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Clause 43 makes parenthood provisions for female couples who are not in a civil partnership where one of the women gives birth to a child following assisted conception treatment at a UK-licensed clinic. If valid female parenthood conditions are in place with the partner at the time of the conception of the child, the other woman will be treated as the parent of that child. The provisions in Clause 43 mirror those for unmarried heterosexual couples where the woman has a child as a result of assisted conception with donor sperm in a UK-licensed clinic.

The effect of the amendments proposed by the right reverend Prelate would delay the enactment of these important clauses, which have been debated extensively in this House and at length in another place. I encourage the right reverend Prelate to withdraw the amendment, but if he decides to move it, I invite the House to resist it.

Baroness O'Cathain: My Lords, perhaps I may ask the Minister a simple question. She used the word “offensive” when she was referring to some people who thought it was better for a child to have two parents, a male and a female. What is the Government’s definition of a family?

Baroness Thornton: My Lords, we have discussed this at great length. Evidence presented to the Joint Committee of both Houses, for example, demonstrated that the emotional well-being and other aspects of development of children growing up in lesbian families are comparable to those in heterosexual families. Many noble Lords, including the noble Earl, Lord Listowel, have suggested that what is important is that children are brought up in loving, supportive families. It is unrealistic to suggest that that is an undesirable situation when that is what happens. We need to make sure that such children are not disadvantaged by the legal process through not having legitimate parents entered on their birth certificates. That is what the amendment is about.

The Lord Bishop of Southwell and Nottingham: My Lords, I want to emulate the noble Lord, Lord Alton, by keeping moderation as the tone of the debate. He set a good example at the beginning of this Session. I

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am grateful to all noble Lords who have taken part in the debate for the issues they have raised. Now is not the time for an academic seminar. I resist strongly the suggestion that this is intended to be a wrecking amendment. I am conscious that many social lives will be wrecked if we prolong this debate too long, but we are engaging in legitimate due parliamentary process at this time and that is why I am pursuing the matter.

There is a major moral issue here, a major debate. I have heard enough discomfort around the Chamber and I would like to test the opinion of the House.

7.45 pm

On Question, Whether the said amendment (No. 36A) shall be agreed to?

Their Lordships divided: Contents, 51; Not-Contents, 121.


Division No. 2


CONTENTS

Ahmed, L.
Alton of Liverpool, L.
Bates, L. [Teller]
Bew, L.
Butler-Sloss, B.
Byford, B.
Carnegy of Lour, B.
Cope of Berkeley, L.
Cotter, L.
Denham, L.
Dixon, L.
Donoughue, L.
Elton, L.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Howe of Idlicote, B.
Hylton, L.
Kilclooney, L.
Kirkham, L.
Kirkhill, L.
Knight of Collingtree, B.
Laird, L.
Listowel, E.
Lyell, L.
Mackay of Clashfern, L.
Maginnis of Drumglass, L. [Teller]
Mancroft, L.
Masham of Ilton, B.
Mawson, L.
Mayhew of Twysden, L.
Meacher, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Neill of Bladen, L.
Norton of Louth, L.
O'Cathain, B.
Patten, L.
Pendry, L.
Rees-Mogg, L.
Rogan, L.
Rowe-Beddoe, L.
Seccombe, B.
Selkirk of Douglas, L.
Sharples, B.
Southwell and Nottingham, Bp.
Stoddart of Swindon, L.
Tombs, L.
Waddington, L.
Williams of Crosby, B.

NOT CONTENTS

Adams of Craigielea, B.
Addington, L.
Adonis, L.
Alderdice, L.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Avebury, L.
Bach, L.
Barker, B.
Bassam of Brighton, L. [Teller]
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bradshaw, L.
Brett, L.
Brooke of Alverthorpe, L.
Campbell-Savours, L.
Carter of Barnes, L.
Chandos, V.
Clark of Windermere, L.
Clement-Jones, L.
Clinton-Davis, L.
Craigavon, V.
Crawley, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Drayson, L.
D'Souza, B.
Dykes, L.
Elder, L.
Elystan-Morgan, L.
Emerton, B.
Falconer of Thoroton, L.


