My Lords, I beg to move that the Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
Schedule 2 [Activities that may be licensed under the 1990 Act]:
30: Schedule 2, page 55, line 30, after “serious” insert “and potentially life-threatening”
The noble and learned Lord said: My Lords, I have had a message from my noble friend Lady Finlay, who has put her name to this amendment. She says that her train from Cardiff this morning was unfortunately cancelled. She is travelling up by taxi which, apparently, can go almost as fast as the train, and hopes to be here before the end of the debate.
When we were debating saviour siblings in Committee, there were two main concerns about the drafting. The first was the inclusion of the words “other tissue” in paragraph 3 of Schedule 2, which seemed to be far too wide. That concern has now been met by the Government in the next amendment, so I will say no more about that.
The second cause for concern was the word “serious” in the context of “serious medical condition”. The reference is to page 55, line 30. I prefer the term “life-threatening” which is, as I understand it, the current test. To my mind, “life-threatening” is better because it indicates, with some precision, the right degree of seriousness—neither too broad nor, as I hope to suggest, too restrictive.
The trouble with the word “serious” on its own is that it is much too vague and imprecise. For example, one meaning given in the Oxford English Dictionary is: giving cause for anxiety; not light or superficial. I do not suppose that anyone in the House would argue that a condition which gives cause for anxiety is a sufficient ground for creating and testing embryos. Clarity and precision, if one can achieve them, are always important in legislation but never more so than when one is dealing with matters as sensitive as human embryology—a point made very well this time last week by the most reverend Primate the Archbishop of Canterbury.
I am of course aware that the Joint Committee recommended a change from the term “life-threatening” to “serious” and it did so on the basis of the evidence of two experts, as was made clear in Committee by the noble Lord, Lord Jenkin of Roding. The view of the Joint Committee is obviously entitled to great weight but I suggest that it should not be regarded as conclusive. Indeed, the noble Lord, Lord Jenkin, himself acknowledged that when he said—he will forgive me for quoting:
“There is a huge difference between the conduct of a joint pre-legislative committee, which we had, and the importance of a debate such as the one that we have had this afternoon. Both serve their purpose, but the pre-legislative committee can never be a substitute for debate in the House”.—[Official Report, 4/12/07; col. 1663.]
In this House, we have had the huge advantage of hearing from two other great experts—notably, my noble friend Lord Walton of Detchant and the noble Lord, Lord Winston. My noble friend Lord Walton said that he preferred the term “life-threatening” to “serious”,
“because it is crucial that something of this nature could be used only for the amelioration of conditions that are life-threatening—which are genetically determined and occur in infants, are progressive and utterly devastating in their effects”.—[Official Report, 4/12/07; col. 1661.]
The noble Lord, Lord Winston, agreed with that. He said that he preferred the term “life-threatening” because “serious” is,
“open to all sorts of interpretations and is much looser. ‘Life-threatening’ is a better definition and would cover genetic diseases”.—[Official Report, 4/12/07; col. 1664.]
Not surprisingly, I agree with both noble Lords. I hope only that they have not changed their minds, and I do not see that they have. Their expertise in this field is of course beyond all question, but I suggest with humility in passing that, if they had not become doctors, they would almost certainly have made very good lawyers.
At the end of the debate in Committee, the noble Baroness, Lady Royall, seemed to be receptive to the argument that “serious” was too wide a term and she said that she intended to come back at or before Report. I hope that she, too, has not changed her mind and that she is equally receptive today.
The noble and learned Lord, Lord Mackay, challenged me to think of something better than the word “serious”. That was a challenge which, coming from that source, I could not have declined. The clue, I suggest, is to be found in something said by the noble Baroness, Lady Tonge. She said that a serious condition in this context meant, or should mean,
“one which could become life-threatening if not treated”.—[Official Report, 4/12/07; col. 1660.]
That, it seems to me, hits the nail on the head and is exactly what we have tried to encapsulate in our amendment by adding the words “potentially life-threatening”.
I do not know whether it is in order to anticipate the amendment in the name of the noble Earl, Lord Howe, as the two amendments are not grouped together. In his original amendment, the noble Earl proposed a definition of “serious” as likely to shorten life or significantly impair quality of life. I had no quarrel with the first part of that definition—“likely to shorten life” seems to me to mean much the same as life-threatening. However, I had difficulty with the second half of the definition because “significantly” is no better a word than “serious”. Indeed, I believe that it is less precise; we get no further by defining one word in terms of the other.
The revised amendment of the noble Earl includes “life-threatening”, which is fine, but it goes on to add a reference to the “quality of life”. The word, “severely” in his revised amendment is better than “significantly” in that context, but I am still concerned about “quality of life”. Of course I understand and sympathise with the motive behind that part of the definition, but once we start talking about the quality of life, we are entering a very subjective area which is better avoided. I invite your Lordships to stick with “potentially life-threatening”, which can be added easily to “serious”. Surely that will give the scientists enough scope for their important research, for the time being at any rate. I hope that we might all come together on the amendment. I beg to move.
My Lords, I have added my signature to Amendment No. 30, which stands in the names of the noble and learned Lord, Lord Lloyd of Berwick and the noble Baroness, Lady Finlay of Llandaff.
Last week, I moved an amendment expressing my opposition in principle to what are called “saviour siblings”. The majority of noble Lords disagreed, and of course I accept the decision of the House. However, in the debate, even supporters of the practice expressed strong reservations. In view of the fact that the Government are determined to press ahead with what many think are excessively broad parameters, it is surely right for Parliament to set more reasonable limits on procedure.
There was much debate in Committee about the sorts of illnesses for which tissue-typing could be licensed. The term “serious medical condition” is, as the noble and learned Lord, Lord Lloyd of Berwick, said simply too broad and vague to be a sufficient safeguard in this highly controversial area. No doubt some would say that the regulator—the Human Fertilisation and Embryology Authority—will reject spurious applications for a licence, but that is putting yet another onus on the HFEA. If it is to be done, it should be reflected in the Bill itself. Amendment No. 30 does that by requiring the existence of “serious and potentially life-threatening” medical conditions.
The chairman of the Joint Committee, Phil Willis, suggested in an interview that autism might be considered “a serious medical condition” in this context. While I would never wish to minimise the significant difficulties that autism presents, it is not a condition for which the production of a tissue-typed child should be the solution. The inclusion of the phrase, “potentially life-threatening”, will prevent such applications and help to ensure that future practice does not stray into creating children to treat other relatively minor illnesses. I urge noble Lords to support Amendment No. 30.
Perhaps I could briefly intervene as the noble and learned Lord referred to my amendments, which follow in a later grouping. I understand why he did so. The reason I felt it appropriate to try to encapsulate in those amendments a definition of “serious” was the very one alluded to by the noble and learned Lord; that it is a vague term. I was uneasy about leaving it undefined in the Bill. I shall explain later why I framed my amendments in the way that I did.
The reason I am not drawn to the noble and learned Lord’s amendment is that there has to be some flexibility for the HFEA to decide upon each case on its individual merits. That presupposes an element of subjectivity, which is why I do not apologise for the phraseology I have deployed in my amendment. It is deliberate because Parliament should not be too prescriptive in what it tells the HFEA it should do. There could be meritorious cases which do not quite fall into the category of life-threatening. I felt I should just explain to the House why consideration should be given to my amendments when we come to debate them, even though we are not debating them at this precise moment.
My Lords, to anyone lying in a bed with a doctor leaning over them saying, “You have a life-threatening condition” the meaning is entirely clear. We would all appreciate exactly what that meant. Equally, if some doctor leant over any one of us and said, “You have a potentially life-threatening condition unless you do X or forestall doing Y”, we would all understand that. Yet if a doctor were to say to one, “You have a serious condition”, that could be interpreted in a great number of ways, meaning giving up a bit of that or doing a bit more of the other, with an unclear end to it. The amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, has exact clarity, which he quite rightly says that we in this House should always aim for. We should never—my words, not his—legislate for that which we cannot define. We can clearly define “life-threatening”; we can also with equal clarity define “potentially life-threatening”. However, it is extremely hard to define “serious” in a way that would satisfy all noble Lords.
My Lords, I am reluctant to detain the House, but as my name has been mentioned perhaps it is appropriate that I just respond briefly to the noble and learned Lord, Lord Lloyd. I spoke on the notion of “serious” as against “life-threatening”, with the views I expressed largely based on the Orthodox Jewish position. I am an Orthodox Jew, and your Lordships may know that we take a particularly serious view of termination of pregnancy; of abortion. Abortion is only permitted under fairly strict conditions; that is, those that are life-threatening. It is obviously not for me to offer a rabbinical discourse, but I understand that most Orthodox rabbis would regard an abortion appropriate where something is life-threatening and not generally, for example, for social reasons.
The rabbinical view—one that I share—is that “life-threatening” includes things which involve the quality of life in some cases. What troubles me particularly about “life-threatening” is whether we might include conditions where there would be serious mental handicap. In practice, of course, virtually all genetic diseases, with one or two notable exemptions, are serious and life-threatening. Yet there might be a situation in which a serious mental disorder—I cannot think of one; perhaps the noble Lord, Lord Walton, can—might be so regarded. That troubles me a little bit about this amendment. Otherwise I do not see a problem, one way or the other.
I am not sure that the noble Lord, Lord Patten, is quite right about clarity. You cannot have complete clarity. As the noble Earl, Lord Howe, says, this is a matter for decision at the time of the clinical involvement. To some extent, we have to make sure that that is done properly, but also in good faith.
My Lords, my noble and learned friend mentioned my name, too. I have not changed my mind. The saving word in this amendment is “potentially”. It does not indicate that the condition must be life-threatening, but it may be potentially life-threatening. That is sufficient qualification for me to feel able to support this amendment, despite the excellence of the wording of the one tabled by the noble Earl, Lord Howe, to be discussed later.
My Lords, I, too, raised this in Committee. Bearing in mind what was said earlier, I will certainly not be repetitious. I spoke in the debate last week when the noble Baroness, Lady O’Cathain, moved her amendment to stop tissue-typing in the first place.
The amendment is a very good attempt to try to place something restrictive in the Bill on what, as the Minister, the noble Lord, Lord Darzi, has himself said—he did so in a letter that has been sent to some Members of your Lordships' House today—should only ever be used in some difficult and probably unusual circumstances. This will not be a regular procedure. That is why my noble friend Lord Walton of Detchant, who has particularly applied his mind to this question, is right to tell us that the words would be capable of better interpretation than something more vague.
The noble Lord, Lord Winston, referred to the issue of termination of pregnancy. I remind the House that, in that context, one can cite the example of the use of cleft palates as a ground for abortion up to and even during birth. It has been used. Noble Lords will remember the case of the Reverend Joanna Jepson, who took a case to the courts. The word “serious” was the justification for permitting that, whereas if the provision had been “life-threatening” or “potentially life-threatening”, I do not believe that that could have occurred. For those reasons, and those that I expressed previously, I strongly support the amendment in the name of my noble and learned friend Lord Lloyd of Berwick.
My Lords, the noble and learned Lord, Lord Lloyd of Berwick, who moved the amendment, referred to the view that I expressed in Committee, based on the recommendation made by the Joint Committee, having heard evidence from a number of experts. I think that I have changed my mind. Merely to have the word “serious” is not enough. I listened to the debate in Committee and I have listened to what noble Lords have said on both sides and all parts of the House. We need something more.
My difficulty is that, although one is attracted by the simplicity of the amendment proposed by the noble and learned Lord, Lord Lloyd—I also agree that the word “potentially” is a very valuable addition to the circumstance—I also have sympathy with Amendment No. 33A, tabled by my noble friend, which goes on to refer to,
“impairing severely the quality of life of a person with the disability, illness or condition”.
I find it very difficult to choose between the two. We have not heard in full my noble friend’s arguments for his amendment. We have heard a number of speeches that have supported the amendment proposed by the noble and learned Lord.
If I decide not to vote on the amendment proposed by the noble and learned Lord in order to wait to hear the arguments, I feel that we have rather missed the point. I find that a rather difficult decision. They seem to stand as alternatives; they cannot stand together. I suppose that we could reach the position where there was uncertainty as a result of decisions on Report. That may give us sufficient grounds to have a clarifying amendment on Third Reading. I know that the House authorities are very restrictive on what one may table on Third Reading, but that seems possible.
I say this with some diffidence, without having heard my noble friend's argument in full, but I am very tempted to vote for the noble and learned Lord’s amendment because it is an improvement on what is in the Bill. As the noble Lord, Lord Alton, said it includes the important word “potentially” before the words “life-threatening”, and it meets many of the points made to the Joint Committee, to which I referred in Committee debates. On balance, for the moment, although I will listen to the arguments made in the rest of the debate, I feel inclined to support the noble and learned Lord.
My Lords, I share some of the confusion about process expressed by the noble Lord, Lord Jenkin. I should like to hear what the procedure will be if the amendment in the name of the noble and learned Lord is passed. Does that mean that the amendment in the name of the noble Earl will fall? What happens if both are passed?
My Lords, it is worth pointing out that the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, does not delete “serious”; it only adds “and potentially life-threatening”. In view of his explanation, I doubt whether there is anything potentially life-threatening that is not also serious. Anyway, he has not taken out “serious” and the result is that amendment of the noble Earl, Lord Howe, which explains the meaning of “serious”, can be adhered to by the House. If the amendment of the noble and learned Lord, Lord Lloyd, is passed, it does not rule out the amendment of noble Earl, Lord Howe, when it is voted on.
My Lords, I can understand why the noble and learned Lord, Lord Lloyd of Berwick, has introduced the amendment. However, is it possible to think of conditions that are serious, but not life-threatening, which one would want people to carry on with? There are conditions that are serious but are not necessarily life-threatening. If a child has a cleft palate, very few people would regard that as sufficiently serious or life-threatening; it is possible to have that as part of a syndrome in which the child is badly deformed, deaf and has all sorts of associated anomalies, yet that serious condition is not normally life-threatening. I am not sure the amendment is quite right.
My Lords, I am grateful to the noble and learned Lord, Lord Mackay, for explaining in procedural terms the implications of the amendment. He is correct to say that, should the amendment be passed, we would move forward, discuss, debate and possibly vote on the amendment tabled by the noble Earl because “serious” is retained.
Testing for the purpose of determining tissue type can be done only when the sibling suffered from a serious medical condition that could be treated with umbilical cord blood stem cells, bone marrow or other tissue of any resulting child. A government amendment to be discussed shortly will limit that to exclude whole organs. This amendment introduces “and potentially life-threatening” after “serious” and would mean that embryo testing could be carried out only if the serious condition that the sibling suffered from was also potentially life-threatening. Therefore, this amendment introduces a higher test, as noble Lords have acknowledged. That higher test would mean that the HFEA would not be able to license treatment of a condition that had a significant impact on the life of the sufferer and which was serious but not necessarily potentially life-threatening. It is expected that most conditions for which tissue typing would be licensed for would be life-threatening, very serious conditions—and all the handful of cases licensed for that purpose to date are so.
These decisions are not entered into lightly, either by the parent or by the regulatory authority. The licensing decisions made have involved very serious blood conditions and have been undertaken as a last resort. The HFEA has licensed tissue typing for three conditions: aplastic anaemia, Diamond Blackfan anaemia and beta thalassemia. These conditions can be treated with the use of bone marrow or cord blood from an appropriate donor. In most cases this would be either from a family member or a matched donor on the worldwide bone marrow register. However, where there is no match either in the family or on the whole register, as a last resort it is possible to test sibling embryos to see whether they would have a matched tissue type.
