the information, they will go on concealing it and people may never know. On the other hand, he was equally adamant, and I agree with him, that the authorities should provide the information that would enable somebody to find out. Ideally, when a child is old enough to be told and reaches an age—we said that it should be 16 rather than 18 for fairly obvious reasons these days—they can go along to the HFEA and find out their origin and, if they wish to, try to trace their genetic parent. That would be the ideal situation. But clearly it does not always happen like that and our system must make provision for the less happy cases.

I thought that either the solution proposed by my noble friend Lord Howe or that proposed by the noble Baroness, Lady Barker, were improvements on what the committee said. We simply said that the matter was too difficult for us and that the Government ought to give it more attention. So far we have not inserted anything into the Bill, but both my noble friend and the noble Baroness have provided a solution, using in one case the long birth certificate, which certainly should record the origins, and in another case the short one, if that is what the person would rather have so as not to have to disclose the information to other people.

This is one of the more difficult questions in the Bill that we have been asked to consider. I do not think that the Government have fully thought through what they want to see in the Bill and I hope that they will find this debate of interest. If the Joint Committee had had more time, perhaps we might have come up with a solution, but we were getting near the end of our evidence by that stage and we had a deadline. We had to report by the end of July. Nevertheless, it was for me an intensely interesting part of our investigation and I am full of admiration for those who have come forward with solutions. At this stage I am not prepared to say which I would back, but I believe that the Government could build on one or other of them.

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Lord Winston: My friend the noble Lord, Lord Jenkin, argues as if the scrutiny committee was unanimous on this issue but I do not think that that was entirely the case. I believe that there was quite a lot of hidden opinion. One of the issues that we have to consider is whether legislation that we make in respect of donated gametes, whether they be egg or sperm, is put at risk because parents might keep the arrangement secret. I know that the noble Lord, Lord Warner, who is not in his place, argues that practical experience is not important when you are making law, but I totally disagree with that view. I think that practical experience is essential if you are going to make good law.

Practical experience at Hammersmith, which is a very large infertility clinic, shows that people undergoing donor arrangements tend to keep the matter secret from the children. That is a very big issue. I can cite many examples of where that has been a disaster later on. One child was informed only when he was a teenager doing very well at school. He was a bright boy attending a high-achieving school. He was completely appalled when his father turned round after the break-up of the marriage and said, “You’re not my son anyway. I shan’t take care of you”. The consequences for that person were dramatically horrific. That is an issue because many of these families may experience strain during the children’s teenage years. Therefore, while practitioners will counsel openness from before the arrangement for donated gametes is commenced, there is a serious risk that the people undergoing these arrangements will take a different view. Certainly, my impression in my own clinic up to two years ago was that, although we counselled the ideal of being open about the arrangement, there was increasing reluctance to be so, which has increased since sperm donation has become very difficult.

I have huge respect for the amendments spoken to by the noble Baroness, Lady Barker, and the noble Earl, Lord Howe. However, we must also consider the effect on the female when the female gamete is involved. We cannot divorce ourselves from the fact that egg donors are in a particularly difficult situation. We should look at the facts. At the moment in vitro fertilisation is an expensive procedure and a large number of couples simply cannot afford it. Therefore, they elect to go to the private sector on the basis that the woman will trade her eggs. What happens is that they go to a clinic, which says, “We will offer you free treatment provided that you give up half or a proportion of your eggs to another woman who will pay for your treatment and the treatment that she is undergoing as well”. The consequences of this are very clear and should have been clearer to the Government when these decisions were taken a year or so ago.

The real problem is that a woman who has given eggs in this situation and whose own treatment then fails because her eggs do not fertilise—or for whatever other reason the ones that she was apportioned do not result in a pregnancy—does not know that the woman in the adjoining ward has got pregnant with her eggs. With the law as it now stands, that woman can, in 18 to 20 years, be traced by a child whom she did not know she had. That could be a disaster for that person in the making. It is something that we have not considered,

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but it needs to be factored into our deliberations on confidentiality. I do not know what the answer is any more than the noble Lord, Lord Jenkin, does, but it is a horrendously complex and important problem of which we must take account.

9.15 pm

Lord Harries of Pentregarth: Will the noble Lord clarify what he means by, “a disaster for that person”? Is he referring to the child who will be born and grow up, is he referring to the mother or is he referring to both of them?