29 Oct 2008 : Column 1646

Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Goodhart, L.
Goudie, B.
Greaves, L.
Greengross, B.
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Joffe, L.
Judd, L.
King of West Bromwich, L.
Kirkwood of Kirkhope, L.
Lea of Crondall, L.
Livsey of Talgarth, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
McNally, L.
Malloch-Brown, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Yardley, B.
Myners, L.
Neuberger, B.
Newby, L.
Noakes, B.
Patel, L.
Patel of Bradford, L.
Prosser, B.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Roberts of Llandudno, L.
Rooker, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sandwich, E.
Sawyer, L.
Scott of Needham Market, B.
Shutt of Greetland, L.
Simon, V.
Stone of Blackheath, L.
Taylor of Bolton, B.
Thomas of Gresford, L.
Thornton, B.
Tomlinson, L.
Tonge, B.
Truscott, L.
Tunnicliffe, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Wilkins, B.
Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

7.55 pm
Commons Amendment No. 37

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 37, to which I have spoken with Amendment No. 8.

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

Commons Amendments Nos. 38 and 39

38: Page 44, line 10, at end insert-

“( ) The reference in section 48(5A)(b) to a civil partnership includes a reference to a void civil partnership if either or both of the parties reasonably believed at the time when they registered as civil partners of each other that the civil partnership was valid; and for this purpose it is to be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the civil partnership was valid.”

39: Page 45, line 16, at end insert-

“( ) the Schedule to the Population (Statistics) Act 1938 (c. 12),”



29 Oct 2008 : Column 1647

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 38 and 39. The Bill sets out provisions for legal parenthood for same-sex couples. Following assisted conception, provisions in the Bill allow for the female partner of the woman giving birth, whether in a civil partnership or not, to be entered as a parent at birth registration.

Amendment No. 38 relates to Amendment No. 36 as discussed in the previous group. Amendment No. 38, together with Amendment No. 36, ensures that children born to civil partners following assisted conception treatment will be treated as legitimate in the same way as if their parents were married.

Amendments Nos. 39, 47 and 94 relate to the registration of the birth of a child born by assisted reproduction to a same-sex couple. At birth registration, some statistical information is currently collected under statute by the registrar. This relates to the age of the mother and father and, if they are married, the date of marriage, whether the mother has been married previously and the number of children born to the mother. The information that the registrar is required to collect is set out in the Population (Statistics) Act 1938. Following the Bill, the questions that would be asked when registering the birth require amendment. The existing wording would be inappropriate for same-sex couples. Amendments Nos. 39, 47 and 94 make the necessary changes to the Population (Statistics) Act 1938 to allow for the collection of information relating to the age of the same-sex parents and the date of any civil partnership, where applicable, so that same-sex parents are treated equally to other parents.

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

Commons Amendment No. 40

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 40, to which I have spoken with Amendment No. 8.

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

Commons Amendments Nos. 41 to 45

41: Page 49, line 11, after first “any” insert “reasonable”

42: Page 49, line 14, after “any” insert “reasonable”

43: Page 49, line 19, after first “any” insert “reasonable”

44: Page 49, line 21, after “any” insert “reasonable”

45: Page 49, line 23, at end insert-

“(2C) Any reference in subsection (2A) or (2B) to a reasonable payment in respect of the doing of an act by a non-profit making body is a reference to a payment not exceeding the body's costs reasonably attributable to the doing of the act.“

Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 41 to 45. Surrogacy is a very sensitive issue on which people hold differing views. We recognise that there are situations where a couple wish to have a child of their own but are not able to and may wish to

29 Oct 2008 : Column 1648

seek to use a surrogate, such as where a woman in a well established relationship has eggs but no functioning womb. It is important that there are organisations to which they can turn for support and advice if they choose to consider surrogacy.