I note the important points made by the noble and learned Lord, Lord Lloyd of Berwick, and others. As many have acknowledged, we originally proposed, when the Bill was published in draft, to restrict these decisions explicitly to life-threatening cases. That draft Bill was amended following scrutiny by a Joint Committee. One change made to the Bill on the recommendation of the committee was that the wording in relation to tissue typing should be amended so that the term “life-threatening” was replaced by “serious”. We have heard views today and in Committee that it would be more appropriate if this were limited to life-threatening or potentially life-threatening conditions, and we acknowledge those views. As I promised in Committee, I have reflected on this and discussed it with both colleagues and officials, but I am of the view that by retaining the word “serious”, we will allow for any such conditions that in the future could be identified as potentially treatable by cells from a tissue match donor.
In addition, by retaining “serious”, we will ensure that the legislation is as future-proof as possible. The HFEA will consider every condition for which tissue typing is proposed and will provide guidance on this in its code of practice. Taking these factors into account, and to ensure that the Bill is as future proof as possible, we intend to keep the wording as it is in the Bill, and I invite the noble and learned Lord to withdraw his amendment.
My Lords, as the noble Earl pointed out earlier in his intervention, we believe that there should be some flexibility for the HFEA to decide. Further, there may be some conditions of which we are not aware at the moment, although science is moving on apace. That is how I define “future proof”.
My Lords, I am grateful to the Minister for her reply to this amendment, but regret that I am not satisfied with the argument that the word “serious” on its own, without the addition of some reference to a threat to life, is adequate. In my view it is still much too broad.
As regards the amendment of the noble Earl, Lord Howe, while I understand entirely his desire to include quality of life, I have to say that he has not yet persuaded me—he might do so—that it is sufficiently precise to be put in an Act of Parliament. And in response to those who have a problem about which amendment to support, I suggest that, not for the first time, the noble and learned Lord, Lord Mackay, has produced the solution. Strictly speaking, if this amendment is passed it will be possible for the noble Earl, Lord Howe, to move his amendment because the word “serious” would still remain in the definition. It may require some tidying up, but that could be done on Third Reading.
Given that, I believe that there is sufficient support for the amendment for me to test the opinion of the House.
31: Schedule 2, page 56, line 8, at end insert—
“(4) In sub-paragraph (1)(d) the reference to “other tissue” of the resulting child does not include a reference to any whole organ of the child.”
The noble Baroness said: My Lords, the draft Bill provides for embryo testing to be carried out for the purposes of determining tissue type where there is a sick older sibling who could be treated with cord blood stem cells, bone marrow or other tissue of any resulting child. Concerns were raised in Committee that “other tissue” could include whole organs—for example, kidneys—and that the Bill could permit embryo testing for tissue type where there was an intention that any resulting child could be used as an organ donor for their older sibling. This was not in fact the intention of the use of “other tissue”. This term was used to ensure, for example, that the potential use of cells of the umbilical cord rather than the cord blood could be considered. The main use of this technology would be when someone suffers from a life-threatening blood condition which could be treated by cells of the cord blood or bone marrow where there are no compatible donors on the worldwide bone marrow register or in the family.
In addition, in the future other types of regenerative tissue could be used for treatment, perhaps where a small number of cells could be removed from a donor for culture. In previous discussions this has been referred to as regenerative tissue, as the body could compensate for the loss of a small amount of cells without lasting harm to the donor. The amendment would continue to allow for tissue typing in these circumstances, subject to a licence by the regulatory authority. Taking into account the concerns expressed in Committee, this amendment limits “other tissue” by clarifying that the term would not include any whole organ of the resulting child. The result is that it will now not be possible to license embryo testing for tissue type where the intention is an organ transplant for the older sibling. The use of organs from children in transplantation is governed by the Human Tissue Act, or in Scotland the Human Tissue (Scotland) Act. The Bill does not change this position. The amendment still allows embryo testing where the intention would be to treat the older sibling with other types of tissue from any resulting child, such as bone marrow, cord blood or, as discussed in Committee, types of tissue other than whole organs.
I am grateful to all noble Lords for their useful and informative comments on this issue. The Government have listened and have brought forward this amendment in response. I beg to move.
My Lords, I raised this matter last November with the Government. At that time, as the noble Lord, Lord Darzi, will recall, when he replied to my Written Question it was the Government’s intention to include whole organs in the Bill. I am grateful to him and to the Government for making some change in this area, but I still have some reservations and I would be grateful if the Minister, when she responds to this brief debate, could say something about what will happen in the case of parts of organs. In Committee and at the earlier stages of Report I raised the issue of what happens if part of a liver or part of a lung is taken, and whether the Bill will permit that to occur.
The noble Lord, Lord Darzi, kindly sent to a number of noble Lords a letter dated 21 January that sets out a series of useful points about this question. Does the Minister agree that it would a good letter to place in the House Library so that all noble Lords would be able to read it? In that letter the noble Lord says:
“Several noble Lords have proposed the term ‘regenerative tissue’ could be used in this context. If this term were used, it might explicitly exclude the use of cells of the umbilical cord that we are trying to capture as these may not be considered to be regenerative”.
There is no difference between anyone in this House about the desirability of using umbilical cord. Many of us have made the point that to routinely destroy 98 per cent of all cord blood, as we do in this country at this time, and to have only four National Health Service hospitals collecting cord blood is itself something that we need to address. I hope the noble Baroness will say a word about that and consider again, before the Bill goes to another place, whether it might be possible to specifically exclude umbilical cord and refer to that in the Bill, and to include “regenerative tissue” as distinct from those things that, once taken, might not properly regenerate. There are levels of morbidity and mortality associated with the removal of parts of organs, let alone whole ones.
My Lords, I intervene briefly to thank the noble Baroness for having considered this issue so carefully and for bringing forward this amendment. It is very welcome but, as she rightly said, it addresses only part of the concern that was the focus of our debate in Committee. Any decision on whether an organ may or may not be transplanted from a child falls outside the scope of the Bill and is the province of the Human Tissue Authority, based on the merits of each case put to it. While the amendment is decidedly welcome, so far as it goes, because it would prevent embryo testing with a view to carrying out a whole organ transplant, it does not, of course, address whether such an organ is actually transplanted in practice. I am sure that I speak for many of your Lordships when I say that I am grateful to the Government for their consideration.
My Lords, I support the amendment, which is very welcome in the light of our debate in Committee. At that time, I was concerned about the point that my noble friend Lord Alton made about part organs; I was even tempted to suggest that the amendment should include part organs. Then I realised, of course, that some of my own research has been in the field of muscle disease and I suppose that taking a tiny sample of muscle by a needle biopsy could be construed as taking part of an organ. For that reason, I think that the amendment is better as it stands and no attempt should be made to include part organs in it, even though we all have concerns, as my noble friend Lord Alton said, about taking part of a liver or a lung. This is a welcome amendment which I warmly support.
My Lords, I am grateful to noble Lords for their broad support. We would be delighted to place a copy of my noble friend’s letter in the Library of the House. With regard to parts of an organ, the Bill has been drafted in this way to allow the use of cells of the umbilical cord or, for example, if it were possible in the future to treat conditions with cells cultured from a small biopsy from the liver or any other organ. The noble Lord, Lord Walton, has clearly explained other potential uses of regenerative tissue.
On Question, amendment agreed to.
[Amendment No. 32 not moved.]
[Amendment No. 33 had been withdrawn from the Marshalled List.]
33A: Schedule 2, page 56, line 8, at end insert—
“(4) For the purposes of sub-paragraph (1)(c) and (d) “serious” means life-threatening or impairing severely the quality of life of a person with the disability, illness or condition.”
The noble Earl said: My Lords, I shall speak also to Amendment No. 112A. This brings us back to the definition of “serious”. I should like to start at a slightly different point from the one that was the focus of the amendment in the name of the noble and learned Lord, Lord Lloyd. New subsections (9), (10) and (11) of Clause 14, which would amend Section 13 of the Act, focus upon pre-implantation genetic diagnosis and take us to a particular aspect of that issue which, but for these provisions, many of us might not otherwise have thought much about. They explicitly prohibit embryos being selected with a view to increasing the chance of having a child with a serious disability or medical condition. Consciously to wish such a disability or condition on a child may seem extraordinary, but there have been well documented cases where parents who are disabled in a particular way have expressed a desire to have a child with the same disability. I find that idea repellent because it ignores one of the issues central to any IVF procedure, namely, the future welfare of the child. Therefore, I wholly support a ban on that type of embryo selection. The techniques available to diagnose the presence of genetic conditions in any embryo should be used, if they are used at all, to reduce the risk of a child being born with a serious handicap and to reduce the risk of suffering.
Over the years, this type of pre-implantation diagnosis has been carried out in a sensitive and responsible way by clinics on behalf of patients. It is not a technique deployed for trivial purposes. On the contrary, it is seen very much as a last resort in cases where a couple have been unable to produce a healthy child by natural means.
Two problems have caused concern. One of them is the time that it sometimes takes for the HFEA to allow a procedure to go ahead. The need for the HFEA to approve a particular condition as being serious enough to warrant pre-implantation diagnosis often means a considerable delay for couples wishing to access the procedure.
It is absolutely right that each case should be considered on its merits. There should be sufficient flexibility in the system to allow that to happen. At the same time, there is an argument for encouraging the HFEA to look at ways of shortening the decision-making process. For example, the BMA suggested that that could be done by having, in the first instance, a set of broad criteria included in the Act, with the scope and interpretation of those criteria fleshed out for clinics in the form of HFEA guidance.
If we look at Schedule 2 in conjunction with the provisions in Clause 14, those broad criteria for pre-implantation diagnosis and screening are indeed stated. Schedule 2, in new paragraph 1ZA(1)(c), allows for an embryo-testing licence to be issued:
“in a case where there is a particular risk that any resulting child will have or develop—
a gender-related serious physical or mental disability’
a gender-related serious illness, or
any other gender-related serious medical condition,
establishing the sex of the embryo,”
The question begged by this wording, similar to that in Clause 14, is: what does the word “serious” mean—serious for whom? Most would immediately say, “Serious for the child in terms of the degree of suffering or the extent to which life expectancy is curtailed as a result of the child having the condition in question”. We do not mean serious for the NHS or the parents in looking after the child or serious for the parents in having to bring up a child who may not be 100 per cent able bodied. The seriousness of the illness or condition is surely defined, for most of us, from the point of view of the child when they are born. Therefore, we should think of setting out a broad definition of what is meant by serious in the Bill. This would potentially assist the HFEA in terms of Parliament’s intentions and it would address a second problem.
At the moment, there are rare circumstances in which patients, having had their embryos tested, find that they have to choose between a poor quality embryo which has no adverse abnormality and a good quality one which does have such an abnormality. The first, if it is implanted, is unlikely to result in a pregnancy. The second is much more likely to do so. As far as possible, we should try to avoid new subsections (9), (10) and (11) being interpreted in a way that would make it impossible to take a reasonable decision in such a case. Without a broad steer on what should be understood by the word “serious”, we might be storing unnecessary complication and delay for couples seeking treatment of this kind.
There is an equally important concern in relation to so-called saviour siblings. The Joint Committee on the draft Bill recommended that the practice of selecting for saviour siblings should not be restricted to life-threatening conditions—as we have just been debating—and that “life-threatening” should be replaced by “serious”. The Government accepted that recommendation. Personally, I have no problem with the change, provided that we know in broad terms what we mean by “serious”. Again, we surely mean serious from the point of view of the child in terms of its likely future suffering or the risk to the life of the child.
The whole concept of a saviour sibling is, ethically speaking, a difficult one. Some people find it impossible to countenance at all; others will do so only in a narrow range of cases. That is why, if we are going to extend the legal grounds on which tissue matching is to be permitted for the creation of saviour siblings and avoid the possibility that the process will be invoked for reasons that are less than compelling, we need to spell out in clear terms how we want the statute to be interpreted. The seriousness of the condition in this context is surely about the probability that it will end a person's life prematurely or cause the person a degree of suffering such as to impair their quality of life to a severe extent.
Some might argue that there are serious illnesses and conditions that fall into neither of those categories: the noble and learned Lord, Lord Lloyd, hinted at that very point earlier on. It is a perfectly respectable line to adopt. But the very fact that there is room for discussion on that point makes it all the more important for us to make sure that the terms in the Bill are defined in ways that are not overly prescriptive but, at the same time, we should leave all concerned in no doubt about what was intended. I believe that the definition that I have proposed is what the Joint Committee intended and I hope very much that the Minister will look at the amendments positively. I beg to move.
My Lords, I regret that, because of circumstances completely beyond my control—rain and trains—I was unable to be here for the first amendment. However, I would like to speak to this amendment which is extremely carefully and well worded. One of the difficulties that we have is that the law lays down a black and white division between what you can and cannot do and in medicine we deal in shades of grey right across the spectrum. I will confine my remarks about this amendment to saviour siblings, although I think it applies equally well and is needed just as much at other points in the Bill.
The difficulty is that what is serious to one person is not serious to another. Medical science is moving on very rapidly and we are now making legislation that we will not revisit in the near future. I will use as an example a condition for which at the moment there is no talk of saviour siblings, so this is blue-sky thinking—psoriasis. Overwhelming psoriasis that affects the whole of a person's skin can be a devastating disease, but psoriasis can amount to a few plaques on a person’s elbows and knees. That disease has responded dramatically to the new biological drugs, which suggests that it may be possible in the not-too-distant future to use stem cells in some way in an infant who clearly has that terrible disease. But you have to define how bad it is to warrant a saviour sibling. You will have to be able to say that it is not just “serious” but “life-threatening” as well. Are you going to create a life because it may be a more convenient way of treating the disease, even though there are other ways of managing it, which may be expensive?
The other difficulty with “life-threatening” is that you cannot wait until the child who is ill is actually dying: you need to think about the saviour sibling concept earlier. The amendment addresses that neatly and beautifully. Without it, I fear that the line may shift and shift until there is increasing pressure to go for aesthetic biological perfection rather than being able to accept the broad spectrum of humanity. Surely, we should be considering saviour siblings only when a condition really is life-threatening and there is strong evidence that without a saviour sibling the child will die.
My Lords, I very much welcome the amendment in the name of the noble Earl, Lord Howe. Before coming to my reason for that, I address his point about delays, to do with PGD, to applications being considered by the HFEA. I hope it will help the House if I indicate that it probably was true when PGD first started. It took quite a long time to go through the system, because each condition had to be considered on its own. The present policy is that once a condition has been licensed in principle, and the laboratory has a licence to carry out PGD, the whole process is speeded up. They do not have to consider again on an individual, case-by-case basis. Something like 70 conditions, some of them very rare, have already been licensed in principle.
That said, I believe that the amendment of the noble Earl, Lord Howe, will make the job of the HFEA easier. It could potentially speed up the process further. As he has already indicated, there is an element of judgment involved. We cannot be precise on this, but the phrase,
“impairing severely the quality of life of a person with the disability, illness or condition”,
seems to set down a criterion that will make it easier for the HFEA to exercise its judgment when these applications come before particular licence committees.
My Lords, I feel rather happier with this amendment than I did with that of the noble and learned Lord, Lord Lloyd. There are a couple of things I that would like to say, which are, I think, highly relevant. I do not entirely agree with the noble Baroness, Lady Finlay, about one issue. I do not believe that medical practice and research are progressing so quickly that we cannot establish basic ethical rules about how we manage things in law and regulation. Things are not moving that quickly. It is very obvious in the case of pre-implantation. After all, as I mentioned the other day, the first child is now coming up for 18. It is quite a long time, in which only a handful of diseases have been regulated and passed through the guidelines of the HFEA, which brings me to my second point.
It is not entirely desirable to have every disease process regulated in quite the way that the noble Earl, Lord Howe, suggests for one very good reason. There is a much greater expert on muscular dystrophy than myself in this House: the noble Lord, Lord Walton. The defect in the dystrophin gene is found in somewhere between 2.25 million to 2.5 million letters of the DNA alphabet. There are at least 400 or 500 different misspellings that can cause a form of muscular dystrophy, and those different muscular dystrophies will have different prognoses. Some will lead to relatively minor weakness, with a good chance of longevity. Others are totally devastating.
