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Speaking as an academic lawyer, I think that the principle in law is very important, almost regardless of what has happened in practice. To remove the need for parents sends an unfortunate signal. Moreover, the Government, rightly, have encouraged paternity leave as well as maternity leave. They encourage child support from fathers. They, as do the judges, encourage contact with fathers after divorce. They encourage the registration of a father's name on the birth certificate. They have ended the anonymity of sperm donors. Why, if they are not important? With all the drawbacks of reduced numbers of donors, why has anonymity been ended? Why is there a drive to tell children who their fathers were, if not for the simple reason that to know your father is a good thing? As the United Nations Convention on the Rights of the Child says, the child has a right to know and, if possible, to be cared for by its parents. That is the one basic ethical principle that I believe should be in our law.
In response to everything that has been said in the debates and in the pre-legislative scrutiny committee about ethics being written into the Bill, if this House does not sign up to this ethical principle, I will find it very hard to believe. If we cannot agree on this, there is diminishing hope for good, safe, acceptable popular progress in science and its regulation in the future in this country, where it has been so successful, on the basis of the 1990 Act. I beg to move.
The Deputy Speaker (Viscount Simon): My Lords, I advise your Lordships that, if the amendment is agreed to, I cannot call Amendment No. 108C due to pre-emption.
The Archbishop of York: My Lords, as we are at Report, I will not repeat some of the things that I have said previously in this House. I am one of those who have always found it difficult when people are so morally rigorous that you can end up with an injustice. More rigour does not help. Nor have I always been
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I come from a family where I am one of 13 children. I was raised largely by my grandmother, but I wanted to know who my parents were. I knew who my mum was, I knew who my dad was, but I was raised by what I call “supporting parenting”. It worked. I come from a very large extended family, including uncles and aunties, but we knew who our dad was. As for the phrase “supporting parenting”, supposing that a child wants to know, “Who is my dad?”, and is told, “Don’t ask such questions. It is discriminatory. We are your supporting parents”. A child will not be satisfied. A child wants to know. I have friends who are in same-sex relationships who, through treatment, have children. The children know who their dad is, who is responsible for the sperm. I think that it is important to extend that element of family help and support.
The 1990 Act considered the need for a child’s concerns to be taken care of and the need for a father. That phrase has not prevented my friends from having treatment and having children when they are in a same-sex couple. There is this fear that it looks discriminatory. Removing from the statute the words “father and mother” is trying to discriminate against another group of people. Again, here are competing rights. The current provision is that that is where it is still possible; the arguments were made at the time.
The think-tank report from the Fatherhood Institute, The Difference a Dad Makes, makes salutary reading about how, in this great nation, fathers are sometimes not in the forefront of the raising of their own children. It is almost being suggested now that it does not matter much whether fatherhood is an important thing or a good thing. The person whom I know who donated the sperm to my friends for them to have a child could not be in a relationship with that person. None the less, on the birth register, his name is there and he has every intention, although from a long distance, still to take responsibility as a father. That has not prevented the family arrangements as they are at the moment.
May we not be in that moral liberalism, that is so strong, that we may be unjust, that we set up competing rights where some trump other rights? This country has been very great at finding a middle way. So I support, instead of the phrase “supporting parenting”, the phrase “support by a father and mother”. That does not prevent other arrangements, other families, being involved.
I fostered children because their mother died of cancer. We reached the stage where we wanted to adopt them. It became quite clear that, if we went down that road, they should still have their father’s name, instead of taking on our name. We could not do that legally because of a number of complications, so we continued to foster them. They call us “auntie” and “uncle”. Their parents are now both dead. We
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I say to your Lordships that, for me, Amendment No. 108A is a much better phraseology. As we are seeing this afternoon, very loose phrases, such as supportive parenting, are being used without any clear definition. Lawyers out there want to know: what is supportive parenting? What does it look like? How do we know? Do we compare this house with that house or that place? I go for the words, “supported by a father and a mother”, which does not leave out other arrangements in our society.
Baroness O'Cathain: My Lords, I support the noble Baroness, Lady Deech, in Amendment No. 108A, which I have co-signed, requiring IVF providers to consider the need for a father as well as a mother. The Government are seeking to remove the need for a father from existing legislation, but their case contains a fundamental contradiction which they have so far sought to avoid. I know that the Government and those who have taken part in previous debates are all agreed that the best interests of the child are paramount in the Bill, but it can never be in the child's best interests for someone to decide that he or she does not need a father. If our primary concern is the best interests of the child, noble Lords must support Amendment No. 108A.
