House again in Committee.
63: Before Clause 24, insert the following new Clause—
Before section 31 of the 1990 Act insert—
“30A Birth certificates
The Secretary of State shall by regulations make provision for the birth certificate of a person born in consequence of—
(a) treatment services, other than basic partner treatment services, or(b) the procurement or distribution of any sperm (other than partner-donated sperm which has not been stored) in the course of providing non-medical fertility services,to indicate the fact, as the case may be.””
The noble Earl said: We move now to an issue that the Joint Committee on the draft Bill considered in some depth, but did not resolve—whether the birth certificate of a person who is donor conceived should have that fact recorded on it. This is an extremely difficult and sensitive matter, as the Joint Committee itself recognised; it is not straightforward.
Some argue forcefully that families with donor-conceived children should be free to manage for themselves the whole business of whether and how to tell a child of his genetic origins, and that the state should not take action to, effectively, force the hand of such parents to convey this information to children. Many feel that it is for the parents to judge if and when it is in the interests of a child to be told at all. I completely see the force of this argument. As a rule, I am very much against the idea of the state stepping in and interfering in family life more than is absolutely necessary.
However, I believe very firmly that birth certificates should carry this information, and I will explain why. My starting point is that I believe it to be in the best interests of every donor-conceived child to be told of their donor conception, preferably at an early age. The weight of evidence presented to the Joint Committee demonstrated that clearly. The fundamental issue underlying it concerns human rights. One of the main reasons why, some three years ago, we decided to lift donor anonymity in this country was the recognition, at European level, that every child has the right to know or to find out who his or her parents are. The rights of donor-conceived children were, for many years, being breached by their having no opportunity, when adult, to discover their natural parentage. Although we have seen a marked drop in the number of sperm donors since those regulations came into force, we cannot credibly argue that the regulations were wrong in principle.
The regulations and this Bill give children a right to inquire, and the right to be told certain information in response to such an inquiry. Nowhere is it laid down that parents should have a legal duty to tell the child in the first place that they are donor conceived. It is therefore possible—and, I am sorry to say, all too common—for donor-conceived children never to be given that information. If they somehow find out by accident, the emotional impact of such a discovery can be devastating. I read a number of personal accounts written by individuals who found out, sometimes quite late in life, that they were donor conceived, and whose anger and resentment at having been kept in ignorance are of life-changing magnitude.
One woman said:
“I was angry. I had been cheated, and discriminated against, and lumbered with a fake identity”.
She went on to describe the almost frantic process of searching for her true father, and her burning need to find out who and what sort of a man he was. But what comes out from people’s testimonials even more forcefully than their anger is a feeling of injustice at the withholding of a basic truth. For the birth certificate of a donor-conceived person to omit any mention of the donor conception is equivalent to the state being complicit in a lie. For me, that simply is not on.
The truth may be difficult to confront and may cause pain, but we should not withhold it. A person’s sense of identity is bound up in very large measure with their personal history and a knowledge of where they came from. A birth certificate that omits any mention of donor conception falsifies that history in a profound way. If it is true, as I understand it is, that many donor-conceived children are kept in ignorance of their true origins, something needs to be done. I do not believe that it would be acceptable or right to place a legal duty on parents to tell children about the circumstances of their birth. However, we can give parents the strongest possible motivation for finding an appropriate way of letting a child know before he finds out for himself. We should also see to it that in situations where the parents die before they have an opportunity to tell the child, there is a back-up mechanism that is reasonably failsafe.
Although I believe that we need to confront the issues of principle, there is a practical issue which equally cannot be dodged. It may be argued that where a donor-conceived person is aware of his or her birth status, he or she may not wish to declare that fact to the outside world and, for that reason, may be embarrassed at having to reveal through their birth certificate the fact that they are donor conceived; for example, when opening a bank account or having to prove their identity in other contexts. The answer to that should not be beyond the wit of man to provide.
One answer may be suggested by the fact that when a child is born the parents are given not one but two birth certificates. One certificate could be in a shortened form, and the other could contain much fuller details. One idea is that the fuller form of the birth certificate of a donor-conceived child should contain a note indicating the fact of the donor conception. The shortened form would not. We will hear a refinement of that idea from the noble Baroness, Lady Barker, when she speaks to the other amendment in this group. In that way, it would be open to the individual to supply the shortened form of certificate if ever he wished to keep that aspect of his identity private.
In the amendment, I propose that the precise details of how this should work should be left to regulations. It seems important that the detail is right and that the Government should consult with interested parties before finalising them. I very much hope that the Minister will agree to take this issue away with her and consider it constructively. I beg to move.
I strongly agree with the noble Earl, Lord Howe. I shall speak briefly on the amendment to which I have added my name. As a matter of principle, it seems to me profoundly immoral to bring a child up without his knowing something fundamental to his well-being. It is a sign of a kind of pettiness on the part of the parents to share a secret that they are not prepared to share with their child. In fact, it is almost impossible that a child should not learn, even if he does not know quite what he has learnt, that something is being concealed from him. That is no way to bring up a child—among hidden secrets, about which he is not allowed to know.
