My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Schedule 2 [Activities that may be licensed under the 1990 Act]:
[Amendment No. 49 not moved.]
Clauses 12 and 13 agreed to.
Schedule 3 [Consent to use or storage of gametes, embryos or inter-species embryos etc]:
50: Schedule 3, page 64, line 46, at end insert—
“Consent in relation to children for storage and use for research12A (1) The gametes or human cells of a person (“the child”) may be used to bring about the creation of an embryo or an inter-species embryo in vitro. and any embryo or inter-species embryo so created, used or stored for the purposes of any project of research without the child’s consent if the following conditions are met.
(2) Condition A is that the gametes or human cells are lawfully taken from or provided by the child before the child attains the age of 18 years.
(3) Condition B is that, at the time when the gametes or human cells are first used, the child is not competent to deal with the issue of consent in relation to either the storage or use of the gametes, human cells, embryos of inter-species embryos.
(4) Condition C is that the child does not appear to the person storing or using the gametes, human cells, embryos or inter-species embryos to have indicated any objection to such storage or use.
(5) Condition D is that a person who has parental responsibility for the child has given their consent in writing and signed it.
(6) Condition E is that there are reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project of research for which the gametes, human cells, embryos or inter-species embryos are stored or used has to be confined to, or relate only to, persons who have capacity to consent to it.”
The noble Lord said: Amendments Nos. 50 and 54 relate to consent for research into children, and would be inserted after new paragraphs 12 and 16(4) of Schedule 3 to the 1990 Act as new paragraphs 12A and 16(5) of the schedule, as amended. The Bill provides that consent to the storage and use of a person’s gametes, human cells or embryos—and, for that matter, interspecies embryos created from such a person’s gametes or human cells—must be obtained from that person. The Bill does not make provision for consent to be obtained for such purposes from parents on behalf of their children. This amendment makes provision for those exceptional cases where research into childhood diseases and other serious conditions involves taking gametes and human cells or a skin cell—a fibroblast—from a child, through an embryonic stage, to develop embryonic stem cells or embryonic-like stem cells. This cannot be carried out using gametes or cells obtained from adults, or children with the capacity to consent.
A number of childhood diseases—I am sorry to burden noble Lords with the medical terminology—such as Batten disease, lissencephaly, non-syndromic renal hypodysplasia, some types of syndromes called Alport or Alpers’ syndrome and polycystic kidney disease, affect the development of the brain and therefore motor neurones, and are associated with serious kidney diseases. The child typically dies within the first two years of life. The ability to create disease models for such diseases from tissues obtained from a child is necessary to further our understanding, and our ability to treat and prevent such diseases. To develop these diseases, scientists need to be able to take somatic cells from these children through an embryo phase in order to generate embryonic stem cells or embryonic-like stem cells, which, in turn, would allow the disease models to be studied.
Somatic cell nuclear transfer technologies—or SCNTs, as they are known—can be used to generate embryonic stem cells that are customised to specific patients, including children with leukaemia, immune deficiency and sickle cell anaemia. That could be done using the new science of induced pluripotent cells. Using these cells, researchers hope to be able to correct the genetic defects in the patient’s specific cells, direct their differentiation into blood, and ultimately identify future clinical treatments. Research using this material from children is therefore important. It should not be undertaken lightly. It needs to be subject to the strictest safeguards of the 1990 Act, but also to the further conditions set out as part of these amendments.
These conditions borrow from other sources, including some of the protections in the research provisions of the Mental Capacity Act 2005. The amendment will allow embryos or stem cells to be created using gametes or cells from children, to be used in research into serious childhood diseases or conditions, with the consent of a person with parental responsibility and subject to the fulfilment of certain additional conditions. These include, most importantly, the necessity test, which will ensure that such work is only carried out where it could not be carried using the cells of gametes from adults or children with capacity. I hope that, with these conditions, this amendment can go ahead. I beg to move.
My noble friend Lord Patel has just said that there should be the strictest safeguards. He has also said that we should not proceed to incorporate these amendments as a light undertaking. He has recognised the seriousness of what is proposed in these amendments. Like him, we all want to see cures for the sorts of diseases that he has just enumerated. However, the Committee also needs to consider whether this is the right way to do it.
These amendments in the name of my noble friend would overturn most of the current prohibitions and would enable gametes and cells of non-consenting children to be removed from their bodies and used to make interspecies embryos or human embryos for research. Proposed new paragraph 12A(1) would permit all types of hybrids specified in new Section 4A of the 1990 Act to be made from these children’s gametes, including true hybrids at new Section 4A(5)(a), interspecies cloned embryos at new Section 4A(5)(b), human animal- transgenic embryos at new Section 4A(5)(c), animal human chimeric embryos at new Section 4A(5)(d), and such other things as may be specified in regulations at new Section 4A(5)(e). It would also permit human embryos, including cloned human embryos, to be made from their gametes and cells. These could be made from the gametes and cells of non-consenting children for research, using them in combination with human or animal eggs. These interspecies or human embryos could also be stored and used without consent. That is the issue on which my noble friend and I will part company. It raises a number of objections on which the Committee will want to reflect.
For instance, later in life, a non-consenting child might feel considerable antagonism that their gametes and cells were taken and used to create interspecies embryos without consent. Whatever the benefits that may be cited, where is the principle of autonomy that is so frequently cited in other debates in your Lordships' House? I can imagine the anger of a young adult who felt that their very personhood had been violated and sacrificed to a supposed greater scientific good. For example, how would a teenage girl feel if a true hybrid had been made between her eggs and animal sperm? Alluring scientific possibilities should never be allowed to corrode our sensibilities.
Seeking Patients’ Consent: The Ethical Considerations, produced by the General Medical Council, describes how a young person can be treated as an adult and can be presumed to have capacity to decide at 16. My noble friend referred to that. Therefore, one must assume that Amendments Nos. 50 and 54 are intended to exploit the potential inability of young children under 16 years of age to provide informed consent. The same document provided by the GMC also states:
“Where a child under 16 years old is not competent to give or withhold their informed consent, a person with parental responsibility may authorise investigations or treatments which are in the child’s best interests”.
On the basis of existing empirical evidence, how can the creation of an interspecies embryo necessarily be stated to be in the best interests of a non-consenting child? Let us not forget that the purpose of these amendments is restricted solely to research rather than to clinical treatments that have already proven their worth and might be used in the interests of the child. My noble friend Lord Patel stated in our debate on 3 December how producing satisfactory results was too high a hurdle. He made those comments on Amendments Nos. 7, 44 and 46. My amendment said that,
“the research method proposed is most likely to produce satisfactory results”.
My noble friend said:
“That is too high a standard for any research project”.—[Official Report, 3/12/07; col. 1544.]
Again, that opens a clear difference between my noble friend and me on those previous amendments, as well as this one.
This amendment would allow human embryos to be made using gametes or cells from a child without their consent. How would the non-consenting child feel in later life once they realised that they were made a mother or father at an age too young to give consent, even if the embryo was destroyed by 14 days? Not many of us would want to know that our gametes had been taken, without our having any understanding of it, to make interspecies embryos or human embryos on our behalf and without our consent. No one has the right to take that decision on behalf of others. I feel that this is going too far.
There are echoes here also of an application made more than a decade ago by an Edinburgh scientist, Roger Gosden, who sought permission from the HFEA to use the eggs of aborted baby girls for fertility treatments. The HFEA did not demur. It embarked on a public consultation on whether a little girl would be aborted and then robbed of her eggs from her ovaries. A woman is at her most fertile at 20 weeks’ gestation, when she has 5 million eggs in her womb, 4 million of which are shed naturally before birth. An aborted girl could be seen as a rich source of organs and tissues.
You can face a prison sentence for stealing the eggs of certain rare birds in Britain. Are birds to have greater protection in law than children when it comes to taking their gametes?
The noble Baroness, Lady Knight of Collingtree, and I tabled an amendment in another place to a criminal justice Bill and successfully outlawed what I described as contemporary grave robbery. That a child should have an aborted foetus as its mother, and the aborted girl’s mother as its grandmother, struck many members of the House of Commons as obscene and certainly not an auspicious start to life. However, the Human Fertilisation and Embryology Authority had a public consultation over that issue. These amendments do not seek to create life beyond 14 days and, in that sense, are obviously different from the proposal that had been placed before the HFEA by Roger Gosden—but we should not seek to create life in that manner at all.
Obtaining gametes, especially from a girl, is not like giving blood. The procedure needs to be spelt out in full and any attendant risk, present or future, should be made clear to your Lordships while we debate the matter. I hope that the Minister, when he comes to reply, will tell the Committee very clearly how exactly one would get the gametes from these infants and children, especially how one would obtain eggs or ovarian tissue from a teenage girl of reproductive age. That should be described in ordinary, everyday language so all of us can understand what the procedure would be. Furthermore, would the procedure involve a general anaesthetic, and would that involve a risk? Would there be any risk to the girl during any of the surgical procedures? My noble friend said on Amendment No. 62:
“I should like to see a greater degree of patient safety being promoted in all aspects of medicine”—[Official Report, 3/12/07; col. 1592.]
I entirely agree with him. We need clarification on that point. The noble Lord, Lord Winston, will speak next, I think, and help to illuminate our proceedings. I want to know whether we can guarantee that there will be no possible risk of future damage to the child’s own reproductive system.
On a related subject, I ask the Minister whether there is an error in new paragraph 9 in Schedule 3, in line 12 of page 63 and line 2 of page 64. Can he explain the relevance of “donor” with reference to “child donor” in that paragraph? Is that paragraph specifically related to the storage of gametes of children who may be ill or undergoing some medical procedure, such as chemotherapy, that may render them infertile, with the intention of storing their gametes to enable them to have their own genetic children later in life? That would seem perfectly reasonable. Is the purpose broader, to include donation as implied by “child donor”, and if so can these other purposes be explained? Is “donor” intended to mean “patient”, in which case could that be rectified, otherwise the meaning of the term could be considerably expanded in practice? If the word is intended to mean “donor”, does that mean that the child is intended to be an egg or sperm donor for somebody else’s fertility treatment, or to provide eggs or sperm for research without their consent?
Finally, let me return to an issue raised earlier in our Committee. Why exactly do we need to do these things? We create embryos under any number of guises when alternatives exist. Yet, even if there were no alternatives, to create interspecies embryos from non-consenting children is going too far.
Only last week, Bob Edwards of Louise Brown fame commented at the end of the HFEA annual review about the need for welfare of the child to be the priority. In passing, he questioned the wisdom of the HFEA being involved in sanctioning the creation of hybrids.
Doubt was cast earlier on the figure I cited of 2 million human embryos destroyed or experimented on since the passage of the 1990 Act. A lesser figure of 82,955 was mentioned, but that is in connection with the number of embryos donated for research. The figures are in a parliamentary reply given to me on 28 June by the noble Lord, Lord Hunt of Kings Heath, at col. WA 159. The number of embryos created involving fresh, non-frozen embryos is 1,940,576, with just 3.4 per cent resulting in live births from a total of 66,715 treatment cycles. Since 1991, 76,462 embryos have been created in treatments involving frozen embryos, with 13 per cent resulting in live births from 10,040 treatment cycles. Therefore, more than 2 million embryos have been destroyed or experimented on since 1990.
I also asked why no data were held on embryos created using cell nuclear replacement or therapeutic cloning. The Minister replied that the HFEA,
“does not routinely collect data on the number of embryos created using cell nuclear replacement”,—[Official Report, 28/6/07; col. WA 159.]
technology. Such data are kept by the local research project. Surely they should be made available to the HFEA and Parliament.
If Amendments Nos. 50 and 54 were agreed to, would we collect data on the gametes and cells taken from non-consenting children or would that, too, become so routine that we would not feel the need to do it? I hope that the Committee will not incorporate these amendments into the Bill.
I had not intended to speak in support of the amendment because it seemed self-evident that it was a valuable amendment that the Government should consider. I say, in all seriousness and absolutely sincerely, that it is extremely helpful that the noble Lord, Lord Alton, continues to make objections; it helps us to focus our minds on what is ethical and what is useful. I thank him for his points, but I disagree with him.
Pretty well all of us in this House who have at some time or other had unprotected intercourse will have made embryos that did not become babies; it seems that most human embryos do not. Let us not forget that most embryos do not implant.
I return to the points made by the noble Lord, Lord Patel. We must understand that genetic disease is a very serious issue indeed. There are about 6,000 single gene defects—that is what we are talking about—and most of them are so-called recessive defects, which means that if the parents both carry the gene, usually unwittingly, their children have a chance of having the defect. Such diseases are, frankly, untreatable. A few of them—a handful—do not cause very serious problems but, mostly, if you have a genetic disease, you live with it, you suffer from it and you die from it; and you die from it, normally, while you are still a child. Most children with genetic diseases do not survive into adulthood or even into teenage years, the exceptions perhaps being muscular dystrophy and cystic fibrosis and a few others. Most of them are so serious that children die after appalling suffering.
The only effective treatment that we think is on the horizon for genetic disease is gene therapy. Basically, gene therapy involves getting the correct gene construct—the correct DNA—into the person so that their tissues start to express, or make, the proteins that are necessary for normal health. With cystic fibrosis, a protein is made without which breathing, digestion and other things would become impaired, and the children would die, usually in an emaciated state, with very severe breathlessness. One of my friends, sadly, is in that situation at the moment, and it is pretty unpleasant to watch her, as a young adult—she survived that long; she was lucky.
Gene therapy normally involves piggybacking a gene into the cell so that you can modify the genetics with which the person has been born. That is normally done with a virus; various viruses have been tried. In my own laboratory, we use what are called retroviruses for such experiments, and we do so only on animals. They are similar viruses to those that infect people during infection with HIV. You can see the potential risks that such therapy has.
Other viruses have been tried, particularly, for example, adenoviruses but, to date, gene therapy, in nearly all cases, has been an extremely serious undertaking. In America, there have been deaths after gene therapy and, so far, it has not been satisfactory. It currently carries—because we do not understand how to get the genes into the nucleus—a risk of cancer, a risk of an immune reaction and, in some cases, a risk of death within a few days of treatment. There is a real need—let us not underestimate this—to get genes into tissues that are damaged. At present, most gene therapy, quite understandably and probably quite ethically properly, is reserved only for people who are already so seriously sick that there is no alternative—by which time, in the case of cystic fibrosis, their organs are really badly damaged; they can hardly breathe and are virtually at life’s end. If we could get the genes in earlier, we could prevent both that scarring and that terminal disease. Therefore, the need to try to treat children young—early on, while the disease is still making its way and not with its full ravages—is extremely important.
With all due respect to the noble Lord, Lord Alton, there are many examples in medicine where parents or guardians quite properly take it upon themselves to make consent for medical research on children that involves the potential to improve the health of their children or of others. That is firmly established within paediatrics, and while that area is at the moment under considerable scrutiny there is no doubt that that aspect of paediatric research is considered completely proper. There is no question among most medical opinion—and, I suspect, most public opinion—that it is appropriate to do that.
Consent given by someone legally entitled to do so on behalf of the child must be an appropriate way to conduct such research, particularly where there seems to be a real therapeutic possibility. The great advantage in having an embryo is not to have an organism to treat but to grow tissues from it that might be treated. For example, when using the modern techniques that we hope to be able to implement in this country, if an embryo had cystic fibrosis then pancreatic or lung tissue would specifically be grown. If we could do that, we could start to have a clear understanding of the ravages of these diseases and how they might be stopped.
We can never prevent genetic disease. Each of us in this Chamber—each of your Lordships—has a defective gene somewhere in our genome. In most cases, however, your Lordships are fortunate not to have married or have had sex with someone who has a similar defect in their genome and, therefore, your children are not at risk. That is a matter of random chance, and, if we can prevent these diseases or improve our understanding of them, it is a moral imperative to do so.
I fully support the noble Lord, Lord Alton of Liverpool, and will not attempt to repeat the arguments that he so clearly gave. I also feel that the noble Lord has isolated a continuing problem that has begun to run through our Committee debates. That problem is definition; in this case, definition of the word “donor”.
We had some discussion last week about what “donor” meant, as it seems to be being used interchangeably. Sometimes it can mean a patient and at other times someone who is willing. Sometimes it does not mean giving consent in the way that some of us would understand consent to be given. I hope that we will have a clear definition on Report from the noble Lord, Lord Darzi, on what he and the Government actually mean when using the word in this Bill. I take this as my closing text: we should not legislate on those things which we cannot define.
I am neither a medic nor a lawyer, but if I picture a child involved in such processes, I have this question. Clearly, I do not know the answer, but will be grateful to hear from someone who does. Let us imagine that a child has had these procedures carried out on them. What rights in law would that child no longer have after the procedures, which they would have had had the procedures not been carried out? I am looking around the Chamber in the hope that, at some stage, someone can give me an answer.
On a brief point of information, the amendment is not suggesting that we take eggs or sperm—or cells that might produce them—from a child, but simple cells. For example, a cell from a buccal smear from inside the mouth might do perfectly well for the purposes of the proposal of the noble Lord, Lord Patel. We are not suggesting operating on little girls to remove their eggs from their ovaries—that is not at stake. We are not looking at a major invasion of a child’s body.
I have not joined in the proceedings before. I missed Second Reading but I have listened to the whole of the Committee stage so far. The main part of the argument of the noble Lord, Lord Alton, was that he wondered what a child would think when it grew a little older and was told by its parents that its body had been used for this purpose. Most young people are extremely idealistic. If a parent said to a child, “We were asked whether cells from your body could be used to save other children from dreadful diseases and I gave permission for that; I don't know whether you succeeded in your help, but perhaps some progress has been made”, I would have thought that that child would be absolutely thrilled to have been able to help.
