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 CHAIRMAN OF COMMITTEES in the Chair.]
Clause 25 [Restrictions on disclosure of information]:
64A: Clause 25, page 26, line 22, leave out from “is” to “made” in line 23
The noble Lord said: This amendment relates to aspects of the clause which relate to confidentiality. Restrictions on patient confidentiality significantly over and above expected medical confidentiality currently apply to couples seeking infertility treatment through IVF-related procedures even when donated gametes—sperm or eggs—are not required. Not only are those restrictions excessive but the penalties for breaching them are draconian. Under Section 41(5) of the 1990 Act, breach of this confidentiality is a criminal offence punishable by prison, a fine or both.
There is inequity in how the clause treats patients, set out in Sections 33(1) and 33(5) of the 1990 Act, because it does not apply to patients seeking infertility investigations or treatment in their local hospitals but only to HFEA-licensed premises and HFEA clinicians who work or have worked in licensed centres and to IVF-related procedures. It does not apply to treatments that are not licensable by the HFEA, such as drug treatments or surgery on either male or female patients. Confidentiality restrictions may thus change as a patient moves between the treatments offered.
In 1990, IVF treatment may have been viewed as something artificial and novel, with babies created in test tubes. Therefore, Parliament concluded that most patients would not want it known that their child had been born by that process. Clearly, since it did not apply to patients having other forms of fertility treatment such as surgery, it was not the fact of needing such treatment that was of concern, and needed to be kept ring-fenced, but simply the fact that they were using IVF.
Today, every newspaper and women’s magazine seems to have an article about infertility and treatment using IVF technology, with an increasing number of women declaring that that is how they conceived. Why IVF should be seen in law as something to be ashamed of, and hence kept ultra secret to a level punishable by prison, is not clear. The only other branches of medical practice that have such unreasonable restrictions and penalties applied relate to the Gender Recognition Act or, for public safety purposes, in cases of infectious diseases. Indeed, the initial and even more severe restrictions placed in 1990 were all so unreasonable and unworkable that the law had to be modified in 1992 to make it remotely practicable. As it stands, the current law still imposes an unreasonable burden on both patient and practitioner.
It seems to be assumed that patients seeking fertility treatment always go to independent specialist fertility centres where all forms of treatment are offered under the same roof with the same set of notes. Although that may be true of private units, many of the best fertility services are offered as part of routine care being delivered by expert gynaecologists who have sub-specialised in reproductive medicine and are accredited as such by the Royal College of Obstetricians and Gynaecologists. The initial investigations may be undertaken in NHS clinics, using NHS notes which are not covered under this law, and treatment with surgery or drugs offered, completed and recorded as such. However, once the patient requires IVF, separate notes have to be set up and kept under lock and key—for 50 years, as my noble friend has said—away from other members of medical staff who are not licensed to see them.
Any recording of information between those special notes and the routine notes where the remainder of the patient’s initial assessment was recorded is forbidden without express consent. That is difficult to police effectively without significant additional bureaucracy. In reality, practitioners are in breach of those clauses every day. For example, if a gynaecologist receives a referral letter from a GP or a tertiary referral from a district general hospital clinician about a patient who has had unsuccessful IVF on two or three occasions at some centre in the UK or elsewhere with a request to perform a hysteroscopy to look into the uterus or a laparoscopy to look into the abdomen in order to see whether there is an obvious reason for failure, the gynaecologist would naturally record IVF procedures and any other relevant reproductive issues in the routine hospital notes in preparation for the intended surgery. However, if that gynaecologist works in an HFEA-licensed centre as a clinician, he or she would be in breach of the Act—and liable to criminal prosecution for revealing the IVF information—unless they had specifically requested written permission from a patient to record that information there. Should the gynaecologist not be a licensed individual, no such sanction applies. It cannot be right that the obligations specifically relate to the licensable status of the doctor, and it seems inappropriate that for one there is the usual restriction on confidentiality whereas for the other the threat of criminal sanction unique to this Act.
Similarly, a male patient could be referred to an assisted conception centre because he has been found to have no sperm in his semen. In the licensed assisted conception unit, a biopsy of his testes is performed and indeed no sperm are found suitable for an IVF procedure. If that individual then went to see another gynaecologist or a urologist to discuss the options available, he and his partner’s story would be recorded in the hospital notes during the consultation. This would be entirely legitimate, provided that that gynaecologist was not regarded as licensed under the Act, for which action he or she would be criminally liable unless they had sought specific permission to do so.
The purpose of the amendment is to bring the HFE legislation more in line with standard rules on medical confidentiality. It will greatly streamline the way clinicians can deal with patients between hospital notes and restricted assisted conception unit notes and substantially reduce the regulatory burden applied by the HFEA. For years in my department my colleagues who are specialists in infertility and look after couples who require IVF had to whisper to me in the corridors, when they were successful in the woman conceiving, the name of the person who would then be attending my antenatal clinic. As I was not allowed to put that information on her notes, when she went into the labour ward no one knew that it was an IVF pregnancy; but we all knew because we had developed secret ways of indicating without writing down the name. It is to be hoped that none of us will go to jail for it.
On the effect of the amendments, new Section 33A(2)(i) provides an exception to the restriction on disclosure under the HFEA of information where the individuals to whom the information relates consent. The first amendment extends that exception so that individuals may consent to the disclosure of any information held about them under the HFEA. The second amendment introduces a further exception to the restriction on disclosure under the Act of information relating to individuals, permitting such disclosure for various medical purposes other than medical research, which is addressed by new Section 33C, where this is necessary or expedient in the interests of improving patient care or otherwise in the public interest.
I am not seeking to widen anything; I am merely seeking that the confidentiality rules that apply to other aspects of medical care apply to couples who seek IVF—not beyond that. As I have not mentioned embryo, SCNT or interspecies embryo, even my noble friend Lord Alton may be moved to support the amendment. I beg to move.
We should be grateful to the noble Lord, Lord Patel, for raising this issue and for moving the amendment, which I fully support in spirit. However, one might wish to look at the wording in due course because it raises an issue of considerable practical clinical importance. I do not intend to speak for long. The current situation is hardly workable and can produce quite dangerous, if not bad, medicine.
The other day, the noble Lord, Lord Alton, raised an important issue about in vitro fertilisation—ovarian hyper-stimulation syndrome, OHSS. When this occurs, women get very large, painful ovaries. If it is left untreated it can result in a quite serious condition and often requires hospital admission. Under the present legislation, if someone has had in vitro fertilisation in one hospital and then goes to another hospital with abdominal pain and ends up in casualty requiring admission, technically we are not allowed to tell that hospital about her treatment unless they have been registered with the HFEA. That, obviously, is a nonsense. At present, as the noble Lord, Lord Patel, said, in my unit at Hammersmith there are two totally separate sets of notes. Clinicians working in the hospital have no knowledge of a patient having in vitro fertilisation, which must be seen now as a routine treatment.
There is one other issue that concerns me as a research worker. There is growing evidence that in the next decade we are going to understand much more about the complications of genetics. There is a growing focus on an area of genetics called epigenetics, which is where the DNA does not change but the way that the DNA function is capable of changing because of its environment. The environment at the beginning of development is extremely important. For example, we now know that very early environmental influences in the first few days of a mammal’s life can radically alter its phenotype—that is, how it becomes later on in life. The classic example was originally the low birth-weight baby which, when it became 50 or 60, sometimes had a much higher risk of hypertension, heart disease, stroke and so on. But there almost certainly are much more subtle epigenetic effects than this in the human, though at the moment there are very few conditions that one can identify. There are one or two.
There are specific things which are done to human embryos in culture which might produce unpredictable epigenetic effects. Those include embryo freezing. We have evidence in my own laboratory that when human embryos are frozen under certain routine circumstances, gene expression changes; that is, the genes change the protein that they produce, at least only temporarily. One of the genes that we have looked at protects against cancer. I am not suggesting an alarmist reaction to this work, but it was published in a very important peer review journal and was obviously acceptable to that journal. We have to say that there is a need for continuous follow-up for the sorts of thing that we do in in vitro fertilisation over a long period.
Embryo freezing is by no means the only procedure that should be under surveillance. Prolonged culture—where embryos are kept in culture for more than three days, up to five or six days—is a growing trend in in vitro fertilisation at the moment. We know from work in mice that that also may produce anomalies of gene expression under certain circumstances. The third area I can think of immediately, though there are many others, is changes in the culture in which the embryo is produced.
None of those should prevent us continuing to offer in vitro fertilisation. There is clearly no evidence of major abnormalities as a result of in vitro fertilisation —at least in this country—compared with people who had babies by the other method. When I say “the other method”, I remember my six year-old sitting at the breakfast table once saying to me, “Dad, tell me, are more babies born by the test tube or by the other method?”. In a family like mine it becomes a routine thing. I hope the Committee will forgive the digression.
It is important that we recognise that it should be easier to survey children long-term, keeping proper records of those children if we can, in order to promote research rather than hinder or prevent it. One way of doing that is to avoid the unnecessary restrictions on confidentiality which do no good for the patient and which are now obsolete in terms of treatment. The routine issues of informed consent and the normal confidentiality that exist with virtually every other medical procedure should suffice for in vitro fertilisation as well.
The noble Lord, Lord Winston, was right to take us back to the debate that we had about OHSS and to remind us of remarks that had passed across the Committee about the implications of freezing for subsequent disability. He is also right to tell us that there is no need for scaremongering or alarmism about this, but it is something about which we should take a long-term view. My noble friend will be pleased to know that I agree with him that the routine collection of this kind of data is crucially important as we understand what happens as a result of the use of in vitro fertilisation. The only issue here, and the noble Lord briefly alluded to this, might be the application to things like artificial gametes in the future. I do not think that is in the mind of my noble friend. I hope he will reassure us, when he comes to wind up, that it is not.
I have another question for him in this brief intervention concerning the issue of commercial exploitation. We all want to strike the right balance between providing information for the kind of creditable research that is needed and ensuring that there is no commercial exploitation of that kind of information in the future. If the noble Lord can give that assurance, many of us in the Committee will find the arguments that he has advanced very compelling.
I rise to support the noble Lord, Lord Patel. He and I have discussed this matter at some length over the past couple of days. I support him for two reasons. The one that I think is the most important was put to us by the British Fertility Society. Parents who have donor-assisted children and are going through the process of IVF do not object to the proposals the noble Lord is putting forward. They are somewhat surprised when they discover that all the treatment they would expect to go through in the course of a pregnancy will be hindered at various stages by the prevention of transmission of information, not for commercial purposes, not to outsiders, but to other practitioners, usually within the NHS.
The most compelling argument is that the fact that a pregnancy has resulted from IVF makes a distinct difference to the tests that are carried out throughout a pregnancy. Adjustments have to be made to such things as amniocentesis tests and even the analysis of scans, because that is a relevant factor. Those are fairly compelling reasons for your Lordships to accept the noble Lord’s amendment.
My Amendment No. 65 is grouped here and I shall speak to it briefly. New Clause 33C will enable the Secretary of State to make regulations requiring or regulating the disclosure for research purposes of certain information held by the HFEA. Information could be disclosed for research where the Secretary of State considered it necessary or expedient in the public interest or in the interests of improving patient care. The Explanatory Notes to the Bill say that there is an expectation that the power will be used only in such circumstances where it would not be possible to obtain consent to the disclosure. This provision raises a number of questions and it would be helpful if the Minister could explain more fully what is intended.
My concern rests chiefly on the disclosure of personal information provided by patients in good faith, and which they have a right to expect will be kept confidential. As a normal rule, medical confidentiality should be sacrosanct unless there are overriding public health reasons to break that confidentiality. I am not sure that I see data held by the HFEA as a compelling candidate for disclosure. The words “necessary or expedient” ring alarm bells with me. The bells, I confess, ring all the louder if the provision is intended to apply retrospectively. People who have received IVF treatment since the 1990 Act came into force have been given no reason to believe that their details will be made available to researchers. Unless retrospective consent is obtained from those individuals, I seriously question whether such disclosure can be justified. Is retrospective and non-consensual disclosure of the HFEA database being considered? I have no problem, of course, with anonymised data being released for research. It would be helpful to hear whether there is thought to be scope to do that or whether, in the nature of the research that is being contemplated, only named data will be of any real utility.
My second main concern relates to the kinds of reason that Ministers may regard as strong enough for them to exercise the power given to them by the new clause. I can well see that there may be some public benefit in establishing, for example, the long-term health outcomes of children conceived by IVF. However, if the database is to be released to researchers, their reason for accessing it has to be because the findings that might be expected to emerge from an analysis of it are of major public importance. Merely to conduct a fishing expedition would not, I think, constitute a sufficiently good reason.
I hope the Minister will be able to reassure me that, if consent is given, data would be released to researchers on a restricted, need-to-know basis. The HFEA is a widely respected organisation, but I hope it is not unfair to say that, for some, it is a little faceless and impersonal. At times, it can give the impression of behaving like a Star Chamber in its decision-making. It is important that, if these provisions are agreed to, the HFEA takes account of the need to explain to the public why it is releasing data, why doing so does not represent an unacceptable breach of trust, and what they see as the likely benefits of disclosure.
I am grateful to the noble Earl, Lord Howe, for giving way. However I do not think that anyone is pleading for anything more than might happen, for example, after neonatal care in a neonatal establishment or after obstetric care in an obstetric unit. Under the existing rules, there must be proper ethical approval of any research project. I would not be pleading for any more than that. Obviously one would support proper ethically conducted research. Certainly, one does not want a free-for-all. We want no more than any other research procedure on children elsewhere. That is what I am aiming for.
I understand that we want to regulate the arrangements in the most appropriate way, but I have to advise the House. I have four daughters and eight grandchildren, seven of whom were born in what my noble friend Lord Winston describes as, “the other way”.
However, one of them was born as a result of IVF, eight years ago. That child is a normal, beautiful grandchild of mine. She was born as a result of my youngest daughter devoting her eggs to my second daughter in order that that child could be born. The grief that my second daughter experienced, as a result of not being able to have a second child, was enormous. When my youngest daughter said, “I’ve got two children. I will devote my eggs to her”—the noble Lord, Lord Winston, knows about this because I discussed it with him at the time—this child was born and is now a beautiful, eight year-old youngster.
Whatever regulations and protection you want to introduce, for heaven’s sake, never destroy the opportunity for a young woman to have a child as a result of IVF, because that would be damaging to everyone. That is the circumstance I have experienced. I hope that the Government will recognise that.
Although the provisions on access to information are not, perhaps, the most high-profile element of this Bill, they have attracted strong views from those in the fertility sector. Let me first address the two amendments tabled by the noble Lord, Lord Patel. The first, Amendment No. 64A, relates to disclosure of identifiable information held on the HFEA register with consent. The second, Amendment No. 64B, relates to disclosure of information without consent.
During the public consultation on the Bill, the view was expressed that the additional level of protection applied to identifying information about treatments and other activities regulated by the 1990 Act was unnecessary, that it hindered the legitimate exchange of information and that the protection provided by the Data Protection Act 1998 and the common law on confidentiality, which regulate disclosure of information from most other health records, would provide sufficient safeguards for patients, gamete and embryo donors, and offspring.
In my clinical practice, I am well used to working within these controls, so I can appreciate why that view is held. It is certainly shared by the noble Lord, whose amendments would relax the prohibition on disclosure of identifying information with, in the case of Amendment No. 64B, the practical effect of leaving identifying information essentially subject to the requirements of the Data Protection Act and the common law. However, in setting the level of protection for identifying information covered by the 1990 Act and this Bill, the Government are obliged to have regard to the requirements of a European Union directive that sets standards of quality and safety in relation to human tissues, including gametes and embryos, intended for human application.
The Government are of the view that Article 14 of the directive, which sets the requirements on data protection and confidentiality for health records, requires statutory protection that goes further than that which the Data Protection Act and the common law provide. This is due to the fact that it involves the use of a person’s tissue for someone else. We consider that this level of protection is achieved by the prohibition on disclosure in new Section 33A.
We have, however, added some new exceptions in new Section 33A that will ensure that disclosure for legitimate purposes, such as patient care or the investigation of a potential offence, is not inappropriately impeded. Moreover, the power in the 1990 Act to make regulations adding further exceptions to the prohibition is still included in the Bill, in new Section 33B. Therefore, if it becomes evident that there are further circumstances in which disclosure legitimately needs to be made, it will be possible to make regulations to allow for this.
The noble Lord’s Amendment No. 64A would allow disclosure of identifying information with the consent of the persons to whom the information relates. However, it could also permit disclosure of information to those who were conceived using donated gametes or a donated embryo. The exceptions relating to donors and those born as a consequence of donation apply in a different way from those that relate to people who have received treatment services. In particular, identifying information about donors cannot be released to those conceived using their donation until the donor-conceived person reaches 18 and chooses to find out the donor’s identity. Separate provisions for donor information are necessary to prevent information being disclosed to a donor-conceived person outside the system provided for in the new sections inserted by Clause 24. The amendment could lead to a donor-conceived person, possibly a young teenager, obtaining identifying information about their donor outside the system provided for in new Section 31ZA. I imagine that that is not what the noble Lord was seeking.
With regard to information about those who have received treatment services, the aim of the amendment is already achieved by the exception in new Section 33A(2)(h). This, together with the exceptions allowing wider disclosure by the HFEA, HFEA-licensed establishments and others to whom the prohibition in the 1990 Act applies, will allow the type of disclosure that the noble Lord seeks.
New Section 33A strikes an appropriate balance between the obligation to protect the confidentiality of patients, children and donors, and ensuring that information can be disclosed where it is necessary.
I turn to the amendment of the noble Earl, Lord Howe. A key recommendation of the 1984 Committee of Inquiry into Human Fertilisation and Embryology, chaired by the noble Baroness, Lady Warnock, was the creation of a register of assisted conception treatments that would allow the long-term health implications for children born as a result of those treatments to be monitored. Since August 1991, the HFEA register has kept a record of every IVF and donor insemination treatment cycle carried out by licensed clinics in the UK, including, where known, its outcome. The HFEA register represents one of the most comprehensive stores of information on these treatments in the world. For that reason the Government intend to ensure that the Bill will pave the way to enabling better use to be made of this valuable resource, to improve our knowledge about these treatments.
We will remove the barrier in the 1990 Act that prevents patients giving their consent to the disclosure of identifying information from the HFEA register. Patients will have the opportunity and the choice, on their treatment consent form, to state clearly whether they would be agreeable to their information being disclosed for research purposes. However, this is a solution only for future treatments. We also need to find a way to ensure that the wealth of information collected over the past 17 years can also be used to benefit research. To ensure that this can happen, the Government propose the affirmative regulation-making power in new Section 33C, with a view to enabling researchers to request identifying information from the HFEA register, licensed clinics and providers of non-medical fertility services, where it is not reasonably practical to obtain the consent of the persons to whom the information relates.
I assure the noble Earl that before such regulations are introduced, it is appropriate that a full consultation takes place. Following this, the proposed model for releasing the information for research will be included in regulations, which will be debated in both Houses.
We intend that it will be possible to disclose identifying information under the regulations only where the research is necessary in the public interest, or, in the cases of medical research, in the interests of improving patient care. As the data on the HFEA register and records held in licensed clinics go back to 1991, it may no longer be practical to obtain consent to disclosure from persons to whom the information relates. Without the authorisation process, which this clause enables the Secretary of State to put in place, using regulation, it is likely that the data from a large number of records would be barred from use in research, thereby limiting the benefits that could be derived from this information.
A practical outcome of such a restriction might be that researchers could not be given a complete set of data on patients who have undergone a specific type of fertility treatment, such as intracytoplasmic sperm injection, or ICSI, and so might not be able to assess fully whether this treatment has any link with the development of particular genetic conditions in some of the resulting children. Similarly, researchers hoping to link HFEA data with information held in other health registries, such as a local cancer registry, would not be able to have a complete data set, again limiting their ability to determine whether there is any indication of a link between a certain type of fertility treatment or process and the onset of a particular medical condition.