I know a father who is not the biological father of his son and who agreed with his wife that they would not tell the son until he was 14 years old. When the day came that they decided that they would tell him about his real, biological origins, the son was quite relaxed about it and said, “Oh well, I always knew there was something funny going on, but I thought it was Mum”. The father then said to me what an enormous weight off his mind that was. He had hated those 14 years in which he knew that he was deceiving his child, with whom he got on extremely well. He hated the fact that there was something he could not talk about.
From that point of view, it simply should not go on. I agree that it should be impossible to compel parents by law to reveal the truth to their child, but now it is much easier to do so than it used to be, when the thought of male infertility was a kind of insult—something to be tremendously ashamed of—that nobody was allowed or liked to admit. Now the notion of infertility is not thought to be essentially female and is recognised as a dysfunction that could happen to anybody, so there is no point in concealment
There are other factors of genetic inheritance that the child may have to know one day, such as if his biological father develops a genetic condition that may be passed on. There is every reason to make it desirable, natural and normal that the child should know. How that should be done we could discuss later, but I express my profound agreement with the noble Earl.
Before I turn to the details of Amendment No. 68B, which stands in my name, I want to make an observation that has been with me all afternoon. In the discussion so far we have conflated issues as disparate as whether same-sex couples can be parents and whether and how people should learn of their genetic identity. I hope that, as we go through all the amendments, we will begin to disentangle these very different issues.
To do that, I wish to give some information to the Committee that it may find helpful. The HFEA’s code of practice sets out guidance for clinics where it becomes known that a gamete donor has subsequently developed a genetic condition or is the carrier of a recessively inherited condition. When a centre knows that, it is told that it should supply that information to the HFEA immediately. Similarly, where a child born of donor conception develops a genetic condition, the centre is under the same obligation to send that information to the HFEA. Noble Lords will ask whether there is a process by which that information is passed on to the other part of the chain. To my understanding, the answer is no. That may be unsatisfactory, but it is a parallel to the situation that exists with adoption. Noble Lords might recall, from when we debated what is now the Adoption and Children Act 2002, the case of a birth mother who had relinquished a baby prior to 1974 and wished to pass that information on to an adult and could not because, in adoption law, children become part of a different family. While the possibility of voluntary transmission of information exists and could be encouraged, it is not possible to do it by an official process.
I turn to the question of birth certificates. I have been struck, in conversations I have had over the past three or four weeks with all sorts of people, by the enormous sensitivity around these issues. On the one hand, it is understandable that one would wish to record truth and to pass it on between generations. Equally, it must be admitted that doing so via the birth certificate is clumsy. Birth certificates are public documents—they are matters of public record—and the proposal would pass on what can be intensely private and personal information.
The noble Earl, Lord Howe, referred to short birth certificates. Standard practice is that people can have a short birth certificate, which contains a few details, but everyone also has a long birth certificate, from which more detailed information can be obtained. For example, people who are adopted usually have the fact of their adoption registered on their long birth certificate but, until recently, most people have used short birth certificates on the various occasions when one must produce a certificate. The problem is that these days, when times are changing—for example, we live under threats of terrorism, and questions about identity are becoming more and more important—short birth certificates are not being used as much; or, rather, officials increasingly ask for long birth certificates, which creates a problem.
This is a difficult matter. The Joint Committee struggled with it. On page 73 of its report, it sets out that we have the right to know versus the right to privacy. It is not possible to balance those two conflicting things. The Joint Committee asked that there should be further debate on the matter. The noble Earl, Lord Howe, was right when he said that this should not be beyond the wit of man, but it is extremely difficult to address it satisfactorily. In my effort to promote that further debate, I have come up with the amendment that the Committee is considering.
I want to make clear exactly what I intend. The amendment is only for discussion at this point. I am not wedded to it; I simply seek further views on this matter. The proposal is that on a birth certificate, there should be a symbol—I have not specified what that should be; armies of civil servants will no doubt have endless fun determining that—that means that there has been no donor conception. I should make it clear—this is not in my amendment—that my intention is that the legend should not be on the birth certificate; it should be held elsewhere. By that, I mean that it would be generally known—for example, GRO publications might say what the symbol means. That is one more attempt to try to build in a degree of protection and privacy. One would have a birth certificate on which it was noted that a person’s birth was registered and that, at the time when it was registered, it was noted that it was as a result of donor conception.
Like the noble Earl, Lord Howe, I was greatly influenced by the many discussions we had during the passage of the Adoption and Children Bill about how and when parents should tell children the truth about their origins. Noble Lords might be interested to know that Professor Golombok, whose work was referred to earlier, is a strong advocate of telling children as soon as possible that they have been donor conceived. The noble Baroness, Lady Warnock, is right that attitudes are changing greatly toward gay parents and different types of families. Yet the decision about how and when to tell a child remains an intensely personal one, which each family has to manage individually.
I do not wish our deliberations to end up with a system that meets all the public-policy aspirations that can be thought of yet simply does not work for families. I caution against us becoming too fixated on registering a birth, at the expense of making those parents who have chosen to go down that route feel in some way compromised about their ability to build a family with their child.
