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23: Page 28, line 45, at end insert-

“33AB Consent required to authorise certain disclosures

(1) This section has effect for the purposes of section 33A(2)(h).

(2) Subject to subsection (5), the consent required by this section is the consent of each individual who can be identified from the information.



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(3) Consent in respect of a person who has not attained the age of 18 years (“C”) may be given-

(a) by C, in a case where C is competent to deal with the issue of consent, or

(b) by a person having parental responsibility for C, in any other case.

(4) Consent to disclosure given at the request of another shall be disregarded unless, before it is given, the person requesting it takes reasonable steps to explain to the individual from whom it is requested the implications of compliance with the request.

(5) In the case of information which shows that any identifiable individual (“A”) was, or may have been, born in consequence of treatment services, the consent required by this section does not include A's consent if the disclosure is necessarily incidental to the disclosure of information falling within section 31(2)(a).

(6) The reference in subsection (3) to parental responsibility is-

(a) in relation to England and Wales, to be read in accordance with the Children Act 1989;

(b) in relation to Northern Ireland, to be read in accordance with the Children (Northern Ireland) Order 1995;

(c) in relation to Scotland, to be read as a reference to parental responsibilities and parental rights within the meaning of the Children (Scotland) Act 1995.”

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 14 to 23.We recognise that it is very important that the 1990 Act and the Bill strike the right balance between, on the one hand, safeguarding the confidential information of patients, their partners, donors and children held by the HFEA and clinics and, on the other hand, allowing information to be disclosed by the HFEA and clinics in circumstances that warrant it. However, at present the 1990 Act is not as conducive to this as it could be. For instance, it prohibits the HFEA from disclosing identity information about patients, even where the patient consents to such disclosure. We regard this as too restrictive. In particular, it is not helpful for follow-up research into the effects of infertility treatment on patients and their children. At present, such research could not draw on information from the HFEA that identified the patient, even if the patient was very keen to see the research take place and had consented to the disclosure of their information.

To help this, Clause 25 introduces a provision that allows the HFEA to disclose information from its register of treatment with the consent of the people identified. Following the debate in this House and amendments tabled by the noble Lord, Lord Patel, we gave further consideration to the detail of the new provision. In particular, we have looked at the relationship between disclosure and consent in certain situations. As a result, we have identified where the Bill could benefit from greater clarification. The amendments that we have tabled address this. The group of amendments provides that disclosure of identifying information about a person aged under 18 must have their consent or, if they are not competent to consent, the consent of someone who has parental responsibility for them. This is important, as researchers may well want information about the child in order to undertake follow-up research into their health. This could be a sensitive issue for the child and it is only right that their consent to the disclosure of information is obtained.



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The amendments also ensure that the consent provisions do not allow for the provisions in the 1990 Act and the Bill for the disclosure of identifying information about donors to be inadvertently circumvented. Those specific provisions in Section 31(3) to (7) of the 1990 Act, and carried forward by new Sections 31ZA and 31ZB in Clause 24 of the Bill set out the circumstances in which the HFEA can disclose identifying donor information. They provide, for instance, that identifying information about donors can only be provided to a relevant person aged 18 or over. The amendments ensure that this remains the correct route by which identifying donor information, with all its associated sensitivities, is disclosed by the HFEA to people who may be born as a result of such treatment. The amendments make these circumstances exceptions to the new provisions for the HFEA to release information with the consent of those identified. In doing so, they remove, for example, the risk of parents putting pressure on the HFEA to approach a donor for consent to his identifying information being released to them and their child. I beg to move.

Moved accordingly, and, on Question, Motion agreed to.

Commons Amendments Nos. 24 to 26

24: Page 32, line 26, at end insert-

“( ) In subsection (7), for “section 10(2)(a)” substitute “section 19B(3)(a) or 20B(3)(e)“.”

25: Page 32, line 31, leave out “(7) or”

26: Page 33, line 21, leave out “, (6) and (7)” and insert “and (6)”

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 24 to 26. I shall speak also to Commons Amendments Nos. 117 and 118.