Regulation-making power of the type proposed in new Section 33C is not new. A similar authorisation procedure already exists in England and Wales for the NHS or privately funded healthcare systems. A system where an application made to the Secretary of State for access to confidential patient information, without consent, was established under the regulations made under Section 251 of the National Health Service Act 2006. The patient information advisory group advises the Secretary of State on the appropriateness of approving applications for the disclosure of information under those regulations. Section 33C(2) includes powers to establish one or more bodies to consider applications for access to identifying information from the HFEA register and from health records held by licensed establishments. The process established by the regulations will need to work equally in all four home countries. The use of the existing PIAG system could be one option, at least in England and Wales.
Clinical and scientific professionals have long regarded the audit of clinical practice and studies into the long-term results of medical treatments to be one of the most important parts of healthcare service and vital if we are properly to serve the interests of our patients and the wider public. Treatments such as IVF are widely considered to be safe for both patients and offspring, but I believe we would be failing those patients and children if we did not take every opportunity to ensure that long-term follow-up studies can take place to confirm that view.
The authorisation process allowed for in this clause is intended to provide a method of last resort. It cannot be used by researchers to circumvent the need to seek patients’ consent, where it is reasonably practical to consult them. New Section 33C(5) sets the obligation that the regulations may not enable or require identifying information to be disclosed or processed for any purpose, if it would be reasonably practical to achieve the purpose by other means. I hope that will reassure the noble Lord and he will feel able to withdraw his amendment.
Before the noble Lord sits down, in his response to the two amendments of the noble Lord, Lord Patel, I understood that the nub of the problem was that data protection law in Europe was frustrating the noble Lord's aspirations. Have the Government looked at how the matter is dealt with in other countries in Europe? Do they get round the problem in a way that the noble Lord, Lord Patel, wanted? There is obviously an aspiration among consultants to achieve that.
I am grateful for the noble Baroness's intervention. I will seek legal opinion on that, but if the Bill receives Royal Assent, it will contain a number of exceptions that will permit disclosure, as the noble Lord, Lord Patel, suggested, when it is justifiable. For example, licensed establishments passing information to other licensed establishments for the purpose of their function as such would not breach the Act. Nor would a licensed establishment breach the Act if it disclosed identifying information to a healthcare professional or for a referral involved in the patient’s care if it had the relevant consent.
Before the noble Lord finally sits down, may I ask him two questions relating to this important issue, which could shake the confidence of people in the confidentiality of IVF clinics, which would be a serious outcome? First, would the data received for research purposes be sine die—able to be held on the database for the foreseeable future? Secondly, how far, when data are collected for a specific research purpose, will that data be held for other as yet unknown research purposes? In other words, what are the limits on the way in which the data can be used?
At the moment, we are collecting a significant amount of data which we have not been able to analyse for the past 17 years. Certainly, the type of data that we will be collecting for the future is not dissimilar as far as the data set is concerned. If the Bill receives Royal Assent, I have no doubt that there will be tremendous interest from the scientific community in trying to analyse some of the data. The question arises of how much of it needs to be identifiable. I have no doubt that we will debate that when we come to the secondary legislation to which I referred.
Before the Minister finally, finally sits down, could he explain two things? First, can the data be cleaned to eliminate any name or identification that could be used to get back to a living person? With all the stuff that was going on, I did not quite understand whether that would be feasible. Secondly, would—horror of horrors—there be an opportunity for commercial sharks to get their hands on the data and sell them?
I am grateful for the noble Baroness’s intervention. The data released will be based on the research proposal application, and that is under strict guidance based on whichever model we decide to use to release those data. If the research involves a longitudinal study, which means following up the child conceived through IVF, the only way you could achieve that is through contacting the child and, subject to certain conditions, having a follow-up study—ICSI being one that I referred to earlier.
I thank the Minister and the noble Lords who have taken part in this debate for their comments. First, the amendments have nothing to do with donated gametes or so-called artificial gametes—a better term would be biologically programmed. They are to do with the confidentiality of information relating to only those couples who seek IVF. It is not my intention for the amendments to be interpreted more widely. My intention is to bring the information of those seeking IVF treatment in line with other medical confidentiality regulations for their better care. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 64B and 65 not moved.]
Clause 25 agreed to.
Clauses 26 to 28 agreed to.
Schedule 5 agreed to.
Clause 29 agreed to.
Clause 30 [Regulations under the 1990 Act]:
[Amendments Nos. 65A to 65B not moved.]
Clause 30 agreed to.
Clauses 31 and 32 agreed to.
66: After Clause 32, insert the following new Clause—
“National Human Bioethics Commission
(1) There is to be a body corporate called the National Human Bioethics Commission.
(2) Schedule (National Human Bioethics Commission) has effect.”
The noble Lord said: In what I know the whole House hope will be the temporary absence of the noble Lord, Lord Brennan, for reasons of which we are all aware, I am moving the amendment standing in his name. As Members of the Committee know, the amendments propose the creation of a national human bioethics commission—a proposal for which the noble Lord, Lord Brennan, argued with his customary eloquence at Second Reading. He has argued and canvassed widely for the proposal over an extensive period. I can do no better than refer the Committee to the memorandum submitted by the noble Lord to the Joint Committee, which appears on page 271 of its report:
“This proposal suggests the formation of a National Bioethics Council for the UK, to be given statutory foundation in the proposed Human Tissue and Embryos Act. Such a body would have a diverse membership on terms laid down in statute, would be supported by public money and would be separate and independent from particular government departments and agencies, having no regulatory, administrative or quasi-legislative functions. Its purpose would be enhance the democratic process by providing the material to support better informed public debate, so that decisions on contentious matters in the life sciences would be supported by an informed public view and could be taken in a more democratic and inclusive fashion than they are at present”.
I was also struck by the penultimate and concluding paragraphs—paragraphs 48 and 49—in his memorandum, which state:
“Overall, such a body would foster informed public and legislative debate on critical new issues in the life sciences, building consensus where possible and increasing the democratic legitimacy of decisions that cannot be universally popular ... In the UK, it was only in the latter part of the 20th Century that serious attention was given to bioethics, albeit in the disparate fashion criticised above. In the 21st Century it is certain that the life sciences will create issues of regular and profound public interest with increasing rapidity”.
Those words seem almost prophetic in the context of our debates in the preceding three days of Committee and today. I am grateful to Dr Brian Iddon, a Labour Member of another place, who reminded me yesterday of the decision taken in recommendation 85 of the 2005 Science and Technology Committee report to,
“recommend the formation of a single commission to develop policy issues relating to the assisted reproduction, embryo research and human genetics”.
The argument has been widely canvassed, and the Committee is well aware of it. However, I shall try to summarise the core arguments for the creation of such a national bioethics commission. In Britain, as in other societies, we find ourselves in a situation in which those who make policy, who implement it and whose lives are influenced by it are all challenged by hitherto barely imaginable medical and technological advances. There are enormous opportunities for good—we have heard some during the Committee’s deliberations—but also risks and threats to individual and social well-being.
In recent decades, we have become increasingly aware of the ethical dimensions of policy and practice. It is not enough to ask about what has been done in the past or what could be done in the future. We also need to address the question of what should be done. That is in part a matter of prudence, effectiveness and efficiency, but it also has an important and ineliminable ethical aspect. Ethics comprises the identification of values and principles, but also surely the determination of their appropriate application in particular fields and cases. That is no easy matter, particularly given the diversity of moral, social and religious perspectives that characterises contemporary society. At the same time, however, there is widespread agreement on the importance of ethics. Among those who reflect on such matters, there is general agreement about the centrality of such values as welfare, autonomy and respect, and growing recognition that they cannot be reduced to a single value but must be maintained in some kind of balance. I was struck in our preceding debate by how my noble friend Lord Patel and the noble Lord, Lord Winston, were arguing, understandably, for the use of information to develop research to ensure good medical practice. Of course, the noble Earl, Lord Howe, made an equally valid point about the protection of the individual. It is important to get the balance between the conflicting questions right.
Bioethics brings together philosophy, science, medicine and healthcare but increasingly recognises the need to have regard to broad social interests, as well as the needs and concerns of specialist groups. The problems are pressing, the concerns widespread and the issues difficult, but resources can be brought to bear to provide policy-makers such as ourselves and others with information, advice and guidance. Hitherto individuals, organisations and institutions have directed their attention to bioethical issues, but surely it is time to establish a national resource, responsive to UK needs and, though independent of government, responsible to the nation through Parliament.
Bioethics is well developed among academics, and for some years has featured in medical and healthcare education. Patient and other service-user groups are also increasingly aware of the ethical aspect of their interest. In addition, religious faiths, denominations and other value-based communities and organisations have focused attention on bioethical issues generally in response to the developing or prospective practices in which they have particular interests or concerns.
Out of this background have emerged a number of academic journals, societies and research groups, usually university-based, as well as a growing cluster of voluntary organisations, large and small. Publications such as the Journal of Medical Ethics, or bodies such as the Nuffield Council on Bioethics, represent highly professional standards of research and dissemination, and good work has also been done by small but committed groups such as Comment on Reproductive Ethics, which is prominent in the UK, often challenging decisions of bodies such as the Human Fertilisation and Embryology Authority. Other groupings, such as Progress Educational Trust represent opposing ethical positions, and this diversity of independent parties has contributed much to the extent and level of current debates, in particular by drawing issues to the attention of the public and of politicians alike. I believe that is extremely healthy.
In other parts of the world, it has come to be recognised that the scale, importance and difficulty of bioethical issues calls for the establishment of national committees within which these can be analysed, reviewed and debated with the purpose of informing society and policy-makers. In March 2005, the European Conference of National Ethics Committees known as COMETH, produced a report on the functioning of the 42 national committees which comprise its membership. As this figure indicates, COMETH membership includes more than one committee from each European nation. They range from self-created voluntary associations to standing committees established by statute. There are two United Kingdom members: the Nuffield Council on Bioethics and the Scottish Council on Human Bioethics.
In Austria, Belgium, Denmark, France, Germany, Italy, the Netherlands, Portugal, Sweden, Switzerland and other countries, Governments or Ministers have established national bioethics committees. The constitutions, remits, operation and achievements of those bodies are relevant to the establishment and responsibilities of a United Kingdom national bioethics committee. The Danish and German models are widely admired, but several others also have good features.
The idea of a United Kingdom national bioethics committee has arisen in the past, but in recent times it has re-emerged with greater urgency and definition in response to the growing number of difficult issues and decisions. One focus of these has been the review by the House of Commons Science and Technology Committee of the operations of the Human Fertilisation and Embryology Act and of the HFEA. In the course of that review, members of the committee and witnesses to it spoke favourably of the idea of a national bioethics committee, and in the same period Professor John Haldane, Director of the Centre for Ethics, Philosophy and Public Affairs at the University of St Andrews, the leading UK philosophy and policy centre—I declare a nonpecunary interest as a visiting fellow—has pressed the case in several contexts, as my noble friend Lord Patel is well aware, including in letters to the Times and the Telegraph. Calls for the establishment by the Government of a United Kingdom national bioethics committee have also been made by the Archbishop of Westminster and by the Chief Rabbi, Dr Sir Jonathan Sacks.
Such a committee would have the authority and standing of an independent statutory body. Its membership should encompass relevant professional expertise, patients and other user-group interests, as well as major religious and ethical groupings. Membership must reflect the diversity of positions within society, and appointment procedures must be public and transparent. Although independent, such a committee would be responsible to Parliament through a Minister to whom it should deliver an annual report, including recommendations for policy and such additional reports as may be commissioned or submitted. I know that the noble Baroness, Lady Williams of Crosby, has canvassed the idea, to which I hope she will refer during the proceedings in Committee, that this body will also monitor legislation and be able to evaluate its effectiveness. Its remit would be the entire range of bioethical issues, including, but not confined to those concerning reproduction.
Amendments Nos. 66 and 67 seek to establish such a body. Some have argued for a new in-house Westminster committee. It is open to the authorities in both Houses to produce a body if they feel that that would enhance the work of the existing Select Committees. Those two ideas are not mutually exclusive; indeed, they could complement one another very well. That is not a legislative issue. A national bioethics committee is, and that is why the noble Lord, Lord Brennan, drafted these amendments. We all eagerly await the return of the noble Lord to his usual place from where he will, with his customary and characteristic persuasiveness, be able to argue for such a body at Report and offer us many more insights and arguments than I have been able to do today. I beg to move.
The noble Lord, Lord Alton, makes an extremely good case for a forum at which the many and varied ethical issues that we face in Parliament and in the public can be examined in great depth. It could take evidence and advice from a wide background of sources and produce well-informed and well-researched reports which set out the pros and cons of the issues. That is what came out of the report by the Select Committee on Assisted Dying for the Terminally Ill, which was chaired so wonderfully by the noble and learned Lord, Lord Mackay of Clashfern. It was an excellent example and extremely valuable to this House. I am very supportive of the principle, if not the specific type of committee which is being proposed. As the noble Lord mentioned, we have the excellent Nuffield Council on Bioethics which produces valuable, informed and authoritative reports. They do not necessarily cover all the areas that we might need or want but it produces very good reports. We also have a tried and tested in-house mechanism which does not require a completely new and expensive bureaucracy—the Select Committee structure. A new standing all-party Select Committee of both Houses—or perhaps just the House of Lords—could be set up to examine specific ethical issues, to take all the evidence it needs and to produce reports which would be debated in Parliament. I hope the noble Lord, Lord Alton, will think about this possibility and I also hope the Minister will take it on board.
The idea put before us is a good one in principle but I think it has been oversold for three reasons. We already have the Human Genetics Commission, we have the Nuffield Council on Bioethics, we have reports from the Wellcome Institute and we had excellent reports from all our professional and learned societies. About 10 years ago, when Dolly the sheep was born and cloning and stem cells began to be examined, there were more intelligent, incisive and weighty reports on the matter from learned societies in this country than in any other country, and this led to a beneficial change in the law.
I support the notion of the noble Lord, Lord Turnberg, that Parliament should have a Select Committee because Parliament governs this field—the legislation passed by this House and the other place. The countries listed by my noble friend Lord Alton which have ethics committees are all either deeply religious or totally unregulated, or both. In my experience, the further south and east you go in Europe, the more these committees are dominated by religious people—not that there is anything bad in that, but they can be used to hold back the progress of the law. In the USA, the bioethics commission, it has been alleged, is filled with people who support the President’s view, whoever is the president of the day. Its reports have regularly been ignored and they have been forward-looking. Parliament is ultimately the ethical regulator. This is a country governed by law and that takes me to my final argument, which is that not much can be achieved by a bioethics commission.
I speak from my experience chairing the Human Fertilisation and Embryology Authority, which is a working office that is open every day. It was always on a Friday afternoon that a parent or a clinician would call. I remember one particular Friday afternoon a surgeon called saying that he had a little boy patient, aged about two, who had leukaemia. The treatment of chemotherapy and radiotherapy was going to start on Monday and it seemed very likely that it would destroy the little boy’s future fertility. The surgeon had had a bright idea. He wished to remove a small slice of the toddler’s testicular tissue while it was undamaged, freeze it, and, maybe in 17 or 20 years’ time, when the boy had, it was hoped, recovered, reinsert the tissue in the hope that healthy sperm would grow. “Can you please”, the surgeon said, “give permission for this on the spot because chemotherapy is going to start on Monday?”. In a situation like that, you cannot say, “This is extremely interesting and novel. We would like to refer it to the National Human Bioethics Commission, which will issue a report in several years’ time and be placed before Parliament”, and so on. It is the law that governs and it has to provide an answer in those situations. I am happy to say that the answer provided by the law was, “Yes”.
The phone rang on another Friday afternoon, and the question from a hospital was, “We have removed the sperm of a dead man. Can we keep it?”. Again, you have to give an answer that is within the law, as best you can. While a human bioethics commission may do no harm, if it is not used as tool by those who might want to hold back progress—which is possible—I am not sure how much short-term good it can do by comparison with the committees we already have. The choice of members would be extremely problematic and it would demand very skilful chairing. As we are on our fourth day in Committee on this Bill, I need hardly point out to your Lordships that the more experts you have on this topic, the more opinions there are. In the end, by negotiation through Parliament, these things have to be decided within a legal framework.
So I would conclude: probably no harm, but possibly; although I am afraid it would not be much good, remembering that it is always happens on Friday afternoon.
Surely the process of making wise decisions depends on a balance between the advantages and risks of that decision. What has troubled me about our debates during the past four days is that we have heard from three extremely expert clinicians about the advantages of the proposals. I accept those advantages, but I do not think that we have heard practically anything about the possible risks. The risks may be more hypothetical than the advantages, but there should be someone who sits down and thinks about the risks that might arise from the processes that we are legitimising. I am not holding back progress, as my noble friend suggested. It is a question of whether progress is wise and whether it is, in fact, being made in the right direction. I do not know if this bioethics commission would have that function of looking at the long-term picture, but if it would, I would be in favour of it.
I am not referring to the immediate clinical risks; I am talking about how these techniques may be used by people who want to make money out of them, by people who want to control populations in political situations and so on. I read in the paper only the other day—and I do not think it has been mentioned in this Committee—that an organisation in California collects and stores the sperm of famous people and sells it for hundreds of thousands of pounds per dose. This is a kind of abuse—and there may be many others. What I am saying is that I do not know the abuses; no one has told me what the abuses might be. That is the weakness in the debate we have been having.
On a point of information, I understand that the particular organisation which stores the sperm of Nobel Prize winners has gone broke. It was not able to maintain itself and no one really wanted its services.
I shall comment briefly on the amendment. Many of the suggestions made by the noble Lord, Lord Northbourne, are extremely sensible and are certainly worthy of full discussion. However, I cannot help wondering whether a national bioethics committee of the kind that he envisages would carry far wider issues than the rather narrow issues that we are discussing in this Bill. A much more important matter that has come before this House repeatedly is death and euthanasia. That seems to me to be far more serious in many ways. Therefore, one cannot help wondering whether this matter is deserving of completely separate legislation and more thorough discussion than may be possible within the context of a Bill on in vitro fertilisation and reproductive medicine.
I listened with great attention to what the noble Lord, Lord Turnberg, and the noble Baroness, Lady Deech, said. It seems to me that there is an important gap in the present structure which a committee of this kind—possibly a parliamentary committee—would fill very successfully. In saying that, I bear in mind the distinctive contribution of groups such as the Nuffield Council on Bioethics and so on.
Members of the Committee will know that when we come to discuss an issue in a Bill which is concerned with scientific material, we often talk in terms of hypotheses—for example, about the effect of embryonic stem cell research versus adult stem cell research. They are hypotheses of the kind that the noble Lord, Lord Winston, mentioned a few moments ago with regard to the impact of long-term freezing on embryos, and other hypotheses relate to other areas of science. That is often the way in which we necessarily discuss many issues because the question of how particular proposals will work out lies in the future. By definition, that must be the case when we consider advanced research on the horizon of scientific knowledge.
I am concerned that in this House we almost never assess the impact of what we decide to go ahead with, and that applies not only to scientific Bills but Bills in general. We make decisions on the basis of the best information that we can get and the best projections that people can make, but necessarily we do not know what the effects will be, and I am struck by how rarely we look later at what they are. I repeat that that is not only true of Bills with a scientific element. As an example, back in 2001, I believed that there was huge potential in adult stem cells, but at that time that view was largely dismissed. It is not enough for me or anyone else simply to assert that embryonic stem cells provide a more effective form of research than adult stem cells; we need to know over time which of the two—or perhaps it will be both—prove to be effective forms of therapy and research. In other words, I want to know more than I do at the point at which I take part in a debate.