I am sorry that the church—part of the church, anyway—is being so depressing about the possibilities before us. As a church person myself I find it sad. I appreciate what the noble Lord is doing—he does it beautifully and with huge integrity, and I admire him for it—but I am sad about it and it is the church that is doing this. I am not talking about all the other issues because I am not sure that I fully understand them all, but on his point about what the child would think when told by its parent that it had helped in this way, I think he is wrong.
I am grateful to the noble Baroness for raising that issue. First, I do not speak for the church or indeed put forward views held by the church. The church is quite capable of doing that on its own behalf. I put forward my own views. I have argued for probably 40 years for the sanctity of human life from the womb to the tomb and I will go on arguing that proposition. I am extremely grateful to the noble Baroness for the way in which she couched her remarks.
I spoke to these amendments because I want to shed light on whether gametes or cells are involved. The noble Lord will no doubt give us further illumination when he comes to describe what is actually in the amendments and what dangers there might be for the young woman from whom these gametes might be taken. That seems a perfectly proper question to ask in the context of this issue and to raise again the issue of consent and what precisely is meant by “donor”. The noble Lord, Lord Patten, is right to ask about that; the point was raised in our debate last week about so-called saviour siblings and will be raised in other contexts as the Bill proceeds.
All of us need to think very carefully about what we do on behalf of others, even when parents give consent. I agree with the noble Lord, Lord Winston. I was in the position 18 years ago when my own daughter had a congenital hip displacement, of having to give consent for general anaesthetics and for operations to be carried out, which were very painful and difficult. I am glad to say that, thanks to the skills of the doctors involved, my daughter came through that experience and her problems were rectified. These are decisions that parents have to make, but we as parents have to know what information can inform our decisions. If there are dangers to our daughters or sons as a result of any of these procedures being carried out, we have a right to know that before we incorporate such proposals into law.
The noble Lord, Lord Winston, offered some reassuring words to the right reverend Prelate about how these powers would be used if they were granted. But we are concerned not really with the intention but with the scope of exploitation that the legislation gives. Other people may have other intentions. We need to know how wide the door is being opened. Perhaps the noble Lord, Lord Patel, could explain the full extent of the procedures and the full nature of the individuals on which these procedures could be practised if his amendment were accepted.
This has been another fascinating debate. Amendments Nos. 50 and 54, tabled by the noble Lord, Lord Patel, seek to permit the use of gametes or cells for creation of human and interspecies embryos for research from a child not able to give consent. Consent instead would be obtained from the parents of the child. This proposes that such cells or gametes could be used if there were reasonable grounds for believing that the research would be less effective if taken from a person who could consent, such as an adult with capacity. Consent to the use of sperm and eggs in the creation of embryos and to the keeping and use of those embryos for treatment or research is one of the cornerstones of the 1990 Act. The provisions relating to when consent will be required and the form of such consent are set out in Schedule 3 to the 1990 Act.
The Bill allows the use of gametes and cells to create human and interspecies embryos for research only where the adult who provided the cells or gametes gives consent. This reflects the special status of an embryo created using a person’s genetic material. No one can give consent on behalf of an adult who lacks capacity, and for the same reasons I do not believe that a child’s cells or gametes should be used to create embryos or interspecies embryos without that child’s own consent.
I listened with interest to the views expressed by the noble Baroness, Lady Carnegy of Lour. I listened carefully to the noble Lord, Lord Patel, and my noble friend Lord Winston, and better understand the benefits which such an amendment could bring. However, if a child is incapable of giving consent to the creation of a human or interspecies embryo themselves, then it would be wrong for any person, including the parents, to make that decision for them.
The noble Lord, Lord Alton, asked whether there was an error in Schedule 3 and about the meaning of “donor” in that context. New paragraph 9 refers to “child donor” and has a meaning specific to this paragraph. Where a child is about to undergo treatment that will affect their fertility and cannot consent to storage of their gametes, this paragraph allows storage only for their treatment if it is in their best interests. Gametes cannot be used for any other purpose.
The right reverend Prelate the Bishop of St Albans asked what rights the child would lose. Under the Bill, consent is required to create an embryo. A child able to give consent could do so; otherwise, no one may give consent on the child’s behalf. Amendment No. 50 would provide an alternative mechanism.
The noble Lord, Lord Alton, asked many questions on the amendment. I shall not answer them this afternoon but the noble Lord, Lord Patel, may wish to do so. However, the Government are not convinced that the need to create embryos from a child’s gametes or cells outweighs the need for that child’s effective consent. Any such change would need very careful consideration of the very significant ethical issues involved. Therefore, I invite the noble Lord to withdraw the amendment.
Much of the discussion had nothing to do with my amendment. It involved the wider discussion that we have already had on issues relating to interspecies embryos and cell nuclear transfer technology. I have no doubt that we shall return to them because my noble friend Lord Alton of Liverpool and others clearly wish to do so as many times as possible, and they have every right to do so. I go on to—
I would not want the Committee to think that I had diverted it away from the amendment. Amendment No. 50 states:
“12A (1) The gametes or human cells of a person (the child) may be used to bring about the creation of an embryo or an inter-species embryo in vitro”.
Everything I said was germane to that.
I am coming to that. As I said, my amendment is about children who suffer from very serious diseases, which kill the majority of them by the age of two. They relate to the development of the brain and kidneys. Some of them are congenital diseases caused by genetic defects in the mitochondrion. The reason for suggesting that cells should be used from these children, using cell nuclear transfer technology and therefore creating an embryo, is to obtain stem cells and cultures of cells that carry the defective gene in order to study how these diseases develop and to find ways and means of treating them.
This also applies to creating interspecies embryos using skin cells from children, with parental consent, to create stem cells using animal eggs from which the nucleus is removed. The stem cells that result are nearly a 100 per cent match to the child from whom the skin cells were taken. This allows us to understand the development of lethal diseases so we can find the kind of therapies that my friend—in the professional sense—the noble Lord, Lord Winston, has talked about that use gene therapies and develop architecture to modify these genes so that children can survive longer and in due course we can treat these genetic defects.
Interspecies embryos and the human embryonic material obtained—human stem cells—both use the same technology. These cells are obtained to study further the behaviour of these diseases. My amendment is about obtaining consent. Most of these children die at an early age and are not able to consent so consent is needed from the parents to obtain these cells so we can learn how to treat these diseases. That is the simple reason for this amendment; there is no other reason. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 51 to 54 not moved.]
Schedule 3 agreed to.
Clause 14 [Conditions of licences for treatment]:
55: Clause 14, page 9, line 14, leave out paragraph (b)
The noble Baroness said: Your Lordships will know that the pre-legislative scrutiny committee that examined the Bill wanted to ensure that there were ethical principles in the law, preferably fixed by Parliament. There appeared to be very few ethical principles that the committee and its witnesses could agree on, but the one that I shall argue for is so basic that it is a litmus test of the ability of this nation to agree on ethical principles. It is the one that was crafted by the noble and learned Lord, Lord Mackay, in the 1990 Act, which has held firm and worked well for the last 17 years. It is the section that says that the welfare of the child includes the child’s need for a father. Clause 14(2)(b) of the Bill calls for the wisdom and natural practice of the centuries to be disregarded.
Why should I care about this? It is because I learnt from my chairmanship of the Human Fertilisation and Embryology Authority that the public need reassurance that science is not leaping ahead to the detriment of future generations. That theme has implicitly underlain all our discussion over the past few days. The other thing that I learnt during my chairmanship was that there are pressures on vulnerable women, and sometimes reluctant men, to spend a lot of money in pursuit of a baby, sometimes egged on, as it were, by very wealthy doctors, who urged them to keep going. One was aware of husbands who demanded a baby or threatened divorce if one was not forthcoming. I hold to the principle that every woman is a worthwhile woman in her own right, whether or not she has, wants or cannot have a baby. She is not just a mother. Likewise every man has to be free to be not just a career man, not just a genetic contributor or a pair, but a responsible father.
There is no right to a baby. I think that your Lordships would agree on that. The provision that we are debating is a demarcation between, on the one hand, the goal that we all seek of a healthy baby brought up in a family to which some thought has been given and, on the other hand, experimentation. One of the main arguments against cloning is that the child would be the product of only one parent with no input at all from another. That has caused revulsion around the world.
In other words, what I learnt from my chairmanship was that the science is great but that there is a risk in all that we do of dehumanisation, commercialisation and loss of identity. It has, rightly, been the policy of this Government and other Governments that there should be paternity leave in order that a father can bond with his child. It is the policy of this Government that single women should be more than encouraged to name the father on the birth certificate. It is the policy of the judges and the Government that there should be contact between father and child after divorce. It is the policy of this Government and previous Governments to make sure that fathers pay maintenance for their children. It has been the policy of this Government to end the anonymity of sperm donors in order that they can be known if necessary at some time in the future. It is all about enabling the child to discover who his or her father is. Why should that be if there is no point in having a father?
As a former chair, I welcome all the excellent proposals in Part 1 that simultaneously liberalise and regulate the advance of science in lifesaving and reproductive techniques. I have no quarrel with any of it, but the results of science should adapt to the needs of society and not vice versa. The pre-legislative scrutiny committee decided inter alia that donor-conceived children ought to be given every opportunity to discover the truth about their origins, short of forcing social parents to tell them that they were donor conceived, which is too great an invasion of privacy and unenforceable. The pre-legislative scrutiny committee concluded that children need two parents. The need for a mother is implicit in the direction to consider the welfare of the child, because it is the would-be mother who presents herself for treatment. Your Lordships could usefully imagine the reaction of the public were the Bill to say that the need for a mother was to be deleted from the law.
The Bill remains full of inconsistencies. It promotes truth about origins, but it will provide for birth certificates to name two parents of the same sex. It ensures non-discrimination between family units and persons at the expense, it could be argued, of the welfare of the child. After all, British law does not treat all families the same. It still rightly discriminates against underage marriage, which is not possible, and polygamous and incestuous unions, which are not legalised, so why should a child not have its family welfare considered before the mother undergoes IVF?
Current government and judicial policy is unanimous that fathers have a vital role to play, and research, which I am coming to, shows that children need fathers as role models. We should not be afraid of being labelled discriminatory or politically incorrect in standing up for the welfare of the child and for its right to have two parents of different sexes, even though that requirement has not been and will continue not to be a barrier to treatment. Indeed, the number of single women and lesbian women being treated by IVF has gradually risen, and I have no quarrel with that.
It has been alleged that this factor—that a child needs a father—is discriminatory. It is not discriminatory, because it applies to all patients regardless of sex and marital status. If it is discriminatory, it is justified by the welfare of the child, and it is proportionate; it is not an absolute bar. In that, I am supported by the rest of Europe, which I shall come to.
The HFEA figures show that treatment is regularly provided to single and lesbian women; indeed, the number is rising. Clinics look for stability and a male role model and they consider the risk of harm. I have a list of about 80 research papers listing the unique contribution made by fathers to the upbringing of girls and boys in terms of social and academic success and psychological and physical health. The father’s input to the upbringing of girls is as vital as it is to the upbringing of boys. A household of two parents of different sexes is a microcosm of society. It gives children the chance to see the complementariness of roles, to hear adult conversation, to see two perspectives, to see the adjustment between the sexes, to have two sets of grandparents and a wider family, and to have respect for the opposite sex, not the denigration of it.
In a poll of approximately 1,000 people taken in early November, 84 per cent of 18 to 24 year-olds believed that the father is important and 82 per cent of all those questioned thought that his absence is adverse. In keeping the law as it is, we will be in line with the rest of Europe; our law is already more liberal than the laws in the rest of Europe. Single people cannot be treated by IVF in France, Italy, Sweden, Norway, Switzerland, Portugal and Germany. That limitation is not therefore confined to the more deeply religious societies. The UN Convention on the Rights of the Child says that the child has,
“the right to know and be cared for by his or her parents”,
in the plural. If we say that there is no need for a father in any circumstances, we will be in a group of countries that includes Romania, Bulgaria, Venezuela, Mexico, Belgium and Finland. I would argue that it is the hallmark of a civilised society that for the welfare of the child some restraints are put on who may reproduce when the matter is in the hands of clinics and the law.
The studies that exist on same-sex parenting are largely directed towards the existence of two parents of the same sex when the children are very young, but in Norway and Sweden, where same-sex partnerships have been legal for very much longer, it is apparent that the risks of breakdown are considerably higher. Female partnerships have a divorce risk that is double that for males. The median length of male relationships in the UK isonly 25 months. Thirty per cent of Swedish female unions and 20 per cent of male unions end within five years.
In other words, it is right to consider the child’s need for a father. I have the studies indicating that; I do not have time to list them now, but they certainly exist. We need to signal to men that we are all partners in the health of the next generation and that none of us is worthless or to be written out of reproduction or valued only for the money that we can contribute—that is, if we are men. If we maintain the existing law on the child’s need for a father, that will do more to reassure the public about the advances in science than anything else we can do. I suggest that, in its way, it is the bedrock for confidence in going forward in the in vitro fertilisation and stem cell field.
I therefore suggest that we restore the current law. It is not a prohibition; as I said, many single women and lesbian couples are treated. But it will cause patients and clinicians to reflect on the situation that has presented itself and ask whether all will be well—or as well as can be predicted—in this situation. This also applies to Clause 23(2). I beg to move.
I support the noble Baroness, Lady Deech, and will speak to the remaining amendments in this group, which would delete Part 2 and the attendant consequential clauses. Part 2 has the effect of redefining what it means to be a mother or a father. It is intended to create a separate category of parent for those who do not fit the description of either mother or father, thereby creating in law a family that could never exist in nature. Part 2 also allows a dead woman to be treated as a parent—even though she neither has nor had any biological relationship to the child—while preventing the child from having a father. The proposals are far reaching.
The current law may not be perfect, but it is better than the Bill before us today. I propose deleting Part 2 in the interests of keeping the law as it is. Trying to unpack this complicated and convoluted mess would lead to more problems than it would solve. I contend that the Government should take Part 2 back to the drawing board. If there is anything there worth preserving in the interests of upholding or enhancing the status quo, I hope that the Government will reintroduce provisions in a new Part 2 in the near future.
The relationship between children and their parents is, once again, at the heart of the redefinition of a family taken forward by Part 2. Clause 45 states that where two women wish to access IVF treatment as a partnership,
“no man is to be treated as the father of the child”.
I invite your Lordships to step back for a moment and consider the full ramifications of that statement. It effectively means that, from before the child is born until he or she ceases to be a child at the age of 18, the state, through this Bill, effectively makes it impossible for that child to have a father at any time during their childhood. Indeed, even when the child turns 18, they will not actually have a father but will only be able to find out who their father is. Whatever you think of the children’s rights movement, surely every child has the right, at least, to have had the chance of having a father. Do we really want to enact a piece of legislation that will make this impossible? What would this say about our attitude to children?
To put this question in context, it is important to recognise that one of the main developments since the HFE Act has been the publication of a significant amount of research on fatherhood, the balance of which demonstrates that fathers bring something distinctive and important to the parenting process. The noble Baroness, Lady Deech, has referred to 80 pieces of research; what I have looked up gives me over 100. I commend to your Lordships the recently published CARE Fatherhood Bibliography, which is available on the website www.care.org.uk/fathers. It highlights more than 100 pieces of research.
For those who do not get involved, or do not wish to get involved, in searching the web, I shall quote just three relevant statements. The first is from an article entitled “The Importance of Father Love: History and Contemporary Evidence”, by Rohner and Veneziano, in the publication Review of General Psychology, 5 April 2001, pages 382 to 405. I quote:
This article explores the cultural construction of fatherhood in America, as well as the consequences of this construction as a motivator for understudying fathers especially father love for nearly a century in developmental and family research. It then reviews evidence from 6 categories of empirical studies showing the powerful influence of fathers love on children’s and young adults’ social, emotional, and cognitive development and functioning. Much of this evidence suggests that the influence of father love on offspring’s development is as great as and occasionally greater than the influence of mother love. Some studies conclude that father love is the sole significant predictor of specific outcomes after controlling for the influence of mother love. Overall, father love appears to be as heavily implicated as mother love in offsprings’ psychological well-being and health, as well as in an array of psychological and behavioral problems”.
The second quotation is from Life without Father: Compelling New Evidence that Fatherhood and Marriage Are Indispensable for the Good of Children and Society, by Mr Popenoe, published in New York by the Free Press in 1996. It says:
“Recent research has given us much deeper … insights into the father’s role in childrearing. It shows that in almost all of their interactions with children, fathers do things a little differently from mothers. What fathers do … is not only highly complementary to what mothers do but is by all indications important in its own right for optimum childrearing”.
That is on page 144. It goes on:
“Fathers are far more than just ‘second adults’ in the home. Involved fathers—especially biological fathers—bring positive benefits to their children that no other person is as likely to bring … They provide protection and economic support and male role models … According to the evidence, fathers make important contributions to their children’s intellectual competence, prosocial and companionate behaviour and psychological well-being”.
Finally, I quote from a work entitled Fathers’ Involvement in their Children’s Schools, issued by the US Department of Education’s National Center for Education Statistics. It was written in 1987, by Mr Nord, Mr Brimhall and Mr West. It says:
“In two-parent families, the involvement of fathers exerts a distinct and independent influence on whether children have ever repeated a grade, get mostly A’s, enjoy school, and participate in extracurricular activities, even after controlling for mothers involvement in school and other potentially confounding factors”.
Given that the balance of recent research demonstrates the importance of fathers and the fact that they bring something distinctive to the parenting process, I submit that changes in the law suggesting anything to the contrary would be foolish. The proposed change would make it impossible for children to have fathers from before their birth until they cease to be children, when all that they can do is find out the identity of that father. That would be grossly irresponsible of Parliament and exhibit a total disregard for the rights and well-being of the child.