Amendments Nos. 24, 25, and 26 relate to Clause 29, which amends Section 41 of the 1990 Act that sets out offences under the Act. These amendments are minor and technical and carry forward existing provisions in the 1990 Act.

A licence or appeals committee of the HFEA has the power to require, or summons, oral or written evidence. If the summons is not complied with, it is an offence under the 1990 Act. This is set out in Section 41(7) of the Act, which states that if there is not a reasonable excuse as to why the summons for evidence has not been complied with, a person is guilty of an offence. The Bill has the same power for an appeals or licence committee to require evidence but does not, as currently drafted, make it an offence not to comply with the request. These amendments would ensure that the power under new Sections 19B and 20B could be enforced.

Amendments Nos. 117 and 118 amend Schedule 8, which sets out the sections of the 1990 Act that will be repealed. These amendments ensure that the relevant sections of the Act are not repealed.

Amendment No. 28 relates to the process, set out by the 1990 Act, for appealing against licence decisions. Clause 21 replaces these provisions in the 1990 Act with new Sections 20, 20A, 20B and 21. These provisions set out the process for reconsideration and appeals.



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Clause 21 introduces two regulation-making powers, at new Sections 20A(3) and 20B(2), to make provision for the proceedings and membership of an appeals committee, and procedure in relation to reconsideration of licence decisions. It was deemed appropriate to make these provisions through regulations rather than in the Bill so that the detail could be consulted upon. Both regulations are subject to negative resolution under the Bill. Amendment No. 28 makes these regulations subject to the affirmative procedure, and follows discussions on this issue during Public Bill Committee in another place. In light of these discussions, and taking into account the likely interest and importance of these regulations, I believe that the affirmative procedure is more appropriate. The Department of Health will consult on the detail of these regulations in due course.

Moved, That the House do agree with the Commons in their Amendments Nos. 24 to 26.—(Baroness Thornton.)

On Question, Motion agreed to.

Commons Amendments Nos. 27 to 30

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 27 to 30, to which I have spoken with earlier amendments.

Moved accordingly, and, on Question, Motion agreed to.

Commons Amendment No. 31

31: Page 37, line 23, at end insert-

“( ) A notice under subsection (1)(a), (b) or (c) by a person (“S”) who is unable to sign because of illness, injury or physical disability is to be taken to comply with the requirement of subsection (2) as to signature if it is signed at the direction of S, in the presence of S and in the presence of at least one witness who attests the signature.”

Baroness Thornton: I beg to move that the House do agree with the Commons in their Amendment No. 31. I shall speak also to Commons Amendments Nos. 34, 53, 62 to 71 and 73 to 88.

The Bill introduces new paragraph 1(2) of Schedule 3 to the 1990 Act, which enables a person who lacks physical capacity to direct another to sign a notice of consent on their behalf. This ensures that where someone is physically incapacitated, they are not prevented from giving consent to the creation, keeping and use of embryos and human admixed embryos and to the storage and use of gametes to create embryos.

Commons Amendments Nos. 31 and 34 ensure that an equivalent provision is made where consent is required to being treated as the father or second female parent of a child born by assisted conception. These amendments enable the person giving consent to direct another person to sign the notice of consent on their behalf. Equally, if the mother of the child is unable to sign the notice she can direct someone to sign on her behalf. These amendments ensure consistency in the Bill.

Amendments Nos. 53, 62 to 71 and 73 to 88 are purely technical in nature and have been raised at this point after further scrutiny of the Bill. Amendment No. 53 replaces the phrase “the incapacitated person” with the phrase a “person unable to sign”, to distinguish

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a person who is incapacitated due to illness, injury or physical disability from people who lack capacity to consent, which is relevant in the context of other amendments later in this schedule.

During previous consideration of the Bill in this House, the noble Lord, Lord Alton, raised concerns about the words “child donor” in new paragraph 9 of Schedule 3, where these words are referring to a patient who is a child. In order to prevent any confusion with the terminology, minor technical amendments have been made throughout, replacing the words “child donor” with the letter “C”. For consistency, further amendments are needed to replace the word “patient” with the letter “P” in new paragraph 10. These are covered by Amendments Nos. 62 to 71 and 73 to 88.