One thing that could effectively be done by the kind of bioethics commission that the noble Lord, Lord Alton, talked about and to which the noble Lord, Lord Turnberg, referred would be to see precisely how far the predictions that we make in our debates, and which are embodied in Bills that become Acts of Parliament, are borne out by subsequent evidence. I use the word “evidence” advisedly because I believe that we need to rely heavily on facts and not simply on an exchange of opinion. I should like to see a committee—such as the noble Lord, Lord Brennan, gave evidence on to the Joint Committee but which, by the nature of things, he has not been able to speak to again on this occasion—pursuing the statements made in this debate to find out how far they are borne out by the findings of research over the subsequent few years. We would all be able to base our conclusions and our witness on much sounder ground if we knew that that follow-up would take place. That is exactly the purpose for which I should like to see such a committee established.
Long ago, I was Minister for Science and I remember, in that capacity, being on the Turing committee of Strathclyde University, which was concerned with artificial intelligence. We made various predictions about artificial intelligence, most of which proved to be far more conservative than the reality. Issues that are not exactly part of our debate today have the greatest ethical consequences—for example, mixing artificial intelligence with the building of a robot so as to create an artificially intelligent machine, which raises questions about where a human being’s intelligence begins and ends and the extent to which a machine’s intelligence determines whether it is or is not human. There are issues in all areas where the movement of research, development and findings is so fast that it is almost impossible to keep pace.
I hope that we might look more closely at this proposal in terms of following through the research being done to see how far it establishes the hypotheses we have been discussing. Such a committee should have the duty of reporting to Parliament on the discoveries made, how those have affected legislation that we have already passed and how they ought to guide legislation that we propose in future. The wider approach of countries such as Denmark and France—which is not exactly a unitary religious country—has great advantages because it raises issues on a much wider plane than we have done so far in the United Kingdom. That plane goes beyond the life sciences. I hope that we can consider this issue further and consider how we can keep pace with the blinding speed at which science is advancing, while at the same time not only learning from what we have already done in legislation but seeing how we should create and advance legislation in future.
Before I come on to my main point, I shall put what the noble Baroness, Lady Williams of Crosby, said in a slightly different way. I think she said that the views of people who supported work on adult stem cells were dismissed. With due respect, I do not think that that is true. They were taken very seriously in this House and on the Select Committee that I had the privilege of chairing. Everybody recognises that a great deal of valuable work was done; the question at issue was whether it should be the only form of research permitted. Research papers on adult stem cell work and embryonic stem cell work are being published the whole time. There is no reason why the Science and Technology Committee should not ask for a report at any stage, although we have to remember that this work is going on year after year and there may not be significant results for several years in the areas in which we most hope for results.
I was not objecting to the chairmanship of the noble and right reverend Lord or to what happened in the Joint Committee, which did a remarkable job of work. I took part in the debates on the Bill in 2000 and 2001 and, at that point, research that seemed to indicate that adult stem cells had rich potential was treated as to some extent not very scientific.
I shall focus on the amendments before us. I welcome the fact that we are having this discussion. It is well worth having and the issue is well worth thinking through. I shall pose two questions. First, it is envisaged that the national human bioethics commission would report to Parliament. It would be very important, sooner rather than later, to explore the respective roles and responsibilities of other bodies that also have a keen interest in this area, notably the Human Genetics Commission, which has already been mentioned; the HFEA; and the Science and Technology Committee, which has strong ethical views. Not every member of the latter body has the same ethical views but its members would certainly want to rebut any idea that they were only interested in science and technology. It would be important to explore the roles and responsibilities of these different bodies, otherwise it could all get into a great muddle.
Secondly, what more would this national human bioethics commission add to the work already being done? For example, the noble Lord, Lord Turnberg, mentioned the Nuffield Council on Bioethics. To begin with, that council is financed independently of government by a combination of grants from the Nuffield Foundation and the Wellcome Trust. That in itself is a significant advantage. Also, appointments to the Nuffield council are made in the usual manner for public appointments, with advertisements in all the major newspapers and interviews and the usual appointments procedures being applied.
Members of the Nuffield council are unpaid, and I notice that, according to the proposed new schedule, members of the national human bioethics committee would be remunerated for their work. The Nuffield council has a wide range of expertise, from scientific and philosophical to ethical. Here I must declare an interest, which I am afraid I do rather reluctantly. This will not raise the estimate by the noble Lord, Lord Alton, of the Nuffield council, but I declare that I am a member of it. However, it would be a help if your Lordships could discount that fact and look at the other members.
As the noble Lord, Lord Turnberg, said, the reports produced by the Nuffield council are highly prestigious and authoritative and widely read. Some of our reports get something like 50,000 or 60,000 hits when we put them on to the web; they are also taken seriously by government. There is no fear of addressing controversial issues. Recent reports have, for example, been on neonates and on the use of animals, which brings out another fact—that members of the Nuffield council working parties who produce these reports are not necessarily all of the same view. For example, the group that produced the report on the testing of animals had at least one member who was totally opposed to the use of any animal in testing. The Nuffield council tries to take other views on board and meets very regularly with the national bioethics committees of France and Germany on a bilateral and sometimes trilateral basis.
I must emphasise that I am not opposed to exploring as seriously as possible the idea of a national human bioethics commission. However, we first need to ask what its roles and responsibilities would be in relation to other bodies. Perhaps even more significantly, what would it add to the work that the Nuffield council, financed independently of government, is already doing?
The kind of commission that we might want to examine issues, if not on a permanent basis then at least occasionally, is the kind of parliamentary Select Committee, already mentioned, that was chaired by the noble and learned Lord, Lord Mackay. Such a committee can produce the kind of reports that would be welcomed by this House and the House of Commons. Because they come from its own midst, Parliament takes such reports with particular seriousness.
I feel impelled to make one or two brief comments. I am somewhat troubled at what I heard a moment or two ago—not in the last two speeches. When the noble Lord, Lord Northbourne, entirely reasonably pointed out that we were discussing matters that could have certain dangers and drawbacks and that we ought to look at them, the answer from the noble Lord, Lord Winston, who is unfortunately not in his place at this precise moment, seemed to be: “Never mind; we will have another Bill to deal with that”. I cannot accept that. The noble Baroness shakes her head, but I think that she will see the statement in tomorrow’s Hansard.
I intervene only on the basis of having heard what the noble Lord, Lord Winston, said. I think that his understanding, which he had spoken of in the previous amendment, was that clinicians were always very concerned about the risks of what they were undertaking. The question was whether it was suitable to consider the clinical risks alone. I do not think that he addressed the point that the noble Baroness is raising.
It is my belief that he did. I merely want to support the noble Lord, Lord Northbourne. When a Bill makes important changes, it has always been possible to discuss difficulties that those changes may bring about. That is all I wish to state. It is extremely dangerous to say that other people have been always concerned about a matter and therefore the Bill need not bother with it. In my experience in this House and in another place, it has always been perfectly reasonable and acceptable to discuss difficulties that may arise from the legislation discussed.
I align myself with the noble Lord, Lord Alton, and with the speech at Second Reading of the noble Lord, Lord Brennan, and the material he cited. I have read, too, the speech at Second Reading of my colleague and friend the right reverend Prelate the Bishop of St Albans in which he noted many of these issues.
I recognise the strength of a number of things that noble Lords have said. The noble and right reverend Lord, Lord Harries, noted questions of potentially parallel or equivalent operations, and the noble Lord, Lord Winston, noted that there were major questions about the scope and terms of what is proposed in the amendment and whether they were much larger than could appear in an amendment to the Bill. I noted, too, the comments of the noble Lord, Lord Turnberg, and the noble Baroness, Lady Deech. I shall come back to what she said in a moment.
Let me take up the point that the noble Baroness made in her telling remarks about the pressures of Friday afternoons. It struck me—as it has struck me in the past when I have read about Friday afternoon decisions in the press—that because necessary and humane decisions are, as she suggested, made under considerable pressure on Friday afternoons or over the weekend, those decisions will go on to gain strong status as precedents in the weeks, months and years to come. The question then arises of whether a body such as the one proposed in the amendment is necessary because of the potential difficulties, if not the dangers, of Friday afternoon decisions. The material perhaps could go to the Nuffield council.
My reason for aligning myself with the proposal is this. Both in what I have been privileged to be present for in the process of the Bill so far, and in the rest of its process, which I have carefully read, a small number of remarks have been strengthened in my mind by what I have read of the activities in recent months of one parliamentary committee in particular. This has raised considerable questions in my mind which the amendment seems to pick up. I do not want to suggest or to be heard saying, because it is not what I want to say, that any noble Lords with particular clinical or research brilliance and experience are not serious about ethical considerations—they clearly are and have expressed that awareness—but there has been in my reading and hearing a subordinate thread running through which has asked at particular points, but also once or twice as a generalisation, for regulation that is less rather than more stringent and lighter rather than heavier.
More seriously, that raises the question which has been raised in the process of this Bill of the status of ethical questions—and indeed of ethical questions out of Christian and other religious frameworks—in relation to the status of the actual, experienced, potential or perceived needs of patients and of the needs, responsibilities, intelligence and energies of clinicians and researchers, either in the present time or in years to come.
This proposal is of fundamental importance. I declare an interest in relation to paragraph 1(4)(c) of the proposed new schedule. Were these amendments to be carried, or in considering alternatives to them, it is extremely important that the content if not the wording of sub-paragraph (4)(c) should appear crystal clearly on the face of the Bill as an equal participant and not, as it has appeared occasionally in the past months, and not only in the passage of the Bill so far, as a kind of poor or suffered relation. That is very important not only in this society, with its particular intellectual, political and legal history, but at this time—when, to many people’s surprise, there is a fresh bubbling-up of a whole range of religious, non-religious and philosophical/ethical questions.
I shall give two examples. I remember from my reading the striking speech made on Second Reading by the noble Lord, Lord Ahmed, and the frequency with which noble Lords have aligned themselves with a range of others raising specifically ethical questions while disclaiming that they are led to do so from any religious tradition. That leads me to think how important this matter is—so important that I was interested to receive a note earlier this afternoon from the noble Lord, Lord Elton, who regrets and apologises that he is unable to be in the House after 5.05 pm and so can take no part in discussing the Bill today. I have permission to quote him. He writes that if bioethics and this proposal or something like it,
“remains a runner at Report I shall suggest an amendment to insert a new clause before Clause 1 so the debate on that will set the scene for the rest of our discussions”.
That is an extremely important proposal. I hope that this amendment will be there in that position at Report and that we shall therefore be able then to have the debate that we have been having this afternoon, in a position that will colour the whole subsequent passage of the Bill at Report.
My experience, from when I chaired a research ethics committee locally in Scotland some time ago, is that when a philosopher, a theologian and several consultants—I forget who the others on the committee were—get together to discuss a specific research proposal, there is an amazing degree of agreement. I discovered that consultants think very hard about the ethics of what they do, and that they listen hard to theologians and philosophers because they know that society has to be behind them when they do these things, otherwise they will have to stop doing them. In a practical way, I have learnt not to fail to listen to the noble Lords who are consultants, as well as to the theologians and philosophers.
The reason for wanting such a committee is an important one. I, too, have felt throughout my years in this House when we have been legislating that perhaps we have not listened carefully enough or at sufficient leisure to the various arguments for and against what was being suggested and the issues underlying them. The question is: how do you achieve that? Frankly, the fact that the theologians, philosophers and ethics experts who are going to meet will be appointed by the Secretary of State slightly spoils the suggestion. There might be a better argument for this committee if the House of Lords were elected, by the way. I am quite sure that we could not have this discussion if we were elected.
When we are discussing legislation in the House of Lords, the problem is always politics. It is when the politics comes in that we often spoil the deep quality of a proposal. That is natural. All of us in this House understand a good deal about politics just from seeing what happens in here. I learnt about it in local government in Dundee, and it helped me very much when I was chairing the research ethics committee to know how politics worked. However, if what is proposed could be done outside Parliament, that would be much better. I do not know enough about the Nuffield council to know about its quality, but I suspect it is probably well equipped to do that.
I am in favour of such discussion happening and being taken seriously in Parliament, but I do not feel that this is the best way of doing it. I say so to the noble Lord, Lord Alton, who himself knows politics very well, and probably understands what I am saying even if he disagrees with me. In moving his amendment he is making an important point about politics, but I am not sure he has the best idea for achieving depth in what we do in Parliament on these difficult issues.
I follow the noble Baroness, Lady Carnegy, on her practical experience of local ethics issues. I am not sure I follow her so generally on the path of her political observations, but what she had to say was very helpful. In listening to the Committee today, I find that there is wide agreement that people would like to see a broad ethical context for some of the discussions we have on these very important issues. As several noble Lords have said, the question comes down to how that is best expressed, both in legislation and in our general consideration in society.
I was rather surprised that the noble Baroness, Lady Williams, spoke about the need for such a committee retrospectively to assess legislation—I think I am right in taking her point in that way—because presumably that would be only if it were a parliamentary committee, which is what I would personally support. That could be a legitimate role in government. The commission suggested in the amendment of the noble Lord, Lord Alton, would not have any value in that respect. I say to the noble Baroness that something of the kind she wants to see would be best done through a parliamentary committee.
I support the points that were well made by the noble Lord, Lord Turnberg, and the noble and right reverend Lord, Lord Harries. My feeling about this issue was informed by the report of the pre-legislative scrutiny of the Bill, which, as we know, was done by the authoritative and representative body of Members of both Houses. They specifically said, after dealing with a great deal of evidence on this in paragraph 48:
“We are unable to support proposals for a national bioethics committee. Ultimately it must be for Parliament to set the ethical framework, taking the widest range of advice. We consider that an ethical input should be found from within Parliament and we recommend that Parliament should establish a joint bioethics committee of both Houses to provide ethical input to legislation raising significant issues in bioethics, such as the current draft Bill.”
That would be the appropriate way forward and would enable some of the broader points raised by, for example, the noble Lord, Lord Winston, about other issues to be considered.
I hesitate to rise because so many noble Lords have already spoken and time is moving on. I have listened to the debate and it struck me that there might be a degree of confusion. The law is asked to give absolute answers, yes or no. Indeed research ethics committees are asked either to approve or reject applications before them. However, one difficulty with ethics is encapsulated in Professor Raanan Gillon’s concept of scope and the broader implications of decisions that are made.
I would certainly echo some of the comments made by the noble Baroness, Lady Williams of Crosby. Legislation goes through that might not need to be examined. The Human Tissue Act comes to mind. There is increasing evidence that samples are not being taken quite so often to review the accuracy of diagnoses. That might have an ongoing effect on how much clinicians audit the accuracy of their diagnoses, with a fall-off in post-mortems and examinations.
The comments from the noble Lord, Lord Turnberg, were extremely helpful because we have examples of good practice. I do not see this proposal as in any way undermining existing committees. However, there may be, as evidenced in this debate, a gap that needs to be plugged. There is certainly a call for plugging a gap and taking a longer-term view, rather than coming up with an absolute answer.
Should such a committee be established in whatever format, some of the real difficulties that have been addressed, such as how people would be appointed to it and how balance would be achieved on the committee, would need to be addressed carefully in order for it to command confidence. It would also have to have the ability to put a fair degree of pressure on research funding councils to ensure that research in areas perhaps a little lower down the priority list was funded so that unanswered questions around the effect and scope of decisions that had been made were explored.
One difficulty for philosophers and ethicists is that they can debate and weigh up issues eternally but often not get to a so-called right or wrong decision, whereas decisions in law and in morality are either right or wrong. Many things happen that may be ethical but not legal or legal but, based on the individual situation, not ethical. That broader look might be called for. Therefore, there is much to commend what is before us. I would not say that it is perfect but I would be worried if we simply dismissed this proposal out of hand.
In supporting these amendments, I wish to concentrate almost entirely on the make-up of the proposed commission and the undoubted difficulties there might be, a point to which the noble Baroness, Lady Finlay, has just alluded. For example, it might not be big enough, bearing in mind what is proposed in Amendment No. 67.
However, I will make two general points in response to the debate. First, noble Lords have asked why we need this commission in the first place. We need it because it would send out the signal that the Government take ethical issues seriously, a signal that they should send out. For many years, ethics has been considered as a field quite properly for experts and sometimes for campaigners and committee rooms—in many ways rather like the environment was considered 25 or 30 years ago, with a few campaigning groups and some experts talking about the environment. In the next few decades, these ethical issues will roar up the political agenda as the general population becomes aware of their implications and that which was a matter for the few—the well intentioned and expert few whom I admire—will become something for the population as a whole.
My second point relates to issues that were raised earlier. I was approached by someone outside the Chamber, who very kindly and politely said, “Why are you such a plodder on these issues? Don’t you appreciate that science is terribly exciting and interesting and it’s moving very fast indeed? We can’t sit around waiting for some commission made up of ethicists and philosophers to let us know whether we can go on with these exciting things”. That almost makes the case for this commission. One could almost sit down, although I assure your Lordships that I am not about to sit down on this point. Much as we need a forum for ethical issues at a national level, which is being promoted by this agenda, we also need to be cautious about speed and the seductive idea that things are moving so fast that, even on a Friday afternoon, decisions have to be taken quickly. Friday afternoon decisions are sometimes very dangerous, just like the products made on a Friday afternoon at the old British Leyland plant at Cowley, outside Oxford, were found to be dangerous. One does not have to be driven, in the face of demands on Friday afternoons, to take decisions within the framework of the law, as interpreted by experts on that Friday afternoon. This debate has been helpful in teasing out those issues.
In my concluding remarks, I shall concentrate on the commission and how it might be made up. I shall refer to the sorts of people I would not wish to see in a predominant position on the commission, those I would like to see represented in a broadly based membership and, most importantly, that saintly person who might be picked to chair the commission. First, I would not like to see big pharmaceutical companies getting in and being in a dominant position to influence the commission, or biotech, medical, venturing industries getting an unnatural hold on the commission, important though they are. Nor would I like to see anything approaching a clear majority of doctors, scientists and technicians—to borrow the excellent phrase used a little while ago by my noble friend Lord Tebbit—and those in related fields, who might benefit, albeit inadvertently, from the commission’s decisions, via everything from professional advancement through to profit from findings, product development, publication, media appearances and the rest.
On the other hand, I should like to see a balanced membership—I stress the word balanced—drawn from exactly that category of first-class researchers in the field, who are doctors, geneticists, biologists and others. There should certainly be a strong representation of ethicists and philosophers. I have long believed that every government department would benefit from having one or more philosophers on its staff to sit on the shoulders of the Secretary of State of the day. It is a pity that we do not have such appointments. Certainly, there should be a representative or so from the faith groups—I use that term as shorthand to embrace those who might belong to secular, rather than religious, society and feel strongly in that direction. There is also probably a need for a competent statistician.
Thirdly, the commission would need to be chaired by a woman or a man who is above the fray of debate, whose views are as neutral as possible and who is not passionately in favour of anything or indeed passionately against certain things—that, much as I would like to get my hands on the chairmanship, undoubtedly rules me out. I have in mind the kind of figure whom we seek to chair a body such as the Committee on Standards in Public Life—someone who is passionate only about being dispassionate in the interests of the ethical issues that are raised and brought to such a commission.
I shall briefly go back to the words of my noble and right reverend friend Lord Harries, because the existence of the Nuffield bioethics committee has been almost overlooked. If the proposed committee is intended above all to be neutral and non-political, which is the point that the noble Baroness, Lady Carnegy, powerfully made, the Nuffield committee fulfils those criteria well, because it is independently funded. The one thing in its favour, which my noble and right reverend friend did not mention, is its success in carrying out surveys over a wide field. On some of the most important issues that it has discussed, it has carried out surveys which have brought in the opinions of many members of the public. I think my noble and right reverend friend would agree that they have been successfully taken into account.
To replicate the work of that committee would be wasteful, expensive and, in my experience of general ethics committees, probably counterproductive. The only committee of which I have been a member was set up by the European Commission to look widely at bioethics and was an absolute disaster, because the discussions of fundamental moral issues were everlasting. It was very difficult to get on to the more practical points that we were meant to be discussing, because nobody was agreed about the basic ethical principles.