At various points during consideration of the Bill, we have heard in this House and read in the media of individuals who have been raised without a father, and yet who have grown up happy and well adjusted. While of course we rejoice at the outcome for these individuals, we must be wary of such anecdotal evidence. As I have said before, stories with happy endings are not the basis on which to make law. Many people could testify to the negative impact on their life of growing up without a father. Both public opinion and the weight of sociological research recognise the vital importance that the father plays in a child’s development. The noble Baroness, Lady Deech, has already quoted the ComRes poll which found that 77 per cent of those interviewed considered the obligation for IVF clinics to consider the need for a father to be “important” or “very important”. In Committee, the noble Baroness, Lady Deech, and I referred to and quoted from extensive bibliographies of evidence. All of that research is on record. Amendment No. 108A has significant support from sound research and from the public.
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As the noble and learned Lord, Lord Mackay of Clashfern, reminded us, the evidence before the Joint Committee showed that the 1990 requirement to consider the need for a father has done no harm. I know that the Minister has stated that we should not create legislation on the basis of no harm, but I suggest that we should ask ourselves what harm could be done if we removed that requirement. What signal would we be sending to the public if we removed the phrase “the need for a father”? New laws send out clear and powerful messages. People will conclude that Parliament now thinks that fathers are an optional extra.
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The Minister stressed in Committee that the Government’s decision to remove the phrase,
was not motivated by any attack on fathers or the concept of fatherhood. Although I know he means it—we have discussed it off the Floor of the House—government motivation and public perception do not seem to coincide in this respect. The public impression is and will be that removing the phrase undermines the role of fathers. That is surely the crux of the matter.
Government Amendment No. 108 speaks in the vaguest of terms. The suggested replacement is “supportive parenting”. It is not clear what that means. Whatever it is, the amendment does not require consideration of the need for a father. An overwhelming weight of evidence shows that a child is most likely to have good outcomes living in a family with both a mother and a father, above all when the parents are married. The Government amendment simply fails to address the fundamental issue. It will replace a firm recognition of the importance of the father with an inadequate alternative. I believe that to remove the requirement to consider the child’s need for a father prioritises the desires of people to be parents above the needs of the child. I repeat: it prioritises the desires of people to be parents above the needs of a child. That is not a change I believe noble Lords should support and I urge them to support Amendment No. 108A.
Lord Carlile of Berriew: My Lords, I support the government amendment and oppose the other amendments. I applaud, of course, and share entirely the purpose of those who are moving amendments to the government amendment: we all share the desire to ensure that there is effective and proper parenthood in this country. In this group we are talking about an entirely different question from that addressed principally by—if he will allow me to say so with great respect, for he knows that I am a great admirer of his—the most reverend Primate the Archbishop of York. The question “who is my genetic father?” is one that should always be capable of answer by honest parents to inquiring children. It already happens in adoption, and all those of us who support the government amendment and oppose the other amendments believe that an analogy with adoption is entirely appropriate here. We are taking about a different question.
I share too the determination of the noble Baroness, Lady O’Cathain, to crusade for responsible parenthood. Again with great respect, for I admire her enormously as well, I say to her that in reality any crusade for universal responsible fatherhood was lost a couple of generations ago, as those of us who have practised the criminal law have come to learn day by day.
Yesterday I had the privilege of hearing a sermon in a small Anglican church in London in which the priest warned of the dangers of what he called the abyss of selective morality. I fear that in considering and particularly voting for the amendments to the government amendment, we are on the edge of that very abyss. We have heard a bit about ethics. The noble Baroness, Lady Deech, seemed to me to speak of ethics as though they were some kind of immutable force, but they are not. Science is a mover of ethics, as ethics are a mover of science. This is not a static issue.
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Those who are involved in same-sex partnerships are offended, and in my view rightly offended, by the inference behind what the noble Baroness, Lady Deech, is proposing. They say that there is no evidence for the finger of criticism to be pointed at them in the way implied by what is requested. They say that they offer no standard lower than any other form of parenthood. They say, rightly in my view, and as I think the Minister was saying, that if the government amendment is not carried, there is a severe risk of the law passed by this House being offensive to the European Convention on Human Rights. I now turn with some trepidation to a very personal observation—
Lord Lloyd of Berwick: My Lords, I thank the noble Lord for giving way; I am very grateful. Which particular provision of the European Convention on Human Rights does he have in mind?
Lord Carlile of Berriew: My Lords, I have in mind the provisions dealing with family life, as the noble and learned Lord will well understand. The noble Lord, Lord Darzi, made it very clear, as I understood his speech, that the Government’s view is that what would be in the law if the amendment to the amendment were carried would be discriminatory against same-sex couples.
I was about to make a very personal observation, and with some trepidation. I do so with the consent and indeed the encouragement of my middle daughter, who lives in a same-sex couple. I do not know how many of your Lordships have the privilege of being the grandparent—of course this place is full of grandparents, and great grandparents—of a child or children from a same-sex couple. I have one and eight-ninths grandchildren, if you see what I mean, from a same-sex couple. The daughter in question, my middle daughter, is a solicitor, and her partner is an accountant. They are—if they will forgive me—as square as a box. They live in a provincial town in England, in a splendid semi-detached house with double-glazed new windows and a Vauxhall Zafira sitting in the drive. Their child, my grandson, is the picture of health and his parents are morally exemplary. They happen to be married to each other through a civil partnership and they are both female.