If any Member of the Committee could find a way in which this intensely personal and private information could be communicated directly, and only, to the person to whom it had most meaning, I would be delighted to consider it. I have not been able to think of anything so Amendment No. 68A, which is before the Committee, is a compromise. I accept that it is, therefore, highly likely to satisfy nobody. It is simply an effort to move us that one step forward, away from theory and into something practical with which families can live.
The noble Baroness, Lady Barker, has just said that she thinks that her amendment is a compromise that will satisfy nobody. However, if I might say so, I believe that it gets the balance right on this very sensitive and difficult issue. I am sure that we are all conscious of the sensitivity here. When I first became a member of the HFEA, I certainly found it difficult to take on board the strongly made arguments that children should know all the facts of their birth at the earliest stages, because, like most people born in these islands, I am fairly reticent. I have a great respect for family privacy and I find it difficult to think that everything should be blazoned abroad.
However, over the years I have come to realise the importance of truthfulness and transparency. Amendment No. 68A in the names of the noble Baronesses, Lady Barker and Lady Warnock, and the noble Earl, Lord Howe, gets the balance about right between the importance of truthfulness and transparency, on the one hand, and, on the other, a proper and very important respect for family privacy and the parents’ roles and responsibilities in revealing to children the circumstances of their birth in their own proper way.
As one who is no scientist, I found, when listening to my colleagues on the Joint Committee talking about their immense experience and expertise in this field, that it came as something of a relief to come to an issue that I felt I could understand as a lay man. I was impressed by some of the evidence that we had from donor-conceived people, in particular the long paper by David Gollancz that appears at No. 44 in the evidence book. When I spoke to Mr Gollancz afterwards, he spelt out in some detail what it feels like to discover that you have been donor conceived. At Second Reading, I mentioned the evidence of Mr Gollancz, who said on the first occasion he spoke publicly about his experience of being donor conceived that,
“it was as though someone had taken my autobiography and torn it up”.
He was worried that those were overly strong words, but that was exactly how he felt and one can understand that.
We firmly took the view, as the noble Baroness, Lady Barker, and the noble and right reverend Lord, Lord Harries, said, that it is highly desirable that the donor-conceived person should be told about their genetic origin as soon as they are able to understand. That would happen at different ages for different people.
I remember an occasion involving my little brother. My mother was a widow and my brother had a friend at school who had a baby sister. My brother asked our mother, “When will we have a baby sister?”, and she had to explain to him, “Well I’m afraid without a father that is not possible”. He asked, “Do you mean you have to mate every time?”. He was a child of seven and he was probably at an age when he could have understood if necessary—he certainly knew enough about the facts of life to be able to take it on board. I get the impression that the earlier a child is capable of understanding, the less likely they are to be seriously disturbed, because they are unaware of what other noble Lords have referred to as the deception.
Mr Gollancz also mentioned the European Convention on Human Rights. He said:
“Everyone has the right not to be deliberately deceived or deprived of significant information about their essential personal history”.
I cannot think of anything to which that might be more relevantly applied than the question of a person’s genetic origin.
I took the view, which was reflected in the Joint Committee’s report—my noble friend and the noble Baroness, Lady Barker, have made the same point—that it is highly undesirable that the authorities should appear to connive at deception. There are a number of reasons for that, quite apart from the moral one. There are some practical reasons. How does a person know that they can go to the HFEA and find out their parentage unless they know that they have been donor conceived? When young people begin to engage in relationships or even contemplate marriage, there is a risk that the relationship might be consanguineous or even worse. There are all sorts of reasons why it is highly desirable for people to know. The noble Baroness, Lady Warnock, was absolutely right when she said that public attitudes to this are moving on and there is not the same sense of shame or secrecy that used to surround it.
However, Mr Gollancz, in discussion after our session, told me firmly that we must not make disclosure compulsory on parents, because all sorts of difficult consequences would follow. There might be a deliberate concealment. If parents are subject to a duty and then conceal the information, they will go on concealing it and people may never know. On the other hand, he was equally adamant, and I agree with him, that the authorities should provide the information that would enable somebody to find out. Ideally, when a child is old enough to be told and reaches an age—we said that it should be 16 rather than 18 for fairly obvious reasons these days—they can go along to the HFEA and find out their origin and, if they wish to, try to trace their genetic parent. That would be the ideal situation. But clearly it does not always happen like that and our system must make provision for the less happy cases.
I thought that either the solution proposed by my noble friend Lord Howe or that proposed by the noble Baroness, Lady Barker, were improvements on what the committee said. We simply said that the matter was too difficult for us and that the Government ought to give it more attention. So far we have not inserted anything into the Bill, but both my noble friend and the noble Baroness have provided a solution, using in one case the long birth certificate, which certainly should record the origins, and in another case the short one, if that is what the person would rather have so as not to have to disclose the information to other people.
This is one of the more difficult questions in the Bill that we have been asked to consider. I do not think that the Government have fully thought through what they want to see in the Bill and I hope that they will find this debate of interest. If the Joint Committee had had more time, perhaps we might have come up with a solution, but we were getting near the end of our evidence by that stage and we had a deadline. We had to report by the end of July. Nevertheless, it was for me an intensely interesting part of our investigation and I am full of admiration for those who have come forward with solutions. At this stage I am not prepared to say which I would back, but I believe that the Government could build on one or other of them.