Lesch-Nyhan syndrome is a much rarer disease, which affects only boys. No single family in the United Kingdom has precisely the same mutation as another; everybody has a slightly different mutation. The manifestations of that disease can be absolutely devastating. These children may frequently expose themselves to damage. They mutilate themselves; they bite their tongues off; they often have to have their teeth extracted to prevent that happening, in case they die of the infection. It is the most brutally revolting disease, which I will not describe in detail because it really is that unpleasant.
Even with cystic fibrosis—perhaps the most common disease that is a recessive disorder—the nature of the mutation makes a very big difference to the quality of life afterwards. Therefore, the idea that permission should be given in each case is not terribly useful. There has to be a degree of latitude in how this is done and, in many ways, the proposition in the amendment of the noble Earl, Lord Howe, fits the bill beautifully. In some mutations one might say that screening is not suitable but in others it clearly is.
My Lords, it is with some regret that I oppose this amendment, because, having heard what noble Lords have said about it, I can see distinct advantages in it. It may be that doctors can come to understand what is meant by “quality of life” rather better than lawyers and judges. When I was a judge and I had to decide whether a very young baby or, at the other end of the spectrum, a severely ill elderly person should be given treatment to keep them alive, I and the judges of the Court of Appeal, of which I was once a member, were, where possible, extremely careful not to use the phrase “quality of life”.
As the noble and learned Lord, Lord Lloyd, said, that is a highly subjective phrase. What for some people would be a way of life that they absolutely could not endure would, for other people who had to endure it, be something worth living. Some people might be suicidal having, for instance, very severe back injuries which make them tetraplegic. Others live as tetraplegics with a quality of life that would be astonishing to most of us in this House, I suspect. Therefore, it may be that the medical profession can work out what quality of life is, but I give a word of caution and am extremely unhappy about the amendment, although I recognise the advantages of it that others have mentioned.
My Lords, as has been said, the Joint Committee recommended the change from “life-threatening” to “serious”. As a member of that committee, I thought that that was a reasonable suggestion in the circumstances. The kind of considerations mentioned by the noble Lord, Lord Winston, on this amendment, and by the noble Lord, Lord Turnberg, on the previous amendment, seem to go towards a definition of something that was not necessarily life-threatening but was still very damaging to the health of the person in question. Therefore, so far as I was concerned, that was what “serious” meant. After all, it is an ordinary word of the English language and there is a limit to the extent to which it is right to define ordinary words; but, as some of your Lordships have pointed out, “serious” has been used in a context that has led to a surprising result by including something that some noble Lords would not be prepared to include.
So the suggestion is that “serious” is too vague to be allowed to stand alone in an Act of Parliament. If that is the case, we must look to see whether we can produce a better definition, as my noble friend Lord Howe has suggested. When I read the amendment, I thought it was pretty much like what I had in mind when we changed “life-threatening” to “serious”. However, the noble and learned Baroness, Lady Butler-Sloss, with her great experience of the judicial art, has said that lawyers stand away from, and do not wish to define, the phrase “quality of life”, and refrain from using it when giving their reasons for judgment.
I was wondering whether, perhaps, “health” might do instead. We cannot make such an amendment at this stage, but if the principle of this amendment were acceptable to the Government, as I sincerely hope it will be, it would be possible to refine it a little further. But the idea that trivial impairment to health would qualify as “serious” certainly never entered my head at the time of the Joint Committee’s deliberations. If, as has been said in relation to the earlier amendment, a definition of “serious” is required, I cannot think of anything much better than this fitting the context—except, possibly, with the substitution of “health” for “quality of life”.
My Lords, I should like to add to the points raised by my noble friends behind me about the quality of life. I think it is dangerous when one person judges another’s quality of life. I speak as president of the Spinal Injuries Association. I have heard nurses say when they have seen a tetraplegic—generally a young man—paralysed from the neck down, in head traction, “Oh, he would be better dead”.
Tetraplegics have recovered to live a certain life that other people should not judge. I have seen many of them, and what is important is their judgment of their quality of life, which can be really remarkable. It is quite dangerous for other people to be God.
My Lords, I was not very happy with the expression “quality of life”, for the reasons I have tried to explain. They have been rather reinforced by my noble and learned friend Lady Butler-Sloss. But once again, I am attracted by the solution produced by the noble and learned Lord, Lord Mackay. Is there not a way in which we can pass this amendment now, and then somehow, by agreement, substitute “health” for “quality of life” at Third Reading?
My Lords, I agree profoundly with the noble and learned Lord. I was graciously accommodated at Stoke Mandeville, a spinal injuries hospital, in order to be near to my wife—although I had only one fractured vertebrae which nobody noticed until later. I saw a number of cases there where people with severe spinal injuries—such as tetraplegics—would simply turn their face to the wall and die. The injuries that they had received were not, in themselves, life threatening, but the psychological effect upon the patient made them feel life threatening—they simply pulled up their roots and died. Others got on with life. Who is to say who was right in all those circumstances?
The only conclusion I would draw from that is that it is extremely difficult for us to arrive at a perfect form of words which will make it utterly clear to those who are dealing with it in future—perhaps in circumstances which we have not envisaged—what they should do. In the words dreamt up by my noble friend Lord Howe, we have a workable piece of legislation. I hope that we will accept it in that light. If anybody finds something better, perhaps it could be added—either here at Third Reading, if procedure allows, or in the other place.
My Lords, having spoken in favour of the earlier amendment which was rejected by the House, I am slightly uncomfortable in speaking to this amendment moved by the noble Earl, Lord Howe. Nevertheless, it is attractive in many respects. I agree that the concept “quality of life”, despite the efforts of the healthcare economists to define what they term QALYs—quality adjusted life years—is not an attractive one, and I understand entirely the views of our judicial colleagues.
When I chaired the House of Lords Select Committee on Medical Ethics in the 1990s, we had to look at issues of terminology. We dismissed the idea of “quality of life” but came up with “health and well-being”, as the noble and learned Lord, Lord Mackay, has just suggested. That is an alternative which ought to be very seriously considered because, in general principle, the amendment has many attractions.
My Lords, I, too, was a member of the pre-legislative scrutiny committee, and I support the position of the noble and learned Lord, Lord Mackay. I think that he took the temperature of the committee very well when he said that by using the word “serious” we meant to incorporate the essence of the amendment of the noble Earl, Lord Howe. From the discussions that we have had on both this amendment and the previous one, it is clear that the difficulty is with the elusiveness of such vocabulary in the Bill, which may generate debates among lawyers and so on about precise meanings. Can my noble friend help me here? Can she say—the noble Earl, Lord Howe, might agree with her—whether an appropriate way forward might be to incorporate the definition in the form of statutory guidance either to the HFEA or from the HFEA to practitioners so that the substance of what is meant by the word “serious”—effectively, “severe”—is available without being included in the Bill in a way that gives rise to some of the hesitations that have been expressed?
My Lords, perhaps I may make an arcane procedural point regarding the position if your Lordships are unable to come to a conclusion about the best formulation at this stage and if the procedures of the House forbid a return to this matter in full at Third Reading. Noble Lords should bear in mind that, if they include something in the Bill with which they are not fully satisfied and it is cast out in another place, they can then debate it and offer something in substitution so that they get another bite at this cherry, whereas if they and the other place do nothing, the matter is closed.
My Lords, as we have heard, there is no definition of “serious” in the legislation. A definition was not included in the Bill in order to allow the HFEA and clinicians appropriate levels of flexibility within which to make licensing decisions, while ensuring that it would be allowed only for medical conditions that are considered to be serious. The HFEA would continue to provide guidance on embryo testing and on the criteria that it would take account of when making decisions about such testing. It would be expected that part of the guidance would include consideration of words such as “serious” in the legislation.
The Government entirely understand the noble Earl’s concern to define more closely the scope of decisions that may be made in this area. In fact, the draft Bill included further criteria which attempted to define that more precisely. However, the Government have given this further, very careful consideration and have taken on board comments from a range of stakeholders.
The term “serious” is used in several places in the Bill—notably in relation to the granting of embryo research licences for the study of serious disease. The HFEA is given flexibility within those limits—drawing on both its own expertise and the results of regular consultation—to make decisions taking account of all relevant factors. The Government believe that that should be the case here also.
There is currently no reference to embryo testing in the 1990 Act. Therefore, by including in the Bill the purposes for which embryos can be tested, we are introducing more stringent requirements than are currently in place. Because of the regulatory oversight from the HFEA and further guidance relating to embryo testing in the code of practice, we do not consider a definition of “serious” to be necessary in the Bill.
I have listened to the excellent arguments put forward in this debate, and it is clearly extremely difficult to define “serious”. The noble and learned Lord called it an ordinary word but, as has been pointed out, it raises a huge number of problems. I am attracted to the suggestion of my noble friend Lady Hollis that we should give further consideration to strengthening guidance in relation to this word and that perhaps we should define it more fully in the guidance. I think that we need further discussion about this. It would be difficult to include a definition in the Bill but I am certainly willing to discuss it further before Third Reading.
I noted the appropriate point made by the noble Lord, Lord Elton—that if noble Lords do not vote on this matter today, they may not have another opportunity to discuss it. I would ask that perhaps we could have further discussions with the noble Earl, Lord Howe, the noble and learned Baroness, Lady Butler-Sloss, the noble and learned Lord, Lord Mackay, and others, to see how we can proceed. As I say, it may not be possible to include this in the Bill. If not, I am certain that we could indeed strengthen the guidance. Perhaps there will be room for further discussion before Third Reading.
My Lords, I am grateful to Members of the House who have taken part in this debate and to the Minister for her reply. I confess that I had hoped for a rather stronger assurance from her that the Government were in principle willing to go down this avenue. I did not quite hear that, although I am grateful to the Minister for her offer.
My noble friend Lord Tebbit is absolutely right that no amendment is likely to be perfect. My hope was that this amendment would take us forward in a useful and workable way. The noble Baroness, Lady Finlay, is also correct in pointing to the shades of grey that are inherent in the word “serious”. I believe that it is too flexible a term. We want a certain amount of flexibility, but the shades of grey in the amendment are not as wide as they would be if we left the Bill as currently drafted.
The noble Lord, Lord Winston, pointed out the differences between different manifestations of a particular disease, such as muscular dystrophy and cystic fibrosis, because of different types of gene mutation. That is precisely why I thought it right to leave an element of flexibility in the definition, dependent—perhaps inevitably—on a certain amount of subjective judgment. I note the reservations of the noble and learned Baroness, Lady Butler-Sloss. As I suggested earlier, the intent behind the amendment was that the interpretation of the wording should be fleshed out by means of HFEA guidance. I suggest that that would reduce the scope for legal uncertainty.
The noble Baroness, Lady Masham, made a very telling point. We are talking here not about terminating life, but about deciding on the criteria for embryo testing, which is rather different. If the Minister had been able to give an assurance about placing this definition in guidance, as the noble Baroness, Lady Hollis, suggested, I would have wished to withdraw the amendment.
My Lords, forgive me for interrupting the noble Earl, but I did give an assurance that we would be able to do something in guidance. I could not give an assurance that we could include something in the Bill, but I give my wholehearted assurance that we will put something in guidance to that effect.
My Lords, before the Minister sits down, can she clarify the extent of the Government’s powers to put something in guidance? I recollect that it would be within the discretion of the HFEA, and I am not sure that there could be a guarantee that something would be in guidance. I may be wrong and it may be that when draft guidance goes to the department something can be inserted, but I am not sure that I recollect that.
My Lords, I understand that we have given an undertaking in relation to counselling and information, and that there will be duties on the HFEA in terms of guidance. I think that it will be the same here, and we will ensure that there is a duty on the HFEA to adhere to this guidance. If I am incorrect, I will notify noble Lords as soon as possible.
My Lords, is it the Minister’s intention that the “something” should be nearer to what has been proposed by the noble Earl, Lord Howe, or it will be very different and even more vague than the term “serious”?
My Lords, really. If the noble Lord will forgive me, I would like to remind the House that this is Report stage and not the first day of Committee. People should have stopped intervening by this stage. I know it is important, but if people wish to change the rules of the House they can do so in the usual way. This is getting totally out of hand.
My Lords, I have no wish to change the rules of the House. It is perfectly within the rules for me to intervene in my noble friend’s speech to ask him a question, as opposed to what has been going on, about which I had some doubts, with people asking views of the Minister during my noble friend’s speech.
Would my noble friend consider that, were this amendment to be enacted, it would still remain possible for the Government to give guidance? The only difference is that it would be guidance on the basis of what we had put into the Bill, and not what we might have put into it.
My Lords, I find that intervention by my noble friend extremely helpful. It encapsulates what I was intending to say in a rather better way than I would have said it. Given the support I have received, there is a case for testing the opinion of the House. I hope the Minister will understand if I now do that.
[Amendment No. 34 not moved.]
35: Schedule 2, page 57, line 12, leave out “inter-species embryos” and insert “human admixed embryos”
On Question, amendment agreed to.
[Amendment No. 36 not moved.]
37: Schedule 2, page 57, line 33, leave out “inter-species embryos” and insert “human admixed embryos”
38: Schedule 2, page 57, line 36, leave out “inter-species embryos” and insert “human admixed embryos”
39: Schedule 2, page 58, line 1, leave out “inter-species embryos” and insert “human admixed embryos”
40: Schedule 2, page 58, line 4, leave out “inter-species embryos” and insert “human admixed embryos”
On Question, amendments agreed to.
[Amendments Nos. 41 and 42 not moved.]
43: Schedule 2, page 58, line 8, leave out “inter-species embryos” and insert “human admixed embryos”
On Question, amendment agreed to.
[Amendments Nos. 44 to 47 not moved.]
[Amendment No. 48 had been withdrawn from the Marshalled List.]
Clause 12 [General conditions of licences]:
49: Clause 12, page 9, line 4, leave out “inter-species embryos” and insert “human admixed embryos”
On Question, amendment agreed to.
Schedule 3 [Consent to use or storage of gametes, embryos or inter-species embryos etc]:
50: Schedule 3, page 59, line 9, leave out “INTER-SPECIES EMBRYOS” and insert “HUMAN ADMIXED EMBRYOS”
51: Schedule 3, page 59, line 30, leave out “the testing of embryos” and insert “embryo biopsy, embryo storage or other embryological techniques”
52: Schedule 3, page 59, line 33, leave out “inter-species embryo” and insert “human admixed embryo”
53: Schedule 3, page 59, line 35, leave out “inter-species embryo” and insert “human admixed embryo”
54: Schedule 3, page 59, line 38, leave out “inter-species embryo” and insert “human admixed embryo”
55: Schedule 3, page 60, line 1, leave out “inter-species embryo” and insert “human admixed embryo”
56: Schedule 3, page 60, line 5, leave out “inter-species embryo” and insert “human admixed embryo”
57: Schedule 3, page 60, line 9, leave out “inter-species embryo” and insert “human admixed embryo”
58: Schedule 3, page 60, line 12, leave out “inter-species embryo” and insert “human admixed embryo”
59: Schedule 3, page 60, line 14, leave out “inter-species embryo” and insert “human admixed embryo”
60: Schedule 3, page 60, line 20, leave out from first “particular” to end of line 21 and insert “human admixed embryo or particular human admixed embryos.””