One has to be realistic. Questions of ethics cannot be settled by a yes or a no; they are questions about which people feel very deeply. If what comes out of deliberation is going to have any effect, people must be prepared to compromise and see how a law governing a particular practice would work.
It is a mistake to think that this House does not take ethics seriously. No one who has sat through these debates, or the debates in 1990, or the debates on the Bills of the noble Lord, Lord Joffe, about euthanasia, could possibly think that we did not take ethics seriously—of course, we do. However, we learn that compromise has to be accepted, not only between different people’s views, but also between the purpose of law and individual conscience. That is the most difficult thing of all when one is talking not about one’s private conscience, but about something which might be incorporated in law, where we have to take into account a much more general consideration; namely, the good of society. An ethics committee of the kind proposed would probably generate great excitement and passion—heaven help whoever is chair—but it would not have nearly as much practical utility as have the existing commissions, particularly the Nuffield committee.
I am reluctant to prolong this very informative discussion, but there are one or two points that I want to make in favour of the amendment. I, too, have been greatly impressed by a number of debates on ethical issues in this House during the past 17 years or so. I have found them interesting, informative, enlightening and very responsible. However, they are piecemeal; they are highly reactive; they do not tackle any issues before the time comes to address them. As a result, decisions based on them are made hurriedly. That is not what the amendment seeks to address.
Any worthwhile society has an ethical base, which it has to treat with great respect. Ours has evolved over some thousands of years and is today being challenged by a rapidly moving science, particularly medical science. There is a need for continuous examination of the series of challenges, for which we have to legislate, on ethical academic strengths. Many academics who have spoken are undoubtedly aware of the ethical issues involved and want to address them, but the raw material for doing so is scarce and not often authoritative.
A commission such as is described in the amendment would provide an opportunity for different groups to debate differences. It is my experience that widely different groups can often reach an accommodation, given sufficient goodwill, time and information.
I am sorry to say that a number of the objections today have been territorially based; that is, for maintenance of existing territory.
I shall not go into them, because they would provoke further argument and extend the discussion to no useful end, but I shall select one. The Nuffield Council does wonderful work, but it has strong science links and is supported by the Wellcome Foundation, which is a medical research charity of great power and influence. Those links make the Nuffield Council unsuitable for the task addressed by the amendment, quite apart from the fact that it does not have an audience which could be respected. A government-backed commission of the type proposed would attract public attention and even the attention of our ephemeral press, though that is perhaps rather more questionable. I would plead for a slightly less negative approach and slightly less territorial defence than I have detected in the debate today.
I had not intended to take part in the debate, but I was spurred to do so by the remarks of the right reverend Prelate the Bishop of Winchester. I shall make a point that was perhaps overlooked when the right reverend Prelate the Bishop of St Albans made a similar point at Second Reading. He spoke about the absence of a sufficiently obvious ethical base to the Bill. It has struck me ever since that we have overlooked the fact that there is a strong ethical basis to the Bill: it was set in 1990 and it has endured. The fact that the Government and all noble Lords who have so far participated in the drawing-up of the legislation have already agreed, acknowledged and worked to those principles, which are so embedded in what we do, may perhaps lead people to read our debates and miss that point. I have sat here for the duration of the debate. The distinction which is being suggested between those who are practitioners and those who are not, on the basis of their commitment to an ethical principle, is simply unfounded.
Noble Lords may or may not be aware that there is a growing practice within the NHS to have not only local research ethics committees but also local clinical ethics committees. My great fear is that some of the motivation for setting up yet another body is a desire to slow down the pace of research.
Noble Lords should remember that earlier this year two of our world-leading scientific research teams stopped work in order that they could be guided by Parliament after this Bill had been discussed. As I listened to the speech of noble Lord, Lord Patten, I became more and more convinced that there is something wrong with this debate and this proposal. We ignore the technical and commercial application of these principles at our peril. The technicians and people involved in technical developments in a commercial capacity are often at the very forefront of uncovering new applications, to which ethical consideration has to be given.
Finally, I assume from the discussion that were this commission ever to be set up, it would not meet on a Friday afternoon.
I congratulate my noble friend Lord Alton on his very elegant speech. It was quite a long time ago, but it was very clear and very good. The last few days of this Committee have illustrated just how complicated this Bill is. The person who would agree with me most is the Chief Whip. I would like to support the amendment. Maybe it could be an umbrella organisation to encapsulate all the other suggestions and to sort out and sift through some of the ethical matters. I was interested in the suggestion of the noble Lord, Lord Turnberg, that a parliamentary committee should do this. Maybe this is something that should be looked at.
If we were to have such a committee, I would support the noble Lord, Lord Turnberg, and the noble Baroness, Lady Jay: it ought to be a parliamentary committee. That was not why I got up; I got up to support my noble friend Lady Warnock and the valuable work done by the Nuffield Council on Bioethics. We do it an injustice to suggest that it is financed by research bodies and therefore reacts only to these kinds of issues. Its most recent report, in September 2007, The forensic use of bioinformation: ethical issues, formed the basis of some of the legislation that was drafted and passed. There are other examples where the Nuffield Council on Bioethics has proposed very forward-thinking ethical ideas that have informed subsequent legislation.
We also have the Human Genetics Commission, whose terms of reference are not only to analyse current and potential developments in human genetics and advise Ministers on their likely impact on human health and healthcare, but to look at social, ethical, legal and economic implications and advise on strategic paths for research. Therefore, if we are going to have the committee—no matter what its form, although I would favour a parliamentary committee—we must take account of what gap it will be filling. I also take the point raised by the noble Baroness, Lady Warnock, that within this House there is a lot of expertise in ethics, moral philosophy, theology and, perhaps I may add, even science.
This has been an important and, certainly, informed discussion. I am grateful to the noble Lord, Lord Alton, for moving these amendments, to which he is a co-signatory. I fully recognise the interest of the noble Lord, Lord Brennan, in seeing a national human bioethics commission established. He has eloquently set out his views on bioethical issues on a number of occasions, including on Second Reading and in his memorandum to the Joint Committee. Of course, I recognise the sincerely held views of noble Lords who have spoken in support of this amendment, and the views expressed on Second Reading.
A number of noble Lords have referred to the possibility of a parliamentary Standing Committee on bioethics, but I will address that issue separately. In relation to establishing a national human bioethics commission, the Government considered whether to establish a single commission with a remit covering the entirety of bioethical issues as part of the Department of Health’s review of its arm’s-length bodies. This was rejected after careful consideration on the basis that the present distributed model of advisory bodies with more specific briefs remained the best option, as it enabled specific bioethical issues to be addressed by dedicated groups. These include the Nuffield Council on Bioethics, the Human Genetics Commission, the BMA medical ethics committee and the National Screening Committee. They have the appropriate expertise and sufficient time to devote to complex issues within their fields. Noble Lords have spoken of the healthy debate on bioethical issues in a vast range of organisations and learned societies, whose membership is diverse. I am grateful to the noble Baroness, Lady Barker, for informing us of the various ethics committees within the NHS itself. They do sterling work.
The Nuffield Council, of which we have heard much, was established in 1991. It is a body completely independent of government. It has, for example, published reports and discussion papers on such issues as behavioural genetics, patenting DNA and ethical decisions in treating very premature babies. I, for one, am absolutely delighted that the noble and right reverend Lord is a member of the Nuffield Council. The Human Genetics Commission, chaired until recently by the noble Baroness, Lady Kennedy, was set up by the Government in 1999. I give way.
Can the noble Baroness who, like me, is not a scientist, but handles these scientific issues with great brilliance in the Chamber, answer—as she would expect, coming from me—a non-scientific question? She has referred to the Nuffield Council and is, I suspect, about to go on to refer to other committees, cut from different lengths of cloth, but broadly of the same article of clothing. Does the Nuffield Council, for example, have any statutory weight, and are its conclusions referred to the Government or Parliament for endorsement?
I do not believe that it has statutory weight, but it is a body whose expertise, knowledge and reports can be referred to the Government. I am now looking at the noble and right reverend Lord, because he is, perhaps, better equipped to answer this than I am.
All I would like to add to what the Minister has said is that it is a body totally independent of government. Because of its expertise and authority, its reports, which always go to the Government, are taken very seriously. The Government regard them as intrinsically authoritative because of the expertise and work that lie behind them. There is no obligation for the Government to take them into account, but the fact is that they do.
Thank you. As far as the Human Genetics Commission is concerned, it is free to set its own work plan and it ranges widely in the issues it chooses to consider. As noble Lords will agree, parliamentary Select Committees also play an important role in the current system. Examples include the House of Lords Select Committee chaired by the noble Lord, Lord Harries, which looked at stem cell research, and the Select Committee chaired by the noble and learned Lord, Lord Mackay, which looked at the Assisted Dying for the Terminally Ill Bill.
I am not being territorial when I say that the current system also means that there is collective responsibility for bioethical debate, which ensures that ethical discussion is embedded in decisions across all committees. I note, of course, what the right reverend Prelate the Bishop of Winchester said when he spoke of his concern about the status of ethical questions. While I perhaps understand his concern in relation to wider society, I feel, like the noble Baroness, Lady Warnock, that the many profound debates that we have in this House are soundly rooted in ethics and our shared values. Of course, more discussion on the issues is always welcome. The noble Baroness, Lady Knight, is no longer in her seat, but I would respectfully say to her that we discussed some very difficult issues while debating the Bill. The discussions have been of a high quality. I would like to address these two issues separately.
We believe that the “distributed” system of bioethical advice works well. It remains our view that a national human bioethics commission would not bring sufficient benefits in comparison. Indeed, it could lead to ethical issues being marginalised and ignored by committees that are responsible for guidance or policy on any number of aspects of medicine or the life sciences.
The Government take ethical issues extremely seriously and we believe that there is no evidence that the current system is failing us. The UK has a generally admired policy towards issues such as reproductive science or genetics, which is in part a reflection of the wide range of forums for debating the ethical, legal and social issues of the new advances in biomedicine—the very issues that were mentioned by the noble Lord, Lord Alton.
In his memorandum, the noble Lord, Lord Brennan, mentioned the democratic necessity of a bioethics commission, but we have Parliament. My noble friend Lord Turnberg, the noble Baronesses, Lady Jay and Lady Deech, and others have referred to the establishment of a parliamentary Standing Committee on bioethics. The committee of both Houses that scrutinised the draft Bill—at the time entitled the Human Tissue and Embryos Bill—also recommended that. The Government’s response was that they shared the committee’s view of the value of consideration of bioethical issues in Parliament, but the decision about whether to establish a joint bioethics committee of both Houses is, of course, for Parliament to consider. It may well be that such a committee would bridge the information gap that was mentioned by the noble Baronesses, Lady Williams and Lady Finlay.
We remain of the view that it is for Parliament to consider such issues. In giving consideration to how this might be taken forward by Parliament, I am sure that the Committee will recognise that a number of key issues would need to be thought through very carefully in order to ensure that such a committee could operate effectively and have the confidence of Parliament and the wider society as a whole—particularly its composition. As we heard today, it would be an extraordinarily difficult decision to take. Its remit and its relationship with other parliamentary Select Committees, Joint Committees and current ethical bodies would need to be clear. The way it would relate to the excellent work undertaken by scrutiny committees such as those for the Mental Capacity and Mental Health Bills, the Assisted Dying for the Terminally Ill Bill and this current Bill would also need to be resolved.
I believe that ethical issues are extremely important, but they are dealt with very well in this House specifically, and in Parliament generally. I note that there is dissension on that point, but that is my belief and that of the Government. With that, I invite the noble Lord to withdraw the amendment.
I am grateful to the noble Baroness for that reply although I am disappointed that the Government do not accept the principle that underlines the amendment. She is quite right of course that our debates in these four days have demonstrated the breadth of opinion in your Lordships' House, its expertise and, indeed, its commitment to look for good ethics as well as good science. If that could be replicated on a regular basis, looking at issues as and when they arise—because they do arise, as the noble Baroness, Lady Williams, said in her contribution, with great rapidity—there would be no difficulty and no need for such a proposal. It is precisely because we do not meet for four days in a Committee of this House on a regular basis other than when Bills are before us that there is what several Members of the Committee have described as a gap. My noble friend Lady Finlay talked about a gap needing to be filled. We need to plug that gap, as she said. This is one way in which that could be done.
The right reverend Prelate the Bishop of Winchester, in his contribution, mentioned a suggestion from the noble Lord, Lord Elton, that we should have a debate about this at Report before we proceed to decide on some of the momentous issues that are inside the Bill. The noble Baroness, Lady Royall, was good enough to say in response to the noble Lord, Lord Brennan, at Second Reading, that she hoped to facilitate a debate in a choreographed way, with a debate on the establishment of a national bioethics committee coming at the head of our proceedings at Report. I hope that that will be possible. As I said at Second Reading, I feel that we have been a little back-to-front in the way that we have gone about these questions. It would have been good to have had this debate at the head of all our proceedings.
My noble friend Lady Deech spoke with great experience from her time as chairman of the HFEA, but I disagreed with what she said about experience in other countries. It is unfair to label them as either unregulated or religious because many countries have national bioethics commissions. The noble Lord, Lord Brennan, gave some examples in his memorandum to the Joint Committee. They are countries such as France, Denmark, Netherlands, Belgium and Australia. As the noble Baroness, Lady Williams, pointed out, France is secular and none of those countries could be described as a religious society. Indeed, at paragraph 34 of the memorandum of the noble Lord, Lord Brennan, he said that,
“it is pertinent that France with its tradition of secularism maintains a statutory requirement for the presence of Catholic, Protestant and Jewish thinkers on the CCNE. This is not in order to placate people, but to ensure that a proper range of positions and philosophies are addressed and considered when documents are produced”.
To pick up a point made by the noble Baroness, Lady Carnegy, I entirely agree about the experience that one can derive about politics from the experience in local government. Whether Dundee or Liverpool, I suspect that we have both had some of those same experiences.
At paragraph 43, the noble Lord, Lord Brennan, looked at other jurisdictions. He said:
“In Australia, members are appointed on a renewable 3-year basis by the Minister for Health … France selects its members differently: eight are chosen by the President, and the remainder, representing a range of academic, professional and scientific positions, are chosen by a range of ministers and academic and professional bodies. German members are nominated by the Chancellor; Danish by a combination of ministries and committees of the legislature. It is clear that appointment from central government has not harmed the reputation or output of these bodies”.
It would be disingenuous of us to suggest that we necessarily have this absolutely right in this country and everyone else has got it wrong. My noble friend Lord Tombs made an important point when he said that we can get rather territorial about these things. I would not want my noble and right reverend friend Lord Harries of Pentregarth to feel that he is being got at, but I was struck that paragraph 36 of the memorandum of the noble Lord, Lord Brennan, referred to my noble friend. It states:
“For an example of the far from ideal state of British appointments, it is not entirely healthy that of the three best known bodies in England (the HFEA, the HGC and the Nuffield Council), only two have any clerical members at all, and in both cases the member is Lord Harries of Pentregarth”.
I know that my noble and right reverend friend believes in the principle of three persons in one, but one person on two bodies and all others excluded is not a healthy situation.
The noble Baroness has just reminded me that it is the nature of monotheism. It may also be the nature of theocracy, but I do not think that any of us would advocate that.
I do not wish to chide my noble and right reverend friend. I have considerable regard for him and although we often disagree about these issues I know that he has applied his mind to these questions over the years. I know that he would agree because in a debate about the HFEA the other day he said that it would be “difficult”—to use his word—for anyone who believed in the sanctity of human life from fertilisation to be appointed to the HFEA. He would agree that that is what he said.
On a point of clarification, it is not impossible, but such a person would find their position slightly difficult. It is not the same when it comes to individual committees of the HFEA where people can be co-opted. In fact, the Ethics and Law Committee of the HFEA, which I chair, has co-opted a Roman Catholic member.
I am glad that my noble friend has confirmed what he said in a debate the other day—that it would be difficult for somebody to be appointed to the main body of the HFEA, the regulator, if they held the belief in the sanctity of human life from fertilisation. That would exclude the most reverend Primate the Archbishop of Canterbury, the right reverend Prelate the Bishop of Winchester and many others who hold that view. It surely cannot be very healthy in our society to exclude other opinion, even if it is dissenting or minority opinion. It would be far healthier to have a plurality of views.
I am grateful to the noble Lord. There is an issue of good faith and bad faith; we have raised that point before. I am certainly not accusing the noble Lord of bad faith—I would not dream of doing so—but I do not see how one can go on to a body in good faith and be effectively so hostile to its purpose and intent that one cannot but seem to act as though one were seeking to sabotage the purpose for which Parliament has appointed that body. I am not suggesting any challenge to anyone’s individual integrity. I am sure that one would seek to mediate in that situation. However, it raises a profound issue of bad faith, and the way to avoid that is for Parliament to be the forum for those debates. When Parliament in its wisdom has judged that an institution or non-departmental public body should be set up to facilitate the will of Parliament, it is bad faith for individuals to go on to that body to seek to subvert that which Parliament has authorised.
Does the noble Baroness agree that the words “sabotage” and “subvert” have a particular sharpness? Reasoned and informed questioning, which I suspect is what the noble Lord, Lord Alton, has in mind, does not have that particular sharp edge.
I agree that some people may come on with less pronounced views than others, in which case it may lead to a reasoned, agnostic view about some of the procedures. However, if you go on to a body associated with embryo research, when you believe that that process is fundamentally wrong because you believe that a life is created at the point of procreation, that would be problematic. In various letters I have received, and I do not doubt that other noble Lords have received similar letters, people have said to me that when dealing with human embryos the size of a grain of sand we are talking about tiny human beings. That suggests issues of problematic faith in the integrity of one’s position.
They are different; I was about to make that point. The parallel I was drawing was that it is not impossible for someone like that to serve, even on a regulatory authority. For instance, I serve on a local ethics committee at my university that deals with animal experimentation, and there is member of that committee who opposes vivisection. He is not there to subvert or sabotage; he is there to question. As I argued earlier, it is legitimate for someone to be on the Human Fertilisation and Embryology Authority as amicus curiae to argue on behalf of the human embryo. We have used 2 million human embryos, either in IVF cycles or in experimentation, in the past 17 years. Surely it is legitimate to have someone questioning whether repetition, duplication, and so on is necessary. Although I know that the noble Baroness, Lady Hollis, is not suggesting that I would want to subvert or sabotage such a body, appointing people who could act in good faith to question the necessity of the numbers of human embryos currently used is worthy of further consideration.
The noble Lord is being extremely patient. Does he agree that in some of the remarks made there is a slight danger of stigmatising people who have particular beliefs? It is beginning to come across as strongly as the territoriality which the noble Lord, Lord Tombs, referred to earlier. Some of the recent interventions to which he has just responded have suggested that people of a particular faith or view, or who care for the embryo—however it is stigmatised or parodied—should be excluded from these great committees because they are not politically correct enough to be on them. Does that not make the case for a national bioethics commission, which we hope will be a broader body that could consider the broader bioethical issues?
I can do no better in responding than quoting the memorandum of the noble Lord, Lord Brennan, again, who said in paragraph 37:
“Yet there needs to be a balance between eminent figures and those less so: as what is required is serious investigation of a range of divergent views, especially popular ones, the skills and experience necessary for this will not always result in fame or prominence”.
I agree with him that such diversity is necessary. I must give way to the noble Baroness.
I will be brief. The noble Lord said—and it was confirmed by the noble Lord, Lord Patten—that the case for the national bioethics commission was being made. I suggest that the case is being made for the parliamentary committee. We are demonstrating precisely those problems of appointment and selection of different points of views, which are automatically represented in Parliament, as we have seen this afternoon.