Moved, That the House do agree with the Commons in their Amendment No. 31.—(Baroness Thornton.)

Lord Alton of Liverpool: My Lords, I thank the noble Baroness, Lady Thornton, for the provision that she has just made. As she rightly said, we will come to the substantive question on consent later in our proceedings. However, for the clarification that has been provided in this group of amendments, I am indebted to her.

On Question, Motion agreed to.

Commons Amendments Nos. 32 to 35

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 32 to 35, to which I have spoken with earlier amendments.

Moved accordingly, and, on Question, Motion agreed to.

Commons Amendment No. 36

36: Page 43, line 13, at end insert-

“(5A) In relation to England and Wales and Northern Ireland, a child who-

(a) has a parent by virtue of section 42, or

(b) has a parent by virtue of section 43 who is at any time during the period beginning with the time mentioned in section 43(b) and ending with the time of the child's birth a party to a civil partnership with the child's mother,

is the legitimate child of the child's parents.”

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 36.

Amendment No. 36 relates to consequential amendments made to other Acts by the Bill. These amendments specifically relate to the Legitimacy Act 1976 and the Family Law Reform Act 1987, in respect of the legitimacy of children born by assisted conception to civil partners, to bring these rules in line with those for married couples.

Since the introduction of the Bill, it has been identified that while a child born to a same-sex couple who later entered into a civil partnership would be treated as legitimate in law for all purposes, a child born to civil partners would not be treated as legitimate in law for all purposes, but only for the purposes set out in statute. For example, many family trusts create classes of beneficiary limited to “lawful issue”; that is, legitimate

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children. In such cases, the anomaly would operate unless corrected through these amendments. Amendment No. 36 corrects this unintended consequence by making a clear statement that a child born to civil partners will be treated as legitimate in law for all purposes.

The right reverend Prelate the Bishop of Southwell and Nottingham has tabled an amendment to Amendment No. 36. I shall respond to it after he has spoken to his amendment.

Moved, That the House do agree with the Commons in their Amendment No. 36.—(Baroness Thornton.)

The Lord Bishop of Southwell and Nottingham moved, as an amendment to the Motion, Amendment No. 36A:

at end insert, “but do propose Amendments Nos. 36B and 36C as consequential amendments to the Bill:

36B: Page 52, line 27, at beginning insert “Subject to subsections (3) and (4)”

36C: Page 52, line 28, at end insert-

“(3) No order bringing sections 42 and 43 into force shall be made until after the publication of the results of an 18-month consultation with children and young people on the effects of these sections.

(4) An order under subsection (3) shall not be made unless a draft of the regulations has been laid before, and approved by a resolution of, both Houses of Parliament.”

The right reverend Prelate said: My Lords, Clauses 42 and 43 were not debated on the Floor of the other place because of the shortage of time. In the final minutes of the remaining stages last Wednesday, it was said by the Member who tabled amendments to Clauses 42 and 43:

“I am deeply saddened that we have not had a proper debate, and that there has not been a chance for every Member to go through one or other Division Lobby, on the issue”.—[Official Report, Commons, 22/10/08; col. 410.]

On Monday, the following letter appeared in the Daily Telegraph, setting down a challenge to this House:

“Sir—It is a sad reflection on the state of democracy in Britain that last Wednesday, without proper debate, the Government pushed through its highly controversial Human Fertilisation and Embryology Bill (Letters, October 25) ... There was no opportunity to debate the extraordinary proposals for deliberate creation of children with the intention they be denied a father for the duration of their childhood ... we hope the Lords will do all it can to make good these failings”.

It is signed by two Members of the other place.

7 pm

Given the lack of opportunity for scrutiny of Clauses 42 and 43, and attendant concerns that questions will be asked about our parliamentary process, I have been more than happy to table the amendment in my name that seeks to provide opportunity for greater scrutiny of these two clauses. I will first outline some of the problems of these provisions before focusing on the consultation proposed in my amendment.