61: Schedule 3, page 60, line 28, leave out “inter-species embryo” and insert “human admixed embryo”
62: Schedule 3, page 60, line 32, leave out “the testing of embryos” and insert “embryo biopsy, embryo storage or other embryological techniques”
63: Schedule 3, page 60, line 35, leave out “inter-species embryo” and insert “human admixed embryo”
64: Schedule 3, page 60, line 38, leave out “inter-species embryo” and insert “human admixed embryo”
65: Schedule 3, page 60, line 42, leave out “inter-species embryo” and insert “human admixed embryo”
66: Schedule 3, page 60, line 43, leave out “inter-species embryo” and insert “human admixed embryo”
67: Schedule 3, page 61, line 1, leave out “an inter-species embryo (“inter-species embryo A”)” and insert “a human admixed embryo (“human admixed embryo A”)”
68: Schedule 3, page 61, line 3, leave out “an inter-species embryo” and insert “a human admixed embryo”
69: Schedule 3, page 61, line 4, leave out “inter-species embryo” and insert “human admixed embryo”
70: Schedule 3, page 61, line 5, leave out “inter-species embryo” and insert “human admixed embryo”
71: Schedule 3, page 61, line 6, leave out “inter-species embryo” and insert “human admixed embryo”
72: Schedule 3, page 62, line 21, leave out “inter-species embryo” and insert “human admixed embryo”
73: Schedule 3, page 62, line 30, leave out “inter-species embryo” and insert “human admixed embryo”
74: Schedule 3, page 63, line 4, leave out “inter-species embryo” and insert “human admixed embryo”
On Question, amendments agreed to.
75: Schedule 3, page 64, line 41, at end insert—
“Cases where consent not required for storage and use for research10A (1) The human cells of a person (“the donor”) may be used to bring about the creation of an embryo or inter-species embryo in vitro and any embryo or inter-species embryo so created may be used or stored for the purposes of any project of research without the donor’s consent if the following conditions are met.
(2) Condition A is that the human cells are lawfully taken from or provided by the donor.
(3) Condition B is that the human cells were first stored or used prior to the day on which section 12 of the Human Fertilisation and Embryology Act 2008 comes into force.
(4) Condition C is that the human cells, embryos or inter-species embryos are used in circumstances such that the person carrying out the research (“the researcher”) is not in possession and not likely to come into possession of information from which the donor can be identified.
(5) Condition D is that it is not reasonably possible to contact the donor to obtain their consent.
(6) Condition E is that there are reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project of research for which the human cells, embryos or inter-species embryos are stored or used has to be confined to, or relate only to, material in relation to which there is an effective consent.
(7) Condition F is that it does not appear to the researcher that the donor has indicated any objection to such use or storage (as applicable).”
The noble Lord said: My Lords, this amendment concerns allowing existing cells and cell lines to be used in research involving somatic cell nuclear transfer or admixed embryos. As noble Lords are well aware, medical and biological research is about taking tissue, cells and cell lines from diseased patients to better understand the progression of diseases in the attempt to find treatments and cures. All medical research is based on this principle. The Bill as drafted requires the explicit consent from the donors of any cell used to create an embryo. This effectively blocks the use of many existing cells or cell lines in somatic cell nuclear research. They could include many valuable lines representing specific and rare diseases.
I recognise the centrality of consent in research of any sort. However, I also recognise that such research involves a transient, embryo-like stage to permit the derivation of stem cells. The research would never create embryos for further development or implantation. The amendment is not about the donation of material for fertility treatment. However, there are existing cells and cell lines which have been completely anonymised so that the original donor is untraceable. In other cases, donors have been told that they will not be contacted again about research. The amendment creates a limited exception for some of these cells or cell lines to be used.
Provision was made in the Human Tissue Act 2004 for existing holdings of tissue containing cells to be legally stored and used for research purposes when anonymised in form. They were thus exempt from the consent requirement of that Act. This amendment will impose strict safeguards on the application of the exception, which will be overseen by the regulator and research ethics committees. These safeguards have been expanded following Committee, and the amendment now lists seven different exceptions. The discussions in Committee most notably turned on limiting the existing holdings of anonymised tissue where it is not reasonably possible to contact the donor to seek consent. The exception is subject to a number of important conditions, including the condition that no alternative sources of tissue for which effective consent can be obtained are available, and that there should be no evidence that the donor would have objected to this use. As with any research, approval would have to be required from both the HFEA and the relevant research ethics committee. This will ensure that in exceptional, deserving cases, vital resources are not wasted and important research can be carried out.
The significance of a collection gathered over many years of tissue, cells and cell lines from patients with severe, life-threatening diseases, which my amendment refers to, must not be underestimated. To demonstrate the level of support for this outside this House, I shall quote from a letter from various patient-based charities written to the noble Lord, Lord Darzi. The bodies include the Association of Medical Research Charities, the Muscular Dystrophy Campaign, the Parkinson’s Disease Society and many others. They said:
“The creation of pluripotent embryonic cell lines using somatic cell nuclear transfer will be a valuable research tool to gain greater knowledge of specific disease conditions. Scientists in the UK currently use tissue and cell samples donated by patients for basic research although a substantial number of human cell lines are also commercially available. These valuable donated resources will become unavailable as soon as the retrospective requirement for donor consent to use these cells for SCNT currently in the bill comes into effect. These tissues and cells were donated with the explicit condition that the donor/patient was giving consent for their use in research to help find treatments and potential cures and in many cases it is now impossible to trace them back to the original donors. A specific and telling example relates to Spinal Muscular Atrophy. At a clinic in the US, there are tissue and cell samples donated from over one hundred patients with SMA which could be used to create human embryonic stem cell lines that could model this devastating disease in the lab. As the Bill stands, it would become illegal to use these cell lines”.
Let me give an indication of how scientists who work in this field feel. Today in the Times there are three relevant articles, one of which is a letter from scientists working in stem cell science or related stem cell research. It is headed by three Nobel Laureates in medicine and physiology—Sir Martin Evans, Sir Paul Nurse and Sir John Sulston. It is signed by others such as Sir Ian Wilmut and Dame Julia Pollock. I shall not go through the whole list; 27 of the most distinguished men and women scientists and others in our country have signed the letter. Would they do so if they did not think this was of the utmost importance? Would they put their credibility on the line as serious scientists if they did not think that this was a very important issue that they wish the Government to consider?
The lead article on the “Comment” page in the Times also makes the point. It states:
“Stem cell research as a whole opens up huge opportunities for progress in the effort to cure or contain conditions such as Parkinson’s disease, diabetes or motor neurone disease among many others. Yet the use of embryonic tissue also, of course, raises ethical questions”.
We all recognise that. The article continues:
“There is a need to strike a balance between these considerations … The principle of consent as such is not at stake here. There is no dispute about it, nor is there debate over whether those who make contributions of this kind in the years ahead should be asked if they would care to make an exception, on moral grounds, to anything which might become connected with embryonic stem cell activity. What is being suggested, however, is that it should be presumed retrospectively that, as some donors who it is impossible to contact might have objected to being associated with this branch of research, there should be a blanket prohibition in this area”.
There is also a further article written by the science editor which makes exactly those points.
This is an important issue. These cell lines, tissue banks and cells are an important collection. Scientists exchange them throughout the world to study diseases and disease progression in an attempt to find treatments and to test and find new drugs. Without being able to research on the existing lines they will have to create further lines. This will take resources and a very long time. Others outside the United Kingdom may not be bound by such a regulatory regime. I am not asking for blanket coverage to allow scientists to use this collection; seven stringent conditions in the amendment will have to be met. I beg to move.
My Lords, I support this amendment extremely strongly. It is important for the House to understand how difficult it is to generate an embryonic stem cell line. In my own laboratory, in one of the leading science universities in Europe at Imperial College, I have had a team of three post-doctoral scientists—so not PhD students—working for several years with a virtually unlimited budget to produce stem cell lines both from mice and from human embryonic tissue. It is extraordinarily difficult and it is only now that we have started to get lines which look vaguely like normal stem cell lines. In fact, after two and a half years of research, we were so desperate to get stem cell lines that we ended up buying in lines from Harvard University in the United States. When we examined those stem cell lines, we found that they too were defective and not valuable for human research. This is a priceless biological commodity and it is frustrating for us as scientists to see a slight inconsistency in the Government’s position. It is interesting to consider that, at the moment, growing consideration is being given to the idea of people having their organs donated without consent after an accident for renal transplantation, yet here we have lines which have been established with consent but not specific consent, so they cannot be used for this research. That seems a very difficult position for the Government to adopt, and therefore I must support this amendment.
My Lords, for the same reasons as the noble Lord, Lord Winston, I would like to say something about this amendment but I come to a different conclusion, which will not be a great surprise to the House. The noble Lord is right to remind us that we should see this in the wider context of the debate about organ donation. Having been involved first as a Liberal Member of Parliament and then as a Member of your Lordships’ House when organs were taken and used without consent by the Alder Hey children’s hospital, I know that your Lordships will realise that there is potential here for considerable controversy and inconsistency in the way the noble Lord has just described. I am slightly surprised that this amendment was not brought forward at a much earlier stage. If it is so crucial, why was this issue not considered by the scrutiny committee in detail? Before we incorporate this proposal into the legislation, should we not at least pause and give it further deep consideration?
The issue of consent is the crucial one, not the issue of the creation of the human embryo in the first place. Are we willing to allow retrospectively this use of the tissue and cell lines of people who might have a deeply principled objection to the creation of human embryos? That is the problem. We cannot on their behalf take this decision. Certainly, if I were asked whether my organs or cells could be used for a particular medical treatment, I would continue to carry my donor card. It is an altruistic and generous thing for members of the public to do. We should follow the Spanish model of having teams in every hospital in the country. These teams have significantly increased the levels of donation in Spain in comparison with our own country. We should also look at the alternative of using the far less ethically troubled adult cells which can be reprogrammed to create embryonic cells. If we were to do that, there would be no reason for any disagreement between the noble Lords, Lord Winston and Lord Patel, and people like myself.
Mine might be a minority view but it is perfectly properly held. I think there will be deep concern and anxiety outside your Lordships’ House if we agree this principle, which, as I say, is one of retrospection. It could be seen as a violation of the rights of someone’s body. We are sometimes properly swayed by the humanitarian concerns raised in your Lordships’ House, but outside there are also commercial considerations. We have to weigh all these things in the balance. The Human Fertilisation and Embryology Authority, which we are invited to place so much faith in, is a regulatory body, not an ethical one. That is one of the reasons why we have been debating how complex questions of this kind can best be resolved in the future. The HFEA is not the place to do that.
I was struck by an interview in New Scientist on 15 December with Professor Shinya Yamanaka, who, as your Lordships will be aware, is the scientist who has been involved in the reprogramming of adult cells in order to create embryonic stem cells. I accept that the noble Lord, Lord Patel, specifically said that this would not be for use in fertility treatments. Nevertheless, when Professor Yamanaka was asked whether he had any concerns, he said:
“In theory, our work means that you can generate germ cells from iPS cells”—
that is, induced pluripotent stem cells—
“which could be very good news for the treatment of infertility. So it is good in that sense. But I can make eggs as well as sperm from my own male iPS cells. What if someone took those sperm and eggs from a single person and fertilised them? The result would not be a clone because of the way cells divide during sexual reproduction—the fertilised egg would not be genetically identical to the original iPS cells—but it would be something very strange and dangerous. At this time there are no guidelines or rules that would prevent this. This kind of fertility technology is still very difficult so we don’t have to worry about it too much at the moment. But now that everybody can generate these cells, it could become dangerous”.
I do not have a knee-jerk reaction every time someone comes forward with something that may be of use and advantage to mankind, but I believe, as Professor Yamanaka has said, that we have to ponder these things. We should not retrospectively give consent for something that is not of great urgency; it would not prevent the development of life-saving cures. There are alternatives that we should be using. I hope the Government, before accepting the amendment, will give it a lot more thought.
Yes, my Lords, I accept that. That is why I would like this to be given further consideration. Where specific consent has been given I can see that, even if someone disagrees with the views I have expressed in your Lordships’ House, given that this is where the law stands today, that would be legal. As the noble Lord has just said, however, consent was not given with a view to this specific line of inquiry, and people should have had the right to know that before they were asked to give consent; if not, this issue would be in danger of discrediting the whole idea of consent. Before we proceed in the wider debate about organ donation, we should weight these matters carefully and try to turn this into not an area of controversy but one around which we can find some agreement.
My Lords, it is difficult to overstate the crucial importance of this amendment for the future of medical research. I am a firm believer in the principle of valid informed consent in the field of medical research, wherever it is possible for such consent to be obtained. I can do no better than to quote a letter in this morning’s Times from the 28 scientists to whom my noble friend Lord Patel referred:
“we, as stem cell scientists and supporters of biomedical research, are very concerned about the proposed ban on the generation of embryos in such research by the use of cells for which the donors did not, or could not, give specific consent. We fully agree that in the future such consent should be a requirement and that it would be wrong to use previously donated cells if there were good reason to believe that the donor would have specifically objected to their use in embryonic stem cell research. However, many existing cell and tissue samples and cell lines were donated, for any research purpose, by patients (now untraceable) with particular diseases, before this sort of research was even imagined. These cells have been well characterised over many years, or have unique properties and may therefore be the best samples to use for the derivation of embryonic stem cells. Such stem cell lines would be of great value in understanding how diseases develop, as well in the search for therapies”.
The letter goes on to say:
“We are alarmed that the Government has expressed opposition to this amendment, even though it mirrors a similar provision in the Human Tissue Act 2004, regarding anonymous, untraceable ‘existing holdings’”.
It finally says:
“We urge the Government to accept this important improvement to the Bill, which will help to maintain the UK’s reputation as the place of choice for this exciting and world-leading medical research”.
I could not have expressed it better. These stem cell lines already in existence, derived from cells which were donated for research purposes, are an invaluable source which must not be allowed to degenerate.
My Lords, I should like some clarification. Proposed subsection (2) states:
“Condition A is that the human cells are lawfully taken from or provided by the donor”.
When the noble Lord quoted from the letter in today’s Times, he said that many of the cells were given for an unspecified purpose, just for research. What about the ones which were not? Are there records of those who said, “You can take any cell and do anything you like with it” and those who imposed conditions, like people do with organ donation, allowing, for example, the use of their eyes but not their lungs? Is there a significant difference between those who made the point that those cells could be used for anything and those who did not?
My Lords, the noble Lord, Lord Walton of Detchant, in reading out the letter that many of us have read in this morning’s Times, has really made the most important point. We are dealing with a cell bank which has been built up over many years. I suspect that, in the vast majority of cases, the original donors gave consent for research into the disease and that they are currently untraceable. Many of them have been anonymised and in other cases the individuals may not be able to be traced at all.
We are not talking about cells being taken from new donors. I suspect that the noble Lord, Lord Alton, was addressing at least some of his remarks to that. For that, consent will always be required. The amendment refers to cells stored before the date on which this Act comes into force.
There has also been mention of the Human Tissue Act or, as I frequently call it, the Human Tissue Bill. Those of us who spent many rather difficult days in the Moses Room debating the Committee stage of that Bill will never forget it. I am very sorry that the Minister’s predecessor, the noble Lord, Lord Warner, is not in his place, because he had to defend the Government’s position on the Bill when it reached this House. It was stated then—I suspect by many of the same people who have written the letter to The Times—that that Bill would have made most medical research impossible because of the amount of consent that would have been required before any tissues could be used. I always regard the noble Baroness, Lady Finlay of Llandaff, as one of the heroines of that particular battle. By the end of that Committee stage, we had succeeded in putting into the Bill the measures that made the Human Tissue Act workable. It is not perfect, as we learnt in the Joint Committee, but at least it was workable, and much of the research could go on.
I have a horrid feeling that the Government are making the same mistake that was made four years ago when that Bill came through. This started by thinking that we must have consent for everything and therefore that there must have been consent for whatever is going to be done—even to tissues that were taken before. We were able to establish that that was impossible and therefore unreasonable. After debate, the Government, very wisely, accepted that.
