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Human Fertilisation and Embryology Bill [HL]

Volume 696: debated on Monday 3 December 2007

House again in Committee.

21: After Clause 4, insert the following new Clause—

“Reports to the Secretary of State

In section 7 of the 1990 Act (reports to the Secretary of State), after subsection (2) insert—

“(2A) A report prepared under this section shall include information on the resources used in—

(a) human embryonic stem cell research; and(b) adult stem cell research within the United Kingdom.””

The noble Lord said: In moving Amendment No. 21, I shall also speak to Amendments Nos. 22, 23 and 62. Amendment No. 21 is in my name and that of the noble Baroness, Lady Williams of Crosby, who spoke at Second Reading and who is unavoidably absent overseas, taking part in a long-standing engagement.

The amendment would require the Human Fertilisation and Embryology Authority to report to the Secretary of State on the respective sums of money used in human embryonic stem cell research and adult stem cell research. It seeks to ensure that, as with the local ethical review process established in the case of animal experiments under the Animals (Scientific Procedures) Act 1986, an amicus curiae—in this case, someone to speak for the human embryo—would be appointed to the Human Fertilisation and Embryology Authority and would have a remit at least to challenge repetitive experimentation.

Amendment No. 23 seeks to disqualify from membership of the HFEA anyone who has a direct pecuniary interest in any of the activities governed by the Act. Amendment No. 62 seeks to establish clear record-keeping by the HFEA of ovarian stimulation, oocyte retrieval and hospitalisation.

Turning first to Amendment No. 21, it is ironic indeed that the moral justification, if it can be passed as such, for experiments on human embryos is the desire to keep Britain in the lead. This mistaken jingoism is a false patriotism at every level. While we have been diverted down the blind alley of embryonic stem cell research, the most breathtaking discoveries are being made by our competitors. Promises of a biotech El Dorado have proved illusionary, with vast sums of public money consumed in the process. How much better it would have been if those public resources have been used, as some of us have argued throughout, on the less ethically troubled pursuit of adult stem cell technologies. Amendment No. 21 seeks to require regular reportage of the respective sums of money allocated for the two approaches, a point eloquently made during the Second Reading debate by the noble Baroness.

Amendments Nos. 22 and 23 deal with the membership and the role of Human Fertilisation and Embryology Authority. There are currently 18 members of the HFEA. It has an interim chair, Walter Merricks, who was a founder member of Donor Conception Network. The chair is supposed to be a lay person and I would argue that to accord this status to Mr Merricks is stretching definitions—something about which we heard earlier in another context—beyond their intended sense. Eight other current members of the authority are working as medical or scientific professionals in the field of IVF or genetics. Apart from Mr Merricks there are two other members, Messrs Brown and Dundas, who are directly involved in patients’ groups and lobbying. The other seven could generically be described as lay people, but some have publicly advocated embryonic experimentation and cloning. The academic lawyer, Emily Jackson, who has spoken out in favour of human reproductive cloning is an active participant in pro-choice abortion politics and this November delivered a speech at the London School of Economics entitled “Rejecting the sanctity principle and rethinking the wrongness of killing”. Her perspective is contained in the title, which she argued passionately. David Archard is the token philosopher on the authority, holding entirely predictable views. The four others could be described as neutral in the absence of any information to the contrary. So, in effect, it is only possible to claim that, at the most, four of the 18 come at assisted reproduction and embryo research from a potentially neutral perspective.

I have never heard any indication of any member of the committee who has expressed serious reservations about anything which vast swathes of our population consider to be controversial at best and unethical at worst. Summing up this analysis, 11 of the 18 are involved, in one way or another, with fertility treatment and research; three others are outspoken in their position on research; leaving just four others—two with a financial background, one involved in childcare work and one ex-BBC—who could possibly be described as neutral.

As the Times reported only this morning, the Human Fertilisation and Embryology Authority, a point I put to my noble and right reverend friend Lord Harries of Pentregarth, is currently considering two licence applications from the Newcastle and King’s Universities for the creation of interspecies embryos, called by them cytoplasmic hybrids, involving the cloning process, adult somatic cells and enucleated animal eggs. These applications are due to be ruled on on 5 December. Following a freedom of information request by Comment on Reproductive Ethics, it is acknowledged that the HFEA has never turned down a research licence application to the best of its knowledge. Will it grant these applications? As I asked my noble and right reverend friend earlier today, what then is the purpose of the Bill which dedicates so much space to the permitted creation of interspecies embryos? It would appear that the HFEA has already assumed authority in this area of science.

So indifferent is the HFEA to widespread hostility to creating animal-human hybrids that it has totally disregarded its own consultation which demonstrated that of more than 800 submissions, only one in eight supported the creation of hybrids. This not only ignores public consultation but it is dangerous to treat Parliament with apparent contempt to pre-empt deliberation in both Houses; it would make a total mockery of what passes as a democratic process.

This is not a new problem. In 1982 the then Government announced the terms of reference for what became known as the Warnock committee. On 18 November 1993, in a Radio 4 broadcast of the “Analysis” programme, my noble friend Lady Warnock gave an insightful response when asked how the membership of her committee was determined. I quote her directly from a transcript:

“There exists what is generally known as the Central List. The Central List is produced and combed for people who might have an interest in this kind of thing. I was then given a kind of draft list and asked whether there were any other people I thought would be obvious choices, maybe people who were not yet among the great and the good, and I was with some difficulty allowed a power of veto. There was one particular person who was supposed to be the Catholic, and I said I would not have him. I just knew that I couldn’t work with him. We went right up to the day before publication with the civil servants saying, ‘But there’s nobody else in the world’. So in the end, the night before publication, I said, ‘Well, will you please tell the Minister that it’s a very, very bad way to embark on working on a committee when you know that there’s somebody you’re not going to find easy to work with’. The following morning two names were suggested. So I did win on that, but it was very, very hard and it took a lot of persistence”.