Currently, at the point of conception, every child has a chance of having a father as a parent during their childhood. I stress the word “chance” because there is no right to have a father that the law can guarantee. In this regard, there are at least two scenarios which we need to keep in view. First, disaster might strike; tragically, some fathers are killed before the birth of their children. Secondly, we must have regard

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for women who become pregnant either naturally or by IVF, with no immediate prospect of a present father who can input into the child’s life. At the point of conception, however, both have the chance of having a father because in the first instance, we do not know that the father will die, and in the second, the fact that a woman is not married or living with a partner when she becomes pregnant does not mean that it is intended that she will remain that way for the duration of the child’s childhood. She may marry at a later stage, and then the child would enjoy access to a social father for a period.

While the law cannot guarantee a present father, it would surely be quite wrong, in my view, for the state to put in place a legal framework to allow for the deliberate creation of children with the intention that they should be denied the chance of ever having a father throughout their childhood, yet this is precisely the effect of the clauses before us.

In making this point, I am keenly aware that some will say that with gay adoption legal, the point of principle has been conceded, and Clauses 42 and 43 simply outwork its implications in the context of IVF. This, however, is completely untrue. When a child is conceived who is later adopted by a lesbian couple, they have the chance of being parented by a father and may well have been parented by a father for a period. These children were not deliberately created with official sanction of the intention that they should be denied a father for the duration of childhood. While an argument can be made that despite the evidence suggesting the importance of fathers, it is better for children to be looked after by a loving same-sex family than for them to be in an institution, it is not appropriate—given the balance of research which clearly demonstrates the importance of fathers to the well-being of children as well as the importance of children’s rights— deliberately to create children with the intention that they should be denied a father for the duration of their childhood.

When I was at school, we were told how bad things were for children in the 19th century. We were told how the upper classes suffered under a regime in which they were to be seen and not heard and how the lower classes were sent up chimneys and down mines. Since then, our teachers told us, things have improved, and in many ways they clearly have. But this legislation causes me big concerns. It shows a preoccupation with the rights of adults and would-be parents and loses sight of the importance of the rights of the child. In highlighting this point, I am very grateful to the noble Lord, Lord Brennan, who has prepared a legal opinion on the parenthood implications of the Bill. The opinion concludes that the changes proposed in the legislation,

Given the problems with Clauses 42 and 43, not least in relation to human rights, it seems only appropriate that we should pause before implementing these extremely controversial proposals. As well as revisiting the human rights arguments in light of the balance of current research about what is in the child’s best interests, I also think it is vital to listen to the views of children

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and young people specifically. It is interesting that the consultation process that went before the Bill—the 2005 review of the Human Fertilisation and Embryology Act—managed to construe some key questions without even mentioning the child directly. Consider the following:

“The Government seeks views on whether the status and legal parenthood provisions of the Human Fertilisation and Embryology Act should apply to same-sex couples who do not form a civil partnership. If so, how would automatic recognition of parenthood be achieved, given the lack of legal ties between the couple?”.

It is almost as if the child were not there.

The provision of an appropriate focused consultation exercise with children and young people would be entirely appropriate given the Government’s commitment to consult children and young people in the Children’s Plan. Indeed, it seems to me that if the Government are to consult children and young people on anything, they must surely talk to them about controversial proposals such as these which seek deliberately to create children with the intention that they be denied a father for the duration of their childhood and are vulnerable to the accusation that they have been developed out of regard for the interests of adults rather than children.

I very much look forward to hearing the views of other Members of your Lordships' House on this important issue. I beg to move.

Lord Waddington: My Lords, the House will be relieved to hear that I do not look upon this as an opportunity to rehash all the arguments about why, when treatment is being considered, regard should be had to the child’s need for a father. But in view of the fact that there was no debate in the other place of Clauses 42 and 43, I think some brief comments are appropriate.

We often discuss in this place the rights of children, and I find it absolutely astonishing that we are being asked to sanction the deliberate creation of children with the intent that they be denied a father for the duration of their childhood, completely ignoring those children’s rights. That seems so obviously wrong that there is no need for further words of embellishment. But how can it be seriously argued that the right of two women to have a child is so strong that it completely overwhelms and drives out of court other people’s rights, in particular the rights of the child they insist on bringing into the world?


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