It would be surprising if the noble Baroness, as a former leader of your Lordships’ House, did not make the case for parliamentary scrutiny and parliamentary committees. However, when the Science and Technology Committee looked at these questions, it argued for both, and that is what I have been arguing for today. It is not one or the other; the 2004 report said that we should do both. In answer to the noble Baroness, Lady Carnegy, it also asserted the importance of local ethics committees. That is worthy of review. My noble and right reverend friend Lord Harries suggested that the existing parliamentary committees—he mentioned the Science and Technology Committee—were capable of doing these things. However, the recent report of the House of Commons Science and Technology Committee looked at the issue of late abortion. At the outset of its enquiry it specifically excluded any consideration of the ethical issues. It said that it did not want to look at those questions. That is a matter for the committee, but that is not doing the job that we have argued for today.
I should like to make one other point about the excellent work that the Nuffield Council does and then I shall give way to the noble Baroness. I said at the outset that I have considerable admiration for it. I have seen many of its reports that warrant our detailed attention. The noble Lord, Lord Brennan, at paragraph 40 of his memorandum, cited the example of genetically modified crops, which perhaps bears out a point that the noble Lord, Lord Tombs, made:
“For example, with GM crops “unnaturalness” is a very major part of popular discomfort—albeit one that is often dismissed as nonsense in scientific circles. The Nuffield Council devotes two paragraphs to this in its report and concludes that it is inconsistent and not worthy of consideration”.
So, it does not always get things right either. It is not enough to suggest that existing parliamentary committees, or indeed outside bodies, frequently populated by the same people, are adequate to do the job that the noble Lord, Lord Brennan, suggested. I am conscious that I did not give way to the noble Baroness earlier.
I simply wanted to make a point that a number of noble Lords have made. It is not that we believe that the Science and Technology Committee is capable of doing this. I thought that it was to be commended for making the bald statement at the beginning of its report that it did not wish to address ethical matters, because it did not feel equipped to do so. Some of us have been arguing for a parliamentary committee that could draw upon the strengths of and work in tandem with the expertise that exists, and there a great amount of it in science and technology, particularly because we wish to see a body that will look at coming technical and scientific developments, and their ethical implications as one of its main tasks.
The noble Baroness has made my point for me; it was argued earlier that the existing Science and Technology Committees were capable of carrying out a lot of the investigative work on ethical issues. In the particular instance I gave, they excluded those issues, and the noble Baroness has confirmed that. I am conscious that the Committee’s time is moving on, and I ought to end.
I want to conclude by going back to a point that the noble Baroness, Lady Williams, made about the fast-moving pace of science. A report that appeared in the New York Times yesterday quoted Professor Shinya Yamanaka, who has reprogrammed adult cells to create embryonic stem cells:
“When I saw the embryo, I suddenly realized”—
this was after he looked down his microscope—
“there was such a small difference between it and my daughters ... I thought, we can’t keep destroying embryos for our research. There must be another way”.
As these extraordinary scientific developments are moving, some of the ethical dilemmas that we have had to face may be solved to the satisfaction of science, the parliamentary bodies that we have been discussing and ourselves. However, if we do not apprise ourselves of these things as we proceed, how will we know?
The Committee has listened with great patience as I have tried to deal with the points made in the debate. I know that the noble Lord, Lord Brennan, will want to return to the issue on Report. With those remarks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 33 to 38 agreed to.
Clause 39 [Use of sperm, or transfer of embryo, after death of man providing sperm]:
66A: Clause 39, page 37, line 43, at beginning insert “either the man was married to the woman at the time of his death and he and the woman were trying to conceive, or”
The noble Baroness said: This is a probing amendment, and I look forward to hearing a response and clarification from the Government. I preface my remarks with that, because I am not sure that we should debate at any great length the pros and cons of my amendment; I simply seek clarification to know where to go next.
Clause 39(1)(b) is about whether,
“the creation of the embryo carried by W was brought about by using the sperm of a man after his death”,
and so on. This will probably be called the Diane Blood amendment, so I shall call it that myself, because that is where the need for clarification comes from. In 1995 Mr Blood died of meningitis, and we have had a lot of legislation since. I fully acknowledge that taking sentences out of a judgment sometimes makes for an inappropriate quotation, but two passages leapt out at me from the judgment of the noble and learned Lord, Lord Woolf. The first is:
“The result is that in the ordinary way no preservation can take place unless the required written consents exist”.
That related to the preservation of extracted sperm from the man. Secondly, the final paragraph states that:
“Our decision means that, unless fresh sperm are being used, there will always be a need for written consent which complies with the Schedule. It seems therefore that in future those who are responsible for treating a man and a woman together should take the precaution of having the necessary consent, not only to storage but also to enable that treatment to continue if the man should have the misfortune to die before the sperm is sperm”.
I fear that that last word might be a misprint on the website, and should be “used”. That judgment related to the 1990 Act—the Act that we are looking to revise—hence my questions.
In the Mental Capacity Act, we now have provision for an advanced statement of wishes, which, if properly recorded, must be considered when a best-interest decision is taken on a patient. I put “married” in the amendment because I felt that it was a clear, external demonstration of a commitment—one could assume a lifelong commitment—to provide a stable environment in which a couple would have children. Let us take a married couple who want to conceive and are having sex regularly, and it is clear that they are completely committed to each other and to having a child together. Maybe when they are advised to carry on trying, and to try certain times in the month and avoid others and so on, and that is clear to their GP, the man becomes ill and dies. They are fully aware that the woman could conceive and that, within a month, the man could be killed in a road accident. In that event, the advanced statement of wishes could or should be respected. The man could state that it would be deemed to be in his best interests as a person, should he become severely incapacitated, for his sperm to be withdrawn and stored so that the woman—at a future date, when she has recovered from the bereavement—could use his sperm rather than anyone else’s, if she so wishes and decides to go for infertility treatment. That would be lawful.
The man’s sperm might already be held when he dies. According to the Bill, I understand that it would then be lawful to use that sperm, because all the consent forms would have been written. The other situation that could arise is, of course, that the bereaved woman still wishes to have a family on her own. She could go to an infertility clinic and might be accepted for donor sperm. For her, the rest of her family and the situation in which she finds herself, the sperm of her dead husband might be the material that is ideally wished to be used.
It is in that spirit that I wanted to explore the matter. That is why I crafted the amendment as I did. I look forward to the Government’s reply. I have had advance notice, which I appreciate, that the noble Baroness, Lady Deech, will oppose the amendment, but I seek clarification. I beg to move.
Maybe we can speak plainly about this and scrape away some of the difficulties of a lengthy clause, to which my noble friend Lady Finlay referred. It grieves me to disagree even with her probing, because I so admire her leadership in medical matters.
When sperm is taken from a man before his death, he is able to consent; his mere co-operation with the procedure is consent. There is no more valuable and ethical principle—every point of view on every committee mentioned this afternoon would agree—than consent. That is embedded throughout the Bill. The situation to which the noble Baroness refers is one where the man is dead or on a life-support machine, has not given any written consent, and sperm is to be taken from him completely without his knowledge. The lawyers would have a field day with the amendment, because it refers to marriage; I am sure that there would be a human rights challenge saying that cohabitation and any intimate relationship must have the same rights. How would one know whether people were trying to conceive? We would have the word of only the widow on that.
I hark back to my practical experience. In the period of the Diane Blood case, we got a phone call—no doubt on a Friday afternoon—from parents saying that their son had died in a motorbike accident that afternoon and asking for his sperm to be extracted; there is a window of only a few hours in which that can be done. I replied, “We would all like to be grandparents, but that does not enable us to manipulate the bodies of our nearest and dearest”. One essential element to consent is that we must all have control as far as possible over our reproductive future and our gametes, which are not the same as other tissues. They are quite different because of the family implications.
The Blood case involved a straightforward assault, and was admitted as such by the judgment of my noble and learned friend Lord Woolf. The Government followed the case with a report by Professor Sheila McLean, with which the Government agreed when her conclusions came forth. Her report and the Court of Appeal judgment said that that must never happen again because it was an absolutely straightforward assault on a dying and then a dead man.
If Parliament wishes to change the law so that dead bodies are to be regarded as a source of valuable gametes, Parliament should do so directly. I suggest that that would be the ultimate degradation and commodification of the bodies involved. Women have fought a long fight to ensure that no means no and that they should have control over their bodies and, as I have said before, men are equally deserving of respect, honour and integrity in such a situation, but that would be threatened by the amendment of the noble Baroness.
How would it come about? A man on a life support machine or a dead man would have his sperm removed either by cutting into the scrotum or by electro-ejaculation, which involves the insertion of a baton into the rectum to deliver electric shocks which apparently produces sperm in the bladder from whence it can be removed. I spell that out to the Committee because the nature of the assault on the dead body has to be understood. In such a situation, not only has the man not consented, but he will not even know what is happening. In response to the McLean report and to my noble and learned friend Lord Woolf, the Government accepted that was wrong, although everyone concerned had sympathy with the lawyers.
The fact that a marriage has taken place makes no difference: for example, for centuries it was argued that a husband could rape his wife because in the course of the wedding ceremony she had given her consent for all time to sexual intercourse. That was changed a number of years ago. However, the principle is the same. On marriage one does not yield up all control over sexual matters or reproduction. It is for each one of us to give our consent and to decide whether that should or should not happen. Many men—I understand soldiers going into danger do this—may wish to freeze a sample of their sperm and indicate that it may be used after their death and any piece of writing will suffice.
The situation we are addressing and which I regard as totally unethical is to remove sperm from a dead man. Because of the law of human rights, that would apply equally to a woman’s eggs. If the amendment were passed, it would lead to a human rights challenge, which I am sure would be won. Imagine a young woman dies, say, in a high-speed car crash and maybe her husband, fiancé or boyfriend goes to the hospital and says, “Please remove her eggs and freeze them; I will fertilise them with my sperm; and I will find a surrogate mother to bring the child to birth”. Or imagine, without naming names, that a young woman dies in a high-speed car crash, as does her boyfriend, and the father of one or other goes to the hospital in that very narrow window of time in which the sperm and eggs can be taken and says, “Take the sperm and the eggs; they told me they were going to get married; I know that that is their wish; please freeze them and I will pay a great deal of money for a surrogate mother to carry the baby to term”.
I will not go on because the night is drawing on, but I urge the Committee to consider the integrity of the human body and the need for us to be able to consent or not to our reproductive future. I am afraid that marriage in this context makes no difference; we are all autonomous. I very much hope that the amendment, which has been considered by government bodies in the past, will not be pursued.
Clause 39 replaces, for the future, the provisions inserted into the 1990 Act by the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. These provisions relate to the registration of a man on the birth certificate of a child born using his sperm—or an embryo created using his sperm—after his death. As the noble Baroness, Lady Deech, rightly says, the vital word here is “consent”. Amendment No. 66A tabled by the noble Baroness, Lady Finlay, would allow a married woman to register her deceased husband as the father of her child, where his sperm was used, or an embryo was created with his sperm, without the need for his written consent, if they were married and trying to conceive at the time of his death.
The Bill clearly specifies that written consent is needed from any man, whether married or not, and I feel that this is necessary to avoid any uncertainty about his intentions. Using a man’s sperm or an embryo created from his sperm after his death is a significant step. The Government are of the view that it is important that such a step is taken only with that man’s explicit written consent. That ensures clarity and certainty about his wishes. In addition to removing such clarity, this amendment would introduce a two-tier system of consent in which a married man would not have to provide it but an unmarried man would. The Bill allows for unmarried and married couples to be treated consistently and the amendment would introduce a discrepancy. I invite the noble Baroness to withdraw the amendment.
I would like to explore further the issue of consent. I was talking about an advance statement, which we have already debated under the Mental Capacity Act and which one is now asked, in law, to consider in the making of a “best interest” decision, if one takes a decision which could potentially be viewed as an assault on someone. The noble Baroness, Lady Deech, said that any piece of writing would suffice. Therefore, can the Minister clarify the situation of a couple who are trying to conceive? They have written down and lodged with someone such as their GP a piece of paper saying, “We are trying to conceive but in the event of my potential death, I would want to have sperm extracted from my body and stored so that it can be used in the future”. Would that fall within the law? It is very important for couples, whether married or not, to know the position. If the situation has arisen once it can arise again.
I shall respond fully in writing, but my understanding is that if written consent is given, as in the case of an advance statement, as the noble Baroness, Lady Deech, says, that would be deemed to be consent. It is important that consent is given.
I am most grateful. Perhaps I may sum up. My understanding is that what could be considered to be an advance statement could also be used as evidence of consent to the process. Although the noble Baroness, Lady Deech, has laid out very graphically the process of extracting sperm, I remind the Committee that when someone is dead they have no sensation. They may be declared brain dead but one can still extract sperm using the method described. I wanted to explore that because of the changes in legislation that we have had since that decision was made and because I understand that Diane Blood, to whom I referred earlier, has had a second pregnancy using the sperm that was withdrawn earlier. So, long-term storage outside the UK occurred and another pregnancy took place and the father is now registered on the birth certificate as the person to whom she was married.
I speak as one who agrees entirely, though my agreement does not have the same weight, with what the noble Baroness, Lady Deech, has said and therefore what the Government have said. But I wonder whether the noble Baroness has considered that even if a couple, married or unmarried, were seeking to have a child and even if that had been put in writing, what happens if a man—or indeed a woman but we are talking about a man at the minute—is not simply killed outright in an accident but faced suddenly with grievous terminal illness? That would put us in a very interesting situation in relation to the questions debated in the Committee on Monday about a child’s need for a father. I could conceive—wrong word, forgive me; that was not intentional—I can imagine that a man and his wife might well change their minds radically when facing terminal illness and imminent death. That needs to be taken into account as a further subsidiary element to the very powerful points that the noble Baroness, Lady Deech, has made.
Of course anyone can withdraw consent at any time. That is completely clear. In previous debates there were very strong cases made—with which I concur—for a child’s need for parenting from more than one person but that the parenting does not necessarily have to be from the biological father. In fact, children do well with stable adults in the background, which was part of the reason for wishing to explore it. I fear that I have forgotten the point made and therefore have not replied.
I merely wanted to point out that the noble Baroness referred in her original amendment—with which I think we are all agreed there would be profound difficulties—to married couples. I said that if there was written consent making it possible for the woman to go ahead and use the sperm of the deceased man, it would of course apply to unmarried couples as well. I just wanted to verify that.
I am most grateful for the comments from across the Committee. I hope the clarification may be helpful. I need to go away and think about it. I knew the amendment was imperfect and prefaced my remarks by saying that it was probing. I am grateful to the Committee for the time spent on it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 39 agreed to.
Clauses 40 to 45 agreed to.
Clause 46 [Embryo transferred after death of civil partner or intended female parent].
Before we begin the next group and just so that noble Lords know precisely what is happening I should say that we have, as may have been noted on the Annunciator, cancelled the last debate today. That is obviously very inconvenient for those who came to take part but I thought it the right thing to do because these proceedings have gone on a tad longer than I had anticipated. The House needs to be told that formally and that is what I am doing. The last debate is postponed until some time in the new year.
Schedule 6 [Amendments relating to parenthood in cases involving assisted reproduction]:
68: Schedule 6, page 72, line 12, leave out paragraphs 1 to 9
The noble Baroness said: I will try not to detain the Committee too long but there are some important issues here. These amendments actually call into play Clause 46, which in a way is in the wrong place. They are about the fundamental purposes of birth registration. We are talking about a birth registration in these clauses, not a record of the legal relationship between the adults. It is the welfare of the child that is paramount in English law, not the formal benefits that might accrue to the parents. Using birth certificates to record the adult relationship is not the way to certify the relationship between two people of the same sex or to secure their obligations to the child. Paragraphs 1 to 9 of Schedule 6 provide for two women—and it would have to include two men as well—to be registered as parents on a birth certificate and for the legitimacy of the offspring.
In an earlier set of amendments your Lordships considered without much favour the notion of marking a birth certificate with the information that the child was conceived by donor gametes. The arguments against that amendment were the invasion of privacy and the interference with parental concerns about when and what to tell a child. The provisions of Schedule 6 regarding the birth certificate suffer from the same problems, which are indeed exacerbated. For without even the slight disguise provided by a symbol, it will be immediately apparent to anyone perusing the certificate that the child was born either from donor sperm or a donor embryo or to a surrogate mother. These facts and circumstances apparently accompanying them will be broadcast wherever the birth certificate is produced—government departments, schools, passport agencies and all the other organisations that require a full birth certificate. Now that everything these days is globalised—another way of saying that we travel a lot—the certificate with two parents of the same sex on it will divulge facts like that in parts of the world which, unlike us, might treat the situation with considerable disfavour.
The birth registration will be used to gain nationality, too, in circumstances where fraud is all too easy. It could be used where the mother has conceived naturally and wants to exclude the natural father. The birth certificate with two same-sex parents will give insufficient information to help towards identifying antecedents and will give rise to unnecessary anxiety about possible medical problems which could not be resolved. The child might not even know which of, say, two women on the birth certificate is actually physically the mother. It should be recalled that the tendency of this entire Bill and its thrust is towards greater truth in IVF—truth for children about their origin—and this is not the way to do it. I am sure your Lordships favour the assumption of legal responsibility by same-sex parents for their children and there are ways to achieve this in law that do not hinge on the birth certificate record. Nor is the birth certificate the way to formalise a particular link that exists between two parents of the same sex. Perhaps a special domestic cohabitation certificate should be devised instead to fulfil that need rather than the distortion of the birth register for all time.
Clause 46 is the most egregious of the registration provisions. It provides that after the death of a same-sex partner, he or she may be registered as the child’s parent on the birth certificate. The deceased’s partner will never have seen or known the child and has no genetic relationship with the child. Their family may or may not in the circumstances bond with the child. Registration of a deceased partner of a mother is of no value to the child socially but may leave the child with a lifelong sense of fiction to which the state should not be a party. It does not provide for inheritance rights. All it would record where one of two partners is dead is that the two women or men were intimate friends. This may be a comfort but it is of no practical benefit to the child born after the death of one of them. The authenticity of consent in relationships is very hard to prove when death has removed one of the parties. We need to be careful not to trespass on the wishes, or worse still the bodies, of deceased loved ones and there is a danger in Clause 39 if consent is not strictly adhered to.
Overall, the schedule puts the demands of adults ahead of the rights of children to know and benefit from both sides of their genetic make-up. It sits uneasily with the ending of donor anonymity. As recently as this June, John Hutton, Secretary of State for Work and Pensions, called in a paper for the numbers of children with no father on the birth certificate to be reduced. That paper is on the Department for Work and Pensions website.
Members of the Committee know that not all unions between two adults can be the same, or must be treated the same, for all purposes. UK law still does not recognise, for example, underage, incestuous or polygamous marriages. It is the hallmark of a civilised society to set boundaries around mating and conception to control, for example, abortion laws, the age at which children may consent to sex, marriage and the prohibited degrees. If two parties of the same sex have to take steps other than birth certificate registration to seek legal responsibility for a child, as is the case now, at least that ensures that the welfare principle will be considered by the court.
Articles 7 and 8 of the United Nations Convention on the Rights of the Child provide the,
“right to know and be cared for by his or her parents”,
and the right of the child,
“to preserve his or her identity”.
Those rights are threatened by these provisions. This is not a moral issue: it is about disguising true facts. We know that computer records can be insecure and possibly vulnerable, but the birth certificate is the record for generations to come. The study of ancestry should be remembered; there is a need for truth in these situations.
This schedule confuses biological genetic parenthood and legal social parenthood. There is a risk of creating a legal and social quagmire of adult claims and counterclaims over the children’s status. It would mark a shift in the function and purpose of birth certificates. Instead of providing for all time permanent and available information about biological parentage, birth certificates would be used to assign legal and financial responsibility to non-related individuals. The door was opened to this by the 1990 Act, but the full consequences were not foreseen. The child might not even know which of the two mothers bore him.