My friend the noble Lord, Lord Jenkin, argues as if the scrutiny committee was unanimous on this issue but I do not think that that was entirely the case. I believe that there was quite a lot of hidden opinion. One of the issues that we have to consider is whether legislation that we make in respect of donated gametes, whether they be egg or sperm, is put at risk because parents might keep the arrangement secret. I know that the noble Lord, Lord Warner, who is not in his place, argues that practical experience is not important when you are making law, but I totally disagree with that view. I think that practical experience is essential if you are going to make good law.
Practical experience at Hammersmith, which is a very large infertility clinic, shows that people undergoing donor arrangements tend to keep the matter secret from the children. That is a very big issue. I can cite many examples of where that has been a disaster later on. One child was informed only when he was a teenager doing very well at school. He was a bright boy attending a high-achieving school. He was completely appalled when his father turned round after the break-up of the marriage and said, “You’re not my son anyway. I shan’t take care of you”. The consequences for that person were dramatically horrific. That is an issue because many of these families may experience strain during the children’s teenage years. Therefore, while practitioners will counsel openness from before the arrangement for donated gametes is commenced, there is a serious risk that the people undergoing these arrangements will take a different view. Certainly, my impression in my own clinic up to two years ago was that, although we counselled the ideal of being open about the arrangement, there was increasing reluctance to be so, which has increased since sperm donation has become very difficult.
I have huge respect for the amendments spoken to by the noble Baroness, Lady Barker, and the noble Earl, Lord Howe. However, we must also consider the effect on the female when the female gamete is involved. We cannot divorce ourselves from the fact that egg donors are in a particularly difficult situation. We should look at the facts. At the moment in vitro fertilisation is an expensive procedure and a large number of couples simply cannot afford it. Therefore, they elect to go to the private sector on the basis that the woman will trade her eggs. What happens is that they go to a clinic, which says, “We will offer you free treatment provided that you give up half or a proportion of your eggs to another woman who will pay for your treatment and the treatment that she is undergoing as well”. The consequences of this are very clear and should have been clearer to the Government when these decisions were taken a year or so ago.
The real problem is that a woman who has given eggs in this situation and whose own treatment then fails because her eggs do not fertilise—or for whatever other reason the ones that she was apportioned do not result in a pregnancy—does not know that the woman in the adjoining ward has got pregnant with her eggs. With the law as it now stands, that woman can, in 18 to 20 years, be traced by a child whom she did not know she had. That could be a disaster for that person in the making. It is something that we have not considered, but it needs to be factored into our deliberations on confidentiality. I do not know what the answer is any more than the noble Lord, Lord Jenkin, does, but it is a horrendously complex and important problem of which we must take account.
I am grateful for the intervention. I suppose that I am taking a judgmental view about whether it is disastrous or not. We are faced here with a woman who has gone through in vitro fertilisation, who has given up her eggs—possibly under some kind of duress because it was the only way in which she could pay for the treatment—who ends up feeling that at least she has tried but is infertile, but who then finds, potentially to her horror, that she had a child all along who she did not know existed and whom, in different circumstances, she would have liked to have nurtured herself.
I put my name to this amendment because it has long been my view that not perpetrating official lies and almost compelling the child to be told of his origins are overriding considerations. I repeat that one of the greatest immoralities is to keep up a long-term deception of a child as to his origins. My preferred solution has long been simply to have “by donation” on the birth certificate. I fully understand that people may not want to produce this when they are opening a bank account or whatever, and therefore I support the amendment of the noble Baroness, Lady Barker, as a compromise. I think it is a very good compromise on which people can agree, but I also regard it as a temporary compromise because I believe that attitudes are changing. If people learn somehow or other that this information appears, even if it is kept aside from the actual birth certificate by means of a symbol, or a circle, or a picture of a devil, or whatever, that symbol will soon become just like a word. One will know how to interpret it: it will just mean “by donation”. Times will change and it will become recognised that being a child by donation is an honourable thing to be and casts no aspersions on the social father whatever. In fact it shows his generosity, if anything. So if we went down that route or one like it, it probably would not last very long, but for the time being it seems to me essential to adopt the suggestion of the noble Earl or that of the noble Baroness, Lady Barker, or something equivalent. I hope the Government will give due thought to that.
I was partly prompted by the example that the noble Baroness, Lady Warnock, gave in her previous speech of a couple who had a child where the man who was thought to be the father was not the father. In the 1990 Bill, I spoke on this subject and the person answering for the Government was the noble and learned Lord, Lord Mackay. He may remember this particular piece of information that I raised that was generally accepted by geneticists. At that time I was a bit timid and I said that something like 5 per cent of fathers named on birth certificates were not actually the genetic fathers.
It is more.
The noble and learned Lord, when he replied from the Dispatch Box, told me that the figure that he had been given in his papers was 10 per cent, and we have heard as an aside just now that it could be more. That is an important thing to bear in mind if one is considering the integrity of the register of birth certificates. I put that down to the imperfection of human nature. Hence, we have an imperfect register of births. It is important that that is in the background. The amendment proposed by the noble Earl, Lord Howe, refers to making sure that the Government and authorities are not conniving with lies, which is a slightly different thing. A large part of the birth register will not have the integrity that people might think.