Some may respond by saying that the redefinitions of Part 2 simply extend principles established in the same-sex adoption situation. That debate has come and gone. The context of adoption and IVF are entirely different. Let us consider adoption from the perspective of the child. When a child who at some point goes on to be adopted is conceived, they have a chance of having a father—indeed, they may well enjoy access to their father for a period. At some point, however, they have to be taken into care and foster or adoptive families must be sought. Thus, adopted children are not purposefully conceived on the basis that they should never have a father.
What the Bill seeks to achieve is entirely different. In a context where recent research overwhelmingly demonstrates the importance of fathers and the fact that they bring something distinct to the parenting process, the decision of the state to facilitate the deliberate creation of children who would be prevented from having a father is morally wrong. That is a clear example of the Government prioritising the interests and desires of adults—in this case, same-sex would-be parents—above the welfare and rights of the children. It also goes against the many-times-stated intention that children are at the heart of the Bill and, as we were reminded by the noble Baroness, Lady Deech, that the welfare of the child includes the child’s need for a father, as my noble and learned friend Lord Mackay of Clashfern said during the work leading up to the Bill.
Not only do I believe that Part 2 is fraught with difficulties, because it affirms policy that is negligent of the balance of recent research, but I think that it is profoundly confused about public attitudes. A stated rationale for the Bill—one of many—was to take account of changing public views since 1990. Public views may or may not be changing, but one thing is certain: they do not agree with the redefinitions of the family in Part 2 of the Bill and, indeed, in relevant aspects of Part 1, such as Clause 14. In the Government’s 2005 consultation preceding the Bill, Review of the Human Fertilisation and Embryology Act 1990: A Public Consultation, question 17 asks:
“Do you think that the requirement to take account of ‘the need of the child for a father’, as part of considering the welfare of the child, should be removed from the Act?”.
Only 103 of the 505 responses published on the Department of Health website backed removing the obligation to have regard to the child’s need for a father. Given that there is clearly no public appetite for doing away with the 1990 provision that the child’s welfare includes the need for a father, by implication there is no appetite for making it impossible for some children to have fathers from before birth for the duration of their childhood. To be blunt, it is difficult to see how one could have regard to the child’s need for a father and yet, at the same time, prevent some children from ever having fathers.
More recently, a ComRes telephone poll demonstrated that 77 per cent of people think that the obligation on IVF clinics to have regard to the child’s need for a father is either important or very important. Most interestingly, this figure rose to 84 per cent for the youngest category polled, namely the 18 to 24 year-olds. The same poll asked people directly whether they felt that Part 2’s provision—that no man is to be treated as the father of the child—was fair on the child. Only 10 per cent of people thought that it was fair on the child. This figure fell to just 7 per cent in the responses from those with children in the household.
Moreover, as the noble Lord, Lord Darzi, made clear at Second Reading on 19 November, the redefinition of family relationships has the effect of denying some children a legal father, from conception and for the whole of their childhood. In the context of same-sex male partnerships, Clauses 54 and 55 make provision for bringing children into the world who will be denied a legal mother for the duration of their childhood. On this point, it is interesting to note that the option favoured in the responses to the government consultation about the 1990 fathers provision was that it should stay and have added to it a new reference to the child’s need for a mother.
Some may say that, despite the implications of both recent research that I have mentioned and public opinion, Part 2 must become law because the impact of the current law discriminates against some adults. I submit that that is not the case at all. Whatever you think about current arrangements, the truth is that single women can and do access IVF and that, where the woman is in a same-sex partnership, her partner can subsequently adopt the child. The same is true of a man in a same-sex partnership who, according to the new HFEA code, can now use surrogacy arrangements to produce a child who can effectively be brought up by two fathers. My amendments would not change that.
It is not entirely clear to me why same-sex female partnerships should effectively be able to access IVF, given the current obligation to have regard for the child’s need for a father. I suppose that it is a function of the fact that a woman seeking IVF presents herself as a single woman and is treated by the obligation to have regard for the child’s need for a father in the same way as any other single woman is treated. That that takes place at all is, in my view, wrong, given the balance of recent research and what it shows about the distinctive roles of parents and how the child’s interests are best served by access to both a father and mother.
Part 2 further streamlines, automates, authenticates and thereby encourages what can currently take place as a result of the combined effect of the HFEA code and adoption law. We can only endorse Part 2—and Clause 14(2) of Part 1—if we are prepared to institutionalise the compromising of the rights of the child to a mother and a father. That would involve adopting a total disregard for the best interests of children. Remember, once more, that the best interest is not just the absence of harm but putting the child’s welfare first and recognising that part of that includes the child’s need for a father. I am not prepared to do so and I encourage your Lordships to join me in asking the Government fundamentally to rethink Part 2, bearing in mind both the balance of recent research and public opinion.
I have listened very carefully to the argument of the noble Baroness, Lady Deech. As far as I could follow it, it went something along the lines that children derive great benefit from having a father. The examples were products of the social relationship of the parenting role between the child and a male parent, which led to great benefits in psychological, intellectual and social development. I do not necessarily disagree. But then the argument proceeds with an enormous jump. The jump then is that because of those benefits derived from a social relationship, the child has a right to a father. That is an enormous jump. It creates a right that is unenforceable.
In a very simple example, what happens in the case of a child who is born to a posthumons father and whose mother decides not to remarry?
I am very grateful for that clarification; I think that it slightly changes the argument, but the emphasis that we have heard generally—not just today but in the surrounding debate—is couched in terms of rights, and children's rights. The right to a father, as is clearly demonstrated by the example of a child born posthumously whose mother decides not to remarry, is completely unenforceable. It is regrettable that in many circumstances a child does not have a father figure available, but that cannot in any sense be a right.
I am not remotely interested in the rights of children or the rights of women or anybody else to have children. I am concerned only with the best interests of the children. As the noble Baroness, Lady Deech, said, Section 13 of the 1990 Act was the response of the noble and learned Lord, Lord Mackay of Clashfern, the then Lord Chancellor, to my amendment which would have made illegal the provision of in vitro fertilisation services to unmarried women and which was disagreed by this House by one vote on a free vote. The point about Section 13 is that it puts the interest of any children resulting from those services first and above the interests of the woman who wants a baby, where those interests conflict.
I am not aware that the child’s interests have ceased to be paramount in the past 17 years. It is widely acknowledged, as the noble Baronesses, Lady Deech and Lady O’Cathain, have said, that it is the best interests of a child to have two parents, one of each sex. Many unfortunate children do not, but they have been born without the use of artificial processes, often paid for by the taxpayer. I therefore support the amendment of the noble Baroness, Lady Deech.
It is axiomatic that fathers should be as visible and present as possible. Sometimes conversations off-stage, out of your Lordships, Chamber, can be very instructive. I have heard a couple of conversations outside this Chamber that have pulled me up short. The first was the suggestion that the Bill is concerned with something so tiny—the end of a little finger was pointed to—that it could not be very interesting or important. I expect that others may have thought that in the middle of the last century when the word atom was first entering discourse in this country.
The second conversation—equally surprising, at least to me—was that our Committee’s proceedings were best when they were being conducted by a small group of scientific experts. We have every reason to be grateful to experts. However, on debate of a public Bill in the High Court of Parliament, we owe it to the public to be understandable, and a danger lies the other way. At least this debate on fatherhood is one in which we can all become involved and join in, whether we are experts or not. Everyone has had a mother and father, even, if alas, so many people have not known one or the other.
It is striking that definitions in the Bill are sometimes inexact. Last week in Committee, we had the example of the Government seeking in their Bill, to legislate about some thing—that is two words, not one—which was referred to as an interspecies embryo. The Government and the globally renowned experts to whom they had referred for help could not agree a definition. I take the simplistic, non-expert view, as I said earlier, that one should not legislate about that which one cannot define—although that seems to be a minority view among some of your Lordships.
The Government are able to define the meaning of “mother” at Clause 33 (1) on page 35. Yet flip over to page 36 and off we go into a magical mystery tour about what an earth the word “father” might mean in different times and places, as a sign. This leads me to the conclusion that the Government, either by design or, as I suspect, by a muddled series of accidents, have ended up attempting to deconstruct the meaning of fatherhood in the Bill, divorcing male parenthood from biological reality as well as from practical and moral responsibilities. I hope that noble Lords do not find this language too strong, but I find that wrong—not right—if I can use such a tough word in polite discourse in your Lordships’ House.
Alas, not all children can have a mother and a father who are alive, for a whole host of reasons: the death of the parents; their separation; and the development of circumstances that mean that children must go into care, with the often tragic outcomes which the noble Earl, Lord Listowel, has pointed to on so many occasions in your Lordships’ House. However, if faced with a choice between the hope of adults to become parents or the welfare and best interests of a child, which all the research that I have seen indicates is helped by a father or a long-term male role model, I would pick the best interests of the child every time. That is why it is so very odd to provide that some children can be legally barred at conception from having one of these “fathers”. It seems as though the Government now see fathers as rather curious creatures. Rather, the Bill should emphasise, here as elsewhere, that the best interests of the child, if that child is created through fertility treatment, should be considered paramount.
I know of no expert who gainsays the statistical generalities—to which of course there are many splendid exceptions—that there are close links between fatherless families or families without consistent male role models and the following factors: children living in poverty; children enjoying poorer health; children subject to a higher risk of abuse; children subject to a higher risk of offending—so many excellent civil servants, who have been unfairly traduced in the Home Office, will tell you time after time of the close link between the likelihood of offending and the lack of a father or male role model; and poor school performance.
It is probably clear by now that I rather support the noble Baroness’s amendment. I wonder how much time in his very busy schedule the Prime Minister has been able to give to try to understand the wider social implications of a Bill which, after all, he inherited, as the noble Lord, Lord Darzi, inherited it, and which the Government are seeking to get through Parliament. The Prime Minister seems to me, as an outsider, to be an exemplary father. Yet if his Government’s legislation gets through as it is now drafted, it is likely to lead, whether intentionally or not, to the deconstruction over time of fatherhood in this country, and to the incipient devaluation, by the signs that the Government are giving, of the very idea of fatherhood in the United Kingdom. That is an extremely important issue. It is as serious as that.
I support Amendment No. 55. I should, however, make it clear that I do not support any of the other amendments in this group. I made it clear in the gracious Speech that I was opposed to the Government’s proposal in Clause 14(2)(b) to remove the wording about the child’s need for a father. I could not argue at Second Reading why I thought that the Government were wrong, so I am afraid I will have to detain the Committee for a little longer today.
Let me make it clear to the House at the outset that my views have not changed since I ceased to be a Minister. The Government’s position shifted while I was a Minister. I made it clear that I could not support that change if legislation had to be taken through Parliament. My views are not based on any religious beliefs; I have none and I hope that this speech will not cause people to approach me to save my soul afterwards.
I am aware that some of my noble friends will not be pleased with what I am going to say. I am in no way homophobic; I have—if I may put it this way—supported the Stonewall ticket on quite a few issues in this House. I disagree with the Government’s amendment for one very simple reason: I consider it to be inconsistent with the Government’s own family policy. That is an area I worked on as an adviser, both in Government and before Government. I believe it to be inconsistent with the great work that the Government have done on pushing the importance of parenting and, in particular, the role of the father.
My position on the wording of the 1990 Act is very similar to that set out by the noble and learned Lord, Lord Mackay of Clashfern, on Second Reading. It is worth remembering, as he clearly explained then, that the provision on the child’s need for a father,
“was negotiated here within this House with considerable care and it was accepted unanimously here and I think also in the House of Commons”.—[Official Report, 19/11/07; col. 669.]
The Government have not made the case for changing that position. I was reinforced in that view by the number of people across the House who spoke in support of that approach. If I may remind the House, even the noble Baroness, Lady Warnock, after what I might call a rather racy tilt at the 1990 wording, concluded that she,
“would be quite happy to see it still there”.—[Official Report, 19/11/07; col. 720.]
The great majority of people in the debate accept that the research evidence strongly supports the view that children in general—although not necessarily in all individual cases—do much better in later life across a wide range of measures, including education, employment and offending, when a father is involved. I am not going to wade through the research evidence, but the Joint Committee on the draft Bill did. It also took oral evidence from a large number of experts in this field. It concluded that the balance of view on the committee was that,
“it would be detrimental to remove entirely the requirement to take into account the ‘need for a father’”.
The Joint Committee made two other concluding remarks of some significance. The first was that it had,
“little evidence that the existing provisions have caused harm”.
Secondly, it recognised that:
“In an area such as this, the law has symbolic value”.
I think it does have symbolic value and some of the quotes that have been given about public opinion reflect that view.
I shall address the three main arguments that I have heard levelled against the wording of the 1990 Act. First, it is difficult to administer. Secondly, it brings fertility treatment into line with adoption policy. Thirdly, the wording discriminates against single women and gay couples. I am well aware that some doctors involved in fertility treatment are uncomfortable applying the “father test”, if I may call it that. As my noble friend Baroness Hollis said on Second Reading, we should not have,
“doctors deciding which families are desirable and which are undesirable”.—[Official Report, 21/11/07; col. 857].
However, the legislation, even after the Government’s amendment on fathers, still requires those providing treatment to pick and choose.
Fertility treatment is not an NHS service on demand, which is why some people go elsewhere and probably will continue to do so. The legislation now requires those providing NHS fertility treatment to satisfy themselves on the likely welfare of an unborn child and will continue to do so even after the Government’s wording. Some people will be rejected and probably should be. That is the requirement that Parliament is making of doctors as part of the licensing system. It is inescapable that that requirement remains in place. In making those judgments, the grounds for excluding the father provisions as part of the criteria have not been well established. If doctors need more help in making that judgment, let us provide it. We will get on to that in later amendments. That is no ground for ditching the wording in the 1990 Act.
The consistency with adoption policy issue is a poor argument, as the noble Baroness, Lady O’Cathain, said. In the first case, the adoption agency is confronted with a child who already exists. Too often it has found it difficult to place them because of difficulties or disabilities. It has to be able to choose the best home it can in the circumstances it faces or leave the child in local authority care. That is not the situation faced by a person who is licensed to offer fertility treatment. He or she has to decide whether the person seeking help is in a set of social circumstances in which the unborn child’s welfare is likely to be protected. For 17 years, the law has rightly asked them to have regard to the need for a father. The most reverend Primate the Archbishop of York made those distinctions very well at Second Reading.
Finally, I turn to the contentious issue of whether the “need for a father” wording discriminates against single women or gay couples. As has already been mentioned, the 1990 Act wording has not debarred single or gay couples from accessing IVF on the NHS if they can convince a licence holder with regard to the welfare of a child. So, already in practice, there is no absolute discrimination against them. Perhaps I may say that people seem to be arguing that these groups face a harder version of the welfare of the child requirements, so we should knock out the bit about fathers to make it easier for them. That seems to be the nub of the House of Commons Science and Technology Committee’s report against the existing wording. Given the research evidence that has been quoted, I consider it highly questionable whether we should do so, but more particularly because of the Government’s policy on the family and the importance of parenting and fathers.
In any case, if a single woman or a gay couple’s circumstances call into question their capacity to protect the welfare of the prospective child, a licence holder, as I said earlier, would still be required to reject that because of the welfare of the child requirements. By deleting the wording in the 1990 Act, I believe that we are giving an ambiguous signal to licence holders that they do not have to take as seriously the welfare of the child requirements in the 1990 Act. It is a diluted version of the 1990 Act wording.
I do not want to interrupt the noble Lord’s flow, but several times he has referred to the “unborn” child. I do not wish to be pedantic, but in general he was referring to the “unconceived” child. There is a difference. I am sure that I know what the noble Lord meant, but it may not read quite rightly.
The noble Lord is right. I mean “unconceived”, but by definition I mean “unborn” as well.
In conclusion, I support therefore Amendment No. 55. I make no comment on any of the other amendments, but the noble Baroness, Lady Deech, made the case extremely well. I wanted to supplement that case. I hope that the Minister will take this away, although I realise that this is not much to do with him. He is playing the hand that he was dealt before he arrived on the scene, for which he has my great sympathy. But I hope that he will remind some of his colleagues, some of whom were still in government when the family policy was being developed earlier on in our time, that this is an important issue and that the symbolism should not be ignored.
My name is on the amendment. I find myself on the horns of a dilemma, because I put my name on it as I thought it would be grouped with my subsequent amendment, which greatly improves it. However, I will speak very briefly to the amendment and more extensively to my own. I think that what I wish to say follows the noble Lord, Lord Warner.
At Second Reading, the Minister was very dismissive of the idea that the wider effects of Clause 14(2)(b) would have a major impact on society. I think he suggested that it would affect only about 1.4 per cent of children. With great respect, I am convinced that he is wrong.
As we sit here today, 24 per cent of the nation’s children are growing up in families without a live-in father. Some of these single-parent families arise from the death of the father, others from family breakdown, but in many cases the father has simply not accepted that he has any responsibility for the child or children he has brought into the world. He has often moved on to set up another family. If the Government carelessly give the impression in this Bill that they are downgrading the importance of a committed father in the family, there will certainly be more single-parent families in the future than there are today. If the Minister does not believe that the general public will notice the Government’s apparent change of heart, I suggest he looks at the Sunday papers of three or four weekends ago. The press are watching this space, and so are the public.
I will not say any more except that, after I have had the opportunity to speak to my own amendment, I shall decide whether to follow the noble Baroness, Lady Deech, through the Lobbies.