Civil partnerships differ legislatively from marriages in a number of respects. There is no reason to suppose that civil partnerships were intended to create a new procreated unit. One should note that dignity and titles of honour are exempted from the new provisions on registering two people of the same sex on a birth certificate. That must mean that there is some notion that truth is important. If it is important for titles of honour and dignity, then it is important for everyone else. Birth certificates are about origins, not statements of adult commitment, which should be made elsewhere. I beg to move.
I should point out that if the amendment is agreed to, I cannot call Amendments Nos. 68A or 68B.
I shall speak to Amendment No. 68A, which I tabled in part because, as was the case with our discussion on Monday about birth certificates, I felt that there was a need for clarity. I have to say that the speech of the noble Baroness, Lady Deech, has reinforced that.
I want to make a point of information. There can only ever be one mother registered on a birth certificate— the mother who carries the child. I have suspected for the past few weeks that there was some confusion in the Committee about what the Bill’s provisions would mean. My Amendment No. 68A would propose that the birth certificates for everyone, no matter how they were conceived, would consist of the following information: name, name of a mother and name of a father—to which I shall return—or a parent. It is also important to recognise that, since the passage of the 1990 Act, the name of a father on a birth certificate is not the name of a donor. It never has been. That sets a problem for us, as it did on Monday, when we begin to discuss different matters.
Birth certificates are about the relationships of the adults to children. They are not a way of recording the relationships of the adults to each other; that is what other forms of certification have always been for, whether marriage certificates, civil partnership certificates or divorce certificates. Birth certificates are about registering the relationship of the parents to the children.
On Monday, the noble Viscount, Lord Craigavon, helpfully pointed us back to another bit of truth. A longitudinal and international study by Liverpool John Moores University suggested that, were the population to be tested—and before eyes on the government Front Bench light up, I am not suggesting for a moment that it should be—somewhere between 10 per cent and 25 per cent of people would turn out to have a genetic father who is different from the person we consider to be our father. Why? It is partly because people have lied on birth certificates ever since birth certificates have been around. People have chosen either not to register information or they have at times put down false information. Why? It is for all the reasons that people exist. I suspect that when people chose to do it, they did it for one outstanding reason: they thought it was in the best interests of the child. In any type of relationship, truth can sometimes be very difficult to live with.
In the many debates that we have had in your Lordships’ House about matters such as civil partnerships and the adoption Bill, I have always found it strange that the people who seem to attract the greatest condemnation are gay people who choose to submit themselves to close examination of their personal lives. They are seeking to do only one thing—to have their commitment to one another, and their attempts to build secure and strong families, legally recognised.
I take issue with the noble Baroness, Lady Deech, only on the suggestion that those of us who take a different view from her seek to put the needs of adults above those of children. We do not. Many of us believe that it is in the best interests of children that they are born into and live in secure and loving families and that those families, however they are made up, are recognised. Three times now in our discussions the noble Baroness has juxtaposed relationships of very different types—polygamous, underage and incestuous relationships, all of which are illegal for reasons of duress or consanguinity—with gay relationships, which are none of those things and are legally recognised. It is unhelpful that she continues to do so.
The noble Baroness talked about the measures setting up a quagmire. I do not believe that they do. I consider that they bring clarity for these families, who have existed for a long time. Some of us heard the very moving speech in which the noble Lord, Lord McIntosh of Haringey, set out for noble Lords who might otherwise not be aware that there have always been gay couples who have felt the same compulsion and need to have children that exists in the rest of the population. They have always had to act in hidden and informal ways and they have often been blighted by a lack of legal recognition. I know a person who has, over many years, brought up the child of her partner, who died. She was reliant on the good will of officials to turn a blind eye at many turns in that child’s life in order to continue giving him the loving and stable relationship that he needed.
I tabled my amendment because I believe that it represents a truth about modern life. I ask noble Lords who share the views of the noble Baroness, Lady Deech, this question. Are they going to follow the logic of it and repeal the Civil Partnership Act and overturn the sexual orientation regulations, which are the laws under which gay people have an equal right to receive the same public services as the rest of us? That would be the consequence of the amendment.
I believe that this is a matter of truth but, more than anything else, I believe that it is a test of whether this House can demonstrate that it understands and keeps pace with the way in which modern life is changing, and changing for the better.
It certainly did not seem to me that the comments of the noble Baroness, Lady Deech, justified what has just been said about them by the noble Baroness, Lady Barker. Even for someone who has significant reservations about some of the measures that she has just described, it is amply possible to recognise that they are the law and that they are not threatened by the things that the noble Baroness, Lady Deech, said.
I am grateful for what the noble Baroness, Lady Deech, said. I want to make five observations and then return to one thing that she mentioned early in her speech. The first point where it seems to me that she is right and where I disagree with the noble Baroness, Lady Barker, concerns the question of birth certificates. Given a choice between disagreeing with what is a fiction in relation to the child and the question of the current adult relationship, it seems to me that we must follow the proposal to remove these paragraphs from the Bill and not create a fiction about the child. I believe that the noble Baroness, Lady Deech, is right in saying that that is what a birth certificate fundamentally relates to.
Secondly, although I do not want to get into this in any detail, some of us raised this point some years ago during the passage of the Gender Recognition Bill. It seemed to some of us that serious things were being done to the integrity of birth certificates. I do not reopen the question—we lost that argument—but it is something that this House would be wise not to get into the habit of doing, because these are very important documents.
Thirdly, I want to question something that the noble Baroness, Lady Deech, said. I was very surprised when I thought I heard her say that disguising facts was not a moral issue. I should have thought that it was an intensely moral issue, particularly as, throughout her speech, she talked about truth, which I welcomed.
Fourthly, I was unable to be here on Monday, although I have read the debate in Hansard. However, had I been here, I should have wanted to note that, notwithstanding the legal definitions of “parent”, which at one point were carefully drawn out in relation to both English and Scottish law, I did not notice anyone saying that there is a still more fundamental question. My understanding of the word “parent” is that it means a progenitor. It means a mother or a father in the strictest physical sense, whether by donation or whatever. It means, in the genetic sense, a mother or father. Although I recognise the interests of this Bill, I am very troubled by what I see as an untruthful widening of the meaning of “parent”.
That leads me to a fifth point. It may seem abstruse but, like the noble Baroness, Lady Deech, I think that it is a fundamental and legitimate point to mention. My profound concern is that, as I understand it, the Government will apply the Whip to the Bill in both this House and the other place. This is one of the many points in the Bill where there seem to be legitimate questions relating to doing things to “truth”. It is a very regrettable point at which Members of this House and the other place may be Whipped rather than having a free vote.
I take exception to being told that if this is a government Bill and members of my party, to which I am proud to belong, are expected to support it, in some sense they are deforming truth. I find that an unfortunate way of suggesting that those who believe in a government measure based on wide consultation followed by draft and pre-scrutiny legislation—a measure that some individuals take issue with, although I certainly do not suggest that they do so in bad faith—are themselves acting in bad faith and deforming truth.
I do not believe that that is the implication at all. I think it is a failure on the part of the Government who make the decision about imposing Whips. Once that decision is made, a range of loyalties come into play. I certainly do not impugn the faith of those who then follow that Whip but I think that it is questionable to apply it. Perhaps I may continue with my sixth point—
I am grateful to the right reverend Prelate for giving way. Before he leaves that point, I should like to concur with what he has just said. The Science and Technology Committee and, I believe, the Joint Committee said that there were clear questions of conscience here and that this might well be territory in which free votes should be permitted. Certainly, that is precisely what happened in another place with the 1990 legislation. When we debated it there, there were free votes on these questions. I think that it would be a shame if these votes were Whipped at subsequent stages and, in that respect, I agree very much with what the right reverend Prelate said.
Perhaps I may say one thing. As my noble friend Lady Hollis pointed out, this is a government Bill, and there has been very wide consultation on it. It is therefore Whipped, apart from any vote which may occur on the subject of abortion. However, because it involves clearly moral and sometimes very difficult issues, if individuals have a problem in relation to any part of the Bill, the government Chief Whip will look on that very kindly. Therefore, one must not think of this as a draconian Whip. This is government business and so we have a Whip. If, however, individual noble Lords have a problem, it is possible for them not to be here or whatever.
I am very grateful to the Minister. Although I was not regretting it already, that discussion makes me regret still less having raised the question.
My last point is rather more delicate but I believe it is worth raising in the Committee the issue of where truth lies and, more widely, the issue of conscience. At an early point in her speech, the noble Baroness, Lady Barker, spoke about entries in forms and, if I heard her correctly, perhaps a need to change the names on the columns of birth certificates. The Committee should understand that the result of the civil partnership legislation, which I accept is the law, is that way down the line significant numbers of parish clergy—and among the parish clergy there are some who are by no means happy about the civil partnership legislation—will find themselves thinking that they are bound to collude with it in filling in the new forms sent out by the registrar-general for registering marriages. There are serious question of conscience there. There have been questions of conscience for those who are employed as civil registrars. I foresee some difficulties in offices in various parts of government at the point at which a fiction enters into birth certificates if these provisions are passed. Those are among my further reasons for thinking that the noble Baroness, Lady Deech, and others are on to something very significant in their opposition to these—
I am sorry to intervene—perhaps I am not really very sorry, but I ought to apologise and say how grateful I am to the right reverend Prelate for letting me intervene on him yet again. I cannot accept his reading of abuse of conscience in terms of civil registrars. I understand that in terms of clergy—certainly for a non-state church, although one could argue about the responsibilities of a state church—but where secular, appointed officials hold down a job under parliamentary writ and authority, their conscience in good faith is to all of the ramifications of that job as laid down by law. They may not pick and choose to decide that they will or will not, for example, register somebody who is black or yellow or brown or too small or too large or gay. That is part of the responsibility that comes with holding office by law established.
I remember that discussion during the passage of the previous legislation, and I respect the noble Baroness’s convictions and their power in law. I do not regret that I and others raised that question because there are people who, having taken office in good faith before the law was changed, have found themselves in real difficulty.
The other thing I would say—we certainly shall not go into this in this debate—is that the term “a state church” is difficult in relation to the Church of England. I am sure the noble Baroness would not push that too far.
I did not understand the point the right reverend Prelate was making. My understanding is that civil partnerships cannot be registered by the church and that the one place that it is not possible to have a civil partnership registered is in a religious building. I would appreciate clarification of the problem.
The point is that it is part of the responsibilities of a cleric preparing to solemnise a marriage under the Civil Partnership Act to ascertain not only whether a person has been married before but whether they have been in a civil partnership or rather whether they are in a civil partnership. At that point, certain clerics find themselves, as they would see it, asked to officiate in something by taking notes and filling in forms about which they are significantly uncertain. That is the point at issue. They are bound to ask that question.
We are discussing Amendments Nos. 68, 69 and 70, which were tabled by the noble Baroness, Lady Deech, and the noble Lord, Lord Alton. Since December 2005, same sex couples have been able to have their relationships legally recognised. From that time, couples registering as civil partners have had the same rights and responsibilities as married couples in most areas of their lives, including the ability to apply for a parental responsibility order for a partner’s child.
However, while the Civil Partnership Act provided for the acquisition of parental responsibility, it did not provide for civil partners to be joint legal parents following assisted conception with donor sperm, for both partners to be legal parents of that child or for that fact to be recorded on birth certificates. The Bill allows that same-sex couples, whether in a civil partnership or being treated together, can both be legal parents of a child born through assisted conception. For these provisions to be fully legally recognised, the Bill includes amendments to other Acts to allow birth certificates under UK, Scottish and Northern Irish law to record that.
I understand that some see as a fallacy recording on a birth certificate that a child has a mother and a second parent who happens to be female. However, I must point out that a child born to a married couple by the use of donor sperm has recorded on his birth certificate that the husband is his father, although he is in fact not his biological father. Currently, if a same-sex female couple have a child as a result of assisted conception, only the mother’s name will go on the birth certificate. If the second parent then goes through the process of adopting the child, a new birth certificate will be produced that has the mother’s name and the name of the second parent. Therefore, having the name of a mother and a second female parent on a birth certificate is not a new concept in birth registration.
The noble Baroness, Lady Barker, is correct to say that there is only ever one mother on a birth certificate and there can never be confusion about who is the mother. The noble Baroness, Lady Deech, referred to my right honourable friend John Hutton, who said that we want more fathers on birth certificates. There is no question that where a father is legally responsible for a child we want his name on the birth certificate. We want more fathers, but in that case the mother and the father are legally responsible for the child. In the cases that we are discussing in this Bill the mother and another parent are the two people responsible for the child. Legal rights and responsibilities flow from the names cited as parents on the birth certificate. Those rights and responsibilities are in best interests of the child.
Amendment No. 68A, which was tabled by the noble Baronesses, Lady Barker and Lady Warnock, and the noble Earl, Lord Howe, seeks to ensure that birth certificates include information about mother and parent, rather than, in essence, two mothers. This amendment is not necessary as it is already the Government’s intention. The Department of Health has already been in discussions with the Office for National Statistics, and that is how the information will be recorded on birth certificates. I ask the noble Baroness not to press her amendment.
I think there is still confusion about the purpose of a birth certificate. It is not to legitimise or recognise in any way the union of the two adults who are on it, and it should not be used in that way. My point about polygamous and incestuous marriages not being allowed is that if a child is born of such a union no doubt the names of the two parents are on the birth certificate and that is all that it means: the child’s origins. It does not seem to me to be in the interests of the child—and that is what we are talking about—to list two people on a birth certificate, which that child will carry for the rest of his life and will have to produce all over the world, who are plainly not both his genetic parents. I know that there has been a breach in the normal rule in that children born by donor conception to wives and husbands where the husband is not the father can have the husband listed. We are now moving forward into a yet more technologically adventurous world, and it may be that in retrospect more should have been said for truth, albeit that it can be inconvenient. If your Lordships were not minded to support birth certificates that show clearly that donor conception had taken place, it is illogical to want birth certificates that name two women or two men as parents. Certificates are used for all purposes and in an increasingly globalised world will be used all over the world as proof of this and that. We should be focusing on the child’s origins, not the situation of the parents.
There are still some differences in English law between the various unions. That is not to stigmatise any; there are simply a variety of unions, recognised and certificated in various ways. However, the birth certificate is something else again, so I am simply making a plea for historical truth for future generations. If the names of two women, or two men, are on the birth certificate the child would be extremely confused, and news would be broken to it far earlier than the mother might have intended. That is what I mean to say.
I would not wish anyone to believe that I am equating all legitimate and decent unions with ones of which society disapproves. I am simply pointing out that whatever union the parents have is a separate issue from what goes on the birth certificate.
Before leaving that point, does my noble friend not believe that there is some danger of contradiction between what we are suggesting today and what we debated a couple of days ago? We were debating what happens when a child is donor-conceived. My noble friend Lady Warnock made the important point about telling truth in these circumstances. The noble Baroness, Lady Barker, came forward then with a thoughtful idea about the marking of a second birth certificate to illustrate that you were donor-conceived. Is that not all that my noble friend is calling for in her remarks on truthfulness in the public record?
I must support my noble friend. I have now become bewildered about the relation between what we talked about when discussing Amendment No. 68A and what we are now saying. I may have misunderstood her, but I thought that the Minister had promised to go further into whether any way could be devised to mark or keep a separate certificate—I thought that was the proposition which the noble Earl, Lord Howe, put forward—that makes it much more difficult for a child to be permanently deceived about his own origins. I should be grateful if the noble Baroness could explain the relationship between what was said then and what we are saying now.
I add my support to the question just asked by the noble Baroness, Lady Warnock. Let me say immediately that I was, and remain, a strong supporter of the legislation that brought about civil unions. However, I am concerned about effectively deceiving the child herself, or himself, on the birth certificate. The child will know that you cannot be the biological child of two parents of the same gender. Therefore, the child is bound to keep asking questions about who the father was. The issue is about the biological origin of the child.
If there is an adoption certificate—as it is, of course, possible for the other partner to agree to adopt the child—that is clearly not a statement of biological origin, but of responsibility toward the child. Being the adoptive parent on that certificate seems a perfectly legitimate route for the other person to take, and it does not involve deceiving the child. However, if a birth certificate does not reflect accurately what such certificates are about—that is, a statement of biological origin—then, far from actually adding to the stability and happiness of the child, one raises huge issues and questions about how that child came to be. Because children, especially adolescents, seek the genealogical story of how they came to exist, we will, almost inevitably, not be bringing this issue to a peaceful outcome but making it very difficult.
I also share the view of the noble Baroness, Lady Deech, about what will happen in some other cultures as people travel from place to place. If I may put it rather brutally, I share some concern about how the immigration services in our own country would deal with a child arriving with a birth certificate that, by the nature of things, could not be biologically accurate. I can imagine asylum-seeking children being rejected on the grounds that they could not possibly have two parents of the same gender.
I am terribly troubled about this—not because I have any prejudice against the matter, but about a legal acceptance of something that is not a fact suddenly becoming a fact because Parliament says so. We may recall that famous quotation that Parliament can, in its sovereignty, do everything except turn a man into a woman or a woman into a man. I therefore hope that the Government will take this back and look seriously at whether some device of the kind proposed by the noble Earl, Lord Howe, could be adopted. We need to find some way out of what seems an almost impossible dilemma, and one that—regardless of one’s feelings about the Bill in other respects—we should not accept.
In responding to the noble Lord, Lord Alton, I hope to help the whole Committee. There is no contradiction between what was proposed on Monday about annotating birth certificates and today’s debate. Ironically, the one group of children who would know that they were donor-conceived were those who had two mothers as parents. The deception, if one may call it that, is more likely to be perpetrated on children whose parents were heterosexual —as, indeed, it has been since the 1990 Act, because we have had birth certificates stating that a man was the father of a child when he was not.
A birth certificate is not a certificate of somebody’s genetic identity. We do not have such a thing, and never have had. The noble Baroness, Lady Deech, and I disagree here, but it is a record of who a child’s social parents are at any time. Therefore, since the passage of the Civil Partnership Act, it is possible for children to have two parents of the same sex. Those people take on the legal responsibility, social welfare responsibility, and all sorts of things, such as medical decision-making, which go on throughout the life of a child. That life is more important than the moment of their birth being recorded, which is why having an annotation of their family is important. They are a family; there are rights and responsibilities that go with having children.
It would be wrong to suggest to any child who was born into a family, and whose birth was planned, wanted and much desired by the two people constituting that family—that is, the two people in the partnership—that that was not so. It is not about trying to deceive people; on the contrary, it is a different kind of truth.
I will clarify the position in response to the question put by the noble Baroness, Lady Warnock. The Government’s position on today’s amendment is absolutely firm. We think that the Bill should stand. I agreed to take back the amendment tabled the other day about whether there should be a symbol on a birth certificate for any child who was donor-conceived, whether they have same-sex or heterosexual parents. That, indeed, is what I am doing.
There is still some cloudiness over this issue. A birth certificate is not a social record but a historical record. The social situation of children, the legal responsibility for them, and questions of their maintenance and upbringing are quite distinct issues. The birth certificate is a historical record that ought to be as accurate as possible, and should not be used to achieve ends other than the facts.
The child will have that certificate for his or her entire life. There will be questions raised as he or she grows older, and certainly when he or she needs to place it in the official domain, or to travel abroad. Everything that the noble Baroness, Lady Barker, wishes to achieve can be, but by other parts of family law—a subject that I used to teach. The custody of the child, making a will in its favour and so on can all be achieved. I am simply pleading for an understanding of family law, on the one hand, and the historical record on the other. If this is passed, it will be a glaring anomaly on the historical record for all time to come; for those who research their grandparents, for adults who reach 50, 70 or 90 yet who long since have not known who the second person named on their birth certificate might be. It is simply a plea not to include a deliberate biological lie on a birth certificate.
I am sorry to detain the Committee, but the noble Baroness has reminded me of something that I asked earlier. The point that she made about how everything could be achieved by other legal means is exactly the argument that was put against the civil partnership legislation—people could use inheritance law; people could use property law; they did not need to have recognition. Would the noble Baroness repeal the Civil Partnership Act and the goods and services regulations, which would be a logical consequence of what she is trying to do?