As I say, the Human Tissue Act is workable. It is hugely bureaucratic, covering far too wide a field, but that is a separate matter. Why must we make the same mistake again? As the noble Lord, Lord Walton, has said, we are dealing with the bank of tissues taken in the past. Therefore, virtually by definition, consent is impossible. The arguments for that, as set out in that letter and in the speech made by the noble Lord, Lord Patel, are absolutely unanswerable.
I hope that the Government will have learnt from their previous error. They had to climb down and realise that if they could do something—make sympathetic noises today—that would be helpful. The amendment might not be right but could be put right in another place. However, we cannot send this Bill away with this requirement for consent for the use of tissues—to which the donor has consented but who cannot be traced—but with the inability to use them without further consent. It seems absurd and I hope to goodness that the Government will listen to the arguments that have been advanced.
I hesitate to intervene because several points have been raised this afternoon about procedure at Report and I do not want to transgress any rules of the House. However, I wonder if my noble friends on the Front Bench—particularly considering the points just made by the noble Lord, about the arguments from the example of the Human Tissue Act—could find some way of looking at this again before Third Reading.
As I say, I understand the problems involved with introducing new matters at Third Reading in this House. However, there is a great deal of concern in the House, about the nature and substance of issues raised in the very powerful introduction of this amendment by the noble Lord, Lord Patel—and indeed supported by the noble Lord, Lord Walton of Detchant—combined with concerns raised on the regulatory side, if I may put it that way, by the noble Lord, Lord Jenkin of Roding. Is there any opportunity for my noble friends to find some way forward on this?
I have enormous sympathy with the proposition of the noble Lord, Lord Patel. I had the privilege of serving with him and others on the pre-legislative scrutiny committee. Part of that privilege meant that we had time to try to be wise. If I may say so, I find that I need more time to consider the relationship between the ethical issue of consent and the undoubtedly huge significance, both scientifically and medically, of all that the noble Lords, Lord Patel and Lord Winston, said. I therefore support the noble Baroness, Lady Jay, in asking whether it is possible—and let me please repeat that I have enormous sympathy about this—for the House to find some way of bringing wisdom to this. Can we quietly and with a degree of ethical finesse come to a mind and say, “Yes, we can wholeheartedly support this” as opposed to feeling, “Gosh, I wish we had had more time to think about it—and until the letter appeared in the Times, it had not really crossed my radar”? Without in any way wanting to stop what the noble Lord, Lord Patel, is proposing, I support the noble Baroness, Lady Jay, in saying, “Can we somehow have a means of thinking this through in greater detail and with more wisdom in the future?”.
My Lords, if procedures allow it, I would like to ask the noble Lord, Lord Patel, to clarify what happens in the real world in relation to these cells. Proposed new subsection (2) states:
“Condition A is that the human cells are lawfully taken from or provided by the donor”.
That is probably the wrong use of the verb. Are we not talking about an existing bank? We are looking back at a time that the cells were provided and taken. Am I right so far?
Subsection (7) states that,
“it does not appear to the researcher that the donor has indicated any objection to such use or storage”.
What would the situation typically be—that we have a bank but we do not know the identity of the donor now? Do we know whether he indicated anything in relation to the cells—whether they were to be used for research or research on a particular character? Had he been asked to provide cells for a particular research project? What do we know and what meaning can be given to subsection (7) in the real world?
My Lords, am I allowed to answer that? The noble Lord is quite right. Subsection (2) states that they were “lawfully taken” with appropriate consent. Subsection (7) states that:
“Condition F is that it does not appear to the researcher that the donor has indicated any objection to such use or storage”,
of those cells or tissues for the purpose wanted by the researcher. I gave a similar answer to the noble Baroness, Lady O'Cathain. If any conditions were attached, the authority would not allow the researcher to use the tissues, cells or cell lines.
My Lords, I rise to intervene very briefly and only because of my position as scientific adviser to the Association of Medical Research Charities, which wrote the letter to which my friend the noble Lord, Lord Patel, referred. I support his amendment very much indeed. I have one further point: if the suggestion of the noble Baroness, Lady Jay, is accepted, we should think very carefully about what the Human Tissue Act 2004 had to say about the position of consent for the use of tissues that were anonymised or from donors who were no longer traceable. We set up the Patient Information Advisory Group, whose sole purpose was to examine cases where consent had not been given. Could that be incorporated into the thinking if we return to this matter at Third Reading? If it cannot, or if that is not suggested by the Minister, I strongly support the amendment moved by the noble Lord, Lord Patel.
My Lords, I join my noble friend Lady Jay in urging my noble friends on the Front Bench that if they feel that they cannot accept this amendment outright today for reasons related to its technical drafting, for example, they should take the amendment in the spirit in which it is intended and return to it at Third Reading. All of us on the pre-legislative scrutiny committee—I support every word that the noble Lord, Lord Jenkin, said, and although we have not heard on this issue from the noble and learned Lord, Lord Mackay, he steered us through many a quagmire on that committee—sought to take forward the legislative and ethical content of the previous legislation to reflect the changing scientific world we now face. That changing scientific world and the development of research and so forth depend very heavily on the accrued knowledge locked into the tissue bank on which further research can occur.
Our efforts in that pre-legislative scrutiny process were to produce sufficient headspace in this Bill for those of us who could not see round the corner, while none the less maintaining an ethical platform throughout. To require retrospective consent from donors who may well be anonymous or untraceable is not consistent with either the general thrust of this legislation or the work of the pre-legislative scrutiny committee. I hope very much that my noble friends, having heard the debate today, will reflect and see whether they can help the House by either accepting this amendment today or returning to it at Third Reading.
My Lords, I have one brief point also about subsection (7). It provides that,
“it does not appear to the researcher that the donor has indicated any objection”.
If there is a challenge by someone to the researcher’s subjective opinion about that, is there any way in which that could be examined by an independent body or authority? I am rather anxious about a researcher, hotfoot and full of enthusiasm for his research, looking at this without anybody having the power to look into it and saying that they had had another look and the research was right, or that the research was quite wrong and there was some evidence of objection.
My Lords, I do not know if I should answer this in winding up, but I will answer now. As I said when I introduced the amendment, both the HFEA and the research ethics committee will have to be satisfied that the researcher applying for a licence has secured the appropriate consent. It is not the researcher who decides, but the research ethics committee.
My Lords, if that is right, could not the ethics committee, or some other similar body, be brought in to intercede as a further protection? That would satisfy completely.
My Lords, the letter in the Times suggests that the vast majority of the subject matter of this amendment—or, at least, a substantial amount of it—will have been the subject of general consent. If it had been the subject of general consent, it is difficult to see that that consent should be restricted or reduced retrospectively. That would be the result of not giving effect to it.
On the other hand, the letter suggests that that may not be true of all. It is not quite clear that this amendment differentiates in that way between material that is the subject of general consent and other material. I have difficulty knowing how the other material reached the bank. On what basis is it in the bank? As I understand this problem, the general consent provision should operate. If there is no general consent, but there have been some conditions under which the material has reached a bank, that must determine whether it is right to use the material in the way proposed. Therefore, there may be slight differences between the different types that are subject to this amendment. Generally speaking, the idea of using the material for a purpose covered by the general consent already given ought to be perfectly in order. I would think it wrong to try to obstruct that.
My Lords, Amendments Nos. 75 and 107 seek to permit the use of cell lines, a tool commonly used in research, for the creation of embryos in the laboratory by means of therapeutic cloning, without specific consent to this activity being obtained from the cell donor. The amendment would apply in cases where the cell lines are already in existence, and the original donor cannot be contacted to obtain such consent.
Cell lines are immortalised cells kept in the laboratory for use in biological science experimentation. Once taken from the donor, they can be cultured indefinitely and without limit. Scientists gain permission to use these cells by obtaining a general consent from the donor for their use in scientific experimentation. Due to the nature of cell lines, these cells may be cultured for many years. Some in existence today originate from donations made decades ago. Schedule 3 to the Bill preserves the system of consent found in the 1990 Act for the creation, storage and use of embryos and gametes to create embryos, but makes changes to reflect the fact that human embryos can now be created in more ways than simply by mixing human gametes. Additional consent requirements are introduced to ensure that informed consent is obtained before any human material can be used to create an embryo, and for the subsequent use and storage of such embryos. Equivalent consent provisions are also introduced in relation to the creation, keeping and use of human admixed embryos.
In essence, the Bill sets out a framework which ensures that, if a person’s gametes or cells are used to create an embryo, effective consent is in place beforehand. In the case of cell lines, even though the original cells may have been taken from the donor with their consent to research in general, the use of their genetic material to create cloned embryos or human admixed embryos is exceptional, and requires its own express consent. To provide otherwise would be incompatible with the convention rights. We have done a lot of work on this issue. It would also be incompatible with the Human Rights Act.
Before concluding, I shall answer a couple of important questions. The noble Lord, Lord Jenkin, rightly pointed out the Government’s situation in relation to the Human Tissue Bill. The Government take the view that the use of tissue for purposes under the Human Tissue Act is distinct from the use of a person’s genetic material to create a human embryo or a human admixed embryo. The Bill’s provisions reflect the special status of the human embryo and are compatible with the European Convention on Human Rights. For that reason, the issue is different also to the considerations being undertaken by the Organ Donation Taskforce on presumed consent for organs.
Although existing cell lines could be a useful resource for the creation of cloned embryos, there is scope for an alternative option of using other cells, for which proper consent is in place. This is critical in considering whether using existing cell lines would be compatible with the convention rights. The fact that there are other possible and effective routes for research means that it is not possible to argue that interference with the rights of persons to whom the cell line relates is justified on the basis of scientific need. However, I hear the very strong will of the House that we should take back this amendment and reflect further. Naturally, anything that the Government say or do at Third Reading must be compatible with the Human Rights Act, as noble Lords would wish; but I am very willing to take this back, reflect further and we will report to the House at Third Reading, and say where we can move from there.
My Lords, researchers have embarked on programmes of research on the basis that they have this tissue available to them for their use. As I understand it, if the Bill is passed as it stands, all that research would suddenly have to stop at that moment. Is that correct and, if so, can the noble Baroness give me any idea of how much money will have been wasted on the research that has been done so far, but cannot be continued, because the researchers cannot go on using this material?
My Lords, as I understand it, we are talking about the use of tissue whose donors have said it can be used for research; but what they have not explicitly said is that the tissue can be used for the creation of embryos. That is the crux of the problem.
My Lords, I think that I am procedurally in order to ask the noble Baroness before she sits down to indicate to us the provisions of the Human Rights Act that have a bearing on this matter. She does not have to reply in detail but I hope that she will say enough to enable us to have some consideration of it before we reach Third Reading. What she said is news to me, but she may well be right.
My Lords, a legal spanner has been thrown into my scientific argument. I do not know whether I can answer that. I do not understand what human rights legislation forbids the use of tissue samples, cells and cell lines that have been collected for many years from patients who probably died of the diseases in question and who would have wished while dying that if they donated their tissues for research it could some day benefit others with similar diseases, if a cure or treatment could be found. If that is against human rights, then I do not understand the human rights laws. I probably do not understand human rights anyway.
However, I hope that the noble Baroness is making an offer to me in which she sees a way forward and is giving me a firm commitment to finding a way for such research to be permissible. I go back to what my noble friend Lord Walton of Detchant referred to—the letter of 28 of the most eminent scientists, who put their credibility on the line. Three are Nobel Laureates from the United Kingdom, and there are others. Would they have done that if they did not think that the bank of tissues, cells and cell lines was important, because they could not be created overnight, no matter what legislators in Europe might think? It might be okay for their legislation, but is it right for United Kingdom legislation? Let us put the matter in the context of what we allow. We allow embryo research. We allow through legislation the creating of cloned embryos for research. The Bill also allows admixed human embryos. Put in the context of that, as the noble and learned Lord, Lord Mackay of Clashfern, mentioned, a general consent is given when people donated these tissues and cells.
Before I decide whether or not to divide the House, can the noble Baroness confirm that she is giving me a commitment to bring this back with a view to helping to amend the amendment legally, rather than bringing it back and hearing more arguments against it?
My Lords, can I press my noble friend and ask that before the next stage we have a statement asserting not only that this matter is incompatible with the Human Rights Act but that spells out why in detail and refers to previous appropriate litigation in Strasbourg on this very issue? Otherwise, a general blanket provision such as this could stop all sorts of things if she relied on the brief words in the article of the Convention.
My Lords, before we move on to the next amendment, perhaps I may ask my noble friend Lady Royall a question. I know that her burdens as a Minister are large this afternoon, but, in her capacity as a Whip, it would be helpful to the House to have some reprise of the rules of procedure of this House during Report, because the next group of amendments, or perhaps the one afterwards, is extremely complex. Perhaps we could have some guidance on that. I hesitate to put myself in the role of a grumpy old woman, but I listened carefully to what the noble Lord, Lord Tordoff, said earlier.
I shall repeat the words of the Companion to ensure that I do not make any mistakes and I am seeking the assistance of the Table. The Companion states:
“On report no member may speak more than once to an amendment, except the mover of the amendment in reply or a member who has obtained leave of the House, which may only be granted to: … a Member to explain himself in some material point of his speech, no new matter being introduced; … the Lord in charge of the bill; and … a minister of the Crown … Only the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation to the minister or where the minister speaks early to assist the House in debate”.
76: Schedule 3, page 64, line 46, at end insert—
“12A After paragraph 12 (as inserted by paragraph 12 above) insert—
“Consent in relation to children for storage and use for research12A (1) The human cells of a person (“the child”) may be used to bring about the creation of an embryo or inter-species embryo in vitro, and any embryo or inter-species embryo so created, used or stored for the purposes of any project of research without the child’s consent if the following conditions are met.
(2) Condition A is that the human cells are lawfully taken from or provided by the child before the child attains the age of 18 years.
(3) Condition B is that, at the time when the human cells are first used, the child is not competent to deal with the issue of consent in relation to either the storage or use of the human cells, embryos or inter-species embryos.
(4) Condition C is that the child does not appear to the person storing or using the human cells, embryos or inter-species embryos to have indicated any objection to such storage or use.
(5) Condition D is that a person who has parental responsibility for the child has given their consent in writing and signed it.
(6) Condition E is that there are reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project of research for which the human cells, embryos or inter-species embryos are stored or used has to be confined to, or relate only to, persons who have capacity to consent to it.
(7) In relation to Scotland, in sub-paragraph (2), for “18” substitute “16”.
The noble Lord said: The amendment is to allow somatic cells from children to be used in embryonic stem cell research. This does not relate to the retrospective collection of tissues, cells or cell lines.
Schedule 3 makes no provision for parents to consent to material from a child to be used for research. Having listened carefully to the debate in Committee, the amendment that I now propose is more limited in scope, but will still address the major concern that children with severe, life-limiting disorders should not be excluded from the potential benefits of stem cell research. The amendment allows for only somatic cells to be use—not gametes. It is a requirement that the tissue has already been lawfully obtained. This would be for treatment or research purposes, in accordance with common law and consent and statutory requirements, such as the Human Tissue Act.
The amendment will allow cells to be used in exceptional situations, where there is no possibility of obtaining material from a competent adult because all the sufferers will inevitably die before reaching that age—for example, in the case of serious, innate, immune deficiency disorders and severe muscular dystrophy. The aim of techniques such as SCNT—somatic cell nuclear transfer—is to develop cell lines that carry genetic abnormalities that cause these types of disease. To develop these disease models, scientists need to be able to take somatic cells—adult cells—through an embryo phase in order to generate embryonic stem cells, which in turn would allow the disease model to be studied. These lives may then be studied further, to understand how the effects of such devastating diseases occur at a cellular level, and how potential gene or drug therapies might be developed.