Doubtless it would be much easier for us all if people we found it difficult to work with could be excluded from committees and public bodies. I have probably had that effect on some of your Lordships during today’s proceedings. In 2002 Susie Leather, the chair of the HFEA, said:

“I don’t think we need them”—

that is, people opposed to the use of human embryos—

“continually on the committee saying, ‘I’m opposed to all this’”.

And the Joint Committee adumbrated a very telling new constitutional principle, that,

“those with such public views cannot administer the law to which they may be fundamentally opposed”.

That simply is not true. Removing dissenting and questioning voices is a huge error. Many local ethical review committees—I sit on one—contain people opposed to animal experimentation, but they see their role as a questioning one, ensuring, at least in the context of the law as it stands, that the interests of the subject are not dismissed or neglected.

When I last looked, 70 per cent of the HFEA’s income came in fees from the very clinics it is supposed to police—a case of the watchdog being far too closely identified with the burglar. Perhaps the Minister can tell us what the current figure is. Clearly that incestuous relationship makes it difficult to say no too often, or ever at all. My Amendments Nos. 22 and 23 seek to address those issues.

On Amendment No. 62, Her Majesty’s Government have declined to follow the lead of their South Korean counterparts by restricting the type of human eggs that may be used in embryo research in order to protect women’s health and welfare. Instead, appeal is made to an HFEA consultation undertaken in 2006 on the donation of eggs for research in which the publicly stated risks of side effects due to ovarian hyperstimulation—a point made today by the noble Baroness, Lady Neuberger—seems, curiously, to have been described as threefold lower than those indicated by the Royal College of Obstetricians and Gynaecologists in the same year. I refer your Lordships to two Written Answers, at cols. WA 99 on 23 October 2007 and WA 131 on 29 November, to Questions I tabled, as well as to the conflicting statements of the HFEA and the RCOG. The HFEA has said:

“Mild OHSS is relatively common (occurring in between 1-10% of treatment) and can be treated and controlled. Severe OHSS is rarer (occurring in around 1% of cases)”.

The Royal College of Obstetricians and Gynaecologists, by contrast, says:

“Women should be informed that mild forms of OHSS are common, affecting up to 33% of in vitro fertilisation (IVF) cycles, and that 3–8% of IVF cycles are complicated by moderate or severe OHSS”.

According to Written Answers by the Minister, the noble Lord, Lord Darzi of Denham, on 22 October, the Human Fertilisation and Embryology Authority appears to have incomplete records regarding ovarian hyperstimulation syndrome. This is not necessarily reported by clinics unless treatment was discontinued, and it does not hold data regarding how many in vitro fertilisation patients were at risk of hospitalisation after producing 20 or more eggs. Such appalling deficits would hopefully be rectified by the implementation of Amendment No. 62, which would lay on the HFEA a duty to keep records. Although clinics have to report OHSS if it causes an IVF cycle to be cancelled before egg collection for embryo transfer, they do not have to report all cases of women being hospitalised for OHSS. If women choose to continue with the cycle, risking their health, and end up in hospital, IVF clinics do not need to report it. The Royal College of Obstetricians and Gynaecologists, in its guidelines on the management of OHSS published in September 2006, called for auditable standards, including the percentage of women who were admitted to hospital with OHSS, the number of days as an in-patient and incidence of thrombosis.

The appalling degree of underreporting recently came to light when the journal, Human Fertility, reported in September that, in a four-year period of study, there were 53 incidents of women from an IVF clinic in Newcastle being hospitalised with OHSS, two of whom had life-threatening complications. However, the data held by the HFEA for the Newcastle clinic on the reported incidence of OHSS for six years during the same period show that only three cases of OHSS were reported to it.

Amendment No. 62 has an affinity with Amendment No. 24, in the name of my noble friend Lady Finlay, which also stresses the importance of record-keeping, in that case of IVF—success rates on the one hand, and risks of serious adverse side-effects on the other. I hope that the Committee and the Government will be convinced by the arguments for greater transparency and accountability. I beg to move.

I offer strong support to the noble Lord, Lord Alton of Liverpool. I often think that if I offer strong support, it may not necessarily help his case, but I offer it none the less. He is quite right that one of the driving forces behind the Bill is not the discovery of the interesting and the helpful, but, as the Explanatory Notes on the Bill state, a desire to,

“help maintain the UK’s position as a world leader in reproductive technologies”.

That does not necessarily mean that everything that follows should automatically be ticked as being a good thing—“thing” was used in the previous group of amendments that we debated, when we heard from the noble Lord, Lord Darzi, the surprising suggestion that we should proceed with the clauses as drafted, despite the fact that many extremely eminent scientists, whom he enumerated in the letter that he read out, could not agree on what an interspecies embryo was. It sometimes strikes me that we are being taken on a magical mystery tour, where we should automatically canonise what a lot of clever scientists think is a very good thing. That is why I regard the amendments of the noble Lord, Lord Alton of Liverpool, in relation to the authority as so important.