I hear the noble Lord, Lord Tebbit, unhelpfully muttering from a sedentary position. I do not expect to persuade him, and I am sure that he will do me the politeness of giving me a quiet and fair hearing. I do not give way to him now, I am afraid—not to such an intervention—because he will have the opportunity to speak if he wishes to do so.
My daughter and her partner became parents by going to a well run, highly respected fertility clinic. Their second child will be a full sibling of their first child, my existing grandson by that marriage. The child is clever and articulate; I suspect that he may be the brightest of my grandchildren, but do not tell the others. My daughter and her civil partner have many friends who have been through the same process, and I have met several of them. They are typical of such couples: respectable, decent, honest and rather squarer than the prejudices held by many about such couples. They abhor the idea of people going on the black
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I urge your Lordships to hold back from imposing what are really old prejudices, however conscientiously felt, on the modern world of civil partnerships. To those of us who have walked in and out of prisons, in and out of courtrooms whether as advocates or judges, who have been Members of the other place and have had large numbers of people coming to see us week after week privately about their personal problems, I say this: in the real world, what is offered by conscientious same-sex couples probably exceeds in quality the majority of what is offered even by heterosexual couples. There is no reason to discriminate against them. So I invite noble Lords to remember that we are in 2007—
Lord Carlile of Berriew: I apologise, my Lords—2008, but it would also have done in 2007. An awful lot has happened since 1990, mentioned by the noble Baroness, Lady O’Cathain, a few moments ago. We need to recognise the reality of our modern age.
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Lord Lloyd of Berwick: My Lords—
Baroness Butler-Sloss: My Lords, I thank my noble and learned friend for permitting me to go before him. I should like to support this amendment and to speak to the amendments to which I have added my name. I do not consider this to be a question of selective morality. I am not a crusader—that is the last thing I am. I am not opposed to civil partners, and when I was a judge I made orders that handed children to same-sex parents. So I stand very much in the middle. I listened with interest to what the noble Lord, Lord Carlile, said about his daughter, and good luck to her. I would not be opposed in any way to what she and her partner do.
The amendments that I have tabled and the amendment of the noble Baroness, Lady Deech, which I support, have the underlying purpose of trying to find a suitable form of words to express the view that good and supportive parenting is of great importance to a child about to be born, bearing in mind the purpose of the legislation with which we are concerned today, but the government amendment, which is welcome, does not go far enough. I know that I am not alone in this House in that view. The 1990 Act expressly required attention to the importance of the father figure in looking at the welfare of the child. In 2008, most of us
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The Government are unnecessarily concerned about the impact of the Human Rights Act on these amendments, and indeed about the promotion of equality. This is a Government who have criticised the unnecessary application of the Human Rights Act from time to time, and on this occasion they should not be looking to put reasonable amendments into a straitjacket which the human rights convention does not impose. It also most certainly is not seen in other parts of the European community.
The use of the words covering the advantages or disadvantages of having a father and a mother does not discriminate against the single parent or a same-sex couple. I discussed these amendments with a leading member of Stonewall, who is a lawyer. He laughed when I told him that this was considered to be discriminatory and contrary to human rights, and he could see no objection to the use of the words “mother” and “father”. But the inclusion of those words alerts the would-be parents as well as the clinic to such advantages.
There is another reason for objecting to the words “supportive parenting” without anything further. It would be wrong for the House to ignore the implications of a decision to delete the phrase, “the need ... for a father” and replacing it with the well meaning phrase, “supportive parenting”. The publication of the Bill with the intention to delete the phrase has already been picked up by fathers’ organisations and was the lead article in the magazine McKenzie, sent to me by post from one of the fathers’ organisations. It has already led to the suggestion that this Government do not think that fathers are important in a child’s life. Is that really the message this Government want to send?
I strongly support Amendment No. 111, to which I have also added my name. So far it has not been found, although some of us are trying have it put into the Children and Young Persons Bill, which is currently before the House. I hope that it will be included. It can only be found in the decisions of the courts, which are not easily available to the majority of people, but it is to be found in the Children Act 1995, and this is an occasion when we might usefully follow the Scottish lead. However, I did hear the Minister suggest that it would be put into statutory guidance; certainly for me, that would be sufficient.
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Lord Lester of Herne Hill: My Lords, I have the misfortune to disagree with the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Deech. I shall say only a few words about the European Convention on Human Rights and the Human Rights Act.
The Law Lords have a distinguished recent record of reading into legislation, wherever they can, equal rights for gay couples, even in areas where Parliament has not passed, for example, the Civil Partnership Act, of which I was originally a supporter in a Private Member’s Bill. They have done so because of their commitment to equal treatment. The reasons powerfully expressed by my noble friend Lord Carlile about presumptions based on stereotypes of what must be a proper family in the context of children said all that needed to be said.
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