Amendments Nos. 41 to 45 relate to surrogacy organisations and the aspects of their services for which they may charge. Clause 59 amends the Surrogacy Arrangements Act 1985 to clarify the position in law of non-profit making surrogacy organisations. It makes it clear that they may charge for certain aspects of their services on a non-profit-making basis, and enables them to advertise the services for which they may charge.

These bodies have a useful role to play in initiating negotiations with a view to making surrogacy arrangements and compiling information about surrogacy with a view to its use in making or negotiating a surrogacy arrangement. We recognise, however, that it is difficult for a surrogacy organisation to provide such services for the small number of people who seek advice and help with surrogacy in the UK if they are not able to make a charge to recoup the cost of providing them.

The amendments to Clause 59 state that such organisations may charge for certain activities, but only if they do not make a profit—in essence, if it is not undertaken on a commercial basis. They may charge for initiating negotiations with a view to the making of a surrogacy arrangement such as enabling interested parties to meet each other to discuss a possible surrogacy arrangement, and compiling information about surrogacy with a view to its use in the making or negotiation of a surrogacy arrangement—establishing and keeping lists of people willing to be surrogates, or intended parents, for example.

These provisions would enable not-for-profit organisations to charge for putting couples in touch with each other, but not for any more direct intervention in discussions. The amendments in the Bill to the Surrogacy Arrangements Act 1985 are not seeking to turn surrogacy into a commercial industry. The 1985 Act took firm steps to ban any commercialisation of surrogacy and that principle has not changed.

Amendments Nos. 41 to 45 deal specifically with the issue of cross-subsidisation by surrogacy organisations. There was debate in the other place about the potential for cross subsidisation—surrogacy organisations charging more for the activities for which they are able to charge so that they can undertake those activities for which they are not able to charge. It is our intention that surrogacy agencies should not be permitted to charge more for the activities for which the Bill allows reimbursement in order to subsidise the cost of providing other activities for which charging is prohibited. Amendments Nos. 41 to 45 are necessary to ensure that this position is clarified in the Bill.

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

Commons Amendment No. 46

46: Page 51, line 13, at end insert-

“( ) An order under this section which modifies an enactment in consequence of any provision of Part 2 may modify subsection (5) of section 53 (interpretation of references to father etc.).”



29 Oct 2008 : Column 1649

Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 46. This is a technical amendment so that Clause 53(5), which lists enactments where express provision has been made for female second parents, can be modified by an order made under Clause 64, which provides for consequential and transitional provisions. Not to do so would mean that the general rule in Clause 53 (2), enabling references to fathers to be read as references to female second parents, would continue to apply to enactments even where express provision was made in those enactments for female second parents.

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

Commons Amendment No. 47

Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 47, to which I have spoken with Amendment No 39.

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

Commons Amendment No. 48

48: Page 52, line 31, leave out subsection (2)

Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 48. This is the privilege amendment.

Baroness Thornton: My Lords, I shall speak to this amendment. This amendment will remove the privilege amendment that was made when the Bill moved to another place. As noble Lords will be aware, the financial powers are restricted by the rights and privileges of the other place and by the Parliament Acts. As the Bill originated here and contains financial provisions, a privilege amendment was added to the Bill before its introduction into the other place to ensure that the financial privilege was not infringed.

The amendment is purely technical and is necessary to remove the privilege amendment which provided that nothing in the Bill should impose or vary any charge on the people or public funds.

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

Commons Amendments Nos. 49 to 54

Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 49 to 54, to which I have spoken with earlier amendments.