I have only two points, both relating to the word “transparency”, which seems to apply to almost every public appointment and every declaration of pecuniary interest, except, so far, in this area. In public appointments in the past, the great and the good have appointed more of the great and the good, provided that they are not Roman Catholic or do not agree with the ethical stance that is being put forward.

This is a very serious issue, and this House will look closely at the make-up of the authority in future. It will not be possible for a closed circle of scientists and those who take one particular ethical or philosophical point of view—you can always find a jobbing philosopher to come up to support any point of view; our major universities are full of jobbing philosophers who will do that at the drop of a hat—to decide in an area such as this, which is so important to men and women. As I said earlier, I am not an expert in these areas, either ethically or scientifically; I represent, if you like, the ordinary Back-Bench Peer in the street. However, quite of lot of people in the street are concerned about what is going on. They will not wish to have a lot of self-interested scientists, self-interested and self-appointed ethicists, and a self-interested elect to the great and the good decide what is ethically right or wrong. That is why it is important that the amendment of the noble Lord, Lord Alton of Liverpool, suggests:

“The Secretary of State… shall have a duty to ensure discussion within the Authority on ethical issues including, but not limited to the justification for repetitive experimentation”.

We are not going to be able to proceed unless we have guarantees on transparency from the Minister about how these appointments will be made. It will not be acceptable to the outside world, let alone to the other place.

I am very broadminded; one or two scientists are my personal friends, as are one or two philosophers. I made a point of reaching out to that community. However, it will not be acceptable for a lot of people to be on this body, appointed as scientists, who are making potentially substantial sums of money through what they do—from what they publish or make from appearances, or whatever—who can then rule in their own favour.

I wonder whether the noble Lord might be kind enough to explain which scientists on the authority at any time have made a lot of money out of in vitro fertilisation or related technologies. I doubt whether there are any at all, but I would be glad to hear that I am wrong.

I am talking not about the past but the future. I am talking about the amendment tabled by the noble Lord, Lord Alton. I am not making any comment about any event in the past whatever or about any the noble Lord in this House. However, in future it is important that we make it absolutely clear that no one on the authority has any pecuniary interests whatever. That is what transparency means. If in political parties one has to be transparent in this way, declaring our interests—as it is quite proper that we should all have to—in this House and another place, and if people are concerned about transparency in political funding, we must ensure that those who serve on this authority have no pecuniary interests. It would be ethically abhorrent if they were allowed to do so.

I first declare an interest as a long-serving former chairman of the HFEA. I have every respect for the views of my noble friend Lord Alton, with whom I am joining forces in our discussion of later amendments, as I have for the views of the noble Lord, Lord Patten. However, I must spring to the defence of the way in which public committees work in this country. I do not believe that my noble friend Lady Warnock was ever actually the chairman of the HFEA, although clearly her work was fundamental in creating it. However, I can assure the Committee that in my time members were appointed according to Nolan principles in every respect. Indeed, as members at one stage we had a bishop, an actress and a rabbi.

Of course a body like that needs some scientists on it. To debar from membership anyone who might make money out of anything associated with IVF would be to debar huge sectors of society—not least counsellors, who have been members, nurses or maybe even those who print leaflets or run nursery schools. There are very many ways in which one might make money out of IVF. However, it is noticeable that the well-known practitioners in the field, and the most regulated, were not members of the authority and were sometimes alleged to make a great deal of money out of this treatment. But if money is perceived as a problem, the Committee may wish to support another amendment that would put more of the work in this field back into the NHS.

The authority members took their work very seriously—and what I say I think applies to all public committees in this country. There is freedom of speech and those who were appointed were articulate, often academic and intelligent and had the freedom to write what they wished to write outside the bounds of the authority. Members of the authority met regularly with pro-life members and listened to what they had to say. Of course, fees had to be charged; it is a general principle in charging clinics that the object of regulation according to this Government should meet the costs of regulation. There was no personal profit to be made by any member of the authority or the authority itself in granting licences to clinics. Indeed, your Lordships may recall that very recently there was an attempt to close a clinic, which caused an enormous furore. It is very difficult because of the law to close a clinic.

That brings me back to the law. This is a country that is run according to the law—positive law not natural law. The members of the authority were bound legally by what is in the statute. That is why this House and the House of Commons are, in the end, the ultimate ethical arbitrators. The law comes first and foremost for the authority.

It is self-deluding to imagine that there can be another set of ethics outside the parameters of the law which will affect those who administer it. It is also self-deluding to imagine that members of the authority spent all their time discussing ethics. There was a great deal of work that was mundane and legally required—licensing, inspecting, keeping data, running a computer, overseeing training and so forth. None of that had very much to do with ethics as the word has been bandied about recently, but simply to do with the administration of the law.

That brings me back to the importance of the provisions of the Bill that we are passing in the next few months. The Bill contains the ethics. It would be limiting to insist on one member who spoke always, let us imagine, for animals or against embryo experimentation, because these matters have to be considered under the law and with public consultation. The HFEA has taken full account of public consultation very recently in relation to embryos. There have been other public consultations; for example, about sex selection. The public came out very clearly against sex selection for social reasons and that has remained the rule of the authority and it is in the Bill.

The law is what counts: that is what matters. This string of amendments is designed to tie the authority in a way that would not apply to any other public committee in this country. It would make it look as though IVF were intrinsically dangerous; far more dangerous than a normal pregnancy. After all, many a normal pregnancy ends up in some form of danger.