On an earlier amendment, my noble friend Lord Elystan-Morgan talked about the right to know as being an essential right. That is fine, subject to the qualification of the imperfection and frailty of human nature.
The noble Viscount, Lord Craigavon, has rightly drawn our attention to the presumption in law that where two people are married a child born to the woman in that marriage is presumed to be the child of the husband. However, as I understand it, in law that is a rebuttable presumption. If evidence is ever produced to confound that presumption, a court will find accordingly. That is a totally different situation from one in which the state consciously enters into a deception from the outset.
I recollect well the factual exchange that I had with the noble Viscount, Lord Craigavon, and I remember perhaps even more distinctly when I first got the papers myself and learnt what they contained about these statistics. The essential thing that was put to our Joint Committee was that, in that case, the state is accepting the evidence that is available at the time of the birth, of course with the presumption that my noble friend Lord Howe referred to. The distinction between that and the case that we are considering here was put in the committee on the basis that it is the state conniving with the situation, because the state regulates the procedure under which the donor conception takes place. Therefore, the state is, as it were, a party to the false presentation if donor conception is not mentioned.
Another way of tackling this has only occurred to me while listening to the discussion. The licensed clinic, or centre, or the HFEA could have an obligation to send a confidential communication to the child at a given age and, before it did so, it should warn the parents that that was going to happen. That is a possible way to preserve confidentiality from the world at large while still telling the child. I was not sure in older times whether the child would necessarily be followed up either by the licensed centre or the HFEA, but in light of the need for research in following up donor-conceived children, the records of those children will be available. It occurs to me as being a possible way of having confidentiality and also the discharge of the state’s responsibility to make the facts known to the person affected without telling the whole world.
Members of the Committee are clearly making strenuous efforts to try to find a way forward. The noble and learned Lord has just suggested another way. I admit that I would have some concerns about the approach that he has just outlined. If a letter were to arrive in a family home announcing that information was going to be imparted to a child, it could take no account of the individual circumstances in the family at that time. It might in that sense damage the relationships within that family.
I was not attempting to explain the whole thing, but I would assume that the letter would go to the parents some time before the intimation was due, and then the authority would have an opportunity to consider in the light of that representation what should happen next. At least it is a possible way of combining the two conflicting principles.
I see that the noble and learned Lord is trying to find a way through this, but I wonder whether that would be a wise way to proceed. The noble Baroness, in a thoughtful speech, was trying to point to another way by suggesting that something should appear on the birth certificate as a code of some kind that could be interpreted later. Inevitably, as others have pointed out, people would know what that code represented, so one might as well be straightforward about it. The noble Earl’s solution of having the words, “donor conceived” on the longer form of the birth certificate, with the parents then in a position to have a discussion with the child at the moment of their choice, represents for me the most crystal clear way of dealing with this. I certainly agree with what my noble friend Lady Warnock said earlier about the importance of truth being observed. As the noble Earl said, fake identities are not something that we should be promoting.
Earlier in our proceedings I mentioned a new book by Lisa Mundy called, Everything Conceivable. She points to the American experience. Inevitably a website has been created in the United States for children who have been donor-conceived to try to find out their true identities. An example of children searching for their unknown genetic parents involves a group of half siblings who have a donor in common. Some donors have more than 30 offspring. When the noble Lord, Lord Jenkin of Roding, made his point earlier about the possibility of relationships being entered into unknowingly, this was not far-fetched, and we must take that into account as we decide on the information that we will make available to children who have been donor conceived.
I was recently in conversation with a High Court judge who was telling me of a case he had dealt with. This did not involve in vitro fertilisation; it involved the normal birth of twins who were separated at birth and adopted by separate parents. They were never told that they were twins. They met later in life and felt an inevitable attraction, and the judge had to deal with the consequences of the marriage that they entered into and all the issues of their separation. I suspect that it will be a matter of litigation in the future if we do not make information of this kind available to children who have been donor conceived. The noble Earl said that the right to know was a human right. I agree, and it is the most straightforward way of dealing with an extraordinarily complex question.
The noble Lord, Lord Winston, is right of course. There are implications for everybody involved, but the needs of the child will always be paramount, and it is right that we should therefore make the process as transparent as possible.
Before the noble Lord sits down, may I remind him that we were told that following the right of the child to trace his real parent, the number of donors has declined quite markedly, but the number of donations has gone up because more donors are donating to a number of different women?
The person concerned would not necessarily know whether he was one of 10, so the same issue applies. The experience to which I related of the 30 half siblings comes from the United States, where the position is even more extreme.
In replying to the noble Lord, Lord Jenkin, it was after the passage of the 1990 Act that, when in conversation with my noble friend Lady Warnock, I asked how she felt about anonymity. We then made joint representations to the Department of Health that anonymity should be removed, and regulations were brought forward on egg donation. I am glad that that happened. I realise that it led to a reduction in the number of eggs being donated, but I do not think that anonymity serves any purpose in this context.