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

Commons Amendment No. 55

55: Page 60, line 1, leave out sub-paragraph (4) and insert-

“(4) For sub-paragraph (2) substitute-



29 Oct 2008 : Column 1650

“(2) A consent to the storage of any gametes, any embryo or any human admixed embryo must-

(a) specify the maximum period of storage (if less than the statutory storage period),

(b) except in a case falling within paragraph (c), state what is to be done with the gametes, embryo or human admixed embryo if the person who gave the consent dies or is unable, because the person lacks capacity to do so, to vary the terms of the consent or to withdraw it, and

(c) where the consent is given by virtue of paragraph 8(2ZA) or 14(2), state what is to be done with the embryo or human admixed embryo if the person to whom the consent relates dies,

and may (in any case) specify conditions subject to which the gametes, embryo or human admixed embryo may remain in storage.

(2A) A consent to the use of a person's human cells to bring about the creation in vitro of an embryo or human admixed embryo is to be taken unless otherwise stated to include consent to the use of the cells after the person's death.

(2B) In relation to Scotland, the reference in sub-paragraph (2)(b) to the person lacking capacity is to be read as a reference to the person-

(a) lacking capacity within the meaning of the Age of Legal Capacity (Scotland) Act 1991, or

(b) being incapable within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000.””

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 55. I shall also speak to Amendments Nos. 57 to 61, Amendment No. 72, Amendments Nos. 89 to 93, Amendment No. 106 and Amendment Nos. 108 to 113 in this group.

Consent forms one of the cornerstones of the 1990 Act. A person’s gametes cannot be used to create embryos without their express consent. Schedule 3 to the Bill amends the consent provisions in the 1990 Act bringing them up to date with new techniques for creating embryos, for example, by requiring consent for the use of cells to create embryos.

The Government listened very carefully to concerns raised in this House about this framework for consent in relation to the use of stored cells and cells from children with serious diseases, but also made it clear that any exceptions to the requirement for consent needed to be compatible with convention rights. The government amendments in this group provide for certain exceptions while also providing safeguards in recognition of those rights.

With regard to stored cells, the government amendments apply only to cells taken and stored before commencement of the Bill’s provisions and the exception applies only if the HFEA is satisfied that the cells are anonymous and thus the donor cannot be identified, or that the licence holder cannot reasonably trace the donor. If the researcher can identify and trace the donor, then unless the donor consents themselves their cells cannot be used. If the person identifies the donor, and they are found to be deceased, consent would be required from a person, for example a close relative, as set out in a hierarchy modelled on that found in the Human Tissue Act 2004. Before the cells can be used, the HFEA must be satisfied that scientific research would be adversely affected to a significant extent, if the only cells that can be used are cells that consent has been obtained for.



29 Oct 2008 : Column 1651

The amendments reflect the fact that rare or well researched samples are a valuable asset better to understand and treat serious disease. We have weighed the burden of being unable to use those cells against the rights of the person who originally donated them, and believe we have struck the right balance in the terms of the suggested amendments.

Further amendments tabled on Report in the other place rectified concerns about the interaction of clauses relating to the use of cells from deceased donors, and untraceable donors. The amendments enable a researcher to use the cells of untraceable donors where there is reason to believe they are dead, where no relatives can be traced to consent to use of the cells. The amendments also allow cells to be used if a donor’s family can be traced but it is not known, only reasonably believed, that the donor is dead. In these cases, a person in a qualifying relationship can now consent to use of the cells in the same way that they can when it is known the person is dead. In these cases, the HFEA must still be satisfied that the other safeguards are fulfilled before the cells can be used, including the significant adverse impact upon science test.

Regarding consent to the use of cells from children, these amendments apply where those children would never be able to give their consent because of age or a lack of capacity. This is the case with children affected by certain aggressive forms of diseases such as muscular dystrophy, Batten disease and spinal muscular atrophy. To this end these amendments propose that children with such conditions who are too young to consent or lack capacity should be excluded from the requirement for effective consent, if a person with parental responsibility gives consent. This exception is subject to strict safeguards which ensure that a child’s cells cannot be used unless the HFEA is satisfied that the child suffers from a serious medical condition; that the research is intended to increase knowledge about that condition or about its treatment; and that there are reasonable grounds for believing that research of comparable effectiveness cannot be carried out using the cells of a person who could give their own consent.


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