Collecting figures about OHSS is not as easy as it might seem, because many women come for treatment from abroad and then vanish off the books of the clinic when they go back to wherever they came from. Others may present in hospital with particular problems such as thrombosis and it may not be known that they had IVF. Any amount of data collection in that area is not necessarily accurate. Furthermore, the authority has been criticised for collecting data that are not used and are not necessarily useful.

I hope that the Committee will support the normal, natural, lengthy and complicated way of appointing members of the HFEA, which corresponds in my experience to the way in which all other members of public authorities in this country are appointed—by advertisement, by selection according to criteria, and by expecting of them a commitment to the law and to free speech.

I support the wise words of the noble Baroness, Lady Deech. The noble Lords, Lord Alton and Lord Patten, made many allegations about the HFEA in detail and it would take a long time to answer them. I am not going to do that, but I should like to focus on one or two points of principle that run throughout the amendments.

First, I am not sure that everyone is aware of the importance of reproductive technology now to the women of this country. Women are getting married later and having children later, and a higher and higher percentage of women in the population need help in producing babies. Because of the advances of medical technology and the skill of clinicians they can now have the children whom they so desperately want.

It is true that certain people are opposed to reproductive technology in principle, but we need to bear in mind that what we are talking about is what so many women in this country want: help in having children.

Secondly, as regards the make-up of the HFEA, I find it very strange that each of its members should be named as though they had an intrinsic conflict of interest. They do not. The noble Lord, Lord Alton, talked about somebody being neutral. Nobody in this life is totally neutral. If I may say so, the noble Lord, Lord Alton, himself is hardly neutral. I would not want him to be. Who is this neutral person who suddenly appears who has no views on anything and expresses no passion on anything? Of course, the members of the HFEA have views. I agree that it would be very difficult for a person who was totally opposed to the use of assisted reproductive technology in helping women to have babies to be a member of the HFEA. If you are totally opposed to that in principle, it would be very difficult because your job—as the noble Baroness, Lady Deech, said—is to administer the law as Parliament has decided it. That is your job.

Would my noble and right reverend friend therefore want to see excluded from all the local ethical committees that deal with the animal procedures legislation anyone who is opposed to vivisection?

I reiterate what the noble Baroness, Lady Deech, said; namely, that the HFEA makes a point of keeping in touch with people who are totally opposed to every aspect of its work. There may be ways, in particular through the ethics and law committee, that we might be able to involve people more. It need not be totally ruled out. But there is no doubt that the fundamental job of the HFEA is to administer the law as Parliament has decided it.

Pecuniary interest was mentioned. I assure the Committee that before any decision is taken by a licence committee and before any major issue is discussed by the authority, people are asked whether there is any conflict of interest. They have to declare it and if it is a very direct conflict of interest, they have to leave the room and they are not allowed to take part in that discussion. We are extremely aware of possible conflicts of interest.

On the question of collecting data, particularly about OHSS, the HFEA has instituted a very effective system of alerts. If a clinic has a problem—for example, if a person has to go to hospital as a result of hyperstimulation—it reports it to the HFEA, which immediately alerts all the clinics to the incident. This system is beginning to work rather well because the HFEA, as well as working with the law, has to work by persuasion and getting clinics on its side. So we have to encourage clinics to adopt better and better practice. One of the ways we do this is through this system of alerts. Of course, the HFEA is not perfect but some of the criticism that has been made tonight does not stand up to serious examination.

There is a great deal of technical information in the Bill. We have gone through much of it this afternoon and this evening and will go through more. It might be useful and for the benefit of the Committee to discuss Amendment No. 62 in the name of the noble Lord, Lord Alton, on ovarian hyperstimulation syndrome. This is an extremely puzzling condition. It is essentially a response of the ovary to stimulation by the hormone which is given exogenously; that is, by injection, to women whose eggs are needed for IVF. One of the problems about this puzzling condition is that women respond idiosyncratically; that is, some women with a very low dose of FSH—the hormone involved—give a very exaggerated response which is quite unpredictable. Other women, in spite of massive doses of the hormone, do not give this response at all and do not show ovarian hyperstimulation.

You could argue physiologically that virtually all IVF cycles are a form of ovarian hyperstimulation because that is the nature of the beast. Humans were built to ovulate one egg and in order to improve the statistics to get more embryos so that one will be viable there is pressure to get more than one egg in the hope that you will get one embryo. So this is a major problem. While I have great sympathy with the concern of the noble Lord, Lord Alton, about women who are made sick by this technology, I do not consider for a moment that this is because there is a drive in the background to stimulate women so vigorously that one gets lots of eggs for research; rather, it is an attempt to maximise the chances of a successful pregnancy.

The problem is that the two issues are not related, so you can get large doses of hormones and small numbers of eggs and vice versa. The symptoms of OHSS vary massively. For example, thrombosis, which I agree is a dangerous condition, very often is totally silent, women are not admitted to hospital and they do not even know that they have a thrombosis. Some years ago, the noble Lord, Lord Jenkin, and I sat on a Select Committee looking at the aircraft passenger environment. One of the major issues with which we were concerned was thrombosis after long flights. We saw from the evidence that most of the thromboses were not detected and were not detectable unless you involved subjects—aircraft passengers—in detailed tests. That is a key problem here with OHSS. No matter how carefully the records were taken, they would actually be completely unreliable.