Speaking as a former family lawyer, I am sure that civil partnerships are fine for those who wish them. It is an area of choice and one of which we can be proud, but another area is that the welfare of the child is paramount throughout our law. I am simply making a plea for the truth to be on birth certificates—or at least no obvious lie. On that note, I shall withdraw the amendment for now, but I may well return to it on a future occasion. What is being proposed is a blatant distortion of the facts and will be evident in all kinds of situations all over the world. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 68A to 70 not moved.]
Schedule 6 agreed to.
Clauses 57 and 58 agreed to.
71: Before Clause 59, insert the following new Clause—
“Amendment of law relating to late abortion
(1) In subsection (1) of section 1 of the Abortion Act 1967 (c. 87) (medical termination of pregnancy), paragraph (d) is repealed.
(2) In subsection (2) of section 5 of that Act (supplementary provisions), paragraph (a) is repealed.
(3) In paragraph (b) of that subsection, the word “other” is omitted.”
The noble Baroness said: The amendment would remove from the Abortion Act 1967 the discrimination built into it whereby a baby with a disability can be aborted up to birth, while a 24-week limit is in place for babies without disability. The amendment would effectively act as a disability equality measure. For instance, a baby with a disability could not be aborted at a stage of pregnancy later than when the abortion of a baby without disability is prohibited. Sometimes this is described as creating a level playing field. In order to achieve that, it is necessary to remove in its entirety the section permitting abortion for disability. There is no other way to redress the discrimination in the Act.
The amendment does not impact on any other sections in the Abortion Act, so that in all other respects abortion up to the current limit of 24 weeks would not be affected. In reality, this would mean that no abortion for disability could be performed after the 24-week abortion time limit. A woman receiving diagnosis of disability of the baby could still access abortion before the 24-week time limit under Section 1(1)(a), on the basis that continuing the pregnancy would involve risk of injury to the physical or mental health of herself or any existing children of the family. Abortion could not, however, be authorised on the basis of the baby’s disability.
The amendment would repeal Section 1(1)(d) of the Abortion Act 1967. Section 1 of that Act states:
“(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”.
The amendment would also repeal Section 5(2)(a) of that Act, insofar as it refers to Section 1(1)(d). Section 5 states:
“(1) No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act.
(2) For the purposes of the law relating to abortion, anything done with intent to procure a woman’s miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of this Act and, in the case of a woman carrying more than one foetus, anything done with intent to procure her miscarriage of any foetus is authorised by that section if—
(a) the ground for termination of the pregnancy specified in subsection (1)(d) of that section applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus, or
(b) any of the other grounds for termination of the pregnancy specified in that section applies”.
If Section 1(1)(d)—
“that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”—
and Section 5(2)(a)—
“the ground for termination of the pregnancy specified in subsection (1)(d) of that section applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus”—
were repealed, the amendment would right a tragic discrimination concerning babies in the womb. The law for terminations as it stands is 24 weeks, but if the foetus is thought to have a handicap, it can go full term before it is aborted. To me, that is unacceptable. With equal opportunities legislation, anti-discrimination legislation and human rights legislation for disabled people, I cannot understand why this legislation does not also protect babies before they are born.
I am told that, to kill a baby which is aborted late, a lethal injection is administered such as is given to kill prisoners on death row in America. Because late abortions are so difficult to talk about, many people do not realise that this practice is allowed.
As I said at Second Reading, the present law has been abused, with the abortion of babies with such minor disabilities as cleft palate or club foot. The noble Lord, Lord Darzi of Denham, has told me that it is now possible to operate on such babies in the womb and correct their condition. Surely something should be done now to put this injustice of aborting such babies right. How much pain does a developed baby feel in the womb? There are many aspects of life and death that we are not sure about. Have we become a society with anti-discrimination legislation that looks correct but in practice does not happen? The Bill before us has many complicated matters that are breaking new ground, but this discrimination against disabled babies could easily be rectified by accepting the amendment. I beg to move.
I oppose the amendment. I must declare an interest as chair of the Pro-Choice and Sexual Health Group. I oppose the amendment because of the information that I have received from learned bodies such as the BMA, the RCN and the RCOG. I accept without question the sincerity with which the noble Baroness, Lady Masham, has moved her amendment, but I believe that we also have to take note of what organisations such as the BMA and the RCOG tell us. They believe that the current grounds for terminating a pregnancy of serious foetal abnormality within the Abortion Act 1967 should remain in place. They say that, recognising that only 1 per cent of abortions carried out in England and Wales took place on those grounds.
They also make the point that as the Act currently does not give any guidance about how serious handicap should be defined, and as the courts have given no guidance on how this phrase should be interpreted, they believe that it is difficult to provide a clear definition of serious abnormality or produce a definitive list of conditions, and advise serious caution in attempting to do so. There needs to be sufficient flexibility to take account of individual cases.
When considering reducing abortion time limits in 1987, the RCOG, the RCM, the RCGP, the BMA, the British Paediatric Society and the Clinical Genetics Society made the following comment in their report:
“It would be inhumane to those mothers, their babies and families to insist on the continuation of a pregnancy when the foetus was known to be seriously abnormal”.
All pregnant women in the UK are offered some kind of antenatal screening. It is always presented as optional and designed to enable women to make reproductive choices. The UK National Screening Committee oversees a national programme of antenatal screening which currently includes a foetal abnormality screening. The work of the NSC is recognised, providing working standards, guidelines and an auditing service for the NHS, and advises Ministers on screening policy.
Crucially, it also provides pre-test information leaflets for women to aid discussion with health professionals and promote informed decision-making. To assist that process, it provides contact details for the independent voluntary sector groups offering support around the conditions being screened for and these groups were also consulted for comments on the booklet. Thus women are given the opportunity to obtain balanced information about the conditions and the experience of those living with the conditions and their carers.
Importantly, the majority of women opt into the testing process. Research evidence shows that most women are in favour of antenatal testing and of having the option to end the pregnancy if a significant abnormality is diagnosed. In a large-scale study undertaken in 2002, only 5 per cent of women thought it was always wrong to have a termination of pregnancy,
“if the child is certain to have a serious mental disability and will never live independently”.
Only 6 per cent felt it was always wrong,
“if the child is certain to have a serious physical disability and will never live independently”.
Statistics show that the majority of women decide to end their pregnancy after the diagnosis of a condition that is “incompatible with life” or likely to lead to significant disability.
The national charity Antenatal Results and Choices has been supporting parents through antenatal testing and its aftermath for almost 20 years. ARC runs a national helpline and receives calls on a daily basis from parents who are considering or have had a termination of pregnancy after a diagnosis of a condition in their unborn baby. Although each parent’s personal situation is different, a generic feature is how painful and distressing they find making the decision to end what is most often a much wanted pregnancy. In ARC’s experience, parents who undertake antenatal screening and testing and have to cope with its consequences are not seeking the perfect child or looking in any way to denigrate those living with impairments. Those who make that painful choice to end the pregnancy do so after careful consideration, advice and counselling of what the diagnosis may mean for their baby, the child’s quality of life and what it might mean for themselves and their family’s future.
Removing foetal abnormality as grounds for abortion would particularly affect the reproductive choices of those parents who know they are carriers of a genetic disorder and risk having a baby with the condition. The Genetic Interest Group—the national alliance of patient organisations which support children, families and individuals affected by genetic disorders—believes that termination on the grounds of foetal abnormality should continue to be available.
Very often we are told that we have laws in this country which do not exist in other European countries. An examination of other European countries shows that 25 out of the 27 members of the European Union enable women to end a pregnancy legally after a notice of foetal impairment. We should also take into account the general views of the public. A MORI poll in 2006 showed that the majority of the public support the availability of legal abortion in such circumstances.
Some who advocate banning termination on the grounds of foetal abnormality may do so on the grounds that it is underpinned by eugenic principles. However, a eugenic policy demands public coercion. In ARC’s experience, women are offered a termination after the diagnosis but clinicians are extremely wary of being directive, and it is left to the woman to decide how she wants to proceed. That is very fundamental and very important. She will then make her decision about the future of her pregnancy based on her individual family circumstances and the knowledge she will live with the consequences of her decision.
ARC takes calls every day on its national helpline from parents who are reeling from the shock of being told of something wrong with their unborn baby at the mid-pregnancy scan, struggling to take in the news and to know how to proceed.
What is essential is that there must be the flexibility for women and parents to have the option to make their own reproductive choices. I therefore hope that this amendment will not be carried.
I do not intend to enter into the debate, but the appearance of the amendment tabled by the noble Baroness, Lady Masham, at this time underlines for me what was already my conviction: that the whole question of abortion ought not to be included in this Bill, either in this House or in another place. I valued the letter of the noble Lords, Lord Alton and Lord Steel, making the point that there was a separate look to be taken at this issue. I believe that that is the case and that this debate makes that point.
The only thing I will say is that it is strange for me to be debating this amendment now because my first engagement this morning was as patron in a major regional voluntary organisation that serves the needs of acutely disabled children and young people. I spent about one-third of the hour and a half that I was there sitting next to the mother of one of these children and hearing her talk about that experience. If we were debating the subject, I would go into that in detail, but that strengthens my sense that, with huge respect for the noble Baroness, Lady Masham, this is not the moment, and I believe strongly that this is not the Bill, to get into this question, whatever arguments may be brought in about abortion from either side as amendments to the Bill in the other place.
I completely concur with the remarks that have just been made. The complexity of the ethics and the decision-making, and the agony of people in making these decisions, should not be included in the Bill. They are important issues, and I concur with the calls for an ad hoc Select Committee of this House to be set up to look at the issues around abortion as we have had an Act in place now for 40 years. However, whichever way amendments are put down, whether in the same form as that of the noble Baroness, Lady Masham, or in some other way, this Bill is not the place for us to make decisions and votes in the House on something that is deeply complex and needs in-depth analysis.
My name is down to this amendment and I strongly support it on the grounds of equal human rights. As Jenny Morris points out in her book, Pride Against Prejudice:
“A foetus of more than 24 weeks’ gestation is treated as having rights as a human being but loses those rights once it is diagnosed as being disabled”.
The abortion of a foetus because of serious impairment is a complex issue, but that statement is the heart of the matter. It is the reason why the disability organisation RADAR has stated that:
“If the Government is serious in its aim to ensure equality for disabled people then the Abortion Act of 1967 must be amended to remove its discriminatory content”.
It is the reason that disabled people, especially those with Down’s syndrome, feel that their lives are devalued by the Abortion Act, and it is why I support the amendment.
As a disabled woman and a feminist, Jenny Morris devotes a chapter of her book to arguing through the complexities of this issue. She suggests that the current law rests on three main strands of argument: that the baby’s quality of life would be intolerable, that the disabled child would entail high personal cost to the parents, especially to the mother, and that the disabled child would be a drain on the country’s resources. I shall take those in turn.
With regard to judgment about the baby’s quality of life being intolerable, none of us can judge whether another human being’s life is worth living. We can only make that judgment about our own lives. As many severely disabled people will tell you, it is impossible for us to judge the quality of life of another person, truly to put yourself into their shoes, and it is not for the medical profession to do so either. “Quality of life” arguments are often a smokescreen for other motivations.
The second justification for the abortion of disabled foetuses after 24 weeks rests on the personal cost to the parents of bringing up the disabled child, as we have just heard. But how real is the choice that is presented to the potential mother? As Mencap points out in its policy on abortion,
“we believe there is a culture of prejudice among some health practitioners when a screening or test indicates that the unborn baby is likely to have a disability. Information presented to the woman about having a child with a disability is often negative and it is assumed she will have a termination”.
It says there is growing evidence that doctors pressurise pregnant women to agree to the abortion of babies thought likely to have a disability.
We live in a society that does not provide adequate resources to support disabled people in having equal opportunities. What is more, the parents are subject to the same preconceptions and prejudice about disability as most other non-disabled people. They would no doubt be horrified at the thought of becoming disabled themselves.
Is this situation so very different from the situation of potential mothers in societies such as India or China where it is common for daughters to be completely devalued, with all the social and economic results that that entails? Yet we are appalled by, and rightly reject, any notion that a foetus should be aborted purely on the grounds that it is a girl.
The current law that allows for a termination right up to the full term of a pregnancy if there is a risk of serious handicap clearly demonstrates that the potential life of a disabled child is valued less highly than that of a non-disabled child. As Mencap points out, it means that any questions about when a foetus becomes a person or can feel pain are effectively disregarded in cases of disability. I agree with Jenny Morris’s conclusion that once a foetus, disabled or non-disabled, has a viable life outside its mother’s body, its rights as a human being are greater than its mother’s right to refuse to give it birth. There can be no distinction between disabled and non-disabled foetuses. On the grounds of the equality of human life, I fully support the noble Baroness’s amendment.
I did not know that the first time I spoke in this Chamber after my maiden speech it would be on something so ethically complex. I am moved to support this amendment. Its aim is to repeal those sections of the Abortion Act 1967 that permit termination of a pregnancy if,
“there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”.
When contemplating this incredibly complicated ethical issue, I have been guided by two principles: first, the equal value of disabled and non-disabled people and, secondly, the rights of individuals to make informed and autonomous choices. I support a woman’s right to end an unwanted pregnancy within the lawful period, currently 24 weeks. The option of a legal termination is central to women achieving social, economic, political and personal equality in today’s society. However, I do not support the law that singles out impaired foetuses for abortion after 24 weeks. I believe that Section 1(1)(d) is inconsistent with disabled people’s right to be viewed and valued equally.
The present time limit has been set because the consensus view is that after 24 weeks the foetus is viable—that is, it would be likely to survive if born. We consider termination of a pregnancy after that time to be morally or ethically wrong—unless, that is, prenatal diagnosis indicates disability. Then it is felt that abortion until term is both lawful and somehow acceptable. For me, that exemption confirms the outdated view that the potential life of a disabled child is of less value than that of a non-disabled child.
Personally, I do not have strong views about when a foetus becomes a living entity in all its complexity. However, I do have very strong views about equality for disabled people. My view and that of the Royal Association for Disability and Rehabilitation, as press-released last week, is that whatever the time limit set, it should be equal, irrespective of whether the woman gives birth to a disabled child.
People often say to me, “You wouldn’t want to bring a child with your disability into this world, would you? It is a serious disability that requires assistance for the rest of your life”. What they are saying in that one sentence is that my life somehow has less quality than theirs. This is not only hurtful, but it undermines my very humanity. Difference, my difference, disabled people’s difference, is part of society’s richness. To continue to single out potentially disabled people perpetuates the view that society would be better off without us. Surely, society should say that every child matters. Once a woman has decided to have a child, she and the world should and can celebrate that life, whatever it turns out to be.
I have a completely open mind about the repeal of the subsections. However, with great respect to the noble Baroness, Lady Masham, and her motives, I do not think that this is the way to approach the issue.
The problem is the evidence basis—or really, I should say, the lack of one. A report by the House of Commons Science and Technology Committee makes instructive reading. Its key point is that, as policy makers, we are operating in something of a vacuum. In the first place, we need better data than we have at the moment about abortions that are carried out for foetal abnormality beyond 24 weeks. We need more information about the reasons for those abortions. The committee was told that there were inconsistencies around the country in the way in which the law is being interpreted and applied, which cannot be satisfactory, and that the position would be helped greatly by having greater guidance available for clinicians.
One might feel that this is all the more necessary bearing in mind that neither the term “physical and mental abnormalities” nor the term “handicapped” is defined in the Act. Everything is left to subjective decision making by the doctor and the mother. At the very least, it ought to be possible to improve on existing BMA and royal college guidelines by specifying exactly what clinical information should be available to all clinicians and mothers before final decisions are taken. It also ought to be possible for Parliament to set out more precisely what it means by the word “seriously” in the current context. The noble Baroness, Lady Gould, was absolutely right: do we mean “serious” in terms of the foetus’s viability; “serious” in terms of the disability that the child, if born, will have to live with; or “serious” in terms of the prospects of the disabled child being accepted and properly cared for? Work of that kind could well be assisted by a Select Committee of this House, a proposal that I favour.
I find the arguments put forward by the noble Baroness, Lady Masham, and the other two noble Baronesses whose names are attached to the amendment very powerful. However, I genuinely believe that the Select Committee route is the better way to go because it will enable the House to take a more informed view of the matter than it is able to at the moment.
I support the comment that has just been made by the noble Earl, Lord Howe, about the way in which we should go about looking at this and some of the other associated issues. I will come back to that in the second part of what I want to say.
First, I pay tribute to the noble Baroness, Lady Masham, for the way in which she moved the amendment this evening and to the noble Baronesses, Lady Wilkins and Lady Campbell, for their remarks, which I strongly support. The noble Baroness, Lady Gould, is someone whom I respect enormously and with whom I work on a range of other issues. I find myself in the uncomfortable position of disagreeing with her, but I do not think that she expected that I would do otherwise. She was right to pay tribute to the sincerity of the noble Baroness, Lady Masham. I pay tribute to her sincerity as well. Those of us who come to the debate, even if we have different views, recognise and respect the fact that we hold those views with sincerity.
I first came into this argument a long time ago. As some noble Lords will know, I introduced a Bill in another place in 1987 to reduce the upper time limit. Indeed, that Bill received its Second Reading with 296 votes, a majority of 45. It was talked out in the end, but it sought to reduce the time limit to 18 weeks. The EU average is about 13 weeks—I say that in passing—and I want to come back to one or two of the other statistical points referred to a moment ago by the noble Earl, Lord Howe, that should inform our debate.
The outcome of the 1987 Bill was that, when the 1990 legislation—relevant to the Bill before the Committee tonight—came before another place, it was agreed that there would be a vote on the upper time limit in the context of that Bill. It was then decided to reduce, from 28 to 24 weeks’ gestation, the upper time limit in most circumstances. An exception was made in the case of disability. In those circumstances, it was decided to increase the upper time limit all the way up to and even during birth, where disability was involved. I opposed that, but it was a decision that was taken in another place.
The noble Baroness, Lady Gould, said that public opinion supported the retention of the law as it stands, but there is diverging evidence. We do not, in the end, make laws on the basis of opinion polls. However, I would just mention that, in May of this year, ComRes carried out a poll showing that 55 per cent of people regarded the present law allowing abortion up to birth on grounds of disability as unacceptable. Another poll in May showed that 76 per cent of people, including 81 per cent of women, thought that abortion of a baby at six months’ pregnancy was cruel—that was the word in the question. Sixty-eight per cent of people, including 72 per cent of women, wanted a substantial reduction in the upper time limit to around 13 weeks.
There are clearly issues here, even if we disagree with one another, that deserve proper consideration. The noble Baroness is right to put these questions before us, as she did at Second Reading. In the previous Human Fertilisation and Embryology Bill, we saw the law changed in the way that I have described. The difficulty is that it is almost impossible for a private Member to change the abortion law because Bills are always talked out by either side. Unless it is done in the context of a government Bill, how else can legislation come forward? That is one of the issues that we cannot go on dodging. I hope that, if a Select Committee is created, it will look at that issue.
When the 1990 provision was incorporated, I warned, on the advice of a renowned professor of law, Professor John Finnis at Oxford University, that the provision could in future be used to terminate pregnancies on grounds such as cleft palate. As my noble friend said, it is not widely known among most people that British law allows the abortion of disabled children right up to and even during birth, yet in 2006, 2,036 abortions were carried out under Section 1(1)(d) of the Abortion Act, which allows abortion up to birth if,
“there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”.
The noble Earl, Lord Howe, made that point, which, too, is relevant in the context of this Bill, for the obvious reason that, only two days ago, we were discussing what we would do in the case of saviour siblings if “serious” were substituted for “life threatening” as a reason for removing organs from a child’s body.