Research involving children must never be undertaken lightly and there is no intention in this amendment to do so. In addition to the other safeguards, the amendment contains provisions to ensure that consent is appropriately obtained from the person responsible for the child. All research would be reviewed by the relevant regulator and research ethics committee. The amendment is purely about being able to learn more about the serious diseases that some of these children suffer from. Most of them die within the first two to three years of their life. I do not want to rehearse again what I said in Committee about the diseases in detail—diseases such as Alport syndrome, Batten disease and lissencephaly, all of which affect brain development. The purpose would be to study, at an early phase, the progression of these diseases. Why do these children end up with their brains so poorly developed as a result of serious diseases, as opposed to their stem cells developing normally into neuronal cells?
Somatic cell nuclear technologies can be used to generate embryonic stem cells that are customised to specific patients, such as children with leukaemia, immune deficiency, and sickle cell anaemia. Using these cells, researchers hope to be able to correct the genetic defects in patient-specific cells, direct their differentiation into blood, and, ultimately, identify future clinical treatments.
The amendment is limited to having the consent of the parents and using the somatic cells of the children. I beg to move.
My Lords, the noble Lord, Lord Winston, referred some time ago to the work that I did in the course of my professional career on muscular dystrophy. It is almost 60 years ago that I began to work on that topic in Newcastle-upon-Tyne. The most severe form of muscular dystrophy manifests itself only in young boys. It is due to an X-linked recessive gene, transmitted by female carriers which is manifest in half their sons. Indeed, half their daughters are themselves carriers of the gene. The late Professor Nattrass and I entitled the disease Duchenne muscular dystrophy because of the outstanding descriptions given in the 19th century of the disease by Duchenne of Boulogne. It causes difficulty in walking; boys begin to waddle as they walk, and by the time they are nine or 10 years of age, they are confined to a wheelchair because of widespread paralysis. In the old days, because of gross deformity, few of them survived beyond the age of 15 or 16. Now, as a result of much improved care, including ventilatory care, many of these boys live until their twenties and even later.
Research has been vital in learning more about this disease and it is bringing with insight the prospect of potential treatment. In 1987, the gene responsible for this disease was discovered. As the noble Lord, Lord Winston, said, it was found to be a very large gene, with several different kinds of mutations within it. Broadly, the result of this abnormal gene is that it traduces in the muscle cells an absence of a protein called dystrophin, which is an important part of the membrane of the muscle fibre—it is rather like the skin of a sausage. Because of this, that membrane becomes inefficient and, as work in my department in Newcastle showed many years ago, it allows certain chemical substances to get in from the extra-cellular fluid which begin a process of digestion or breakdown of the muscle.
This disease can now be diagnosed—and has been able to be diagnosed for many years—at birth, by means of a simple blood test. It is clear to all researchers that if you are going to produce a form of treatment that will be effective in controlling this disease, it has to be done very early in life—preferably in the young infant.
There is a dystrophin deficient mouse, an X-linked recessive gene, which is a model of Duchenne muscular dystrophy. I will not go into detail, but in today’s Times, there is reference to yet another crucial piece of research, which says:
“Embryonic stem cells have been used to cure mice with the equivalent of [Duchenne] muscular dystrophy … Scientists in the US have successfully coaxed mouse embryonic stem cells to develop into muscle tissue and then transplanted those cells into animals bred with the genetic mutation”—
similar to that which—
“causes Duchenne muscular dystrophy. When the cells were injected into the bloodstream of the mice they migrated to the muscles to replenish them with healthy tissue and improved their function.
The findings, from … the University of Texas Southwestern Medical Centre … ‘demonstrate the therapeutic potential of embryonic stem cells in muscular dystrophy’”.
Who knows that this is not something that will emerge in human Duchenne dystrophy within the next few years? In the light of discussions that we have already had on this Bill, the prospect is that, with the appropriate consent as given by the parents and following the guidelines set out in this amendment, it should be possible to take a skin cell from an infant diagnosed at birth as suffering from Duchenne dystrophy to create a stem cell line from that skin cell, using the kind of admixed human embryo to produce a treatment which should be effective in controlling—and ultimately, we hope, in curing—that disease. This is a most exciting development that underlines the need to be able, with all the appropriate safeguards in the amendment, to pursue this kind of research involving children.
My Lords, requirements for consent to the creation, keeping and use of embryos, and consent for treatment or research, is one of the cornerstones of the 1990 Act, and is carried forward by the Bill. The provisions relating to when consent will be required and the content and form of such consent are set out in Schedule 3 to the 1990 Act.
The Bill sets out to ensure that human and human-admixed embryos may only be created for research purposes, and only where the person to whom the cells belong gives their explicit consent. These requirements have been introduced to reflect the special status of the embryo. No one can give consent on behalf of an adult who lacks capacity, and, for the same reasons, I do not believe that a child’s cells should be used to create embryos or human-admixed embryos without that child’s own consent.
If a child is incapable of giving consent to the creation of a human or human-admixed embryo themselves, because they are too young to do so, it would be wrong for any person, including the parents, to make that decision for them, given the significance of creating an embryo using their genetic material.
I have heard the powerful statements from the noble Lords, Lord Patel and Lord Walton of Detchant, but the Government take the view that we should not, in any circumstances, presume that a person’s cells can be used in the creation of embryos without their consent or knowledge. I therefore invite the noble Lord to withdraw his amendment.
My Lords, I am seriously disappointed with that argument. We are talking about children who suffer from diseases that kill them within two or three years and who rarely reach the age of consent. If they do, by then they are so sick that they are not able to give consent. Yet we say that their parents cannot give consent, even if they wish to do so, because studying the progression of the disease and, it is hoped, finding a treatment is done through creating stem cell lines using the techniques of somatic cell nuclear transfer. We allow that in relation to adult diseases in the hope that a cure will be found for those diseases but we cannot allow it in respect of children, even if their parents wish it. I do not follow the logic of that argument and, if I do not follow it, perhaps others will not either. If they do not, I hope that they will follow me.
My Lords, I shall not go through the process of government, but I have listened carefully to the points made in the debate. I agreed to take away the previous amendment moved by the noble Lord, Lord Patel, which in many ways dealt with the same issue—that of consent—so perhaps it is beholden on me to take away this amendment for further consideration and come back at Third Reading.
My Lords, I thank the Minister. I hope that the Government will return to this amendment—even more so than the previous one. The previous amendment concerned consent that might be generic, whereas in this one we say that consent can be from the parents of children who are dying of a particular disease. Therefore, I do not follow the Government’s argument. I hope that if I withdraw the amendment, as the Minister asks, the Government will take it up. In that case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
77: Schedule 3, page 65, line 3, leave out “inter-species embryos” and insert “human admixed embryos”
78: Schedule 3, page 65, line 5, leave out “inter-species embryo” and insert “human admixed embryo”
79: Schedule 3, page 65, line 6, leave out “inter-species embryo” and insert “human admixed embryo”
80: Schedule 3, page 65, line 10, leave out “An inter-species embryo” and insert “A human admixed embryo”
81: Schedule 3, page 65, line 12, leave out “inter-species embryo” and insert “human admixed embryo”
82: Schedule 3, page 65, line 13, leave out “inter-species embryo” and insert “human admixed embryo”
83: Schedule 3, page 65, line 15, leave out “An inter-species embryo” and insert “A human admixed embryo”
84: Schedule 3, page 65, line 19, leave out from first “the” to “for” in line 20 and insert “human admixed embryo to the use of the human admixed embryo”
85: Schedule 3, page 65, line 21, leave out “inter-species embryo” and insert “human admixed embryo”
86: Schedule 3, page 65, line 23, leave out “An inter-species embryo” and insert “A human admixed embryo”
87: Schedule 3, page 65, line 26, leave out “inter-species embryo” and insert “human admixed embryo”
88: Schedule 3, page 65, line 27, leave out “inter-species embryo” and insert “human admixed embryo”
89: Schedule 3, page 65, line 28, leave out “inter-species embryo” and insert “human admixed embryo”
90: Schedule 3, page 65, line 31, leave out “an inter-species embryo” and insert “a human admixed embryo”
91: Schedule 3, page 65, line 32, leave out “inter-species embryo” and insert “human admixed embryo”
92: Schedule 3, page 65, line 35, leave out “inter-species embryo” and insert “human admixed embryo”
93: Schedule 3, page 65, line 39, leave out “inter-species embryo” and insert “human admixed embryo”
94: Schedule 3, page 65, line 41, leave out “inter-species embryo” and insert “human admixed embryo”
95: Schedule 3, page 65, line 43, leave out “inter-species embryo” and insert “human admixed embryo”
96: Schedule 3, page 66, line 8, leave out “an inter-species embryo” and insert “a human admixed embryo”
97: Schedule 3, page 66, line 10, leave out from “or” to “include” in line 11 and insert “a human admixed embryo (“human admixed embryo A”)”
98: Schedule 3, page 66, line 11, leave out “an inter-species embryo” and insert “a human admixed embryo”
99: Schedule 3, page 66, line 13, leave out “inter-species embryo” and insert “human admixed embryo”
100: Schedule 3, page 66, line 14, leave out “inter-species embryo” and insert “human admixed embryo”
101: Schedule 3, page 66, line 16, leave out “inter-species embryo” and insert “human admixed embryo”
102: Schedule 3, page 66, line 19, leave out “an inter-species embryo” and insert “a human admixed embryo”
103: Schedule 3, page 66, line 21, leave out “an inter-species embryo” and insert “a human admixed embryo”
104: Schedule 3, page 66, line 24, leave out “an inter-species embryo” and insert “a human admixed embryo”
105: Schedule 3, page 66, line 26, leave out “inter-species embryo” and insert “human admixed embryo”
On Question, amendments agreed to.
[Amendments Nos. 106 and 107 not moved.]
My Lords, before I call Amendment No. 108, I must inform your Lordships that if it is carried, I shall not be able to call Amendments Nos. 109 to 110A for reasons of pre-emption.
Clause 14 [Condition of licences for treatment]:
108: Clause 14, page 9, line 12, leave out subsection (2) and insert—
“(2) In subsection (5)—
(a) omit “, other than basic partner treatment services,” , and(b) for “a father” substitute “supportive parenting”.”
The noble Lord said: My Lords, I shall speak also to government Amendments Nos. 127, 176 and 177 and to Amendments Nos. 126, 108A, 108B, 127A and 110A.
The 1990 Act contains a requirement for clinicians to take into account the welfare of the child, including the child’s need for a father. The Bill, as introduced in November, removes that requirement, while retaining the need to consider the welfare of the child. Concerns about the removal of this provision have been clearly made. Although intending to continue to omit the reference to a need for a father, we agreed to consider further how the welfare-of-the-child provision might best reflect comments made in Committee. As many noble Lords are aware, we have discussed this issue at great length and are grateful for all the comments that we have had on this very important issue.
It is generally considered to be beneficial for a child to have a mother and a father, and many fathers play a significant and important role in their children’s lives. We also recognise that same-sex couples and single mothers can, and do, offer loving and supportive environments for raising children. Parliament has passed legislation allowing the legal recognition of civil partnerships and preventing discrimination on the grounds of sex and sexual orientation. In line with this government policy, the Bill provides for civil partners and female couples to be named as the parents on birth certificates. We feel that retaining the need-for-a-father provision, or indeed any other provision that mentioned a mother and a father, would be inconsistent with the wider government policy of promoting equality.
In this context, that would mean that any provision that placed additional hurdles for same-sex couples or single women accessing treatment compared with heterosexual couples would not be appropriate or acceptable. That would inevitably be the case if the provision mentioned either just a father or both a father and a mother. In addition, it is the Government’s view that such a provision might be incompatible with the European Convention on Human Rights. Therefore, we cannot accept amendments that could be discriminatory and we would seek to overturn any that were introduced.
The key requirement of Section 13(5) of the 1990 Act is the welfare of any child that may be born. As our discussions have indicated, at the heart of the welfare of the child is the need for supportive parenting. Accordingly, our amendment replaces the need for “a father” with the need for “supportive parenting”. I am sure that everyone accepts the importance of supportive parenting in the context of child welfare and therefore the intention behind the amendment. I also recognise that for many noble Lords the key to this is how the term “supportive parenting” is defined.
We consider that a supportive parent would be willing and able, first, to make a long-term commitment to safeguard and promote the child’s health, development and welfare and, secondly, to provide direction and guidance in a manner appropriate to the age and development of the child. This definition is suggested in an amendment tabled by the noble Lord, Lord Northbourne, the noble Baroness, Lady Finlay of Llandaff, and the noble Earl, Lord Listowel, who drew upon wording in the Children (Scotland) Act 1995.
In our opinion, an Act concerning fertilisation and embryology is not the appropriate place to have specific statements or definitions about parenting, as it would probably have to have relevance to parenting generally and not just in the context of assisted reproduction. However, we acknowledge the importance of knowing the meaning of the term, particularly for clinicians who carry out the assessments, and therefore we believe that it would be appropriate to have an explanation of this term in guidance produced by the HFEA—in its code of practice, which is subject to approval by the Secretary of State.
Accordingly, in addition to the requirement to take into account a child’s need for supportive parenting, we are including a provision in the Bill to make it a statutory requirement for the HFEA to produce guidance on the need for supportive parenting in the context of the welfare of the child.
Another prime consideration about the term relates to how it would be applied in practice. People embarking on assisted reproduction are fully committed to having a child and have given a great deal of thought to it. Therefore, in general, it would be expected that such people would be supportive parents. However, as part of the consideration of the welfare of the child, in rare situations where the treatment providers are aware of any evidence or indications that that is not the case, they should take into account the need of the child for supportive parenting when considering whether to provide treatment. For example, where a child is conceived following gamete or embryo donation, it is beneficial for the child to be told of this fact at an early stage. This is something that we have discussed separately but, in this context, a commitment to inform the child at an early age would be indicative of supportive parenting.
Single women and same-sex couples currently receive assisted reproduction treatment in licensed clinics and we would not want the Bill to impede that. It is therefore important that any interpretation of supportive parenting does not contradict or impede this position. I believe it is true to say that it is generally regarded to be beneficial for a child to have a mother and a father, but this does not preclude other parental situations from being regarded as supportive. All patients need to consider how they will provide supportive parenting to the child and how they will provide for the needs of that child. It is critical that the welfare of the child is safeguarded. We believe that this is achieved by referring to the need to have “supportive parenting”.
At the heart of this policy is the need for the child’s best interests to be met by parents. We therefore propose the following wording:
“A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment, including the need of that child for supportive parenting, and of any other child that may be affected by the birth”.
Amendments Nos. 176 and 177 are consequential.
I shall now move on to the other amendments in this group. This issue has been one of the most discussed in the Bill and I know that there are strongly held views on it. We have heard the concerns expressed and have tabled an amendment, as discussed, to try to address some of these concerns. It is our view that “supportive parenting” is a key concern when it comes to considering the welfare of the child. This comes down to the quality of parenting rather than necessarily having both a mother and a father.
Amendment No. 108A, tabled by the noble Baronesses, Lady Deech and Lady O’Cathain, and the noble and learned Lord, Lord Lloyd of Berwick, suggests an amendment to government Amendment No. 108. This would replace “supportive parenting” with,
“support by a father and a mother”.
Amendment No. 127A is consequential to Amendment No. 108A. “Supportive parenting” was chosen to ensure that the term did not present obstacles to the treatment of same-sex couples and single women. We believe that other amendments being proposed would make access to treatment more difficult in those family situations where there would not be a father, and that is not appropriate. In addition, such an amendment is not in line with the Government’s position of promoting equality.