I also support Amendment No. 55. I think it is important that this Chamber remember that there are single-sex couples and single parents. When in another life I was a judge, I made numerous orders which had the effect of children living with two fathers, two mothers or a single mother. As the noble Baroness, Lady O’Cathain, said, that is a wholly different situation.
For the Government to remove the requirement in the 1990 Act is to send a message to the public. It is a very important message, and one only the noble Lord, Lord Northbourne, has referred to so far: that fathers are not all that important—that they do not matter. There are a large number of fathers’ organisations out there, and I suffered Fathers 4 Justice over a number of years. However, there are some moderate fathers’ organisations who will feel demoted by the removal of this part of the 1990 Act. The Government may say that they do not intend that that should be the effect. Intentionally or unintentionally, the message will go out to fathers, and the Government cannot ignore that. It is also contrary to the ethos of the child legislation and the ethos of this Government, as has already been said, concerning the importance of fathers in the life of children.
If the amendment is successful and Clause 14(2)(b) is removed, it would not do any harm to single-sex parents or to single parents. It would recognise the vital contribution of fathers, not to every family—and we must acknowledge that single-sex couples and single parents bring up many children successfully—but to many families. We are looking at what message is being sent out. In my respectful view, the Government must not allow some groups to prevail over the welfare of children.
We have heard some significant and impressive arguments in favour of fatherhood. As someone who will oppose this amendment, I should hate to be regarded as someone who is also against fatherhood; I am all for it. I am particularly interested in being a father and in having a father. I regard fatherhood as extremely important.
The question is not whether fatherhood is important for children but whether it should be made a legal obligation in the Bill in relation to IVF. That leads us into a series of illogicalities. The first relates to whether other forms of fertility treatments should be considered in the same light. I regard IVF as one of a series of treatments that patients who are infertile come to doctors for. Patients come because they might need hormonal therapy or tubal surgery to improve their fertility. Their parenting skills may be looked at but that is not a legal obligation at that stage. Only when they come, finally—having gone through many of these procedures—to IVF are they suddenly faced with having to answer questions about whether they are suitable parents and whether a father should be involved. That puts an illogicality into the system. Of course fatherhood is important but should it be part of the Bill? For example, a patient who has gone through the various treatments may come to IVF and suddenly say, “I am unsure whether this person is someone I wish to be the father of my unborn child”, casting doubt on the need for the father in that instance. What would if happen if they were turned down? That would create enormous problems for the doctor and the patient. That is an intolerable situation to put future parents in, so I oppose the amendment.
The noble Lord, Lord Warner, three times referred to the symbolic effect of this clause and the noble Lord, Lord Northbourne, and the noble and learned Baroness, Lady Butler-Sloss, talked about the message that would go out from this House. But symbols can, of course, be interpreted in different ways, and they can be interpreted in very different ways by different constituencies. The noble and learned Baroness said that fathers’ organisations in this country would feel undermined if we no longer had in the Bill the phrase,
“including the need of that child for a father”.
That may very well be so; I listened with great respect and attention to what she said. However, the symbolic effect of this clause bears most directly, year after year, on people seeking IVF. That is where the symbolic effect will come home with startling clarity. We must ask about the effect of agreeing to this amendment on people who are seeking IVF.
We are all agreed that fatherhood brings a huge amount to a family; that is not in doubt. As has been said time and again, the studies continually reinforce that. But we all know—I hope that the noble Lord, Lord Winston, will say something about this—about the studies that show the even more important effect of a stable and loving environment and of supportive relationships, whatever the sex. In weighing the symbolic effect of what we do today, I ask the Committee to take into account the symbolic effect not only upon the wider public, however this is reported, but on people who, year after year, seek in vitro fertilisation treatment.
If anyone had come into Committee to listen to the debate without looking closely at the wording of this amendment, they would have presumed that we were debating a Bill or a clause to abolish fatherhood. Therefore, most of the speeches were in defence of the values and virtues of fatherhood. As the noble Lord, Lord Turnberg, rightly said, that is not what we should be arguing today. That is perfectly proper for general debate or possibly even at Second Reading, but we are looking at which words should be in the Bill—neither more nor less.
I doubt that anyone in the Committee would dispute the value of fatherhood and the need for fathers or for good male role models—grandparents, uncles, or whoever—in the absence of fathers. I cannot believe that anyone would dissent from that view, so what are we arguing about? It is not about fatherhood, or about 80, 100 or 150 pieces of research. It is not about that at all. As for my noble friend Lord Warner saying that the joint scrutiny committee wished to keep the original words in, I recall that it was a straw vote of 7:7 and the chairman voted a second time to reinsert it, so, in all fairness, it was evenly balanced. That was the result, although it could have been different on a different day, as obviously some of that committee’s members were missing.
The question is whether these words are workable if they are in the Bill, and if they are—and I believe that they probably are not—whether they are also fair. If they are workable, they are not fair. If the words are meaningless they should not be in the Bill; some people might think them a message, but frankly these are vacuous words. We should not be using legislation to carry personal views in that way. We are operating by the law of the land, which has to be administered by clinicians in their day-to-day dealings. However much we may value fatherhood—as I certainly do and have done—empty rhetoric is not part and process of what those clinicians should be engaged in dispensing when dealing with their patients.
Let us say that the amendment is to be voted for and that this is not just about rhetoric but meant to have practical effects. Therefore, when a single woman presents without an obliging male in tow she is, presumably, to be refused treatment while a heterosexual woman presenting with an obliging male in tow is permitted treatment. Now, I know from eight years, work on child policy that the best predictor of good outcomes for the girl child of a lone parent is if that parent goes into work, while the best predictor for the boy child of a lone parent is if that boy is in active contact with his natural father. I know and believe those things, so I am being consistent with government policy. Yet I also know that the average time that a woman spends as a lone parent is not a lifetime sentence, but two and a half years. She is likely to re-partner—for good or bad, but I hope for good.
We also know that when a heterosexual woman comes with an obliging partner in tow, if that is the husband then 50 per cent of those marriages will end in divorce, and if they are cohabiting then two-thirds will break up. In other words, what happens at the point of presentation for IVF treatment bears little connection or correlation to whether a man or a male partner will, as a result, play a long-term role in the life of the child. If the woman is single, a male partner may come on to the scene and be with her. If that woman is partnered, it is unfortunately more than likely that their relationship will break up before that child even reaches their teens. Those are the facts; we do not know, and neither do they.
I do not doubt that they will seek to make it work. My point is about using IVF treatment as the litmus test of whether that woman will or will not have a child, without her knowing whether the man who is there at that point will continue to be an active, engaged father in that child’s life. Much as we would wish it, the facts are that the odds against that are more than even.
That is why we should not be engaged in high-flown rhetoric about the need for a father, which I share. We should not seek to put that in the Bill when in practice whatever we say in the Bill will not affect human behaviour. What it will do, to pick up the point made by the noble and right reverend Lord, is send out a different message. It will not say that fathers are necessary or desirable—it will not change that behaviour at all. It will send out a message that all families without fathers, whether the children were conceived through IVF or, even more widely, naturally, are second-class and second-rate. Those children face the reality of stigma.
More than one message would come out of the Bill if this amendment were accepted. Although I recognise, along with all of us, that fatherhood is important and that the welfare of the child is paramount, those words do not belong in the Bill.
I absolutely agree that the welfare of the child is paramount. The child thrives best where, if there is not a father, there are other male role models, and the child is part of an extended family. I am sorry if I did not make my point clear, which is that by including those words in the Bill we will have achieved nothing in terms of affecting people's behaviour except to stigmatise those children—either naturally conceived or through assistance—who do not have fathers. That is the wrong message for us to send out today.
It is important to remember that those supporting this amendment are not seeking to put these words into the Bill; they are seeking to prevent the removal of the phrase from an Act that has stood for 17 years. The phrase is incorporated within the provision about consideration of the welfare of the child, nothing else. Those who have spoken about this matter admit that an important aspect of the welfare of a child is the need for a father.
The House of Lords and the House of Commons in 1990 were not ignorant of the fact that fathers die and that there is no right to a father. Although that was 17 years ago and we are all getting a bit older, that was well understood in the Parliament of 1990 and I am sure that it is understood by everyone today. This amendment talks about an element of the welfare of the child. Parliament in 1990 and this Government wish to continue the requirement that, in IVF where a doctor is responsible for supervising the procedure, if I can call it that, in a way that he is not in other modes of conception, he should have regard for the welfare of the child.
The statement occurs twice in the 1990 Act and once in particular in reference to guidance. The HFEA has published guidance since 1990 and continues to do so. It has modified that guidance over the years and, since 1997, Secretaries of State have continued to allow that guidance to go out. The evidence before the Joint Committee was absolutely clear that the inclusion of that phrase, when it is interpreted in the light of the guidance, has done no harm to anyone. What the doctor looks for, as the evidence shows, is some person who can be a role model—a model of male thought as distinct from female thought—in the life of the child.
As the noble Baroness said, we do not know what will happen tomorrow. That person might not be alive when the child is born. But even women who bear children by IVF may not necessarily live all that long. Nobody can tell. I thought that this was a very reasonable thing to include in 1990. It is not prescriptive in any sense. It does not debar people from getting IVF when no father is in the offing but it requires the child’s need for a father to be considered as a factor in the welfare of the child.
I make it absolutely clear that I well understand that often because of circumstances there is no father in a family. The father may have died. I have no doubt that in the vast majority of cases where that happens, but not all, and a mother is left on her own, she would dearly like to have had the support of the father, her husband, for longer. We know many examples—some in this House—of people who have been brought up by a widowed mother with outstanding success. I do not want anyone to think that this provision has any bearing on that matter. However, those who support the relevant provision in the Act accept the noble Baroness’s argument that a father is an important factor in the welfare of the child. That is what the 1990 Act stipulates and asks should be considered, without imposing any sanction if, for some good reason, that aspect of the welfare of the child cannot be provided.
My noble friend Lord Tebbit said that this matter arises at the preconception stage, but preconception must necessarily precede birth, so the phrase used by the noble Lord, Lord Warner, is perfectly in order. It is after birth that the welfare provision really takes effect, but you have to judge it before conception in this requirement. Thus an element of future judgment with very variable factors is involved, but the doctor makes the best judgment that he or she can and then acts on it.
The committee believes that these provisions, which have been in place since 1990, have had no detrimental effect. I humbly suggest that the wisdom of 1990, which I believe prevailed unanimously in Parliament at that time, is still pretty wise today.
I find it very difficult to disagree with the noble and learned Lord, Lord Mackay, for whom I have such respect, but I, too, sat on that committee. Just over a week ago, my 95 year-old mother died. She did social work with children all her working life and became one of the greatest experts on adoption in the United Kingdom. Her three children were left without a father at a very young age. I was the eldest. My two younger siblings did not know their father. As I grow older, there is hardly a single day when I do not think more about my father than I did as a child. Therefore, I am making this speech with great care because I want to make absolutely sure that I am not saying something unreasonable.
In moving the amendment, the noble Baroness, Lady Deech, said that the law had worked well. However, that is an assertion. How do we know that the law has worked well? I do not think that it has worked particularly well. I do not think that it is a workable law.
Of all the people who have spoken this afternoon, I am the one person who in the last 30 years or so has sat in front of infertile patients who want to have treatment. I absolutely agree with the noble Lord, Lord Turnberg, that it is not appropriate for doctors to police these things in our society. It is dangerous for us to do so and leads to all sorts of problems. It is one of the reasons why doctors recently have sometimes got into trouble, because they have tried to interpret what is in the interests of society rather than understanding above all the autonomy of the patient sitting in front of them. I know that this may sound like an exaggeration, but it is interesting to consider the position of the Nazi doctor. Nazi doctors no doubt were working with altruism in their hearts. They believed that what they were doing was in the interest of society. What they forgot was what was in the interest of their patient and the interest of the autonomy of the person seeking help at a time of great pain. That is a very important thing for us to remember.
There are unforetold consequences that have to be spelt out if we are to continue with this. I do not know whether or not this has happened before with in vitro fertilisation, but I must say to my noble friend Lord Warner that it is no good ignoring the evidence. You cannot simply say that you are not interested in the research. The research is fundamentally important to the argument. As the right reverend Prelate has pointed out, there is good research evidence to suggest that, for example, in the case of lesbian couples—
Forgive me for saying so, but that does sound a little dismissive. However, I take back what I said.
Let me come back to the argument. In Britain we have only one good study of lesbian couples bringing up children in a controlled fashion; the study compares those children with children born naturally, by in vitro fertilisation and by artificial insemination. The work of Professor Susan Golombok of Cambridge University shows that after nine or 10 years the children brought up by these couples are showing signs of being better parented, are better adjusted to their peers at school and have better relationships with other children than many others in her study.
It is not sufficient to look at studies of single women in our society, because single women in our society, even those such as my mother, have a whole range of other issues. Most women in our society are single because they are poor, because they have been abandoned or because they have been threatened, and they are in an environment that is very much below the standards that we would desire for ourselves. That is something that doctors cannot take into account either, but I suppose that we might be expected to do so if this kind of thing went through British legislation.
May I ask the noble Lord, Lord Winston a question on this research, which he has often referred to? As he rightly pointed out, there is not that much research; there is only one longitudinal study in this country. Would he agree that the sample for that research was quite small? At the age of roughly only 16 or 17, the young people going through this are still quite young, so we cannot really say yet what the results of the experience of having same-sex parents are. One thing that we can say is that, of the sample of 25 children growing up in lesbian families, six have had a same-sex relationship while growing up, whereas in the heterosexual sample none has had such a relationship. That may not mean very much, but it suggests that the research that he refers to is slightly more controversial than one might think on first looking at it.
I do not think that the research is at all controversial. It is widely accepted around the world. It is interesting that Professor Golombok is frequently invited to meetings in many other countries to show her work, which has been published by peer review in various journals—
May I finish my sentence? I have now been interrupted three times. It is reasonable for me to finish a sentence. Her work has been peer-reviewed and accepted by journals as being the best evidence that we have available. It is not perfect evidence; no research ever is. In general, unfortunately, it perhaps happens too often that Governments make policy without research evidence. It is far better to have research evidence when you are making social policy. I give way to the noble Baroness.
The work of Professor Golombok is frequently cited, but she is one alone in this country with a very small sample. Her work is vastly outweighed by the work of many others, whom I obviously cannot cite endlessly. However, one example is the Department for Work and Pensions, which says:
“Fathers and mothers matter to children’s development. Father-child relationships … have profound and wide-ranging impacts on children”.
The work of Professor Golombok is known simply because it stands out from the enormous weight of evidence showing that children receive different inputs from fathers and mothers.
I am very sorry that the noble Baroness, who is a distinguished academic, cites anecdotal information. I would have thought that we would accept that information published by peer review after a proper study would be preferable. As far as I am aware—perhaps I am wrong—the Golombok studies in this country are the only ones that have been published on that basis.
I think that we should get on, so let me consider briefly two issues that follow if we do not accept the concept behind this. There are two potential consequences. First, there is a risk of a racist attitude in certain clinics. If I am a doctor in south London and I am dealing with a black patient who has a different social and cultural background where it is regular for fathers to leave mothers pregnant after these kinds of treatments, I could easily find justification for refusing that treatment. That is not just an airy-fairy idea; that is a practical proposition that really can and does happen.
Secondly, we should really think much more seriously about this major problem that is growing in our society. As women get educated, gain skills, increasingly pay taxes and contribute to our society, they grow older, getting more and more infertile, without finding a regular partner. That is not anecdotal; it is well known and published. Older women increasingly often seek help for their infertility without a male partner. They say, “I do not want a male partner yet; I hope that I might find one in time”. As my noble friend Lady Hollis said, that is a real problem that we frequently see in infertility clinics. From a practical point of view, it is not desirable to refuse treatment to those women. It cannot be desirable. We need to consider that when we are producing the legislation.
I congratulate the Government on removing the sentence from the legislation. I do not think that it in any way undermines our collective recognition that there is a desire to look after, nurture and, above all, love children. Love is the key issue here, but it is something that we as practitioners and we as members of society who are looking on cannot measure.
May I ask my noble friend a question? In the case of the 40 year-old woman who has put off having a child until quite a late age and finds that she is infertile, does my noble friend believe that it is still the responsibility of the doctor before he gives that treatment under this legislation to establish whether giving that woman the treatment will be in the interests of the welfare of the unconceived, unborn child?
I am not certain what my noble friend is getting at. I thought that I had made it clear that it is very difficult to judge what the interests of the welfare of the child will be, but I hope that we will continue to take that into consideration when we make our judgments about treatment. The issue of the father is a separate question, which surprisingly is not what my noble friend asked me.
I find this a difficult debate. I confess that I do not believe, in the way that the noble Baroness, Lady Hollis, believes, that stigma is necessarily a bad thing. Fifty years ago when a lot of anti-social conduct was stigmatised, I think that we had rather less of such conduct. A stigma should be attached to all sorts of anti-social conduct. We have to judge the right time and place for the stigma to be applied, but we have suddenly begun to stigmatise stigma. I felt rather stigmatised today because I am—
I felt stigmatised today by the noble Baroness because I have to tell her that I am one of those males who is an “obliging” partner “in tow” with my wife. I thought that it was a most extraordinary expression. I do go around in tow with my wife and I am an obliging partner. I thought that that was a pretty sneering, cheap and stigmatising remark to husbands who go around with their wives and support them.
I am also disturbed by the number of occasions in the debate when we have drifted away from the most important thing, which is not the skill of the technologists—the doctors who provide IVF in this case. We always have to be careful about making policy on the basis of the views of the technologists. I happen to be a flying machine technologist, but no one in your Lordships’ House should take any more notice of my views on policy on aviation and commercial flying than the views of anybody else. I am but a technologist.