Lord Winston: I am grateful for the intervention. I suppose that I am taking a judgmental view about whether it is disastrous or not. We are faced here with a woman who has gone through in vitro fertilisation, who has given up her eggs—possibly under some kind of duress because it was the only way in which she could pay for the treatment—who ends up feeling that at least she has tried but is infertile, but who then finds, potentially to her horror, that she had a child all along who she did not know existed and whom, in different circumstances, she would have liked to have nurtured herself.

Baroness Warnock: I put my name to this amendment because it has long been my view that not perpetrating official lies and almost compelling the child to be told of his origins are overriding considerations. I repeat that one of the greatest immoralities is to keep up a long-term deception of a child as to his origins. My preferred solution has long been simply to have “by donation” on the birth certificate. I fully understand that people may not want to produce this when they are opening a bank account or whatever, and therefore I support the amendment of the noble Baroness, Lady Barker, as a compromise. I think it is a very good compromise on which people can agree, but I also regard it as a temporary compromise because I believe that attitudes are changing. If people learn somehow or other that this information appears, even if it is kept aside from the actual birth certificate by means of a symbol, or a circle, or a picture of a devil, or whatever, that symbol will soon become just like a word. One will know how to interpret it: it will just mean “by donation”. Times will change and it will become recognised that being a child by donation is an honourable thing to be and casts no aspersions on the social father whatever. In fact it shows his generosity, if anything. So if we went down that route or one like it, it probably would not last very long, but for the time being it seems to me essential to adopt the suggestion of the noble Earl or that of the noble Baroness, Lady Barker, or something equivalent. I hope the Government will give due thought to that.

Viscount Craigavon: I was partly prompted by the example that the noble Baroness, Lady Warnock, gave in her previous speech of a couple who had a child where the man who was thought to be the father was not the father. In the 1990 Bill, I spoke on this subject and the person answering for the Government was the noble and learned Lord, Lord Mackay. He may remember this particular piece of information that I raised that was generally accepted by geneticists. At

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that time I was a bit timid and I said that something like 5 per cent of fathers named on birth certificates were not actually the genetic fathers.

Noble Lords: It is more.

Viscount Craigavon: The noble and learned Lord, when he replied from the Dispatch Box, told me that the figure that he had been given in his papers was 10 per cent, and we have heard as an aside just now that it could be more. That is an important thing to bear in mind if one is considering the integrity of the register of birth certificates. I put that down to the imperfection of human nature. Hence, we have an imperfect register of births. It is important that that is in the background. The amendment proposed by the noble Earl, Lord Howe, refers to making sure that the Government and authorities are not conniving with lies, which is a slightly different thing. A large part of the birth register will not have the integrity that people might think.

On an earlier amendment, my noble friend Lord Elystan-Morgan talked about the right to know as being an essential right. That is fine, subject to the qualification of the imperfection and frailty of human nature.

Earl Howe: The noble Viscount, Lord Craigavon, has rightly drawn our attention to the presumption in law that where two people are married a child born to the woman in that marriage is presumed to be the child of the husband. However, as I understand it, in law that is a rebuttable presumption. If evidence is ever produced to confound that presumption, a court will find accordingly. That is a totally different situation from one in which the state consciously enters into a deception from the outset.

Lord Mackay of Clashfern: I recollect well the factual exchange that I had with the noble Viscount, Lord Craigavon, and I remember perhaps even more distinctly when I first got the papers myself and learnt what they contained about these statistics. The essential thing that was put to our Joint Committee was that, in that case, the state is accepting the evidence that is available at the time of the birth, of course with the presumption that my noble friend Lord Howe referred to. The distinction between that and the case that we are considering here was put in the committee on the basis that it is the state conniving with the situation, because the state regulates the procedure under which the donor conception takes place. Therefore, the state is, as it were, a party to the false presentation if donor conception is not mentioned.

Another way of tackling this has only occurred to me while listening to the discussion. The licensed clinic, or centre, or the HFEA could have an obligation to send a confidential communication to the child at a given age and, before it did so, it should warn the parents that that was going to happen. That is a possible way to preserve confidentiality from the world at large while still telling the child. I was not sure in older times whether the child would necessarily be followed up either by the licensed centre or the HFEA, but in light of the need for research in following up donor-conceived children, the records of those children will be available. It occurs to me as being a possible way of having confidentiality and also the discharge

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of the state’s responsibility to make the facts known to the person affected without telling the whole world.