Amendment No. 108B, tabled by the noble Lord, Lord Northbourne, and the noble and learned Baroness, Lady Butler-Sloss, seeks to amend government Amendment No. 108 by inserting “and family life” after “parenting”. This would mean that when taking account of the welfare of the child, a clinician would have to consider the child’s need for supportive parenting and family life, or the child’s need for supportive parenting and the advantages of having a mother and a father.
I shall address each of these additions in turn. The first refers to family life. This introduces an additional factor. Not only does a child need supportive parenting; it will also require a family life. A family life would automatically be implied by “supportive parenting”. Further guidance on the meaning of “supportive parenting” will be included in the HFEA code of practice. In our view, all children would automatically be part of a family, which in some cases would include brothers, sisters and a larger extended family, but in other cases could just be one other person—the mother. People who do not have a wider family would not automatically fulfil the criteria and would require additional consideration. In our view, neither interpretation of the additional wording is appropriate.
The alternative addition proposed reflects wording in Amendment No. 110A, tabled by the noble and learned Baroness, Lady Butler-Sloss. This amendment would require a clinician, when taking into account the welfare of the child, to consider a child’s need for supportive parenting and the,
“advantages of having a father and a mother”.
As discussed, any amendment that refers to both a mother and a father would place additional hurdles for same-sex couples or single women accessing treatment compared with heterosexual couples. The amendment would be inconsistent with the wider government policy of promoting equality.
Amendment No. 108C, tabled by the noble Lord, Lord Northbourne, and the noble and learned Baroness, Lady Butler-Sloss, also relates to government Amendment No. 108, introducing “supportive parenting” into the welfare of the child provision. Legislation relating to fertility and embryology, as we are discussing today, is not the appropriate place to have a general definition of “supportive parenting”. Such a definition would be much more appropriate in legislation relating to responsibilities towards children who have been born, such as the Act from which these words were inspired—the Children (Scotland) Act 1995. However, we recognise the importance of exploring the terminology, and we certainly agree with the principle of the definition proposed. This would be more appropriate in guidance than in the Bill.
Amendment No. 109 proposes maintaining the requirement for licensed clinics to consider the need for a father of any child born before providing treatment. This would maintain the position under the 1990 Act, which, as I said earlier, would not be consistent with the Government’s wider policy to promote equality and to prevent discrimination on the grounds of sex and sexual orientation.
Amendments Nos. 110 and 110A, tabled by the noble and learned Baroness, Lady Butler-Sloss, refer to both the father and the mother but require that a clinician consider the advantages or disadvantages of having both. Again, we can clearly see what these amendments are trying to achieve and we acknowledge their purpose. However, neither amendment would be appropriate as it would introduce a difference in consideration between heterosexual couples and same-sex couples or single mothers, so we cannot accept them.
An argument has been put forward that the,
“need of a child for a father”,
provision should remain as a principle. This is based on the view that it has not done any harm and has not prevented same-sex couples or single women accessing treatment. It does not prevent the provision being unnecessary, inappropriate and out of step with practice in society. If the provision is not doing any harm, it is probably because the HFEA code of practice provides for minimal additional consideration by clinicians for these couples or women, largely because it was out of step with family structures in today’s society. If this provision—or indeed any provision requiring consideration of a father—remained, the HFEA would have to reconsider the flexibility of its guidance to reflect the reaffirmed intention of Parliament.
If the purpose of any provision is to prohibit single women and same-sex couples accessing treatment, which the Government would oppose, we need to ask ourselves why we would wish to retain such a provision. It would be inappropriate to retain a provision that undermines the promotion of equality in principle for the reason that it had not done any harm. The Government cannot support these amendments. I beg to move.
108A: Clause 14, line 4, leave out “supportive parenting” and insert “support by a father and a mother”
The noble Baroness said: My Lords, I pray in aid the words of the noble Baroness, Lady Warnock, in her famous report of more than 20 years ago. The point of regulation is that people want to know that there are some basic moral principles that keep watch over scientific advances. Once people are well informed, they seem to welcome further embryo research, provided that certain boundaries are not crossed—for example, genetic manipulation or sex selection. The need for parents is only the second moral or ethical principle in this law—the first being consent, on which your Lordships have just had an intense debate. There is nothing else in this law of those moral principles.
The need for parents is an expression of the understanding that science should not leave aside the basics of family foundation and child-raising. That is why cloning has been banned, as the ultimate expression of the ability to produce a child with only one parent. If the principle of a need for parents or for a father is removed, the message to the public is that a line has been crossed that people do not want crossed, that there are no bars to methods of producing children that might be harmful, offensive or contrary to the interests of a healthy child—which is in the interests of us all.
Your Lordships have repeatedly called, with consensus, for ethical principles to be enshrined in embryology law. If the fundamental principle of equal respect for mothers and fathers, for which my amendment argues, is not won, it is hard to see where the law can possibly succeed in establishing ethical principles. I pursue it not because I make any ethical claim for myself, but because I know from my tenure at the HFEA that science will progress satisfactorily if it has public approbation through regulation, with principles that are well understood. I wish the scientific parts of this Bill, which have gone a long way forward, to succeed and to bring good to us all. Your Lordships know well that, although this House has voted quite rightly in favour of more scientific permissiveness in this law, there is some unease among the public. I appreciate the extra trouble the Government have taken to meet the concerns expressed, hence my inclusion in this amendment of the need for a father and a mother. This should not be a party issue. This House should reach a consensus on what is necessary without the need to consider what might be a party line.
My objection to the wording of some of the more detailed amendments that come in this group and the next is that, while I know they are meant to be helpful and to define, their wording is derived from existing law on custody, adoption and child welfare. There, assessments are made of parents’ behaviour retrospectively. You have the parents and the child, and you can look back to see whether they were supportive parents and how they behaved in relation to the child. IVF is prospective. The doctor has a woman or a woman and man standing there waiting for treatment. Of course they will say that they are committed to supportive parenting, that they give this or that undertaking, yet it is all purely speculative. We need a phrase or principle in this law for the doctors and for the public, one that is simple and can be readily understood, and that can permeate the guidance that the HFEA will give in its code—which may flesh it out or water it down.
Keeping the requirement to have regard to the child’s need for mothers and fathers is an important case of non-discrimination. It is about upholding parenting and equal respect for both sexes in their roles. It is about avoiding the risk I have referred to on earlier occasions in this debate that scientific advances in fertility may dehumanise in particular fathers, who are reduced to mere sperm donors and who, having done their job, can go away with no regard to their vital importance in children’s welfare. Women have fought a long battle to be recognised in their maternal role, for their bodily integrity and autonomy, and for their role to be valued. It is now the turn of men to fight that same battle, for they are falling behind in this need to keep humanity in our IVF law. What would be the reaction of your Lordships’ House if this Bill were somehow to say that no account need be taken of a child’s need for a mother? I think it would be instantly adverse.
What I say on these principles applies equally to male gay relationships. Let us remember that although the need for a mother has been implicit because it has been the mother who is presented for treatment, scientific advances mean that may no longer be so in a few years’ time, if we envisage the artificial production of gametes or the use of eggs from aborted foetuses. Those things have not so far been approved because a child would then lack parents.
The state should not deny the child’s need for a father and a mother. The public, when polled, have expressed overwhelming support for this. Some 77 per cent of the public think the need for a father is important, and I am sure a mother, too. Even more young people—84 per cent of 18 to 24 year-olds—want to see the children having a legal father as well as a social one. To fly in the face of what the public want would, in the long term, jeopardise the confidence that the public have in the regulation of embryology and IVF, in which this Bill takes such a large step.
The Government have recognised these concerns with this alternative phrase about supportive parenting, but I am sad to say that those words are not appropriate or acceptable. They add nothing to the existing statutory and judicial interpretation of welfare, which for a century has included a parental relationship anyway. The government amendment will not mean much to the public, and will present difficulties of interpretation to clinicians and to the HFEA in drawing up guidance in the code, as with all the other amendments along these lines. The approach of my amendment is clear; it accords with the consensus of the pre-legislative scrutiny committee that two parents were a good value to promote.
I will not delay your Lordships with arguments I have put before about the value of having two parents, the research that shows how valuable they are, and the problems we have in this country in our failure to appear in world tables of the health and happiness of our young people. The research that has been done on same-sex rearing of children of course only deals with very young children and is at an early stage. It is greatly outweighed by the research going the other way, and begs the question whether children would not do even better if there were a father. The NSPCC has called recently for greater paternal involvement and flexible working patterns in the light of research showing that children need fathers.
The law, as it was, by no means absolutely banned the principle that said that children need fathers. It was more an exercise of discretion. In the last year of statistics, over 2,000 women who were single or lesbian accessed IVF treatment, according to HFEA figures. Overwhelmingly they are single women who have waited a long time for the right man—or even a reasonably acceptable would-do man—to turn up, but he has not. This is sad, but it makes us think about the problems of family life today.
It is not discriminatory—there I must disagree with the government position. We have a law against ageism in this country, but would a doctor not be within his rights to say, after considering the plea of a 70 year-old woman for IVF treatment, that he thought it was not in the interest of the child? We have a law against ageism, but this is an area for discretion. By retaining the need for a father and a mother to be considered—not actually to be present—we will be staying in line with most of Europe. There has been no challenge to that. We will be out of line with most of Europe if we water down that requirement. This is an area where the courts of Europe will grant a certain amount of leeway to national countries to do as they think fit.
I feel fairly confident that we are not breaching human rights by requiring a father and mother. Indeed, I think that most people would be astonished to regard it as a breach of human rights or discriminatory to say such a thing. If there is real discrimination, it is in the patchy and sparse provision by the NHS. It would not surprise me if someone one day said, “I have a right to access fertility treatment on the NHS, but it is not being given to me”. That is the real discrimination.
Speaking as an academic lawyer, I think that the principle in law is very important, almost regardless of what has happened in practice. To remove the need for parents sends an unfortunate signal. Moreover, the Government, rightly, have encouraged paternity leave as well as maternity leave. They encourage child support from fathers. They, as do the judges, encourage contact with fathers after divorce. They encourage the registration of a father's name on the birth certificate. They have ended the anonymity of sperm donors. Why, if they are not important? With all the drawbacks of reduced numbers of donors, why has anonymity been ended? Why is there a drive to tell children who their fathers were, if not for the simple reason that to know your father is a good thing? As the United Nations Convention on the Rights of the Child says, the child has a right to know and, if possible, to be cared for by its parents. That is the one basic ethical principle that I believe should be in our law.
In response to everything that has been said in the debates and in the pre-legislative scrutiny committee about ethics being written into the Bill, if this House does not sign up to this ethical principle, I will find it very hard to believe. If we cannot agree on this, there is diminishing hope for good, safe, acceptable popular progress in science and its regulation in the future in this country, where it has been so successful, on the basis of the 1990 Act. I beg to move.
My Lords, as we are at Report, I will not repeat some of the things that I have said previously in this House. I am one of those who have always found it difficult when people are so morally rigorous that you can end up with an injustice. More rigour does not help. Nor have I always been persuaded, as I am seeing happen more and more often in this great country, when competing rights are set up and then some rights can trump other rights. I am one of those who are totally committed to equality, fairness and justice, but I cannot be persuaded that phrases such as “supporting parenting” equals a mother and father. It is such a vague phrase. We need to define it to know what we mean.
I come from a family where I am one of 13 children. I was raised largely by my grandmother, but I wanted to know who my parents were. I knew who my mum was, I knew who my dad was, but I was raised by what I call “supporting parenting”. It worked. I come from a very large extended family, including uncles and aunties, but we knew who our dad was. As for the phrase “supporting parenting”, supposing that a child wants to know, “Who is my dad?”, and is told, “Don’t ask such questions. It is discriminatory. We are your supporting parents”. A child will not be satisfied. A child wants to know. I have friends who are in same-sex relationships who, through treatment, have children. The children know who their dad is, who is responsible for the sperm. I think that it is important to extend that element of family help and support.
The 1990 Act considered the need for a child’s concerns to be taken care of and the need for a father. That phrase has not prevented my friends from having treatment and having children when they are in a same-sex couple. There is this fear that it looks discriminatory. Removing from the statute the words “father and mother” is trying to discriminate against another group of people. Again, here are competing rights. The current provision is that that is where it is still possible; the arguments were made at the time.
The think-tank report from the Fatherhood Institute, The Difference a Dad Makes, makes salutary reading about how, in this great nation, fathers are sometimes not in the forefront of the raising of their own children. It is almost being suggested now that it does not matter much whether fatherhood is an important thing or a good thing. The person whom I know who donated the sperm to my friends for them to have a child could not be in a relationship with that person. None the less, on the birth register, his name is there and he has every intention, although from a long distance, still to take responsibility as a father. That has not prevented the family arrangements as they are at the moment.
May we not be in that moral liberalism, that is so strong, that we may be unjust, that we set up competing rights where some trump other rights? This country has been very great at finding a middle way. So I support, instead of the phrase “supporting parenting”, the phrase “support by a father and mother”. That does not prevent other arrangements, other families, being involved.
I fostered children because their mother died of cancer. We reached the stage where we wanted to adopt them. It became quite clear that, if we went down that road, they should still have their father’s name, instead of taking on our name. We could not do that legally because of a number of complications, so we continued to foster them. They call us “auntie” and “uncle”. Their parents are now both dead. We have raised them up and they are thriving. Friends, we were “supportive parents” in that respect, but that did not prevent them knowing who their dad and their mum were. Ask yourself: what is it that we are trying to ask and trying to do?
I say to your Lordships that, for me, Amendment No. 108A is a much better phraseology. As we are seeing this afternoon, very loose phrases, such as supportive parenting, are being used without any clear definition. Lawyers out there want to know: what is supportive parenting? What does it look like? How do we know? Do we compare this house with that house or that place? I go for the words, “supported by a father and a mother”, which does not leave out other arrangements in our society.
My Lords, I support the noble Baroness, Lady Deech, in Amendment No. 108A, which I have co-signed, requiring IVF providers to consider the need for a father as well as a mother. The Government are seeking to remove the need for a father from existing legislation, but their case contains a fundamental contradiction which they have so far sought to avoid. I know that the Government and those who have taken part in previous debates are all agreed that the best interests of the child are paramount in the Bill, but it can never be in the child's best interests for someone to decide that he or she does not need a father. If our primary concern is the best interests of the child, noble Lords must support Amendment No. 108A.
At various points during consideration of the Bill, we have heard in this House and read in the media of individuals who have been raised without a father, and yet who have grown up happy and well adjusted. While of course we rejoice at the outcome for these individuals, we must be wary of such anecdotal evidence. As I have said before, stories with happy endings are not the basis on which to make law. Many people could testify to the negative impact on their life of growing up without a father. Both public opinion and the weight of sociological research recognise the vital importance that the father plays in a child’s development. The noble Baroness, Lady Deech, has already quoted the ComRes poll which found that 77 per cent of those interviewed considered the obligation for IVF clinics to consider the need for a father to be “important” or “very important”. In Committee, the noble Baroness, Lady Deech, and I referred to and quoted from extensive bibliographies of evidence. All of that research is on record. Amendment No. 108A has significant support from sound research and from the public.
As the noble and learned Lord, Lord Mackay of Clashfern, reminded us, the evidence before the Joint Committee showed that the 1990 requirement to consider the need for a father has done no harm. I know that the Minister has stated that we should not create legislation on the basis of no harm, but I suggest that we should ask ourselves what harm could be done if we removed that requirement. What signal would we be sending to the public if we removed the phrase “the need for a father”? New laws send out clear and powerful messages. People will conclude that Parliament now thinks that fathers are an optional extra.
The Minister stressed in Committee that the Government’s decision to remove the phrase,
“including the need for a father”
was not motivated by any attack on fathers or the concept of fatherhood. Although I know he means it—we have discussed it off the Floor of the House—government motivation and public perception do not seem to coincide in this respect. The public impression is and will be that removing the phrase undermines the role of fathers. That is surely the crux of the matter.