I wonder whether we are running two separate issues together. One is about what may be in the public domain and what should remain private, to which both amendments refer and to which I will come back. The second, the point being raised particularly by the noble Lord, Lord Alton, is whether the right to know is the right to know which individual was your donor, or the right to know—in the phrase of my noble friend Lord Winston—the genetic inheritance you have acquired which may be crucial for your future medical history. Can we keep those two issues slightly apart for the moment?
On the first, I sympathise with the amendment of the noble Baroness, Lady Barker. My difficulty is that a coded symbol on the birth certificate will be read as “donor conceived” very quickly indeed, and it might just as well say the words. Equally, on the amendment of the noble Earl, Lord Howe, about abbreviated and long birth certificates, my understanding—but I could be wrong—is that, in some circumstances, the abbreviated birth certificates in the public domain are increasingly unacceptable. I therefore wonder whether there is any problem in having a pair of birth certificates, both “long”, one with the information and one without, with the full information being sent to the young person at the age of 18 and parents then being notified that it will be coming. That young person can then choose which of the two birth certificates to deploy in what situation. They would have the information in reserve on a full certificate if they wished and needed to use it. We obviously need to find some way through this dilemma; whether that is the right way, I do not know.
Secondly, on the genetic inheritance—and perhaps the noble Lord, Lord Jenkin, will support me on this—we heard at the scrutiny committee of the increasing worry that sperm donors were now limiting themselves in number and not coming forward precisely because of the tracking problem. Without going so far as to be worried about potentially incestuous relationships, this none the less did not seem a wise or prudent path to follow.
Equally, people need to know their medical history. Some of the evidence we got was very emotional and passionate. People wanted a slim hope of tracking back an individual parent in time to come. For the most part, however, the sense from the evidence was that people needed to know the genetic inheritance rather than the named individual so that they would be aware of future medical possibilities, problems and so on, and have that evidence. Surely we could also make that distinction. I hope that the Minister can help us on both these issues.
Briefly, I commend the noble Baroness, Lady Barker, for having made such a fantastically good attempt at coming up with a solution. I doubt whether there is any way that we can get the wording right tonight. The noble Earl, Lord Howe, has also attempted a solution. However, listening to the debate, it strikes me that we have two separate things going on. One is about deceiving the infant, child or adolescent—at whatever stage they are—because they are carrying a piece of paper which is not reasonably truthful. I say “reasonably truthful” because we know that between 10 and 40 per cent—I have heard 25 per cent—of children believe that somebody is their dad, and genetically he is not.
There is a difference between the state colluding in a deception and a deception which has arisen either because the woman was unaware of it or because she did not want to face the consequences of having been off with someone else, or whatever. The problems relate to a child who has been lied to. I completely concur with my noble friend Lady Warnock on the problems for children who are deliberately lied to, not only about parentage but about all kinds of aspects. When divorce was stigmatised, parents sometimes tried to protect their children from the knowledge that they had been divorced prior to the child coming along. It was devastating for the children to discover that there was a secret to which they had not been party. We see it with the diagnosis of parents with life-threatening conditions when they try to pretend that everything is all right. The child picks up that something is wrong. The problem is that once they have been lied to it is very difficult for them ever to trust that person to the same extent again. That is a fundamental principle, whether the state is complicit with the process of deliberately deceiving or whether the state believes that we should not attempt deliberately to deceive the next generation.
The Government fully recognise the importance of donor-conceived children being told about their origins and our policy is one of openness in this area. Whether birth certificates should be annotated in some way to indicate donor conception is not a new issue; indeed the Warnock committee concluded in 1984 that,
“we are of the view that consideration should be given as a matter of urgency to making it possible for the parents in registering the birth to add ‘by donation’ after the man’s name”.
That recommendation was rejected at the time. As far as the Government are aware, no other country in the world puts “by donor” on children’s birth certificates.
The Government have long believed that it is of prime importance that donor-conceived children are made aware, from a young age, of their background and are committed to encouraging that. As I briefly mentioned earlier, we are currently having discussions with the Donor Conception Network—an organisation of families of donor-conceived children and donor-conceived adults—about ways in which current and potential parents of donor-conceived children can be encouraged to tell the children about their origins. Workshops and materials are being planned. The aim is to encourage openness, and the Donor Conception Network provides information on telling and talking. It also provides helpful advice on how to tell older children, precisely to ensure that the cases of anger described by the noble Earl, Lord Howe, and the noble Lord, Lord Jenkin, do not arise.
Turning to Amendment No. 63 tabled by the noble Earl, Lord Howe, I feel that there are drawbacks to the proposed approach. As drafted, it would include the annotation on a birth certificate of any birth that was the result of IVF or other licensed infertility treatment. Infertility can be a difficult issue for people to come to terms with and I believe that they would not like it to be made public in this way. Birth certificates are public documents. I believe, however, that the noble Earl’s intention was to make a reference to a donation by sperm, eggs, or an embryo, on birth certificates.