That is exactly about the technology. The noble Lord has been talking about the moral issues behind the use of the technology. That is the important difference. On the moral use of the technology, every Member of this House has an equal standing in expressing a view.
We also seem to have drifted away from the concept of the intervention of the technologist in creating life. The status quo if a patient goes for IVF is that there is no child. When the technologist intervenes to change that, he has to take responsibility. The legislation on these matters is the guidance that society is saying to the technologist that he should use. That is what is important. I had hoped that we had all agreed in our hearts as well as in our mouths that it is of absolute importance that we are talking about the creation of a life that does not exist. Therefore, legislators and doctors—as the technologists—have that responsibility on their shoulders. It is exactly the same responsibility that we ask a man and woman to bear when they create a child naturally. Should they not consider whether they have the means to sustain the child? Should they not consider their own health and the possibility of the child inheriting ill health? Should they not consider whether one of the partners is very old and therefore likely to die when the child is young? These matters must be considered when a life that does not exist is going to be created.
Of course we can slip easily into the idea that there is a right to a child. There is no right to a child. A child has a right to a parent; in fact, a child has a right to two parents, preferably one of each sex. I hope that I am not stigmatised for that remark.
There is a responsibility here: the responsibility to ensure that, on balance—for there are no certainties in these matters—we give the child whose life we create the best possible chance. A child is not a consumer accessory, nor, as I say, does any of us have the right to have a child. A child is a great gift and a great responsibility; those who create that life carry the responsibility for ever. When the technician creates that life, he has on his shoulders the responsibility for what he has done as well as possibly feeling that he would have a responsibility if he did not do it.
We should bear these considerations in mind. Like my noble and learned friend Lord Mackay, I believe that they were pretty fairly balanced in the 1990 Act and that we would be wise to leave them as they are.
Would the noble Lord be good enough to retract the word “technician”? It is nothing but insulting in this situation. People in my practice try to think carefully about the people in their care. Whether or not one has a right to a child—I completely agree with the noble Lord on that—does he not agree that a patient seeking help has the right to be listened to without prejudice?
If the noble Lord does not want to think of himself as a technologist because of the responsibilities that he has borne, I am happy to withdraw the expression. I am proud to be a technologist. I carried the responsibility for a couple of hundred lives at a time and I am not too proud to be called a technologist in that respect.
We have heard a number of things in this debate about the importance of children having the opportunity to have a father. The noble Lord, Lord Tebbit, just made a powerful case in which he echoed something that the noble Lord, Lord Warner, said to us in the Queen’s Speech debate about how children can never be accessories. That is what my noble friend Lady Deech is getting at in the amendment this afternoon, as is the noble Baroness, Lady O’Cathain, in asking us to preserve the status quo.
Elsewhere in Part 2, it is suggested that it would be possible to remove the biological identity of a father from a birth certificate. My noble friend Lord Walton, who cannot be here this afternoon, specifically asked me to say on his behalf that he would be strongly opposed to that for medical reasons. He believes that a child has the need to know his biological, genetic make-up, which is why it should be preserved intact on a birth certificate. The settlement that the noble and learned Lord, Lord Mackay of Clashfern, arrived at in 1990 was a fair and good one. Although we have been invited, rather like Don Quixote, to tilt at imaginary windmills this afternoon, if anyone was seriously laying an amendment before the Committee asking, for instance, that women be interrogated when they went to IVF clinics or asked about their sexual orientation, I for one would oppose it. I would be entirely with the noble Lord, Lord Winston, on that. That is not what my noble friend Lady Deech is suggesting. The noble Baroness, Lady O'Cathain, made exactly the same point. We should be very clear about that.
In what way does the noble Lord believe that a clinician should ask a woman about this? I apologise if the noble Lord, Lord Tebbit, took offence about “in tow”, but I was talking entirely in terms of a woman who was savvy enough possibly to manipulate the system by producing a compliant male. I was not criticising those couples who devotedly want a child together. Can the noble Lord, Lord Alton, indicate the kind of question that he thinks could be asked which would not meet the criteria that he has laid down?
I do not want questions to be asked. Here I echo what my noble and learned friend Lady Butler-Sloss said this afternoon about how the law has a symbolic value. I represented a constituency in the heart of Liverpool for 18 years before I stood down in 1997. In many of the overspill estates and in the inner-city areas, vast numbers of families have no men involved in the upbringing of the children. To add deliberately to that number would be ludicrous. For the law to send a signal—not to stigmatise others—that we do not think men are very important in this equation plays into the arguments of male redundancy on which Dr Desmond Morris touched rather well this morning in the Times newspaper. Men are not redundant. They have a unique role to play in the upbringing of children. It is estimated that some 800,000 children in Britain do not have access to their fathers at present. We should think very carefully before unravelling and unpicking the very careful sentiments that the noble and learned Lord put together in 1990.
During the Joint Committee—I was not a member, but I have read the proceedings—Mr David Burrowes, the Member for Enfield, asked one of the witnesses the most important question of all: whether there were any examples of anyone who had been unable to receive IVF on grounds of sexual orientation. The answer was that there were no examples.
I support the amendment in the name of the noble Baroness, Lady Deech, but Mr Burrowes asked Professor Golombok a question about single-parent families and so on, saying:
“That is still possible under the present legislation. Is there evidence of families having been specifically excluded by the need to take account of a father?”.
Professor Golombok said:
“I do not know of individual cases because I have not worked with clinics in that way”.
I ask the noble Lord not to overstate his case.
I am grateful to the noble Lord, Lord Jenkin of Roding, but I do not think I am overstating it. The expert witness, who has been cited throughout our debates as the leading authority on this, said that there were no cases that she was aware of. If there are cases, before we get to Report we should know what they are so that we have a better idea. The noble Lord, Lord Winston, is one of the foremost experts in this area—he is quite right to remind us of that—and he has brought to countless infertile couples the opportunity to have children. I salute him for that. We have no difference on that issue. However, if there are examples of the kind to which the noble Lord, Lord Jenkin, has just referred—I accept that he is not a hostile witness—we need to know about those cases before we start to change the law on that basis.
That is the reverse of the argument. If the law has not been used to discriminate against people having IVF, why change it? I would simply say, as my noble and learned friend Lady Butler-Sloss says, that we send out signals if we change the law in a way that is not helpful.
I would like to draw the attention of the Committee to two newspaper articles that appeared last week. One was in the “Law Report” on Wednesday 5 December. It was a judgment by Lady Justice Arden and Lord Justice Lawrence Collins from 23 November 2007, stating that adoption agencies have no duty to consult fathers:
“There was no duty on a local authority to make inquiries of a child’s extended family or father about the possibility of their providing long-term care where mother wished to place the child for adoption”.
Interestingly, on the same day, in the same newspaper, the Child Support Agency—another government agency—was reported as pursuing a Mr Andy Bathie, who is not recognised as the legal parent of a child who was conceived by IVF by a same-sex couple. He is now being pursued to pay thousands of pounds and he is required to accept responsibility as the father of that child. The noble Lord, Lord Patel, shakes his head, but £400, as a result of a paternity test, was docked from his pay.
Without going into the details of the case, I use it to argue that we are getting into quite a muddle on the duties and responsibilities of a father. I think it would suit a lot of men to be told that they had no duty or responsibility. Is that not at the heart of the problem? The noble Lord, Lord Winston, was right to remind us that we all cherish the memory of our fathers, however long we have known them. If we were to remove the biological identity of a father from a birth certificate, that would be the state colluding in a deception, the point made by the noble Lord, Lord Jenkin, and others on the Joint Committee. As the noble and learned Lord, Lord Mackay of Clashfern, reminded us at Second Reading, even Acts of Parliament cannot remove the biological necessity of the father to be present. Do not let us reduce the role of men to the provision of gametes in fertility tests. It is important that we recognise the social role that men have to play as fathers as well. I am very pleased to be able to support the amendment so ably moved by my noble friend Lady Deech.
I sense that the Committee wants to reach a conclusion and to hear the Minister, but I have two extremely short points. My noble and learned friend Lord Mackay referred to Members of the House who may have been brought up in fatherless households. I was one of them. My mother was widowed with four boys under 12. My youngest brother never knew his father at all. Of course, we are not typical. We had other relations; we had uncles and grandparents and we were extremely well looked after, but I would not for one moment argue that perhaps we would not have been better off if my father had survived. It is important to recognise that.
The other point is that people, such as the noble Baroness, Lady Deech, have spoken of the Joint Committee as wishing to retain the words,
“including the need of that child for a father”.
But we very firmly went on to say that we would not wish to exclude the possibility of women seeking in vitro fertilisation help where there is no father because a woman is single or because she is in a lesbian relationship. We did not want to exclude them. We recognise the case, but at the same time we said, as so many noble Lords have said today, that retaining the words of the 1990 Act is important and excluding them would send the wrong message. That is what the Joint Committee decided and put in its recommendation. It is important. It was not either/or; it was the desirability of retaining the words in the 1990 Act while making it perfectly clear that those who did not fit that pattern of a family should not automatically be excluded. Some things that have been said today have suggested that they would automatically have been turned away. That is not true.
I had not intended to intervene in this debate, mainly because I feel I am not as expert as I might be, although I know more than most about difficult families and the bringing up of children from my long career in social work. I stand to neither oppose nor support my noble friend Lady Deech, but to raise some questions about the way in which the arguments have been presented. I think that is the nature of the difficulty we are in. I would like interrogation of every family who has a child to ensure that that child has a stable family. I do not much mind how that stable family is constituted. There is more research in America showing that same-sex couples are able to give a sustained relationship to children, but that some break down, just as many families with fathers break down. I suppose that, along with my noble and learned friend Lady Butler-Sloss, having seen the difficult end of fatherhood adds to some of my prejudice about recognising that families with fathers are not as ideal as some of us would wish to say.
As a rider, I should say that I had the most terrific and wonderful father, who loved me to bits and gave me a great deal of what I am, so I do not come from the position of having had a father whom I did not adore. However, I know that there are many men who do not make good fathers. But who do we ask to interrogate anyone—of any sex or orientation—who turns up at a clinic? As the noble Baroness, Lady Hollis, said, what kind of questions do you ask to ensure that a family is going to be stable? I put it to your Lordships that we would not know the answer, even if on the day it looked as though there was a stable family. My experience is that families often break down when children become difficult or when there is economic stress or sickness—things that often cannot be predicted when facing that moment in the clinic.
Many of the families that I would rather not have children are the ones that will have the children anyway. I do not have the statistics before me, because I did not know that I was going to speak, but I am sure that the noble Lord, Lord Tebbit, would have exactly the same sense that I have from them—“If only we had not got X number of single, young parents”. We have, because intercourse and the birth of children are matters of chance. I hope that that chance can be planned. I hope that that plan can bring security to our children, because without a doubt the only thing that matters is the welfare of the child. However, many adults will not have that in mind when looking to have a child.
Why, when a person goes to a clinic, should we interrogate them about their family when we are not going to do that in a million other families across the nation? I have asked myself that, without conclusion. The answer may be that we do it because we have the opportunity. In that case, we should ask not only whether there is a father on the scene, but a whole range of other questions about whether people going for IVF have the capacity to be good families. I think that then we would end up referring to middle-class families; some of the criteria being put would be middle class. Those would be moral judgments from a particular, stereotyped set of moral views.
I am nearly finished—the noble Lord, Lord Tebbit, may want to answer.
Having been in social care for 40 years, I know that that is the way it goes. There may be something about messages, and there may be something about the support of fatherhood that we need to look at—which is why I am still looking at the issue, because I would not want to do anything that undermined men and fathers. They are important. They are one bit of the stability in families. However, our nation is extraordinarily complex. The family trees that I see are sometimes totally unbelievable. We live in that environment and that is the one in which we have to make those decisions.
Why does the noble Baroness assume that middle-class morals and middle-class families are somehow better than working-class morals and working-class families? I was born into a working-class family. I think that our morals were a great deal better than those which we then saw in the upper and middle classes and which, unfortunately, are now descending into the working classes of this country.
That was exactly my point. I was born on a large, tough, working-class estate in Sheffield. All I am saying is what happens: the way that decisions are made, there are stereotyped views, which we may well not agree with. That is what gives me concern. I think that my working-class, estate values were pretty good, but I know that the way people look at things is often from a particular set of values.
I wish to make one point, of thundering simplicity and already touched upon by the noble Lord, Lord Alton—that when we speak of a child having a right to a father, we are speaking not about one right but about two. One is the right to know who the father is. The second is the right to have the prospect of a relationship with that father—if possible, as there are practical difficulties. Both rights have to be considered at a meaningful time in the age of the child.
As far as the right to know the father is concerned, I am sure that there would be no dissent in the Committee with the proposition that a person has the inalienable moral right to know where half his genes come from—quite apart from the question of international conventions, where that right is enshrined in the convention on the child. Can there be a more fundamental human right? Put another way, would anyone wish to deny that right, where it can be reasonably exercised, to any person? If I am right, that forms a very impacted background to what we are considering this afternoon and may be the very beginning of wisdom. If you accept that a child has the right to know who has procreated him, who is responsible for a large part of his personality and half his genes, then I think that it has some light to cast and, indeed, some very impacted influence on the second question—whether there should be a chance of a relationship. There are hundreds and thousands of fathers in England and Wales at the moment who have no intention of doing anything at all with their children. I accept that that is not really the issue with this amendment, but it is a huge problem and one that, some day, I would like Parliament to apply its mind to. There is a limit to what can be done but, for all the furore about fathers being denied rights of contact, hundreds of thousands of fathers have no wish to have contact at all and are depriving their children of that second, massive right.
Going back to the first right, if I am correct about the right to know, then the question that should be asked of the mother—as very properly posed by the noble Baroness, Lady Hollis—is whether she appreciates that it is an inalienable right of the child to know who his father is. If I am correct about that—there may be the utterly exceptional case, where the welfare of the child might reasonably demand that that should not be known, but that would not be so in 99.9 per cent of cases—then it has some relevance to the amendment.
I know that we are all waiting for the Minister to sum up, but I would like to ask a question that would be helpful for him to clarify in the summing up. If the 1990 Act remains, would healthcare professionals working in infertility clinics and assessing patients for infertility be in contravention of their professional code of conduct? I am trying to look forward. Would there be a civil or a criminal burden of proof against healthcare professionals called before the General Medical Council? If the law continues as it is and there will be no case against healthcare professionals, it would be very helpful for the version of the noble and learned Lord, Lord Mackay—the current situation—to remain. However, if it becomes an offence for healthcare professionals not to take that as an absolute in assessing women, it becomes very difficult, if not impossible.
I understand that that is not the case, but it would be helpful for the Minister to clarify that, because there are problems for healthcare professionals making so-called value judgments. All kinds of different people come before them as parents in all shapes and sizes. It is very easy for healthcare professionals working in a clinic naturally to gravitate towards people who are a little bit more like them and to empathise a little more with them. Providing that they cannot do that—the Bill and the 1990 Act do not encourage that—that may provide reassurance to people who have concerns.
I take us right back to the speech of noble Baroness, Lady Deech, who set us off on this debate some hours ago. In the debate, a number of very different issues have been conflated in ways that are not altogether helpful. Issues about how and whether children should know their genetic identity have been mixed with attitudes towards existing law, such as civil partnerships. When noble Lords go back to read this debate, they will see that two or three different factors are being mixed together.
I want to ask the noble Baroness, Lady Deech, one simple thing. Will she make available to the Committee the 80—the noble Baroness, Lady O’Cathain, cited the figure of 100—pieces of research? The noble Lord, Lord Winston, made a very important point. In areas of social policy, it is extremely important to work from an evidence base. One thing that has worried me all afternoon is that people have made extrapolations from different pieces of research and drawn comparisons that are false. Noble Lords have made extrapolations from the UNICEF report. The UNICEF report showed that in terms of children's well-being, this country was in a very bad way, but it also showed conclusively that economic status of a family had a great impact on the well-being of children in a number of different aspects of their life chances.
The noble Baroness, Lady Deech, made a couple of remarks that I found extraordinary. She talked about studies that showed that same-sex couples—in Sweden, I think—had a median relationship of 25 months. I do not know, because I do not know what the research is, but it is entirely possible that that includes everyone from teenagers through to people who are very old and on to a second relationship. It does not present any kind of data valid to those gay couples who would consider themselves to be the right ones to bring up children and offer stability.
I cite those as two examples; there may be more. The noble Baroness talked about the need for children to see parents of the opposite sex and the importance of their being brought up in relationships in which there is no denigration of the opposite sex. I assume from that that she is assuming that in gay relationships, there would be denigration of the opposite sex. I do not know the basis on which she makes that assertion. I simply ask her to make her evidence available to all noble Lords, so that we can come to a conclusion.
I want to make one point that has not been made all afternoon. Bear in mind that we are talking about clinicians carrying out one particular treatment. I trust that clinicians use the same basis to judge any person who presents to them for that treatment. That is what clinicians do across the board. They do not make sweeping judgments about groups within the population; they look at the needs of the person presenting to them. When they do that, one judgment that they make is the consequence of their not providing that treatment. I hope that noble Lords will accept that I think that the welfare of children is paramount in all this. If single women and gay couples are intent on fulfilling what for them is—I accept the point made by the noble Lord, Lord Tebbit—not a right but an understandable urge to have children, it is better for them to have access to health treatment that is safe for them and for the children who result. That is all that is being asked for: equality of consideration.
Once again, this has been a fascinating and informative debate, building on the excellent speeches that we heard from both sides of the House at Second Reading. I must begin by repeating some of the important points that were made then. However, before I do so, I should also say that this is a wide-ranging group of amendments and that, if there is a vote on one of them today, we will not necessarily consider that all the later amendments in the group can be taken as being consequential on the decision on the earlier amendment.