Secondly, there is the important issue that was just raised by the noble Baroness, Lady Deech. As the noble Baroness pointed out, a large number of people come from overseas for these treatments, spend a variable amount of time in the United Kingdom, may be hospitalised overseas and may be hospitalised here. It would be inappropriate to try to keep those sorts of records. It would be an unreasonable burden when there are much more important records that we might be considering; for example, the children born as a result of this treatment, which is not in the Bill. I referred to that at Second Reading. I feel that while we in the medical fraternity understand the concern, at present one has to say that this extremely puzzling and common condition is not predictable and does not routinely end in hospitalisation. One of the reasons why the royal college and the HFEA figures vary so much is that there is no definition of severe ovarian hyperstimulation. That is a real issue if you are going to try to keep records.

I apologise to the Committee for my absence earlier this afternoon, which was unavoidable. In the absence of my noble friend Lady Williams of Crosby, I will make a few points on the first three amendments proposed by the noble Lord, Lord Alton. We support him in his request in Amendment No. 21 for reports and information about the amount of resources put towards various different types of research. Bearing in mind the comments made by the noble Lord, Lord Patten, earlier, I caution the noble Lord, Lord Alton, not to draw conclusions based simply on the amount of government funding for particular types of research. If the noble Lord, Lord Patten, is right that a great deal of commercial investment is being made into certain types of research, it is entirely legitimate that the Government might seek to fund the type of research that is not of greatest commercial value but which has a greater public health value, even though it is more difficult to fund. I caution against some of the interpretations that might be made of the data.

I listened to the noble Lord, Lord Alton, on Amendment No. 22, and his quote from the noble Baroness, Lady Warnock, on the formation of her committee. The thought that immediately struck me was, “That was then”. Since 1990, the system of appointments to public bodies has changed dramatically. What the noble Baroness, Lady Warnock, talked about is a thing of the past. There is now far greater transparency in public appointments, and that applies to the HFEA as much as to other bodies.

The question in my mind on this amendment is, “Is it right to impose on one member of the authority a particular duty?”. I think that it may not be. My understanding is that all members of a public body must pay regard to ethical issues, and none of them should be there if they do not. They may come to collective judgments, but it is a common responsibility.

As for Amendment No. 23, other Members of the Committee have talked about the issue of expertise with far greater authority than I could. It is always the case that the pool of people from which one selects some of the membership for specialist bodies must have extensive involvement in the field. That is not a new or unique situation in public appointments.

Finally, the noble Lord, Lord Alton, talked about payments made to the regulator by the clinics it regulates. In a number of different fields, and pensions is one—I see the noble Baroness, Lady Hollis, on the Benches opposite—it is not uncommon for regulators to be paid by the bodies they regulate provided that there is a clear remit in law regarding what the charges should be for. The HFEA was set up in that way. The fact that two sorts of bodies are engaged in the same field does not necessarily give rise to a conflict of interest.

I agree entirely with the noble Baroness, Lady Barker, on the normality of a regulator being funded by the regulated bodies. The noble Lord, Lord Alton, raised an anxiety about the possible effect on the decisions made. It would be helpful if we were told whether there is any relationship between the funds received by the regulator from the regulated bodies and the nature of the decisions it makes. If there is no connection between the decisions and the volume of money received, the anxiety recedes. On the other hand, if there is a connection, then the noble Lord’s case would be advanced. Although I would think that the former was the case, I should like to be reassured about it.

The noble Baroness, Lady Deech, pointed out, as have others, that it would be odd if a single member of a body was required to pay particular attention to ethics and to ensure that everyone else also paid particular attention. The duty should lie equally on all members. She preceded the point with the interesting statement that there is only one ethics: the ethics set in law. It seems that we are at a point where events are always proceeding ahead of the law, so it is constantly necessary to bear in mind the ethical questions raised by new developments. Again, it is unfortunate that we could not have discussed a bioethical advisory body at the beginning of our debates. I hope that the usual channels and business managers will find a method of devising a grouping to allow us to do that at the beginning of Report, because it is central to this law.

We are discussing membership of the authority but I have not heard the slightest mention of anyone in it who has knowledge of or interest in the well-being of children. Since children are the results and outcomes of the authority’s efforts, should they not be represented?

Perhaps I may add an eminently evident and obvious point—that many members of the authority were social workers, nurses, parents, teachers and others with similar concerns. Others were experts in computing, which is obviously important, while others were councillors or men of the cloth, as I said. All those professions were taken account of, and that work is by no means a soft option. The Committee will wish to know that in my day it was extremely badly paid, although that may have changed. One did this sort of job not for glory or for pay but simply out of commitment. It was a very heavily loaded, time-consuming and demanding job in which one learnt a great deal, both pleasurable and painful. The welfare of the child was the number one ethical principle embedded in the law, and it is embedded in the statute that your Lordships are considering. The principles include the welfare of the child, the safety of the mother and baby, respect for the embryo, the autonomy and dignity of every individual involved in treatment and the receipt of treatment, and, more recently, the saving of life. You can ask for no broader or more all-encompassing ethical principles than those.

First, Amendment No. 21 refers to resources for embryonic stem cell research and adult stem cell research. At Second Reading, the Minister gave an answer which identified the level of resources going into each area of research. However, does the noble Lord, Lord Alton, accept that the Medical Research Council based its decision on best science and not necessarily on whether there was equity among the different areas simply for the sake of being equitable?