Amendment No. 68B, tabled by the noble Baronesses, Lady Barker and Lady Warnock, and the noble Earl, Lord Howe, would bring a provision into the Bill that would mean a symbol would be used to annotate a birth certificate of a child who had been born through donor conception. I understand that a symbol would be a more subtle way of displaying the information and it is a very interesting proposal. However, I have heard the views expressed this evening and the symbol could soon become recognised. It may set apart such children as different and the information would be openly displayed on a public document, available for all to see.
One further issue on both amendments that would need to be considered in detail is how, and if, that would work in practice. For example, when a woman gives birth in hospital, no one there will be aware that she conceived via either IVF or with donor sperm or eggs. Therefore, there would have to be a reliance on the parents to tell the registrar when registering the birth that they underwent certain treatment. Some parents might not be open with the registrar and, if so, the difficulty in telling the child later would be compounded. Indeed, it might make it even more difficult for parents to be honest with their children later on.
If it were noted on a birth certificate that a child was the result of IVF treatment, or yet still that their father or mother was not actually their biological parent, would that not set them apart from other children as different? Is that something that children and parents would want to have openly displayed, even if they were aware of it themselves? I well understand that the situation is changing, as the noble Baroness, Lady Warnock, said.
Currently, donor-conceived children can, on reaching 18, get in touch with the HFEA to find out certain non-identifying information about their donor. As the noble Earl, Lord Howe, informed us, since the removal of donor anonymity in 2005, donor-conceived people will also be able to obtain identifying information about their donor on reaching 18.
The Bill also brings in new provisions that enable donor-conceived children to contact the HFEA to find out non-identifying information at the lower age of 16, followed by identifying information on reaching 18. The non-identifying information includes information about a range of personal characteristics of the donor, the screening tests carried out on the donor and information on their personal and family medical history. The HFEA issues directions to clinics, which means that this information has to be collected by them at the time of donation and provided to the HFEA.
I am grateful to my noble friend Lord Winston for drawing attention to the painful situation of the woman who unknowingly donated eggs that gave rise to a child, while she remained infertile. However, the Bill—
I am sorry to interrupt, but the Minister said “unknowingly”. However, the HFEA and all the best clinics emphasise the importance of good counselling, and it is government policy. Before a woman enters an egg-sharing arrangement, she has to be made fully aware that she might not conceive and that someone to whom she donated an egg might. She is urged not to enter into the arrangement unless she is prepared to accept the consequences.
Forgive the intervention, but women often go into such arrangements through desperation. Although they will be counselled—the wise course advised by the noble and right reverend Lord, Lord Harries—the problem is that they may well fantasise that they will end up not with a pregnancy for the other woman but with one of their own. That is the problem in practice. This is a real issue for such women. Having met a number of these women after treatment, I can vouchsafe for the serious predicament that they find themselves in after egg-sharing arrangements, when they deeply regret having gone through it in spite of the counselling. That is the practicality of what is a very difficult issue.
Given that the child’s welfare is at the heart of the Bill, is not the issue here that the children born from this egg donor business are more desperately wanted than probably any other children? That should turn the matter on its head, as it is done in such a way as to make the child special. That is the way I feel about it.
The noble Baroness is right. These children are special and desperately wanted. That is at the nub of everything that we have been talking about today.
I am grateful for the clarification given by noble Lords. The Bill provides for sperm and egg donors to ask centres whether a child has been born from their donation. People can find out the number, the year of birth and the sex of the children born. That may help to ameliorate things somewhat. I note the guidance and counselling given by the HFEA—I am grateful for both the counselling and the information.
Some are of the view that annotating donor-conceived children’s birth certificates, as suggested by the noble Baroness, Lady Barker, will mean that those children are better placed to find out about their genetic background. However, the Government believe that encouraging openness by the parents of donor-conceived children is currently the best way forward. Arrangements are in place for donor-conceived people to find out about their genetic background from the HFEA register, if they would like to. However, in response to the Joint Committee, the Government will keep the position on birth registration and donor conception under review. Tonight’s debate is an important contribution to that review.
I note that, in Amendment No. 63, the noble Earl, Lord Howe, proposes regulations. The Government would not want to include in the Bill a provision as proposed in the amendment, because a lot more discussion needs to go on with stakeholders. I know that it is thought that discussions can take place rapidly, but, to put something in the Bill, we have to be sure that it is absolutely right, and absolutely right for the families, the children and everyone concerned for an awful long time.
Therefore, as we go into further discussion before Report, maybe we should consider regulation-making procedures with a view to clarifying the situation later, after all those discussions. I do not know. Those are things to be discussed and I look forward to that. In the mean time, I trust that noble Lords will not press their amendments.
I thank all noble Lords who have taken part and demonstrated just how difficult this issue is. I take a lot of heart from that.
I simply want to make a couple of observations. I tabled my amendment, to which I am not especially wedded, because I had talked to different people and tried to put myself in the different shoes of all those who would be affected by the provision. I was very heartened when the noble Baroness, Lady O'Cathain, said that those children are special—that they are extremely wanted. They are. I have a reservation about marking out anyone as being somehow different on their birth certificate. I am profoundly uncomfortable with that on principle.