I stress that the Government’s decision to propose the removal of the phrase,
“including the need for a father”,
is not motivated by any attack on fathers or the concept of fatherhood. Nor is it an attempt at political correctness. The Government recognise clearly the extremely important role played by fathers in their children’s lives and the serious consequences that can follow where a relationship breaks down. That is why the Government have taken action to strengthen the role of fathers and to ensure that fathers are aware of their responsibilities.
However, we are dealing here with a very specific context, and other factors come into play. As the noble Baroness, Lady O’Neill, said at Second Reading, we are all clear that the legislation does not in any way abolish the biological reality of fathers. That is quite correct: the Bill will not sweep away the biological need for men, but nor will it change the social reality of fathers for the overwhelming majority of families in this country, either now or in future. The idea that the Bill in any way sounds the death knell for fathers is very far removed from the truth.
The question that we are dealing with is the duties placed on clinicians by law to examine and judge their patients. As a clinician, I am well aware of the difficulty of making such judgments about people’s circumstances and predicting with certainty what may happen at a later date. The Government came to the view that, on balance, the reference in the 1990 Act to,
“the need for a father”,
should be removed, but that the general duty to consider the welfare of the child in a broad sense should remain. Clause 14(2)(b) removes the words,
“including the need of that child for a father”,
from Section 13(5) of the 1990 Act.
There is no ban on single women or same-sex couples receiving assisted-conception treatment. There is no requirement in law that there must be a father or any man involved in the upbringing of the child. Nor is it a matter of policy that single women or same-sex couples should not be able to access clinics.
The outcome intended to be achieved by the wording of the 1990 Act is therefore unclear. As the noble Baroness, Lady Warnock, has previously remarked, it is ineffective and wishy-washy. To retain the provision would be to perpetuate a confusing and potentially discriminatory situation. I echo the lucid analysis of my noble friend Lady Hollis, at Second Reading, that fathers belong in children’s lives but that the phrase does not belong in the Bill. Either the question is meaningless, or the answer is ignored, or both are meaningful and therefore discriminatory.
Amendment No. 55, tabled by the noble Baroness, Lady Deech, would retain the existing requirement for consideration of a child’s need for a father to be a condition of a treatment licence. Amendment No. 56 adds the requirement to consider the child’s need for a mother.
The Bill retains the provision that requires a clinician to take into account the welfare of any child born as a result of treatment services when providing treatment. By removing the requirement to consider the need for a father, we are recognising the existence of a wider range of family arrangements. It is vital that children are raised in a loving and supportive family environment. The evidence suggests that the quality of parenting is the factor of prime importance and not necessarily the gender, or even the size, of the family. The Government fully recognise the important role that fathers play in their children’s lives. The proposal does not detract from that role but it does recognise the crucial role played by all parents.
The noble Lord, Lord Alton, referred to a man being pursued by the Child Support Agency after providing sperm to a lesbian couple. My understanding is that the sperm was donated through a private arrangement—outside the scope of the Bill—and the removal of the provision on the need for a father will seriously encourage that in future. He did not come under the provision of the 1990 Act. Therefore, legally, the sperm provider, or the donor, is the father of that child.
The noble Baroness, Lady Finlay, talked about the responsibility that will be placed on a clinician. It will be interesting to debate that when we discuss—next April, I believe—the Bill on professional regulation. However, I doubt that any clinician would take responsibility for that assessment if the Bill remained with the provision on the need for a father.
The noble Baroness, Lady O’Cathain, has signalled her intent to oppose clauses in Part 2 and the associated Schedule 6. She has made clear her views about the importance of parenthood and the foremost interest of the child within the family setting. She has been supported by many noble Lords, who have expressed their concerns most forcefully. I fully understand the points made about the general principle that children should be brought up in a supportive family environment. No one would disagree with that. However, it is essential that we do not become sidetracked by general principles, important as they are, and risk losing sight of precisely what the Bill seeks to achieve.
In essence, the Bill seeks to address current anomalies in the law in which parenthood is bestowed following treatment involving donated sperm. Addressing these anomalies is in the best interests of the child. Let me be clear what those anomalies are. At present, if an unmarried man and a woman, who may have known each other only for a short time, have treatment together at a licensed fertility clinic using donated sperm, the man will, as a matter of course, be regarded as the father of any resulting child. He will be recorded on the child’s birth certificate as such. In comparison, where two women in a civil partnership, who have been in a stable relationship for many years, have treatment in a licensed clinic using donated sperm, they are treated very differently. First, although the civil partner who gives birth is regarded, quite rightly, as the mother of the child, the other civil partner has no parental recognition or rights in respect of the child at all—this is a child, let us not forget, who is born to her legal partner. Secondly, the child would have only one parent, the mother, recorded on their birth certificate. These anomalies do not serve the best interests of the child. The Bill addresses them by enabling the child in such a situation to have two legal parents instead of one, both of whom could be recorded on the birth certificate as the mother and a parent.
Let me take this opportunity to clarify that it is our intention that the child will have one mother and a parent, not two mothers. The woman who gives birth to the child will be the mother of the child. Clause 33 is absolutely clear about this. I hope that this clarification will put your Lordships’ minds at ease, knowing that it is not the Government’s intention to allow for a child to have two mothers.
We must keep in mind that the legal parenthood provisions in the Bill appear only where donated sperm is involved. The 1990 Act ensures that sperm donors are not regarded as the father of any children born from their donation. Recognition of a same-sex couple as the parents of the child born following treatment with donor sperm does not take the parenthood from the father or oust him from the birth certificate, because there is no legal father. On the contrary, it enables the child to have two legal parents. Surely that must be in the best interests of the child.
On Amendments Nos. 57A and 59B, tabled by the noble Baroness, Lady O’Cathain, the Bill sets out that any woman shall not be provided with treatment services unless she, and any man or woman treated with her, has been given a suitable opportunity to receive proper counselling about the implication of any treatment services being received. This provision is in the 1990 Act relating to a woman and a man, but the Bill now includes reference to two women being treated together.
Before providing treatment using donated sperm, clinics are required to offer counselling to a man and woman who are treated together. Further to this, the Bill sets out that any woman shall not be provided with treatment services unless she and an intended second parent have been given a suitable opportunity to receive proper counselling about the implication of signing up to a parenthood agreement in respect of a child who may be born as a result of that treatment. I feel that it is of prime importance for couples to be encouraged to receive counselling in these situations in order to give them an opportunity to consider all the implications and consequences of treatments. The Government believe that it is highly desirable for any person undergoing fertility treatment or undergoing a parenthood agreement to receive counselling, in order to give them this opportunity. It is important that, when two people are signing up to a parenthood agreement, they are both fully aware of what this means at all stages of the process. We do not want to restrict this only to men and women being treated together, as the Bill also makes provision for two women to be the legal parents of a child. It is equally important that the intended second parent also has a chance to receive these services in order to understand the serious and lifelong commitment of the parenthood agreements that they are entering into.
On Amendment No. 59A, the Bill makes provision for unmarried heterosexual couples and two women not in a civil partnership to enter into parenthood agreements and be recognised as the parents of a child born through assisted conception. Currently, an unmarried man and a woman who are treated together can both be considered the legal parents where donor sperm is used. The Bill introduces a provision that clarifies the fatherhood of the man through a fatherhood agreement and allows for two women to enter into a parenthood agreement when undergoing fertility treatment services so that they are both legal parents of any resulting child. The Bill sets out who the intended second parent could be in each situation: a male or a female partner of the mother.
The Bill also makes provision for the person responsible to give notice to the intended mother or intended second parent where one party withdraws their consent to the parenthood agreement. If the provisions were removed by the amendment, unmarried couples and two women undergoing fertility treatment would still be able to undergo parenthood agreements but would fall outside the notification procedure. It is vital to let the other parent know that consent has been withdrawn.
I entirely understand the concerns expressed in this debate, but I believe that the proposals in the Bill recognise society as it exists and value all parents. I hope that noble Lords will feel able not to press their amendments and have further discussions before Report.
Will the Minister do a service to the House before Report? He made the important statement that the retention of the words in the 1990 Act on the need for a father could be in conflict with the Health and Social Care Bill, which will come to this House, and could leave health professionals open to challenge under medical and other disciplinary procedures. It would be very helpful to the House to have the legal advice on which the Government are operating.
Could the Minister help me with the concept of making a second woman a parent in statute? That implies a concept and a definition in the Government’s mind of what a parent is that appear to be different from the ones that we have now. Could he tell us what that definition is?
Time does not allow me to pay full tribute to the richness and depth of this debate. I am sure that we are all grateful to all those who have participated in it with their particular knowledge. I will touch on a few points. The Bill tells fathers that they are unnecessary. This has symbolic value. If the Government had not decided to remove this provision, clinics, parents and children would have carried on pretty happily as they are now. The attempt to remove it has stirred up this debate and obviously very deep feelings.
There is no such thing as a right to a father, or indeed the right to a baby. The latter may be even more important; I refer to the comments made by the noble Lord, Lord Sewel. As an academic lawyer, I cite the American jurist, Hohfeld, who said that there is no right to a baby and there is no duty to give anyone a baby; it is a privilege. There is a need for a father, not a right to a father or a right to a baby. The law is of course discretionary. We know that the rates of in vitro fertilisation treatment for single women and gay and lesbian couples is going up, probably with no harm done at all, but this is about the symbolism of the law, which is very important. If we were to be totally pragmatic about it, as the noble Baroness, Lady Hollis, argued, we would be leaving birth certificates as they are, but that matter is coming up in a separate amendment. In response to the request by the noble Baroness, Lady Barker, I will be happy to place in the Library the research that I, and others, have relied on.
We must look at things through a child’s eyes. Do we not call it a tragedy for a child if his or her father is killed, especially during pregnancy? Does the baby appreciate that his fatherlessness is planned rather than accidental? In that, I support the noble Lord, Lord Warner. The need for a father goes back millennia. It is a very modern phenomenon indeed, as yet unproven, that there is no need for parents of both sexes. Almost throughout history, the loss of one or the other—not having both—has been regarded as most unfortunate, to put it mildly. We are where we are and the removal of the statement that a child needs a father—the view that a father is a discretionary factor—sends a message. I say that in response to the noble Lord, Lord Turnberg.
I was puzzled by the reference by the noble Lord, Lord Winston, to Nazis, which I thought was uncalled for. Also, I am afraid that love is not all in the upbringing of children. Love is a beginning. We all know that parents need to give their children more than just love.
Let me explain once again what I was trying to say. When doctors forget that the most important person is the person in front of them whom they are treating, they forget their responsibility to that person. There is no suggestion that this is a Nazi amendment. Anyone listening to the debate will understand that I was not saying that. There is a risk in doctors thinking about their responsibility to society; they can forget why they are doing medicine. That is all that I was trying to say. If my remarks were taken in the wrong way, I must apologise, but that was certainly not my intention.
We agree on the responsibility to society, but many of us see it differently. The liberalisation, if it can be called that, of in vitro fertilisation treatment is continuing. It has continued apace since 1990 and it would be best if the law were left untouched. It gives clinicians the discretion to do as they see fit at the time. The compromise drafted by the noble and learned Lord, Lord Mackay, in 1990 has held fast and held well and we would be well advised to leave it the way it is. It is quite extraordinary to send out the message in this day and age and in the face of research and remaining government policy that men are unnecessary. In response to the noble Baroness, Lady Howarth, I should say that the research shows that both genders need to have an input into the successful upbringing of a child.
I am all in support of the village, which of course consists of members of both sexes. Further research has been done by the child psychiatrist Professor Sturge on the effect on children of being brought up in same-sex families and there is much more research out there that I hope your Lordships will consider.
More amendments are to come and I do not wish to take up your Lordships’ attention for too long. There is, for instance, an amendment on birth certificates. For now, having made my points—and having convinced many, if not all, that we should not in the interests of children tamper with the existing law—I am content not to press the amendment to a vote. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
55A: Clause 14, page 9, line 14, leave out paragraph (b) and insert “and after “father” insert “or other suitable male adult who is willing and able to make a long term commitment to safeguard and promote the child’s health, development and welfare and to provide, in a manner appropriate to the age and development of the child, direction and guidance to the child”.”
The noble Lord said: Expert opinion and modern research tell us—as we have heard many times already this afternoon—that, on average, a child who grows up in a single-parent family is likely to be less successful in school and later life than a child who grows up in a functional two-parent family. Of course, this is not true in every case. In a single-parent family where the mother is healthy, reasonably well off and supported by an extended family or an active and committed community, as my noble friend pointed out, the child may well thrive. Indeed, there are great differences in natural resilience from child to child. The Minister referred to the quality of parenting being of prime importance. Of course it is, but that does not alter the fact that the roles, structures and relationships within the family will affect the quality of parenting. None the less, for the majority of children who grow up in a single-parent family, there are real disadvantages, which can easily last for life—and often do. I admit that remedial help is a possibility for children under those circumstances, but it is expensive, it takes time, it takes commitment and it does not always work.
Fathers and mothers both have responsibilities in their families. The contributions made by the mother and father may be different, but both are important. I am reminded of the Equality and Human Rights Commission, which, I am delighted to say, has a new logo, which says: “Women. Men. Different. Equal”.
The purpose of Amendment No. 55A is to explore the possibility of a better solution that, rather than saying “Yes, we do” or “No, we do not”, looks for a better way of doing things. I suggest that we do not remove the word “father”, but leave it and add to it other classes of person who can effectively fulfil the role of a father. We all know that that is the situation in real life. There are step-parents, there are grandfathers, there are other surrogate fathers. If we wanted evidence, the success of adoption is the most obvious proof. Adoption, in the vast majority of cases, works extremely well where there is a committed father. I shall emphasise commitment again in a moment.
My amendment, therefore, provides for a suitably qualified and committed surrogate father to be acceptable, in lieu of a father, for the purposes of legitimising IVF treatment. Secondly, it would give reasonable assurance that the surrogate father, and all fathers who are put forward to IVF clinics, are prepared and able to make a commitment to give the child the father parenting he will need. Commitment and stability are at the very heart of successful parenting.
The conditions I have suggested would require a prospective surrogate father for an IVF child to make a commitment to accept the responsibilities of parenthood in relation to that child. What, then, are the responsibilities of parenthood? This, in a sense, is the question we all danced around in the previous debate. I have taken the liberty of suggesting very simple responsibilities of parenthood; please believe that these are not an invention. I have taken the wording from the Children (Scotland) Act 1995. Many noble Lords will be aware that the Parliament north of the border was bolder on the responsibilities of parenthood in its 1995 Act than we were in our Children Act 1989. We have not made up for the failing in the mean time.
The time may now have come—indeed, I suggest that it is long past—when we in England should define more clearly what we, as a society, expect of our parents. The responsibilities of a mother tend to be widely understood and accepted, but the same is not always true of a father. Many noble Lords who spoke to the previous amendment referred to that large group of fathers who would prefer not to accept that being a father carries with it inalienable responsibilities. To define these responsibilities would, I suggest, be in the best interests of both mothers and children.
Finally, my amendment would sweep natural fathers into the net. This may be objected to, but it seems to me perfectly reasonable that not only a surrogate father but a natural father should be expected to commit to being a good parent and should accept some simple terms about what it means to be a good parent. Alas, as we all know, and as some noble Lords have already said, too many families are affected by domestic violence, drug and alcohol addiction and many other failures that are extremely damaging to the children. I can see no reason why an IVF clinic should not be required to satisfy itself that the child it manufactures will not be entrusted to a dysfunctional family of that kind. It seems to me reasonable that, where there is a prospective natural father to the child, he too should be expected to commit to accepting the responsibilities of a parent, as defined in this amendment.
We are in Committee and time is getting on. I can speak again after the Minister, so I shall say no more now. I beg to move.
I added my name to this amendment because I felt that it was very important to consider what children need. I confess that I am not particularly bonded to having the word “male” in there, because this should apply to parents whether they are same-sex couples or heterosexual. I feel strongly that we have reached a point where we need somewhere in a Bill to state what parents are expected to do. We brandish the term around based on biological definitions rather than ongoing duty.
My noble friend Lord Northbourne is being very reserved in talking about a long-term commitment, because the commitment is lifelong—for as long as that parent is alive. We know very well that children who are bereaved do better if they have more stable people around them to take on a parenting role. When children have been bereaved, godparents often become extremely important in providing stability. It is not a question of whether that parent’s name is written on a piece of paper in law but of the privilege of being involved in a child’s life. However, if your name is to feature on a piece of paper, in law, in relation to a child, you should understand the responsibilities that you have taken on by putting your name on that piece of paper, irrespective of your sex, the sex of the child and the sex of your partner. This may go wider than partners; in our society, more than two people can take on a parenting role for complex reasons. For those reasons, my noble friend has done the Committee and the whole House a great service in trying to define the responsibilities of a parent.
I was moved to put my name to this amendment as treasurer of the All-Party Parliamentary Group on Children and vice-chair of the Associate Parliamentary Group for Children and Young People In and Leaving Care. As I have 10 years’ experience working with boys and young men, albeit much of it part-time, I am very interested in this amendment, particularly how it might begin to answer the concern expressed by the noble Baroness, Lady Hollis, and my noble friend Lady Warnock, and how something like this might work. It may be helpful because it is more specific.
The Second Reading debate highlighted three inconvenient truths: first, that boys need fathers or, failing that, a proxy for a father; secondly, as the noble Lord, Lord Winston, said, parents are driven to have children and over-prescription may drive prospective parents away from licensed provision into the arms of we know not who, which the noble Lord amplified in Committee; and, thirdly, the concern of my noble friend Lady Warnock that current legislation in respect of the importance of fathers is largely ignored by clinicians.