On my second point, I have much more sympathy with the noble Lord, Lord Alton. Amendment No. 62 refers to the hyperstimulation of ovaries. My professional colleague, the noble Lord, Lord Winston, very lucidly set out the difficulties of collecting those data. However, my sympathy with the noble Lord lies in the fact that I should like to see greater patient safety being promoted in all aspects of medicine. I know that the Minister is also interested in patient safety. I hope that all the units that provide in vitro fertilisation adhere to the excellent guidelines produced by the Royal College of Obstetricians and Gynaecologists, which the noble Lord mentioned, to try to reduce the incidence of moderate and severe hyperstimulation of ovaries. However, as I said, we have heard about the difficulties of data-collecting due to problems of definition, and that would just create an extra burden without producing any return.

The HFEA’s role is to license and monitor all clinics and centres carrying out fertility treatment, such as IVF and donor insemination, and centres undertaking human embryo research and also to regulate the storage of sperm, eggs and embryos. I am indebted to both the noble and right reverend Lord, Lord Harries, and the noble Baroness, Lady Deech, for their clear explanation of the growing need for assisted reproduction and of the fundamental roles of the HFEA, which must include adherence to the law. The HFEA has a duty under Section 7 of the 1990 Act to produce annual reports. These are an overview of what the authority has done over the past year, as well as a forward look at the coming year.

I turn to Amendment No. 21, tabled by the noble Baroness, Lady Williams, and the noble Lord, Lord Alton. I entirely refute the noble Lord’s statement about false jingoism and false hopes, but I believe that the idea outlined in the amendment is good in principle. However, the HFEA does not have a role in regulating or licensing adult stem cell research. It would therefore not have the remit, nor would it be appropriate, for the HFEA to produce annual reports on the resources spent on adult stem cell research in the UK. As my noble friend Lord Darzi outlined in his closing speech at Second Reading, from 2004-05 to 2005-06, the Medical Research Council provided funding of £14.7 million. Over the same period, the MRC provided £16.5 million for embryonic stem cell research.

Further, although the HFEA licenses human embryonic stem cell research, it does not provide funding for it and therefore does not have a role in recording the information on resources put into this research. I feel that it would be the role of the UK Stem Cell Bank, research councils or the scientific community as a whole to monitor and make available information regarding the volume of activity in stem cell research in the UK. I very much hope that they will do so.

I turn to Amendments Nos. 22 and 23, tabled by the noble Lord, Lord Alton. The skills and expertise needed among HFEA members are considered by the chair of the HFEA in consultation with the Department of Health. Subsequently, appointments are made by the Appointments Commission on behalf of the Secretary of State for Health, following advertisements in the UK press. I am grateful to the noble Baroness, Lady Deech, for, among other things, her clear explanation of the appointments process. It involves advertisements in the national press, as I said, and they are in line with the Nolan principles; it is a transparent process. These processes have improved over the past 10 years, as noble Lords have said.

This process ensures that the HFEA has members drawn from across the UK’s population with the appropriate skills and expertise to enable the authority to fulfil its statutory role effectively. Membership consists of both lay members and people with a specific interest in what the authority regulates, including doctors involved in infertility treatment and scientists involved in human embryo research.

The noble Baroness referred to the fact that applications to the authority are open to lay members. Would it be possible for a Roman Catholic to be appointed as a lay member?

I have no hesitation in saying that it would be possible for a Roman Catholic to be appointed to the authority; absolutely. I can confirm that in writing should the noble Lord wish. It would be possible and appropriate for him or her to be appointed should he or she be deemed to have the relevant expertise.

I am extremely grateful to the noble Baroness for giving way yet again; I shall not trouble her further. Has such a person ever been appointed?

Without naming names, I definitely recall that there was at least one Catholic—possibly more—serving when I was chair. Religion simply was never an issue.

As a matter of information, is it not right that members of the HFEA must apply after public advertisement and therefore this would depend on who applies to be considered by the HFEA?

Advertisements appear in the national press, people apply and it is up to the Appointments Commission whether they are appointed. It is a completely open and transparent process.

Members must declare any conflict of interest with issues that the authority considers and absent themselves from such deliberations as appropriate. The 1990 Act set conditions for the make-up of the authority’s membership. That is covered in Schedule 1 and ensures that the chair or deputy-chair cannot be, or have ever been, a medical practitioner, a person who has been involved in keeping or using gametes outside the body or any person who has been directly involved in commissioning or funding research involving gametes. The 1990 Act further specifies that at least one-third of the members are of a professional background and that at least half of the members are not from any of these backgrounds and are therefore lay.

The current membership of the HFEA includes a philosopher—a professor of philosophy and public policy—who brings a lay and an ethical perspective to discussions. As the noble Baroness, Lady Deech, said, it is right that all members of the authority have much to contribute in terms of discussions on ethics. That is a matter for the authority as a whole. I feel strongly that there is a need for the membership of the authority to include people who have specialist expertise in the areas that the HFEA regulates. I know that this view is shared more widely outside the House, as it was brought up as one of the reasons against replacing the HFEA by the Regulatory Authority for Tissues and Embryos. The areas for which the HFEA has oversight are complicated and, in order for it to be effective, it is important that the membership includes people who have specialist expertise and first-hand knowledge of the subject matter.

The noble Lord, Lord Alton, and others asked about applications currently before the HFEA in respect of interspecies embryos. The HFEA is considering two licence applications from Newcastle and King’s College to undertake the creation of interspecies embryos for research. The applications were received late last year, and the HFEA has consulted the public on the creation of embryos of this type. The authority has decided in principle that it is appropriate for it to consider the applications and is doing so through the licensing committee.