Lord Alton of Liverpool: Members of the Committee are clearly making strenuous efforts to try to find a way forward. The noble and learned Lord has just suggested another way. I admit that I would have some concerns about the approach that he has just outlined. If a letter were to arrive in a family home announcing that information was going to be imparted to a child, it could take no account of the individual circumstances in the family at that time. It might in that sense damage the relationships within that family.

Lord Mackay of Clashfern: I was not attempting to explain the whole thing, but I would assume that the letter would go to the parents some time before the intimation was due, and then the authority would have an opportunity to consider in the light of that representation what should happen next. At least it is a possible way of combining the two conflicting principles.

Lord Alton of Liverpool: I see that the noble and learned Lord is trying to find a way through this, but I wonder whether that would be a wise way to proceed. The noble Baroness, in a thoughtful speech, was trying to point to another way by suggesting that something should appear on the birth certificate as a code of some kind that could be interpreted later. Inevitably, as others have pointed out, people would know what that code represented, so one might as well be straightforward about it. The noble Earl’s solution of having the words, “donor conceived” on the longer form of the birth certificate, with the parents then in a position to have a discussion with the child at the moment of their choice, represents for me the most crystal clear way of dealing with this. I certainly agree with what my noble friend Lady Warnock said earlier about the importance of truth being observed. As the noble Earl said, fake identities are not something that we should be promoting.

Earlier in our proceedings I mentioned a new book by Lisa Mundy called, Everything Conceivable. She points to the American experience. Inevitably a website has been created in the United States for children who have been donor-conceived to try to find out their true identities. An example of children searching for their unknown genetic parents involves a group of half siblings who have a donor in common. Some donors have more than 30 offspring. When the noble Lord, Lord Jenkin of Roding, made his point earlier about the possibility of relationships being entered into unknowingly, this was not far-fetched, and we must take that into account as we decide on the information that we will make available to children who have been donor conceived.

I was recently in conversation with a High Court judge who was telling me of a case he had dealt with. This did not involve in vitro fertilisation; it involved the normal birth of twins who were separated at birth and adopted by separate parents. They were never told that they were twins. They met later in life and felt an inevitable attraction, and the judge had to deal with the consequences of the marriage that they entered

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into and all the issues of their separation. I suspect that it will be a matter of litigation in the future if we do not make information of this kind available to children who have been donor conceived. The noble Earl said that the right to know was a human right. I agree, and it is the most straightforward way of dealing with an extraordinarily complex question.

The noble Lord, Lord Winston, is right of course. There are implications for everybody involved, but the needs of the child will always be paramount, and it is right that we should therefore make the process as transparent as possible.

Lord Jenkin of Roding: Before the noble Lord sits down, may I remind him that we were told that following the right of the child to trace his real parent, the number of donors has declined quite markedly, but the number of donations has gone up because more donors are donating to a number of different women?

Lord Harries of Pentregarth: Before the noble Lord sits down, may I say that the current code of practice limits the number of families to which a donor might bring about children to 10?

Lord Alton of Liverpool: The person concerned would not necessarily know whether he was one of 10, so the same issue applies. The experience to which I related of the 30 half siblings comes from the United States, where the position is even more extreme.

In replying to the noble Lord, Lord Jenkin, it was after the passage of the 1990 Act that, when in conversation with my noble friend Lady Warnock, I asked how she felt about anonymity. We then made joint representations to the Department of Health that anonymity should be removed, and regulations were brought forward on egg donation. I am glad that that happened. I realise that it led to a reduction in the number of eggs being donated, but I do not think that anonymity serves any purpose in this context.

9.30 pm

Baroness Hollis of Heigham: I wonder whether we are running two separate issues together. One is about what may be in the public domain and what should remain private, to which both amendments refer and to which I will come back. The second, the point being raised particularly by the noble Lord, Lord Alton, is whether the right to know is the right to know which individual was your donor, or the right to know—in the phrase of my noble friend Lord Winston—the genetic inheritance you have acquired which may be crucial for your future medical history. Can we keep those two issues slightly apart for the moment?

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