Many of the boys without an interested father with whom I have worked have yearned for such a parent and I have found myself obliged on occasion to play that role. Lone mothers speak to me about the need of their sons for a father figure. A lone mother—a teacher, who supports the education of children in children’s homes with great success—told me how helpful it would be for her 12 year-old son if his school could find a male physical education teacher, because he is growing up without a father.
The children referred to in the amendment have a very important advantage in that their parents very much want them to be born. Sadly, too many children in this country are not wanted and come about by chance. However, not having an interested male in one’s life is often a contributory factor to failure. Time and again I have heard prison officers in the criminal justice system describing themselves as the first father-figures for their young male inmates. Only last week a 22 year-old man described to the All-Party Parliamentary Group on Penal Affairs his long involvement with crime as a drug dealer. He described the lack of a positive male role model when he was growing up on his estate and firmly identified that as the root of his criminal behaviour. Important to his rehabilitation was his relationship with a male drama teacher, who inspired him to become an actor and an author.
That was also true for François Truffaut, the French director, who made a semi-autobiographical film of his early days, “The 400 Blows”, in which he described his lack of a father. Eventually, he ended up—in the film and in life—in a French reformatory. It is a very sad story. François Truffaut admired a male film director very much. He became Truffaut’s mentor, and Truffaut went on to be very successful making his own films.
To ensure that a suitable male is engaged early in the lives of these children is very much to be desired. If the Bill can assist in doing that, it will serve these families extremely well. A constructive and effective framework needs to be set up by the Bill. On the basis that most parents consider the welfare of their children paramount, I hope that we can determine how these prospective parents will receive the right information and advice, which my next amendment will probe. Not to introduce this amendment, or to at least keep the wording of the 1990 Act, would be complicit in the popular fallacy that children do just as well without interested and responsible fathers. That boys need fathers may be an inconvenient truth, but it must not be ignored. I strongly support my noble friend’s helpful and explicit amendment.
I am impressed by the amendment in the name of the noble Lord, Lord Northbourne, and by the case that he made in support of it. He seems to have encapsulated what many of us feel is appropriate and right. The issue on which perhaps we need to reflect is whether these words are a matter for the Bill or for statutory guidance. On balance, I tend to feel that the Bill should be confined to general concepts rather than specifics and that the guidance should contain the detail. Nevertheless, I hope that the Minister will consider the amendment with care.
In very much the same vein, I have tabled Amendment No. 60. I confess that I find it odd that the 1990 Act should mention a child’s need for a father yet not make any mention at all of something which for me is of even greater importance; namely, the child’s safety. The Bill cannot possibly spell out all the criteria which bear upon the assessment of a child’s welfare. The guidance and the code of practice must surely do that. But if there is one thing that we as legislators are entitled to insist is spelled out in the Bill, it is the requirement that, whenever IVF treatment is sought, an assessment should be made of whether the prospective child, when born, will be at risk of suffering serious harm. That consideration is, I believe, a legitimate concern of the state, and therefore of clinics, in every case. If accepted, my amendment would enshrine that principle.
Another question also should be asked. It is brought into particular focus by this Bill, but in many ways I am surprised that it was not included in the 1990 Act. The issue is stability. When an application for IVF services is made by a married couple or by a couple in a civil partnership, it is perfectly sensible for the welfare assessment to make an assumption—all other things being equal—that the marriage or the civil partnership will provide the basis of a stable upbringing for the child. Of course, no one can predict the future and the right questions have to be asked. But the fact that two people have committed to live the whole of their lives together is a strong a priori indicator of their long-term intentions.
However, where a man and a woman who are not married apply for treatment, that assumption cannot reasonably be made. The same applies to a same-sex couple who are not in a civil partnership and to a single woman without a partner. Statistically, people who cohabit are at far greater risk of breaking up than those who marry. I am not saying for one second that unmarried couples or single women should be ineligible for IVF. I am saying that for these people there is an additional dimension of the welfare assessment that must be covered and an extra box to be ticked before the test is satisfied. This is not, I believe, an unreasonable suggestion. When assessments are made of prospective adopters of children it is precisely the likely stability of the child’s upbringing which is central to any judgment about the suitability of the person or persons seeking to adopt. Quite rightly, the state sees this assessment as part of its duty of care to the child, whose best interests must be protected. Here, the state is instrumental, not in placing a child with adoptive parents, but in bringing a child into existence in the first place. The onus is therefore equally on clinics and clinicians to make an assessment of the stability of the home environment in which that child will find himself.
These two considerations—the safety of the child and the stability of the child’s upbringing—are for me essential elements of the welfare test which cannot be consigned simply to the code of practice. I hope that the Minister will consider my amendment constructively.
I am very grateful to the noble Lord, Lord Northbourne, the noble Baroness, Lady Finlay, and the noble Earl, Lord Listowel, for tabling the amendment because it allows me briefly to make an objection that I forgot to make in my speech on the previous amendment.
When I retired from clinical practice about two years ago, it had been quite common for me to see women who brought a male in tow who was not actually their partner—but they made all sorts of assertions that they were. On one occasion, I was oddly pursued by a journalist who brought a male partner from a newspaper that was trying to discredit lesbian couples. She was not investigating my clinic; she was a lesbian and was very frightened that her editor might find out. It was a very strange event.
All of us in this House agree that there needs to be as much openness as possible in these arrangements. What troubles me about so much of this kind of legislation, and one of the reasons why I am opposed to the need for a father being written into the Bill, is that it encourages a degree of dishonesty among some couples that is surprisingly difficult to detect. It makes no difference whether it is an immediate act or somebody offering long-term support as a male, and that is the problem with this very good and well-meaning set of amendments.
The other issue, which we are coming to next and which was touched on by the noble Earl, Lord Howe, is that of requiring people to receive counselling. That seems to me a step too far. The offer of counselling is reasonable, but to require it will demand a huge amount of resources for people who will be resistant to it. It is also presumptuous as a requirement on one small group of couples and not applicable to the rest of infertile couples or other people with reproductive disorders.
Could my noble friend help us, because I do not think that there is any disagreement in the House as to what most of us regard as the best environment for a child to flourish? That is, where many adults are attached or bonded to that child. I would like to see the father in play, or a male figure in play, as well as the mother. There was the point about the village. What worries me—and this is probably a case of “ex-ministerialitis” and the workability of legislation—is how these sorts of propositions will work. I do not disagree with their content, I just do not see how to translate them, if they are in the Bill, into practical policies for clinicians to adopt when investigating the well-being of clients and the appropriateness of fertility treatment.
I share with the noble Earl, Lord Howe, a concern for the safety of the child, the stability of relationship and their long-term well-being as well as the economic viability of the family unit, because we know that the real litmus test of whether a child will flourish is income—at least as much as what type of parent and family structure the child has. I did some research on that because I think it is important.
Perhaps the Minister can tell me, and forgive my ignorance if it exists, whether we produce, with the consent of professionals and the HFEA, appropriate literature for prospective parents? I cannot believe that women would go in for such onerous treatment lightly, but do we ensure that women, and men, where they are active players, have in their hands the literature which indicates what they need to consider for the well-being of the child when going for this treatment? It would embody a lot of the principles of the noble Lord, Lord Northbourne; it would not be in the Bill; and it would not necessarily be guidance to the clinician. What is important is that it is internalised and believed in by the parent, otherwise it is manipulation and smoke and mirrors. If we can ensure that the parents believe that this is the best way in which a child conceived in these circumstances will flourish, we would all have the outcome we would like. Therefore, can my noble friend tell me whether that literature exists and, if so, whether it could be revised or whether we could make it more appropriate? Perhaps at a very early stage, and with the offer of counselling, it would ensure that any older woman who thinks, wisely or unwisely, she could go it alone was aware of the circumstances that would best secure the child’s most helpful and healthy development. I am sure that is what we all want and what she would want too.
I do not have the HFEA guidance in front of me but my recollection of it is—and the Minister will be able to find out whether it is so—that a good number of the issues raised in this debate are actually dealt with in that guidance. The 1990 Act provided guidance that was intended to cover the whole area of welfare, including the point we were discussing earlier.
As we are going into ex-ministerial confessional mode, I will raise some points both in response to my noble friend Lady Hollis and to some of the arguments consistently made by the noble Lord, Lord Winston. I do so wishing to be particularly sympathetic to Amendment No. 60. I am also pretty sympathetic to the amendment of the noble Lord, Lord Northbourne, although I would not mind it stopping after “welfare” in the third line.
We hear a lot about the problems encountered by doctors when faced by women across the table. We also hear a lot about not being discriminatory towards women, but we still have in this legislation, as the noble and learned Lord, Lord Mackay, has reminded us, the welfare of the child. The doctors may not like it, they may find it difficult to do, they may find it uncomfortable to have these conversations with the people in front of them, but it is the will of Parliament to have that provision. If they are struggling with that, if the present guidance is inadequate to help them make those judgments, as the noble and learned Lord, Lord Mackay, has said, it is probably incumbent on us to amend the legislation about the guidance, and the guidance itself, to make it easier for them to do.
What I like about the later amendments of the noble Earl, Lord Howe, is that, in a sense, they remove some of the doubt. They say that if you go through this process and want the help of the state in providing this treatment, which is regulated, you ought to go for counselling so you fully know what you are getting into. That does not seem to me an unreasonable proposition. The more often he rises to tell me about the difficulties for the doctor actually confronted with the women across the table, the more I say to my noble friend Lord Winston that the doctors need our help here. They are struggling to carry out these responsibilities. If that is the case, we parliamentarians ought to respond to the concerns of my noble friend Lord Hollis—
I wondered how long my noble friend would take to rise to the bait. We need to count how many times he confesses to the difficulties faced by doctors in administering these provisions. The more he rises, the more he challenges me on that, the more I am concerned that we do our best to help him and his colleagues discharge the responsibilities to the welfare of the child.
As a former Minister, does my noble friend agree that it is imperative that Ministers, including former Ministers where appropriate, donning the DoH hat, should be advising the House about what is practicable and workable, not saying merely what serves their own moral high ground?
I am glad to be thought to be on the moral high ground; with me, that very rarely occurs in this world.
I say to my noble friend that we spend our time in Parliament making legislation that may, on occasion, be difficult to administer. That is why we often have secondary legislation, guidance, advice and codes of practice: to help the people who must implement parliamentary legislation to do so. This is a similar provision; we take such an approach with adoption and in relation to children who are taken into care. These are difficult and complex issues; no one is denying that. We try to have sound principles underpinning those issues in primary legislation and carry the matter through in more detailed guidance, involving Parliament as necessary. That is what I am suggesting, as is the noble Earl in this amendment and his later amendment. If we care about the issue of fathers and want to put in legislation, at the point of deciding whether to give IVF, a provision to take account of the child’s welfare, it is clearly incumbent on us to ensure that practitioners are able to implement that. That is all I am saying.
I have a sense that these practical issues are distorting our discussion about the important issue of the unconceived and the unborn child. We take that very seriously in most other legislation and we should be just as serious about it here.
We should take very seriously the amendment of the noble Earl, Lord Howe, and I am pretty supportive of the amendment of the noble Lord, Lord Northbourne. That amendment is deep in the territory that we got to at the end of our previous debate; that is, whether doctors could be subject to disciplinary proceedings under the new Health and Social Care Bill if we retain the “need for a father” wording in the 1990 Act. That legal advice would clearly affect the amendment of the noble Lord, Lord Northbourne.
I welcome both these thought-provoking amendments. Of the two, that of the noble Earl, Lord Howe, is my preferred option. The amendment of the noble Lord, Lord Northbourne, proposes that a male adult should be involved in the process. Two things immediately spring to mind. The noble Lord, Lord Winston, said that any woman seeking treatment who knew of the provision would bring a man—a friend or anyone—along with her to back up her case. How will a responsible doctor ensure that a genuinely responsible male adult is involved? Are they to interrogate him in the surgery or clinic? How can they ensure that this is not a guy the woman has just met in a bar or at a party who said that he would do this for her?
The only way in which that amendment could be made to be practical would be to put an economic tag on it and say that if the male adult was the named person when the treatment took place, he had financial responsibility for any child subsequently. In that case, it would be very difficult for a patient seeking treatment to find a man who would, off the top of his head, take on financial responsibility for a child. For those two reasons, I therefore do not see how Amendment No. 55A could possibly work in practice.
Amendment No. 60 looks to the general welfare of the child. We have heard many times that the role model for a child—whether it is born by donor sperm or the sperm of its father who later dies or it is born to a couple who subsequently divorce—will eventually be the woman’s social network, family network, the men within the family and her circle of friends. Many males—and, indeed, females—will become role models for the child. Amendment No. 60 encompasses that, is more practical and leaves the situation more open.
I wonder whether it would be helpful to the Committee to consider whether, if the noble Earl, Lord Howe, has no objection, the next group of amendments might be included in this debate. We are likely to repeat in the next grouping the debate that we have just had, although I am happy to do that.
While my noble friend is thinking about that, I rise to give him thinking space. We should not immediately cast aside the idea of the noble Baroness, Lady Tonge; if a woman wishes to have state aid to help to conceive a child, the state surely has a duty to that child. If the state considers that a second parent is necessary, it surely needs to ensure that the couple are capable of maintaining the child in the state that it is entitled to expect. That surely requires a signature on a piece of paper and an undertaking by both parties, whatever their sex.
To give the noble Earl, Lord Howe, a little more time, I shall seek clarification. Either I am mistaken or the noble Lord, Lord Elton, is; I will find out which. The noble Lord, Lord Elton, talked about state aid. I think I am right in saying that, for the most part, IVF is a treatment for which people go to clinics and for which they pay. The state does not aid the process but it regulates the process.
I want to speak procedurally about the suggestion of the noble Earl, Lord Listowel. I have taken advice and understand that it would be better if we left the amendments grouped as they are. There may be noble Lords who are not present now who would wish to speak in the later debate.
I am grateful for the willingness of the noble Lord, Lord Northbourne, the noble Baroness, Lady Finlay, and the noble Earls, Lord Listowel and Lord Howe, to think outside the box in order to help to improve the Bill. In this House, I have learnt from the noble and learned Lord, Lord Mackay, to get definitions right. I have been struggling with the definitions here but I will try to address the issues; I am grateful to noble Lords for the amendments in this group.
Amendment No. 55A retains the requirement to take into account the need for a father but adds an alternative to the father by adding,
“or other suitable male adult who is willing and able to make a long term commitment to safeguard and promote the child's health, development and welfare and to provide, in a manner appropriate to the age and development of the child, direction and guidance to the child”.
I am grateful for the remarks of the noble Baroness, Lady Finlay, in which—to come back to the amendment—she said that we could possibly look at other suitable male adults as the other suitable parent.
That brings me back to the interesting issue of the definition of parenthood. I have since sought some advice and been told that there is no legal definition of parents but our intention is that someone who is recognised as a parent under this Bill will have the same parental rights and responsibilities as other parents.
Returning to the Bill, the amendments as they stand would signal that treatment services are less accessible where there is not a father or another man fitting the criteria in Amendment No. 55A, or a father and a mother. In considering this, we must be careful not to impose on clinics a duty that represents a sentiment rather than a firm position—there, we are back to definitions. We must also be careful not to drive people away from regulated services and the quality and safety assurances that they provide. I referred to an example earlier in relation to one from the noble Lord, Lord Alton.
The Bill as it stands continues the 1990 Act’s provision that the woman who is carrying or has carried a child as a result of an embryo or sperm and eggs being placed in her—and no other woman—is to be treated as the mother of the child. The Bill does, however, extend the range of persons who can apply for a parental order in cases of surrogacy. I am sure that we will discuss those specific provisions in the later amendments.
Amendment No. 60, tabled by the noble Earl, Lord Howe, would modify the requirements for the HFEA specifically to include guidance about taking account of the welfare of children who may be born as a result of treatment. The guidance currently provides that, before providing treatment, the centres—including the clinician—should take all reasonable steps to determine both who will have parental responsibility for any child who may be born, and who will be the person or persons responsible for raising the child.
The guidance goes on to say that the centre should take medical and social histories from each patient, and see each couple together and, where appropriate, separately. Where the information gathered suggests that serious harm may be caused to the child, the centre should investigate the matter further. I agree that it does not require centres to undertake onerous and invasive social assessments of their patients, but it does provide for further consideration of the patient’s circumstances if there are indications of a risk to the child. Amendment No. 60 would add further guidance, saying that the centres should also assess the stability of the upbringing that the child would have, where the prospective parents are not married or in civil partnership. Very careful consideration would need to be given to whether these additional requirements are necessary on top of the guidance already in the code of practice, or constitute a feasible task for clinicians to undertake.
I understand and welcome the clear willingness displayed by noble Lords through these amendments to find solutions to the difficult issues that we are discussing today. I will try to address the issue that the my noble friend Lady Hollis raised about what type of literature is available to patients. There is wide-ranging literature produced by the HFEA, including guidance for patients, but whether it is adequate is another issue. I strongly believe that it is for regulators and professional bodies to try to address that rather than the Government, but I will be more than happy to look into that.
I have no doubt that those discussions should continue. In the mean time, I invite the noble Lords to withdraw their amendment.
Would the Government consider incorporating the spirit of these amendments, if not their exact wording, in any guidance that went with the Bill? One thing about guidance is that it alters clinical behaviour, and over the years doctors have learned to have difficult conversations with patients—partly, because they have had to. We have clear examples from the Mental Capacity Act, with patients now being given information about their diagnosis and being able to discuss their prognosis or potential complications with treatment. That has meant that those conversations have become much more open. Doctors have not found it easier, but more difficult; they have often needed communication skills training to help them.