Amendment No. 62 is the new clause of the noble Lord, Lord Alton, which would require the keeping of records that are already maintained by the Human Fertilisation and Embryology Authority and HFEA-licensed clinics. It is a condition of every licence issued by the HFEA that proper records are maintained. That was supplemented in July this year when new regulations, the Human Fertilisation and Embryology (Quality and Safety) Regulations 2007, came into force. They amended the 1990 Act to implement the requirements of the EU directive 2003/23/EC, which sets standards of safety and quality for human tissue intended for human application in respect of reproductive cells. Schedule 3A of the 1990 Act—“Supplementary Licence Conditions: Human Application”—requires licensed clinics to keep records of and report adverse events and reactions to the HFEA.

The seventh edition of the HFEA’s code of practice, published to coincide with the introduction of new regulations, requires that any occurrence that is inconsistent with routine patient care is reported to the authority. This would ensure that the example cited by the noble Lord, Lord Alton, of a clinic in Newcastle, was properly reported. The HFEA would expect an incident report from a licensed clinic whenever the clinic is made aware of a case of severe ovarian hyperstimulation syndrome, or other adverse reactions to the stimulatory drugs or the egg-collection procedure itself, where this results in prolonged hospitalisation. The information provided by my noble friend Lord Winston is, of course, extremely helpful. Non-identifying information about adverse reactions to treatment, notified to the HFEA, would be made available by the authority on request.

Furthermore, Section 15A of the 1990 Act requires the HFEA to investigate reports of serious adverse reactions, and events, and take appropriate regulatory action should this be required. The HFEA already has appropriate procedures in place to ensure that severe side effects of treatment are recorded locally and notified to the authority. I hope that noble Lords will consider not moving their amendments but, before I sit down, I say to the noble Lord, Lord Elton, that I will speak to the usual channels and try to ensure the discussion on Report of a bioethics commission or Joint Committee comes at the beginning of Report, as he recommended.

My Lords, I am grateful to the Minister for her reply, and especially for the fair wind she and the noble Baroness, Lady Barker, have given to the principles outlined in Amendment No. 21. If some way can be found to provide the information about the balance of resources allocated to the different kinds of stem cell technologies, everyone in the House would be better informed and grateful for that. I accept the earlier point of my noble friend Lord Patel, however, that this is not just about insisting on equity. It may well be that we should be insisting that a lot more money goes into adult stem cells if the case that I have been making all afternoon comes to pass. It is not about getting an artificial figure, but about having proper data.

On the argument about the make-up of the HFEA in my Amendments Nos. 22 and 23, my noble friend Lady Deech talked about the actress appointed to the committee. I do not know the views of the actress, but I think I know the views of both the rabbi and the bishop. My noble and right reverend friend Lord Harries will recall that, when he chaired the Select Committee of your Lordships’ House that retrospectively looked at the orders we passed in 2001, 38 theologians from the reformed, Anglican, Orthodox and Catholic traditions, submitted a joint statement opposing the use of human embryos in cloning procedures. That appeared as a footnote to the final report, but not in the body of the report. Interestingly, one of those theologians is now the most reverend Primate the Archbishop of Canterbury.

No bishop and no rabbi who has ever spoken out against the use of human embryos has, for the reasons that my noble and right reverend friend described, ever been appointed to the HFEA. His argument was that it would be incompatible because of the contrary opinion that they would put and because that might place them in an unacceptable dilemma. I do not accept the basis of that argument.

I am grateful to my noble and right reverend friend for giving that slight nuance to the point. Nevertheless, even if it was very difficult, we should not rule it as outside the scope of the membership of the HFEA in future—the point made by the noble Lord, Lord Patten. If we are looking at future appointments, it is not unreasonable to have members who do not themselves support the original premise on which an authority was established. Sometimes, by bringing informed arguments to the debate, they are able to convince people of the merits of looking again—especially at things such as repetitive use of human embryos, the very point that I enumerated as one of the key questions.

The noble Lord mentions that no rabbi who is opposed to human embryo research has been appointed to the Human Fertilisation and Embryology Authority. As far as I am aware, there is no rabbi who is opposed to the use of embryos for research. Indeed, the London Beth Din, which is the authentic legal authority of the Jewish courts in this country, supported this research in quite strong terms—as I think that the noble Lord, Lord Alton, will remember—when, stem cells were discussed in the Select Committee.

I am sorry to intervene, but I have a real problem here about the issue of good faith and bad faith. It seems to me that if a body is set up by law, to seek to go on to it to undermine what it was set up to establish raises an issue of bad faith. Many years ago, I was asked as a local councillor to sit on the board of a girls’ public day school trust. I said that I was committed to education, but that they should realise that I did not believe in fee-paying schools and I thought that, in that context, there was an issue of bad faith. They said, “Thank you very much. We think that, as a result, perhaps you should not sit on our board because you are at core opposed to the objectives of the organisation”. They were honourable; I tried to be honourable; and that was that.

It seems to me a little odd to demand the right—when you have failed to win an argument in the parliamentary forum, which is the appropriate place for an array of voices to be heard—to sit on the administrative body to undermine that which Parliament has established because you do not believe in its core principles. That raises an issue of bad faith.

I will come back to the point that the noble Baroness just made, but let me first deal with the intervention from the noble Lord, Lord Winston. I take him back to our very first debate in your Lordships' House—I instigated it on a Motion in 1998, I think. The then Chief Rabbi, Lord Jakobovits, who was a Member of your Lordships’ House, spoke strongly against the use of human embryos in cloning procedures. I will happily send a copy of his speech from that debate to the noble Lord, Lord Winston.