Abortions carried out on disabled children represent just 1 per cent of the total number of abortions carried out in the United Kingdom, meaning that foetal disability is far from being the most common justification for termination of pregnancy—99 per cent of abortions have nothing whatever to do with disability. If we as a society are truly committed to equality for disabled people, we cannot treat these disabled lives as mere statistics, as the noble Baronesses, Lady Campbell and Lady Wilkins, said. The noble Baroness, Lady Masham, is right to raise this issue. Abortion for disability seems a small proportion of the total number of abortions only because the number of abortions is so very high, now running at 200,000 per year. As the noble Lord, Lord Steel of Aikwood, recently said, that is too many. Six hundred abortions take place per day, 25 every hour. Those 2,000 disabled unborn children are not merely statistics; they are unique human individuals whose only opportunity to live has been denied. One academic has written that,
“each life is not an abstraction, it is a personal reality, one that exists only for one particular unborn human who will no longer be if abortion is chosen”.
What conditions are being targeted? In 2006, 436 abortions were carried out on children with Down’s syndrome, a chromosomal disorder. Twelve of those 436 abortions were performed after the 24-week time limit for social abortions. What are we saying as a society about the status of Down’s children and adults? A further 129 unborn children were aborted because of “selected cardiovascular anomalies”—that is, heart problems, about which the noble Lord, Lord Darzi, knows more than anybody not just in this Chamber, but probably in the country. One hundred and six unborn children were suffering from spina bifida. Other abortions for disability are carried out because of genetic disorders or bodily deformities. One of the most important points to note is that many of these conditions are not life-threatening. Just a few years ago, a young woman, the Reverend Joanna Jepson, fought a brave court battle to expose a case where an unborn child was aborted simply because he showed signs of having a cleft palate. Due to the vague and poorly defined wording of the 1990 Act, terminations for such minor, and easily treatable, conditions take place as a matter of course. Is it truly just or fair that we operate a kind of crude quality control over human beings, discarding them if they do not measure up to some arbitrary standard of physical perfection?
Back in 1990, when abortion up to birth for disabled people was introduced, I was accused of scaremongering by others when I pointed out that the wording of the 1990 Act would allow for terminations for disabilities such as cleft palate. It was Harriet Harman, then a Back-Bench MP but now the Leader of the House of Commons, who suggested that Professor Finnis, and another eminent lawyer who was advising me at that time about the dangers inherent in the Bill, should be reported to the Law Society or Bar Council. Noble Lords should understand if in relation to so-called “saviour siblings” I express a degree of scepticism that the provisions in the Bill that extend the grounds on which organs and tissue can be taken from “life threatening” to “serious” will not lead to rampant abuse.
The right to life is surely the foundation of all other rights. There is of course another debate to be had about abortion in general, but abortion for disability raises particularly pressing issues to do with equality, diversity and discrimination. As the Disability Rights Commission noted some years ago, Section 1(1)(d) of the Abortion Act,
“is offensive to many people... it reinforces negative stereotypes of disability; and there is substantial support for the view that to permit terminations at any point during a pregnancy on the ground of risk of disability… is incompatible with valuing disability and non-disability equally”.
The principle that people should not be discriminated against unfairly on grounds of race, gender and orientation is held dear by many in our society and, rightly, by many Members of your Lordships’ House. It has been enshrined in law in various ways during the past few decades. The womb, though, is one of the few places where disabled people are yet to achieve equality
Raising disabled children is difficult, exhausting and sometimes demoralising—I worked for several years with children with special needs before I was elected to another place. It can place a strain on relationships and change family dynamics in unsettling ways. Other children can feel neglected, as parents devote large amounts of time to caring for disabled siblings, yet it is still difficult to see abortion as a truly compassionate response in this situation. Is there perhaps a different model for how to care for disabled children, even those who are severely or terminally ill?
I refer the Committee to the charity, Zöe’s Place, which is a daughter charity of the charity, Life. Zöe’s Place, of which I am a patron, is a baby hospice providing respite and palliative care for babies and young children from birth until the age of five. There are two Zöe’s Places now, one in Liverpool and the other in Middlesbrough. Plans are well advanced to open another in the Midlands next year. Surely the answer lies in more hospices like Zöe’s, providing more help and support to parents struggling to raise a disabled child.
The great danger is that if abortion, or post-natal infanticide of a disabled child, is allowed to become a treatment option, we start to decide that it can be in someone’s best interest to be killed. This debate is, to a very large extent, a debate about the kind of culture in which we want to live, and the kind of medical culture in which we want doctors to operate. However compelling the case for ending the life of a badly disabled child, there is a very important principle at stake: we may not intentionally kill. Whatever the law, there will always be difficult cases and situations where individuals end up suffering. No one, of course, would wish to inflict or perpetuate suffering unnecessarily, but we need to accept that we cannot respond to suffering by killing the sufferer.
The medical imperative must always be to heal, to comfort and to preserve life. Standing in stark contrast to the counsel of despair is a well developed and venerable tradition in medicine that refuses to consider the intentional ending of a life as a treatment option. In years gone by the imperative to care and not to kill has led to the improvement of pain relief and new ways of making patients comfortable, rather than simply ending lives.
The amendment in my noble friend’s name gives us a chance to proclaim a very important and profound message about the way we respond to suffering, imperfection, illness and the disabilities of our fellow human beings. It will be a clear and powerful statement to disabled people everywhere that we welcome them as full members of our community and society. Most importantly, it will preserve the lives of some of the most vulnerable human beings among us.
The law as it stands is, indeed, discriminatory. In the context of the possibilities of foetal surgery on conditions as different as cleft palate and spina bifida—an issue that my noble friend and I raised with the Minister recently—Parliament certainly needs to look at those questions and review this and other aspects of abortion law. The Minister will have seen the Question I tabled last week, asking for information on the availability of foetal surgery. I hope he will be able to speak to us at some length about these new possibilities, which may make redundant some of the debate we are having this evening.
Those advances in foetal surgery, the work of Professor Sunny Anand, who has highlighted the pain experienced by the unborn, and that of Professor Stuart Campbell, which has opened a vivid window into the womb, have completely changed the terms of this debate. I know my noble friend believes that if no way is found rigorously to examine all aspects of how the law currently works, then she, and perhaps others, will be left with no choice on Report but to test the opinion of the House. I hope that both sides in both Houses will look for a way to address the concerns of my noble friend. After 40 years, as my noble friend Lady Finlay has said, it is surely time for a comprehensive review of all aspects of the abortion laws.
Following the letter which the noble Lord, Lord Steel, and I sent to the Times, I was very heartened to receive a number of letters. I will mention just one from Professor Peter Dunn, emeritus professor of perinatal medicine and child health, also signed by Professor Gordon Stirrat, emeritus professor of obstetrics and gynaecology and senior research fellow in ethics in medicine. These are two of the leading authorities on this subject, who have been involved in these issues for the past 40 years. They said:
“We write in support of this suggestion published in your letter to the Times on 22 November. Both of us have been involved in the medical debate on this subject since the 1970s … We hope that these contributions will be of help to you and we wish you every success in your endeavours”.
They believe, as do many others, that it is time to look again at some of these questions.
The Liaison Committee will, on 8 January, consider a request from the noble Lord, Lord Steel, and myself, also supported by the noble Earl, Lord Howe, the noble Baroness, Lady Knight of Collingtree, the noble Lord, Lord Clarke of Hampstead, the noble Lord, Lord Brennan, and the noble Baroness, Lady Cox. I know that it is supported by the noble and learned Lord, Lord Mackay of Clashfern, and others. I was heartened to hear the remarks of the right reverend Prelate the Bishop of Winchester in his earlier intervention. If it is modelled on the scrupulously fair and formidable committee which the noble and learned Lord, Lord Mackay of Clashfern, chaired, and which examined the equally contentious issue of assisted dying, perhaps it will provide an intelligent and thorough way of addressing questions like the one raised by my noble friend tonight.
I am glad my noble friend tabled this amendment. I hope she will feel able to withdraw it tonight, after we hear assurances from the Minister that the arguments raised are powerful, deserve to be addressed and that we will find some way, before Report stage, to look at all the issues raised on both sides of this argument in a thorough way, which does not pit us unnecessarily against one another—and certainly not in the context of this Bill.
I, like other noble Lords, well recall the noble Lord, Lord Alton, calling on us at Second Reading not to turn this Bill into a debate on abortion. Some of us have not done so. I would simply like to ask the noble Lord to enable the House to be fully informed. He mentioned an opinion poll. Will he put before the Committee details of that poll with a full list of the questions and sample size and information about who commissioned and paid for the poll?
I may surprise the right reverend Prelate the Bishop of Winchester, but I agree with him on the points he made today and, by implication, one he made in a previous debate. First, I think that he is absolutely right to say that we should not be using this Bill, at this time, to open up a debate about abortion. The noble Baroness may think that she can limit the debate to the issue of disability or equity between foetuses—disabled or non-disabled—at 24 weeks and thereafter. However, I can assure her that there will be plenty of other voices wanting to adjust the abortion law one way or another and it is a Pandora's box. I would strongly urge her not to go forward without having first the fullest discussion and effort at consensus building in both Houses based on research and scientific scrutiny. There should be Select Committee pre-legislative scrutiny and all the other things that we should properly have on a complex and difficult matter.
The second point on which I agree with the right reverend Prelate, which might be to his discomfiture, relates to when some of us were trying to suggest that there was an inconsistency in his attitude to children being adopted by a gay couple or single gay person as opposed to the right of those same individuals to seek IVF treatment, surrogacy or some other such treatment. The right reverend Prelate said that a real distinction should be made between fighting for the best possible outcome for a child who already exists and needed to be placed where they could have the best chance of a happy and well adjusted life—and we all know that very often those children may be the ones who are hardest to place—as opposed to knowingly bringing a child into this world into a relationship that he thought was inappropriate. I hope that I am not doing his position an injustice.
I think that the same thing applies here. I am confident that I can speak for my noble friend Lady Gould and I am certainly speaking for myself in believing that I would be shoulder-to-shoulder with any disabled person in this Chamber in fighting for the rights of disabled people, as I have sought to do all my life. But I make a distinction between that and the question of the status of the foetus—I will not even say the unborn child. That can produce a conflict between the rights of that and the right of a woman to choose, when she may have the relevant information only at 24, 25 or 26 weeks about the disability that may be faced.
Unlike the noble Lord, Lord Alton, I do not want to go into the detail of that argument tonight. Otherwise, I might be addressing the very issues that are not appropriate to this Bill. But on both of those grounds, I hope that the noble Baroness will not only withdraw her amendment tonight but will not come back in this way with amendments to address this topic. If we are to discuss this—and I am sure that we shall be doing so—our arguments should be based on the evidence that we do not have here tonight and we do not have as part of this Bill. It belongs appropriately in another form.
I pay tribute to the noble Baronesses, Lady Masham, Lady Wilkins and Lady Campbell, for the courageous way in which they have raised this issue. They have made all of us think very deeply about the issues that they talked about. I do not want to detain the Committee for more than a moment or two. Many of us feel—and I share the view—that we do not yet have all the information that we need to debate the topic seriously and to get the answer right. Those of us who have taken the line, from the right reverend Prelate to the rest of us, including the noble Lord, Lord Alton, have an absolute responsibility not to treat the issue of referring this to a Select Committee as a way of simply shelving the issue and delaying the outcome.
Whatever side we may take on the issue that has been raised, we have a responsibility to the three noble Baronesses to ensure that the Select Committee reports in a reasonably rapid period of time and that the Government commit themselves to finding time for the matter to be discussed. We all know that without that commitment it is useless to talk about urgency and about a need for there to be a new discussion. If we ask the Government—I would add my voice to those asking them—to be willing to accept turning this over to a Select Committee, we should, in turn, take responsibility for that as a serious commitment, one that we will all commit ourselves to and one that we hope the Government will agree to find time to debate when the Select Committee has reported, so that the matter will not simply be put off to infinity, as it so often has been in the past.
I agree with the noble Lords and the right reverend Prelate in particular who were expecting not to debate this issue in the Committee tonight. I thought that there was agreement from the noble Lord, Lord Alton, and others that we would not have a proper debate, because it was an inappropriate amendment to this Bill. In a way, it is an insult to the subject; it needs dealing with much more seriously on its own with other abortion issues. Whatever side of the arguments we are on, everyone has an opinion and wants to talk about it. Therefore, I thought that it was a little unfair of the noble Lord, Lord Alton, who I always enjoy listening to, to make such a long speech when there was no one except the noble Baronesses, Lady Gould, Lady Hollis and myself from the other side of the argument—the women’s side.
I speak with some reservation tonight. I have followed the debate today largely through my television set in my room. I ask the Committee in its deliberation on the Bill, which I accept is an important Bill, to have some regard to progress of business outside the Bill. There was scheduled for today a significant debate on European Union proposals in a particular policy area that has had to be rescheduled. I am afraid that there have been elements in the debate that I would describe as an indulgence. I am coming close to, but I want to avoid, the word “abuse”. I will not use it myself. There has been a repetition of argument and an unnecessary prolongation of the debate, which has meant that an issue for debate that was laid before the House for later tonight has been lost. Important as these issues are—I recognise their importance—it is incumbent on those who wish to participate in these debates, to recognise that there are other important issues that the House may wish to consider.
I do not entirely understand that intervention. This is the fourth Committee day of the Human Fertilisation and Embryology Bill. It is a highly complex and important Bill, and my noble friend’s amendment is entirely in order. She raised the issue at Second Reading and participated in that debate. It would have not been accepted by the Clerks, if it were not in order. In Committee, we all have a right to contribute on amendments.
We are trying to find a way forward that does not mean that there is the sort of debate that the noble Baroness said that she would not wish to see on Report. In that sense, the noble Baroness, Lady Tonge, and I are in agreement. As the noble Baroness, Lady Williams, said, we must find a way of dealing, in a constructive manner, with the powerful case made, which was far from repetitive. I thought that the three noble Baronesses who spoke did great justice to this. The noble Baroness, Lady Gould, put an alternative point of view, as she is entitled to do. Any Member of your Lordships' House is entitled to be present. Due notice had been given of the amendment; it appeared properly on the Marshalled List.
I have made my own position clear—that I would prefer these issues not to be raised in the context of the Bill, and would prefer to find another way to deal with them. However, I rigorously defend the right of my noble friend to table the amendment before your Lordships' House. That was how the disability clause came into law in the first place through the 1990 legislation and, unless a way is found to look at the matter again in the way described by others in Committee tonight, it will be inevitable that it will come back on Report—and no doubt prolong our proceedings on another occasion, too.
I certainly accept what the noble Lord, Lord Alton, says—it is right and proper to aerate arguments at this stage in the progress of the Bill. I have no complaint with that, but the quid pro quo is a recognition that there is properly other business before your Lordships' House which ought to be given due consideration.
No, I shall not give way again if the noble Lord will excuse me.
I agree with the noble Lord, Lord Alton, in that we had three wonderful speeches from the noble Baronesses, Lady Masham, Lady Wilkins and Lady Campbell, and a clear and cogent argument for the other side from the noble Baroness, Lady Gould. However, I would like to address a couple of matters that, as a doctor, I feel that I have to.
I was a junior doctor before the Abortion Act 1967, and remember delivering an anencephalic baby at term. That means that the child had no brain—it had a face and a few skull bones—and it lived for five minutes. The mother had known from an X-ray—that is all that was available in those days—that something was grossly wrong with her baby for weeks and weeks, and she had had to carry on with the pregnancy because there was no possibility of an abortion in those days. That is just as emotive and heart-breaking for that woman as any of the other things that we have heard tonight. When we talk about leaving the provision for serious handicap to be dealt with after 24 weeks if necessary, I think of that woman and child. That event was unforgettable, and it was not the only one. It was very severe, but others were almost as severe. You have to remember those cases, so you have to leave flexibility in the law for them to be dealt with.
At the other end of the scale, we heard about a case of cleft palate; how outrageous it was is much bandied about. On looking it all up, I noticed that the Crown Prosecution Service did not prosecute. We do not know the details of the case. Cleft palate can be associated with some pretty gross abnormalities as well. We do not know; that may have been the case for that child.
I think that we should leave the law as it is, but I agree that we should have a full and proper debate on all issues surrounding abortion. I would like to close by agreeing with the noble Baroness, Lady Hollis. In the end, it is a woman who has to be pregnant for nine months, go through childbirth and be primarily responsible for the child, whether it is disabled or not. We have to give her the right to choose.
I wonder whether I catch the sense of the Committee in thinking that, with all honour to the three noble Baronesses, we have done as much as we reasonably can this evening. The logical thing is therefore that no one else stands up—I realise that I am standing now. If no one else does, presumably the Minister will respond and it will be for the noble Baroness, Lady Masham, to determine how she responds to that. That seems the rational and proper thing for the Committee to do, given all the circumstances.
I am grateful for this informative debate on this sensitive subject. The amendment tabled by the noble Baronesses, Lady Masham, Lady Wilkins and Lady Campbell, concerns abortion and, as we are all aware, that is a matter for Member’s individual consciences. We have made it clear that amendments on this matter will be subject to a free vote. However, the Government have a role in administering what Parliament has decided to enact and with that comes the role of advising Parliament so that the Committee is fully aware of the implications of legislative proposals.
The amendment would bring a fundamental change to the abortion legislation first passed in 1967 and amended in 1990, which covers England, Scotland and Wales. Many noble Lords, including the noble Lords, Lord Alton and Lord Steel—who I understand have written to the noble Lord, Lord Brabazon, on the issue—have suggested that a House of Lords Select Committee should be established to undertake a comprehensive review of abortion. The Government share the view of the Committee expressed today that there is value in debating moral and ethical issues such as abortion and benefits in addressing complex issues in Parliament. Noble Lords will appreciate that, ultimately, whether a Select Committee is established to review the existing policy on abortion is a matter for Parliament.
On the issue raised by the noble Baroness, Lady Masham, about intrauterine surgery, it is absolutely correct that early scientific and technological innovation in this area shows promising early results and we should look at that more carefully in the future. I have set out the likely effects of this amendment, should it be accepted, and I hope that Members of the Committee will consider these points.
I thank all noble Lords who have spoken. It is not the fault of this amendment that we have sat so late. I apologise to all those who did not have any dinner, particularly those on the Front Bench. I do not feel at all guilty about tabling it. Many people outside this House are exceedingly worried about babies having to go full term. Perhaps I can tell the Committee what happens. After the lethal injection, babies can be squashed within the mother’s womb before they are got out, which is horrible and revolting. It cannot be any good for anyone.
I am interested in the dignity and safety of the unborn child. I thank those who have supported the amendment. I say to the right reverend Prelate that he is typical of some members of the Church of England who have a habit of sitting on the fence. I admire the most reverend Primate the Archbishop of York who demonstrates his faith in full. I hope that the right reverend Prelate will think of this amendment when he sees the crib at Christmas.
I thank those who spoke in favour of a committee. I would go along with that, but this is such an urgent issue and a committee could delay matters, as the noble Baroness, Lady Williams, said. That is my worry and I tabled the amendment so that it could be discussed and so that people will take more care. At six months a baby is very well developed and to have to go further is very worrying indeed.
I would like to thank my noble friend Lord Alton for his very well researched points on this difficult topic. There is one more thing I would like to say. I noticed during today’s debate and on Monday and in the previous week that we are getting out of the practice in your Lordships’ House of those who have put their names to an amendment not speaking after the mover. This is happening more and more and perhaps the usual channels could look at this.
They usually speak after the mover. That has been the practice for many years but it has lapsed. It is something for the usual channels to look at. I thank the Minister for what he has said and hope that he can help in this matter. I know he feels strongly about saving life. He has demonstrated to us how well he can do it with my noble friend Lord Brennan. I will look and see what happens over Christmas and the new year until our next stages. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 59 to 65 agreed to.
Schedule 7 agreed to.
Clause 66 agreed to.
Schedule 8 agreed to.
Clauses 67 to 69 agreed to.
House resumed: Bill reported without amendment.
House adjourned at 9.13 pm.