To the noble Lord, Lord Jenkin, I say that I read the evidence and the report of the Joint Committee. I know that the Joint Committee had before it some powerful and persuasive young people who were making some extremely compelling arguments, but they represent only one strand of opinion among people who have been donor conceived. Other people who have been donor conceived take an entirely different view. That is a point that has not been made throughout our discussion today.
None of us wants in any way to promote or assist collusion in an untruth, but I was similarly uncomfortable with the proposal of the noble and learned Lord, Lord Mackay of Clashfern. We have never said to people who are adopted that on their 18th birthday a letter would come through the post to advise them of that fact. Why? Because in all the time that our predecessors in this Chamber—we go back hundreds of years—were making laws on adoption, we recognised that what was happening was the creation of new families. It was in part the job of legislators to ensure that the legislation surrounding the creation of that family did not make family life impossible.
We run the risk of doing that. We do it for a very understandable reason. In some ways, we are trying to replicate two systems, neither of which is perfect. One is the law on adoption and the other, as the noble Viscount, Lord Craigavon, so strongly argued, is real life as it has happened since time began and before people with the genius of the noble Lord, Lord Winston, were there to facilitate its creation.
I realise that we have not concluded this discussion in any way, but I think that it has been helpful to air the arguments. I would very much welcome the opportunity to consider any or all of the issues with any Members of your Lordships' House. In the mean time, I shall not press my amendment.
I am grateful to all noble Lords who have spoken in support of my amendment and that tabled by the noble Baroness, Lady Barker, with my name and that of the noble Baroness, Lady Warnock, attached to it.
As the noble Baroness said, this is an extremely difficult issue. There are no easy ways through the problems that noble Lords have identified. The amendments suggest two possible alternative ways forward; the noble Baroness, Lady Hollis, suggested another rather imaginative way to tackle the problem, as did my noble and learned friend Lord Mackay.
The noble Lord, Lord Winston, drew our attention to a slightly different dimension of the issue—the position of egg donors who may not be aware that one or more of their eggs has resulted in a child. A way should certainly be found to address that issue.
I am just sorry that the noble Baroness did not warm to the amendments a little bit more than she appeared to do. I simply invite her to read the evidence put before the Joint Committee, which convinced me, at any rate, that the rights of parents to privacy—rights that should certainly not be overlooked in this equation—are trumped by the right of the child to expect truth from the state.
I add that encouraging parents to be open with their children really does not address the issue of human rights about which so many Lords spoke. I look forward to further discussions, helpfully offered by the noble Baroness, between now and Report. In anticipation of those, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 [Register of information]:
64: Clause 24, page 21, line 2, leave out “has the same meaning as in section 31” and insert “means—
(a) an individual as defined in section 31, or(b) where an application under subsection (2) has not previously been made, a child of such an individual;”
The noble Earl said: This amendment can be dealt with, I hope, quite speedily. I suppose I can live in hope. The Bill would give a right to the donor-conceived person to make a request to the registrar to receive identifiable and non-identifiable information about his or her donor parent. I support those provisions.
The question raised by my amendment is whether that right should be extended to the children of a donor-conceived person in certain circumstances. If, for example, a woman with a young family discovers that she was donor-conceived, but dies before she has the chance to make an information request, there would appear to be no means for the authority to provide the relevant information to those members of her family with a direct interest in it. I question whether the Bill may be overly restrictive in that sense and would be glad to hear the Minister’s reaction. I beg to move.
The amendment would enable the children of donor-conceived people to contact the HFEA to obtain information from the register regarding their parent’s donor, in the situation where the parent has not contacted the HFEA themselves. This is a situation in which we must look at the impact very carefully.
We recognise that this information is likely to be of interest to the children of donor-conceived people, if the donor-conceived person himself has not accessed it. Since the removal of donor anonymity in 2005, donor-conceived people are able to get identifying information about their donor from the HFEA’s register. This includes the donor’s last known address. Hence, donor-conceived children, having sought this information from the HFEA, may receive information which enables them to find their donor. As donors are able to donate for up to 10 families—as we discussed earlier—there are possibly more than 10 children born as a result.
If we were to extend this provision to children of donor-conceived people, there could be substantially more children who could, in theory, have identifying information about a donor who might still be alive. If the children of children were to contact the donor, there could be a small army at somebody’s door.
The Government recognise that it is important for both donor-conceived people and their children to be able to know about their genetic origins. However, in this situation, we must also take the needs of the donors into account. That information should be sought by the donor-conceived person, if they choose to do so, and passed on to their children. I invite the noble Earl to withdraw the amendment.
I am very disappointed by that reply because, although the Minister envisions armies of people descending on the HFEA asking for information, the amendment posits that only one approach may be made per family: that you can have only one bite of the cherry in one instance. It is as if a child steps into the shoes of the parent, in that sense. I still believe that the grandchild of a donor has a legitimate and close interest in his or her genetic origins, and if the child—that is, the parent of the grandchild—has not previously made a request, he or she is denying the grandchild the opportunity ever to find out very pertinent information relating to his or her genetic identity. I might have hoped that the Minister would be willing to engage in further discussions on that topic. I hope that I may be able to persuade her to do so, despite her reply. For now, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 agreed to.