I do not think that one can say that every rabbi or every bishop shares the same opinion, but I believe, turning to the point made by the noble Baroness, that to exclude people who may take a contrary view is wrong. I told your Lordships that I serve on a local ethics committee connected with my university, looking at the animal procedures that take place there. I am very struck by the fact that, on that committee, there is one member who is opposed to vivisection. That does not compromise the way in which he participates in our debates. I like to hear what he has to say about repetitive use and duplication of use of animals. I am not always convinced by his arguments, but I think that those arguments are worth hearing. They are certainly not arguments of bad faith. To exclude people entirely from such committees because a parliamentary vote went one way or the other seems to me entirely wrong.

When we had the vote on human cloning in 2001, nearly a third of your Lordships voted against that proposition. The House was divided, but by a majority voted in favour of the 1990 legislation. A significant number of people have always been opposed to it. The precondition that my noble and right reverend friend Lord Harries put before the House that only someone with a passion should be appointed rather than someone who is neutral would mean that everybody who is appointed to the HFEA would be on the other side of the argument.

This point about passion is important, but would the noble Lord not agree that on this authority or some future authority that might be considering, say, licences to do with interspecies embryos, it might be quite useful to that authority’s deliberations to have someone who is not passionate and who would say, “I recall the noble Lord, Lord Darzi, in his speech during the last group of amendments saying that a lot of very wise scientists are unable to define what one of these things is, so shouldn’t we pause for a moment or two before we decide to license it or not?”? That has nothing to do with passion or being anti-science; it is to do with the small, still voice of reason.

I entirely agree with the point that the noble Lord, Lord Patten, has just made. People who come to these committees do not have to be passionate on one side of the argument, and I therefore disagree with the proposition of my noble and right reverend friend.

My noble friend Lady Deech said that the HFEA came out against sex selection. Indeed, the Bill prohibits it. I welcome that, but I think that she would also concur with what I said about the HFEA’s public consultation about interspecies embryo experimentation. One in eight of the 800 responses to the consultation document was opposed, but that did not influence the HFEA’s position.

Turning finally to Amendment No. 62—

I think that I heard the word “finally” and I want to get in a question before the noble Lord withdraws from the field, if that is what he is going to do. The noble Lord, Lord Northbourne, raised an important point, and the noble Baroness, Lady Deech, said that it was an obvious point that had not been overlooked and that the interests of the child were written in to the law in every possible direction. Does that go beyond Section 13(5) of the 1990 Act? She spoke as if there was a great barrage of protection there. This is important, so perhaps the Minister or the noble Baroness could direct me to where else I should look.

The Minister will want to return to that intervention by the noble Lord, Lord Elton. People from a child welfare background have been appointed to the HFEA; I welcome that, as I said in my opening remarks. I am not saying that everyone who has ever been appointed to the HFEA has a loaded, biased view that I find totally unacceptable. I am not saying that at all; in fact, my noble friend Lady Deech did a superb job during her time as chairman and was very objective and fair, even though I sometimes disagreed with the conclusions that the HFEA reached. I am arguing that the composition of the membership of the HFEA should be more balanced and that it should be more questioning of the way in which the law is being interpreted—in particular, about the tendency to pre-empt Parliament. To have a meeting of the HFEA this very week, between the sittings of this Committee of your Lordships’ House, to determine applications on interspecies embryos will create a great deal of cynicism in the minds of the public, who wonder whether we have not allowed ourselves to become just a rubber stamp.

I say “finally” again—

Before my noble friend reaches a conclusion, I shall add, on the welfare of the child, that at the moment the authority is very concerned about multiple births, with all the adverse consequences that they have for the health of the children. It went very far—some said too far—in counselling of all sorts. It keeps a register of the names of donor fathers and spent a great deal of time debating the anonymity of donors and the effect that that would have on children. I could go on and on. This all springs from the statute.

I am grateful for that intervention. The Committee will be relieved to know that it brings me to end of what I want to say on this group of amendments. The noble Lord, Lord Winston, also touched on the importance of collecting data on other issues as well as OHSS. He said that we should have information about what happens to children born as a consequence of these procedures after their birth. On another occasion, I heard the noble Lord asking about the data that we have on children born after the freezing of human embryos and the incidence of disability arising from that. I agree that we should have that data. We need to know a lot more about all these things.

The noble Lord, Lord Patel, was right to say that patient safety and patient care should be the issues of which we take greatest consideration. Perhaps we could collect data on people who have been treated here and developed OHSS and who then go back to overseas destinations. At least we might invite them to provide self-reporting. That might be useful data to accumulate in the future. I see some of the practical difficulties that have been raised in that context.

This has been, as have the other debates that we have had today, an illuminating debate. Great expertise has been brought to the Committee. I hope that the Government will reflect on some of the points that have been made in the debate and that before Report it might be possible to reach some compromise and to move on some of these issues. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Schedule 1 [Amendments to Schedule 1 to the 1990 Act relating to membership of the Authority]:

[Amendments Nos. 22 and 23 not moved.]

Schedule 1 agreed to.

Clauses 6 to 10 agreed to.

Perhaps I may briefly convey a message to the Committee from the noble Lord, Lord Brennan. He wishes the Chamber to know that he is doing fine and that after a few minor adjustments he will be back with us, but certainly not tonight.

I beg to move that the House do now resume.

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

House resumed.

House adjourned at 9.52 pm.