I am thinking particularly of the sentiment behind Amendment No. 60. Given that many services are outside the NHS and subject to statutory regulation—but not day-to-day administration—it might help all in the private sector to have some gold standard against which they are expected to operate. It may also help the regulator when it comes to inspect services, as it tries to decide which meet the standard and which do not.
I am grateful for the comments of the noble Baroness, Lady Finlay. I return to the point that she raised about professional regulation and the era that clinicians are living in. I have no doubt that it will put further moral and ethical responsibilities on to a clinician if we do not get these definitions right. The Government will be delighted to discuss and redefine some of the issues that we debated earlier.
I am grateful to all Members of the Committee who have spoken in this debate. It might be helpful if I read out the definition of parental responsibility in the Children Act 1989. That English Act says in Section 3(1):
“In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
I can find no closer definition in English law. However, the Children (Scotland) Act 1995 has this definition in Section 1:
“(1) Subject to section 3(1)(b) and (3) of this Act, a parent has in relation to his child the responsibility—
(a) to safeguard and promote the child’s health, development and welfare;
(b) to provide, in a manner appropriate to the stage of development of the child—
to the child”.
It then goes on to two other paragraphs that are not relevant to our debate.
That Scottish definition is a basis on which we could build. Would the Minister be prepared to have a meeting before Report to discuss whether there might be a compromise on including something in guidance or regulations, if not in the Bill?
57ZA: Clause 14, page 9, line 14, at end insert—
“( ) After subsection (5) insert—
“(5A) A woman shall not be provided with treatment services unless the woman being treated and, where she is being treated together with a partner, the partner have—
(a) received information and advice on issues relating to child development, and(b) participated in a discussion with—(i) a specialist social worker,(ii) a paediatrician,(iii) a psychologist, or(iv) such other person as may be prescribed in regulations,about issues relating to child development.””
The noble Earl said: My amendment is on meeting professionals to discuss child development. Its effect is to ensure that each couple or individual seeking a child through IVF has a meeting with a paediatrician, a psychologist or another expert on child development to consider the developmental needs of the child. This is a probing amendment related to the issues raised in the previous grouping on what happens in practice, and how to support families by doing all that we can to ensure that children born through this process have the best life chances.
The earliest intervention is normally desirable; that is the basis for much of the Government’s policy toward children and families. My noble friend Lady Warnock told us at Second Reading, as we have heard, that clinicians currently pay little attention to the requirement that consideration of a child’s need for a father is given during the assessment for IVF treatment. While counselling is offered, take-up of that is low and can be in the region of 15 per cent. How might support for these families be strengthened at this early stage? I would be interested in the literature of which the noble Baroness, Lady Hollis, spoke, to see how helpful that is.
Members of the Committee may have seen the excellent documentary about the impact of postnatal depression on the normal development of an infant which was broadcast last Wednesday on Channel 4. “Help Me Love My Baby” showed a child psychotherapist from the Anna Freud Centre working with a young mother. The mother's depression was unexpected. Six months after the birth, the baby Isabel was unable to meet her mother's gaze or take comfort from her mother when distressed. We later learned various things about the maternal grandmother, who was an alcoholic who abandoned her daughter at the age of 12. Isabel’s mother risked repeating the cycle in which she grew up—the cycle of rejection from one generation to another. The presence of another parent with uncomplicated, normal parental feelings towards Isabel would have been an important protective factor.
A discussion with a paediatrician or psychologist might help parents to build strategies to minimise risks to their infants if, for example, they are a lone parent going into this process. A lone parent might be advised about the value of having a co-parent or surrogate from the very beginning, about the need to contact a health visitor as soon as she felt in danger of being troubled by isolation or about the importance of having a godfather or similar figure from the very beginning. We talk about engaging men in the lives of adolescents and the importance of male mentors, but they are very hard to come by. If one were to begin by making a man a part of the child's growth from the very early stages of development, there would be more chance of success. It would still be difficult, but an interested male would be involved in the later development of that person.
As I said, this is a probing amendment. I would be grateful to learn from the Minister what additional support is offered to families in these exceptional circumstances to help them think about the challenges that their children may face. I beg to move.
Until the noble Earl moved his amendment, I thought that my own Amendments Nos. 58 and 59 might be thought rather provocative. But I am comforted that he has joined me in a similar sentiment and I hope to convince the Minister that being provocative was not my intention.
Clause 14(3) extends the requirements under the 1990 Act in relation to the provision of counselling by fertility clinics. Whereas the 1990 Act requires all women receiving IVF treatment along with their male partners to be offered relevant counselling information, the Bill extends that to apply to same-sex couples. In addition, where a couple gives notice that they want the intended mother's partner to be treated as the parent of a child who is conceived by donor sperm, the treatment cannot be given to the intended mother until suitable counselling has been offered to both partners.
We should be in no doubt how important counselling is in this context. The noble Baroness, Lady Hollis, spoke earlier about the need for prospective parents to internalise the practice and principles that are central to the welfare of children, and I fully agree. It is not unreasonable to propose that prospective parents should be required to receive certain information in that vein, but my concern chiefly centres on three types of case. The first case is where a woman and her male partner apply to receive donated gametes or embryos, the second is where two women make such an application, and the third is where an application is made by a single woman. All three cases have one feature in common—the child who is eventually born will not be the genetic offspring of at least one of the parents.
In recent years, the donation of sperm or ova may have become commonplace—we may take it for granted—but we should never let ourselves forget that to bring a child into the world in circumstances where one or more of his genetic parents is kept deliberately secret and anonymous is to saddle that child with a grave psychological handicap from the moment when later in life he becomes aware of his origins. Parents of children conceived by donation need to be made aware of the vital importance of being absolutely honest with those children about the circumstances of their conception, the way in which the breaking of this news is best done and the most propitious timing for doing so. They need to be aware that, for many children, the trauma and hurt of this knowledge never leaves them. Some children spend the rest of their lives recovering from the blow to their sense of identity and agonising over the injustice of their circumstances compared with those of children who grew up with their true parents.
If the news is conveyed ineptly or too late, children feel deceived and can end up being alienated from their parents. I have read a number of personal accounts by donor-conceived children who found out late or the wrong way about their true origins, and they make harrowing reading. Parents should not suppose for one second that their troubles are over the moment that the woman successfully conceives. They should be made to realise that the responsibility towards the child's future well-being is in one important sense even greater than it is for ordinary parents. By gratifying their own wish to bring up a child, which I do not mean to imply is an ignoble wish, they are storing up at the very least bewilderment and hurt for that child in future years. Counselling matters.
If it is agreed that the imparting of this type of information and knowledge is important, if not essential, the question we need to ask is whether it is enough for the law to say merely that women or couples should be offered counselling. In my opinion, they should be made to receive at least a bare minimum of counselling as part of the deal that they have with the clinic, as a matter of course. I suspect that the Minister will tell me that it is not possible to force people to receive counselling, but I disagree. I hope very much that she will undertake to think about the proposal that I have made.
I am sympathetic to a lot of what the noble Earl, Lord Howe, said and I can see how what he suggested could be more easily deliverable within an NHS set of treatments, where those services tend to be an extension of the primary care trust in terms of its relationship with social services and so forth. However, how would he ensure that counselling was delivered in the 90 per cent or so of cycles that are handled through private clinics? Would it be rather like cosmetic surgeries where a doctor's receptionist does a 10-minute chat and says, “You can have a tummy tuck but not a facelift”, or vice versa? How would he ensure that it was delivered? I can see how it might work within an NHS framework, where treatment is not paid for by the recipient at the point of use, so to speak, and therefore could be suggested as an implied contract, but how would it work in the private sector?
I support the two amendments of the noble Earl, Lord Howe. I disagree with my noble friend Lady Hollis on this issue. This is a regulated industry and, as such, certain requirements can be made. That is the nature of regulation. It is perfectly possible to put an obligation on a clinic, whether private or NHS, to ensure that counselling is carried out. I do not think that the noble Earl has been at all outrageous or overdemanding.
The Minister may not like what I am about to say but, if I were standing at the Dispatch Box, I would take the noble Earl’s amendments away for further consideration. They are good amendments and absolutely in line with the concern expressed around the Committee during most of the afternoon about people getting into situations, the full implications of which they may not fully understand. It is a shame that my noble friend Lord Winston is not here, as these amendments would help doctors. They could shelter to some extent behind what Parliament has said and what the regulator requires of them, and that would make it easier for them to have these conversations with the women sitting across the table from them. Therefore, I fully support the noble Earl’s amendments.
I support the comments made by the noble Lord, Lord Warner. He is right. I am not trying to put words in the mouth of the noble Baroness who is about to reply, but I hope that she will take very much to heart what he said about giving the noble Earl’s amendments a fair wind. Whether this is in the private or public sector is not the issue; the issue is whether we should seek to provide proper counselling arrangements. There may be problems but they are not insurmountable, as the noble Baroness implied. There are many examples in the law of where we do it elsewhere across the public and private sectors. As the noble Lord just said, this provision would help rather than hinder doctors.
I support these three amendments. It would be wholly irresponsible not to do everything we could to ensure that prospective parents in the difficult situation of having an IVF child were fully aware of the problems and, as far as possible, were armed to deal with them.
I, too, support these absolutely appropriate amendments. There should not be two worlds in IVF of the National Health Service and the clinics, with the latter able to get away with what they want. The counselling and consultation carried out in the National Health Service should definitely be mirrored in private clinics.
I support the amendments of the noble Earl, Lord Howe. I should point out that “counselling” is a very broad word. It does not necessarily mean that you have to have a prolonged encounter, but it is about helping people to recognise their own thinking and to move on. I also think that the measure may help healthcare professionals who are struggling to make an assessment, because those people who are motivated to do the best for the child will want to know how to inform him or her about these very difficult and sensitive issues. Oddly enough, if the prospective parent does not want to know about it, they tend to screen themselves out because they are declaring that they do not want to learn about what might be in the best interests of the child. There is no obligation for them to follow whatever constructive advice they are given, but simply being prepared to listen to it can be an important way of assessing whether they are prepared to look at the issues ahead of them.
We risk a serious outbreak of unanimity and I do not feel very comfortable with that. I wish to make a couple of important points. First, perhaps the most valuable experience that any potential parent can have is to speak to actual parents. While I understand and support what the noble Earl, Lord Listowel, is trying to do, his amendment is slightly overprescriptive. There is nothing like learning from people who have been through exactly the same experiences; that is, the experiences of other parents who have had donor-conceived children, and those of donor-conceived adults.
I thank the noble Earl for that support. I seize this opportunity to flag up organisations such as UK DonorLink and the Donor Conception Network. The conversations that I have had with them reveal that they are extremely anxious that their work should be supported. On later amendments we may disagree about such issues as when and how children have the right to be told about their origins, but supporting such voluntary agencies is an important factor. This measure may provide a way to do it.
Secondly, private clinics have come in for some castigation. Usually I am generally in favour of that but in this case it is not fair because some of the best practice around these sorts of issues is found in private clinics. We ought to raise standards across the piece, whether it be in the NHS or in private clinics.
There is a very important factor behind all this, which goes back to the definition of a parent. If this measure applied across the board to all applicants equally, it would be a measure for good. If it does not, and if we have tight definitions of who parents are, that same process becomes a means of screening out people who could be good parents. Therefore, although I am extraordinarily sympathetic to what both noble Earls are trying to do, this is a matter to which I should like to return once we have established some fundamental issues, such as who are allowed to be potential parents under the Bill.
As my noble friend Lord Darzi explained, the Bill sets out that any woman shall not be provided with treatment services unless she, and any man or woman being treated with her, has been given a suitable opportunity to receive proper counselling about the implications of any treatment service being received. This provision is currently under the 1990 Act, but the Bill now includes reference to two women being treated together.
Further to this, the Bill sets out that any woman shall not be provided with treatment services unless she, and an intended second parent, have been given a suitable opportunity to receive proper counselling at every stage of the woman and the intended second parent signing up to a parenthood agreement.
On Amendments Nos. 58 and 59, tabled by the noble Earl, Lord Howe, the Government recognise that it is highly desirable for any person undergoing fertility treatment to receive counselling, to give them an opportunity to consider all the implications and consequences of receiving such treatment. Indeed, counselling matters. It is important that when two people are signing up to a parenthood agreement they are both fully aware of what this means at all stages of the process. Both parties should have an opportunity to consider the implications of this serious, lifelong commitment.
However, people should be willing to receive counselling for it to be effective. I fear that if counselling were mandatory, resources would be devoted to it, but for some patients it would have no effect because they would not wish to engage with it. Indeed, if it were to be mandatory, it might well produce the opposite effect to that intended, and people might resist it. There are many related problems. For example, what would you do if a woman refused counselling? Would you turn her away?
I was going on to address that and other issues. I did, indeed, take on board the point made by the noble Baroness, Lady Finlay. If somebody refused counselling, she might rule herself out. However, we need to devote attention to that consideration.
The noble Earl raised the issue of the need for parents to be open about the true conception of the children and for information to be provided in a sensitive way. Clearly that must be dealt with in counselling, although there are organisations such as the Donor Conception Network which work with potential parents of donor-conceived children to help and encourage them to tell their children about their origins, and to tell them the best means of going about this. Things are being done. However, the arguments that have been made this evening about the need for counselling have been extremely persuasive, so I am happy to take this back. I give no guarantee that we can make changes but I am certainly happy to look at it because I think it is an extremely important issue. I take on board the point made by the noble Baroness, Lady Barker, about the need for all parents, irrespective of their sex, to receive counselling. We should also look at that carefully.
Amendment No. 57ZA would require patients to receive information and advice on child development, and to have participated in a discussion with a specialist social worker, paediatrician, psychologist or other person before receiving treatment. The amendment would introduce an additional stage for fertility patients. It would seem unfair to require people who, through no fault of their own, need medical assistance to get pregnant to undertake these additional steps and not those who happen to get pregnant unassisted. It is highly unlikely to be welcomed by parents. That is not to say that it would necessarily be a bad thing. There is no evidence to suggest that people who are unable to conceive naturally are more in need of information about raising children or child development than any other parents, or indeed that they would benefit from discussions with a psychologist.
The existing requirements of providing information and offering counselling already provide an opportunity for people to discuss issues that are relevant to them. This amendment imposes a significant extra requirement which we do not consider necessary. If there were genuine concerns about the well-being of any child born through IVF, particularly that the child is likely to come into harm, the HFEA guidance on the welfare of the child says that treatment should be refused. People undergoing assisted conception treatment are fully committed to wanting children. They have often been trying to conceive for many years and any resulting child will be treasured and loved. We do not think that people who undertake treatment require more information or advice on parenting than those people who conceive naturally. The Bill already takes into account the welfare of the child to be born through treatment, and requires that people seeking treatment be given the opportunity to receive counselling. Possibly we will make that stronger, though not mandatory.
Earlier this evening we had a discussion about the literature available to prospective parents. As the noble and learned Lord, Lord Mackay, pointed out, this literature is provided by the HFEA. I am sure that the Government will be very willing to enter into discussions with the HFEA to see whether the information provided is entirely adequate, and if not, how it could be improved.
I trust that the noble Earl will be willing to withdraw his amendment.
Before the noble Earl decides what to do with his amendment, let me say that I am extremely grateful to all noble Lords who have spoken in support of mine. I genuinely feel that, as the noble Lord, Lord Warner, suggested, they could be of real help to doctors. In the light of the comments of the noble Baroness, Lady Royall, I am willing to listen to arguments about the practicability of insisting on a measure of mandatory counselling. I am also very willing to look at ways of refining what we mean by counselling in this context. But it is extremely helpful of her to say that she is willing to take my amendments away. I look forward to further discussions with her. Let me just say to the noble Baroness, Lady Barker, that I would not wish to discriminate between different sorts of parents, other than in the obvious respect that a child born from IVF involving the gametes of both his parents is in a different position from a donor-conceived child. The advice given to each category of parent therefore has to reflect that fact.
I thank the noble Earl, Lord Howe, for saying that he was grateful for this amendment in terms of perhaps making it not so controversial to introduce the idea of mandatory counselling. In some ways we are caught between two extremes because, as the Minister said in reply, if one casts this too universally it seems to discriminate against all women who have IVF and if one seeks to select within that and be more focused, one seems to be discriminating against particular groups. Of course the more focused approach has the advantage of being less costly.
I was grateful also to the Minister for her reply. I was particularly pleased to hear almost a consensus for once this afternoon on how important it was for families to be well informed before they embarked on this process, and I was gratified to feel that she felt these arguments to be persuasive enough for her to see what constructive response the Government would make at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
57A: Clause 14, page 9, line 17, leave out “or woman”
The noble Baroness said: I want to speak to this amendment only to thank the noble Lord, Lord Darzi, and the noble Baroness, Lady Royall, for the way they are prepared to accommodate. The real problem with Part 2 is one of definitions and if I heard correctly, I believe that the Minister said there could be consultations between now and the next stage of the Bill to try and iron out some of this. There is still enormous confusion, even after the debate we have had today, and this would firm up in our minds how to proceed.
[Amendments Nos. 58 to 59A not moved.]
Clause 14 agreed to.
Schedule 4 [Schedule inserted in the 1990 Act as Schedule 3ZA]:
[Amendment No. 59B not moved.]
Schedule 4 agreed to.
Clauses 15 to 22 agreed to.
Clause 23 [Code of practice]:
[Amendments Nos. 60 and 61 not moved.]
Clause 23 agreed to.
[Amendment No. 62 not moved.]