Government Amendment No. 108 speaks in the vaguest of terms. The suggested replacement is “supportive parenting”. It is not clear what that means. Whatever it is, the amendment does not require consideration of the need for a father. An overwhelming weight of evidence shows that a child is most likely to have good outcomes living in a family with both a mother and a father, above all when the parents are married. The Government amendment simply fails to address the fundamental issue. It will replace a firm recognition of the importance of the father with an inadequate alternative. I believe that to remove the requirement to consider the child’s need for a father prioritises the desires of people to be parents above the needs of the child. I repeat: it prioritises the desires of people to be parents above the needs of a child. That is not a change I believe noble Lords should support and I urge them to support Amendment No. 108A.
My Lords, I support the government amendment and oppose the other amendments. I applaud, of course, and share entirely the purpose of those who are moving amendments to the government amendment: we all share the desire to ensure that there is effective and proper parenthood in this country. In this group we are talking about an entirely different question from that addressed principally by—if he will allow me to say so with great respect, for he knows that I am a great admirer of his—the most reverend Primate the Archbishop of York. The question “who is my genetic father?” is one that should always be capable of answer by honest parents to inquiring children. It already happens in adoption, and all those of us who support the government amendment and oppose the other amendments believe that an analogy with adoption is entirely appropriate here. We are taking about a different question.
I share too the determination of the noble Baroness, Lady O’Cathain, to crusade for responsible parenthood. Again with great respect, for I admire her enormously as well, I say to her that in reality any crusade for universal responsible fatherhood was lost a couple of generations ago, as those of us who have practised the criminal law have come to learn day by day.
Yesterday I had the privilege of hearing a sermon in a small Anglican church in London in which the priest warned of the dangers of what he called the abyss of selective morality. I fear that in considering and particularly voting for the amendments to the government amendment, we are on the edge of that very abyss. We have heard a bit about ethics. The noble Baroness, Lady Deech, seemed to me to speak of ethics as though they were some kind of immutable force, but they are not. Science is a mover of ethics, as ethics are a mover of science. This is not a static issue.
Those who are involved in same-sex partnerships are offended, and in my view rightly offended, by the inference behind what the noble Baroness, Lady Deech, is proposing. They say that there is no evidence for the finger of criticism to be pointed at them in the way implied by what is requested. They say that they offer no standard lower than any other form of parenthood. They say, rightly in my view, and as I think the Minister was saying, that if the government amendment is not carried, there is a severe risk of the law passed by this House being offensive to the European Convention on Human Rights. I now turn with some trepidation to a very personal observation—
My Lords, I have in mind the provisions dealing with family life, as the noble and learned Lord will well understand. The noble Lord, Lord Darzi, made it very clear, as I understood his speech, that the Government’s view is that what would be in the law if the amendment to the amendment were carried would be discriminatory against same-sex couples.
I was about to make a very personal observation, and with some trepidation. I do so with the consent and indeed the encouragement of my middle daughter, who lives in a same-sex couple. I do not know how many of your Lordships have the privilege of being the grandparent—of course this place is full of grandparents, and great grandparents—of a child or children from a same-sex couple. I have one and eight-ninths grandchildren, if you see what I mean, from a same-sex couple. The daughter in question, my middle daughter, is a solicitor, and her partner is an accountant. They are—if they will forgive me—as square as a box. They live in a provincial town in England, in a splendid semi-detached house with double-glazed new windows and a Vauxhall Zafira sitting in the drive. Their child, my grandson, is the picture of health and his parents are morally exemplary. They happen to be married to each other through a civil partnership and they are both female.
I hear the noble Lord, Lord Tebbit, unhelpfully muttering from a sedentary position. I do not expect to persuade him, and I am sure that he will do me the politeness of giving me a quiet and fair hearing. I do not give way to him now, I am afraid—not to such an intervention—because he will have the opportunity to speak if he wishes to do so.
My daughter and her partner became parents by going to a well run, highly respected fertility clinic. Their second child will be a full sibling of their first child, my existing grandson by that marriage. The child is clever and articulate; I suspect that he may be the brightest of my grandchildren, but do not tell the others. My daughter and her civil partner have many friends who have been through the same process, and I have met several of them. They are typical of such couples: respectable, decent, honest and rather squarer than the prejudices held by many about such couples. They abhor the idea of people going on the black market to dishonest fertilisers—sperm donors—who already exist in this country. I know from pretty reliable anecdote that there are people in London who are prepared to be sperm donors informally, in their bathroom or kitchen, in the most disgusting way. They are unregulated, the health risks are enormous, and they can be accessed via the internet. If same-sex couples like my daughter and daughter-in-law are driven on to the black market for sperm donors, we will have a health disaster on our hands. But they may well feel driven to do that if the law is drawn in the way suggested in the debate, certainly in the last speech and in the eloquent opening speech by the noble Baroness, Lady Deech, introducing the amendment to the amendment.
I urge your Lordships to hold back from imposing what are really old prejudices, however conscientiously felt, on the modern world of civil partnerships. To those of us who have walked in and out of prisons, in and out of courtrooms whether as advocates or judges, who have been Members of the other place and have had large numbers of people coming to see us week after week privately about their personal problems, I say this: in the real world, what is offered by conscientious same-sex couples probably exceeds in quality the majority of what is offered even by heterosexual couples. There is no reason to discriminate against them. So I invite noble Lords to remember that we are in 2007—
My Lords, I thank my noble and learned friend for permitting me to go before him. I should like to support this amendment and to speak to the amendments to which I have added my name. I do not consider this to be a question of selective morality. I am not a crusader—that is the last thing I am. I am not opposed to civil partners, and when I was a judge I made orders that handed children to same-sex parents. So I stand very much in the middle. I listened with interest to what the noble Lord, Lord Carlile, said about his daughter, and good luck to her. I would not be opposed in any way to what she and her partner do.
The amendments that I have tabled and the amendment of the noble Baroness, Lady Deech, which I support, have the underlying purpose of trying to find a suitable form of words to express the view that good and supportive parenting is of great importance to a child about to be born, bearing in mind the purpose of the legislation with which we are concerned today, but the government amendment, which is welcome, does not go far enough. I know that I am not alone in this House in that view. The 1990 Act expressly required attention to the importance of the father figure in looking at the welfare of the child. In 2008, most of us recognise that a single-sex couple can provide a good upbringing for children—as the noble Lord, Lord Carlile, has pointed out—and that the specific drawing of attention to the need for a father may be more than is appropriate, although I do doubt it. We must not shut our eyes or shrink from speaking out about the advantages of both a male and female parent, and the possible disadvantages of bringing up a child without the influence of a person of the opposite sex to the parents. To recognise the advantages of a male and a female influence in a child’s life in whatever way that may occur—I look more broadly than the mother and father; I have in mind godparents, uncles and aunts, and grandparents—and to look for a reassurance on that aspect of bringing up a child under the provisions of this Bill would not, in my view, breach any of the articles of the human rights convention.
The Government are unnecessarily concerned about the impact of the Human Rights Act on these amendments, and indeed about the promotion of equality. This is a Government who have criticised the unnecessary application of the Human Rights Act from time to time, and on this occasion they should not be looking to put reasonable amendments into a straitjacket which the human rights convention does not impose. It also most certainly is not seen in other parts of the European community.
The use of the words covering the advantages or disadvantages of having a father and a mother does not discriminate against the single parent or a same-sex couple. I discussed these amendments with a leading member of Stonewall, who is a lawyer. He laughed when I told him that this was considered to be discriminatory and contrary to human rights, and he could see no objection to the use of the words “mother” and “father”. But the inclusion of those words alerts the would-be parents as well as the clinic to such advantages.
There is another reason for objecting to the words “supportive parenting” without anything further. It would be wrong for the House to ignore the implications of a decision to delete the phrase, “the need … for a father” and replacing it with the well meaning phrase, “supportive parenting”. The publication of the Bill with the intention to delete the phrase has already been picked up by fathers’ organisations and was the lead article in the magazine McKenzie, sent to me by post from one of the fathers’ organisations. It has already led to the suggestion that this Government do not think that fathers are important in a child’s life. Is that really the message this Government want to send?
I strongly support Amendment No. 111, to which I have also added my name. So far it has not been found, although some of us are trying have it put into the Children and Young Persons Bill, which is currently before the House. I hope that it will be included. It can only be found in the decisions of the courts, which are not easily available to the majority of people, but it is to be found in the Children Act 1995, and this is an occasion when we might usefully follow the Scottish lead. However, I did hear the Minister suggest that it would be put into statutory guidance; certainly for me, that would be sufficient.
My Lords, I have the misfortune to disagree with the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Deech. I shall say only a few words about the European Convention on Human Rights and the Human Rights Act.
The Law Lords have a distinguished recent record of reading into legislation, wherever they can, equal rights for gay couples, even in areas where Parliament has not passed, for example, the Civil Partnership Act, of which I was originally a supporter in a Private Member’s Bill. They have done so because of their commitment to equal treatment. The reasons powerfully expressed by my noble friend Lord Carlile about presumptions based on stereotypes of what must be a proper family in the context of children said all that needed to be said.
Without going into all the reasons, I agree with the Government’s legal advice that Article 8 of the European Convention, which protects the right to private life, read with Article 14, which means that that right must be enjoyed without direct or indirect discrimination, would give rise to a powerful case, although I would be more optimistic on the part of the claimant were it before our supreme judicial authority, the House of Lords, than I would before the European Court of Human Rights. This is because it is an international court dealing with a wide range of 47 countries and tends to give a wide margin of discretion to the national authorities. Our judges, being close to the social conditions and ethical values of our country, and showing themselves to be aware of the need to secure equal treatment without discrimination, would be much more likely to grant a declaration of incompatibility if the Bill were to stand as it is without Amendment No. 108. If one replaced it with Amendment No. 108A, there would be a serious risk of litigation leading to that result.
The great advantage of the reference to “supportive parenting” is that it does not prejudge or seek to impose a standardised view of what the family ought properly to be. I also have experience, but of a slightly different kind from that of my noble friend Lord Carlile, of lesbians, in particular, being model and rather traditional parents. That simply illustrates that you cannot generalise. I know many terrible families, with terrible parents who are a father and a mother; and I know some extremely good parents who are same-sex couples. We must guard against the danger—I say this in the presence of the noble Baroness, Lady Thatcher—of a kind of Clause 28 being an indirect result of the legislation.
My Lords, I support the government amendment. In doing so, I wish to address three issues.
The first issue concerns the way in which the debate has been turned into a discussion about the value or non-value of fathers. We should all remember that fathers are intrinsically valuable. I said in a previous debate that I had a marvellous father. Difficult as he was, I would not have given him up for anything else. But to say that we are looking for every family to have a father denies the reality of our society as it stands today.
I was rather concerned by some of the comments made, where I thought the noble Baroness, Lady Deech, linked cloning with same-sex families in terms of not having fathers. It suggests to me that the hundreds of non-conventional families out in our communities—and there are many kinds—are not respected. We demand respect of those families if we are going to support them and give them a good life.
Secondly, I wish to consider the issue from the point of view of the child. The noble Baroness, Lady O’Cathain, mentioned that for too long children had been seen as the end rather than the means. For too long, issues about fertilisation have been about childless couples rather than about the children. We know that children do best when they feel secure, understand about their background and have no sudden traumas. Growing up in any family that gives them that kind of background will be helpful.
There was debate earlier about research. The most scientifically rigorous studies of the development of children in same-sex families show that children raised in lesbian mother families are no more at risk of developing psychological problems than their counterparts from families with fathers present in their home. As I said earlier, a stable and loving home environment is the most important thing that children need. The evidence compiled by CARE and laid in the Library—I am a Christian—has been called to account by some of the country’s most eminent experts in the area of fathering and parenting. They have seriously questioned the credibility of The Fatherhood Bibliography.
These are no mean experts: they include Professor Michael Lamb from the Department of Social and Developmental Psychology at the University of Cambridge, and the director of the Centre for Family Research, Professor Susan Golombok. She advised the Rowntree Foundation on parenting and families, is an adviser to the Department of Health and undertakes research at Cambridge. Together with Fiona McCullen, she has followed 25 lesbian mother families from 2004 and 38 families headed by a single heterosexual mother. The quality of parenting in these families shows very little difference. They concluded that the presence or absence of fathers in a home from the outset does have some influence—this is true in single-parent families as well as other families—but has little consequence in later life.
The reason I quote this research is not for self-indulgence but simply to point out that there is an alternative view to the one presented previously, which was deeply hurtful to at least 10 per cent of the outside population who saw this as a slight on their capacity to parent. I wish I had been able to make a speech as moving as the one of the noble Lord, Lord Carlile, in which he described people whom I know who have brought up children. I was speaking recently to two doctors, both working as paediatricians, who had been together for the past 15 years and have a seven year-old boy. They were deeply offended by the suggestion that their parenting was not as good as that of heterosexual couples.
Let me turn now to parenthood and the question of fathers who walk away. Do not sperm donors walk away? Sometimes we want them to walk away, but we want to know who they are. We will come later in the Bill to the issue of children knowing their genesis. It is an important point because if female couples have sperm donated “on the side”, in the ways described by the noble Lord, Lord Carlile, they will have very little opportunity to know who that person was; they will not know about the quality of the sperm or the health of the person donating it.
I want to concentrate on what the Bill is about, not this wider debate. Of course fatherhood is vital and many of us had fathers whom we loved dearly. I said that to a colleague recently, who said to me, “But I didn’t”. We have to remember that not all men are good, which is another issue. I spend a great deal of my time dealing with the civil courts, as did the noble and learned Baroness, Lady Butler-Sloss, and I know that the McKenzie magazine often depicts situations not quite as they might be. I am very fond of the McKenzie people for working for fathers. We are talking about a very small number of couples—significant but small. They are not going to undermine fatherhood in this country. What they are going to do is give children a good home and a stable and loving family, at least equal to their heterosexual counterparts. I am not saying they are more perfect but neither are they less perfect. They are like the rest of the community. They are, as the noble Lord, Lord Carlile, said, extraordinarily ordinary people who happen to want to raise a child healthily and properly through the system. I hope that noble Lords will support the Government’s amendment and give those women the chance they want.
My Lords, this legislation is based on the promotion of equality and on a concept of non-discrimination. I wish we could rescue the word “discrimination”. Its current use seems to imply the exercise of prejudice against other people based on stereotyping, which of course is appalling. I want to reinstitute “discrimination” as meaning coming to a careful and fine judgment based on the use of reason and through reflection on experience.
It goes without saying that I, in common with other Members of your Lordships’ House, recognise the abilities and commitment of many single parents. I do so from my own personal perspective. When my mother died as a result of very serious medical negligence, my father brought me up alone for a couple of years before he happily remarried, and he was quite outstanding. It also goes without saying that I recognise entirely the abilities and commitment of many single-sex couples, as spoken about so eloquently and with such passion, compassion and truthfulness as the noble Lord, Lord Carlile, brought to our debate. But it does not logically follow that a phrase about including the need of that child for a father is discriminatory. It is a statement in our legislative processes about the general recognition that in an ideal world, most children need good fathers and good mothers.
What does the omission signal? I travel quite often by public transport. Like the rest of your Lordships’, I am bombarded with announcements. A man with a megaphone tells me that I am to keep my belongings with me at all times and that I must not smoke. I wonder what would happen if an announcement came across every station in London which said, “In the interests of equality, people are reminded that children do not necessarily need fathers”. In other words, the omission is obviously going to be significant in what it signals to our society about the need for fathers. We can do that without in any sense being discriminatory and exercising prejudice based on stereotypes. That would be absolutely appalling.
I support the noble Baroness, Lady Deech, in what I thought was a very telling remark. She pointed out that the public support for research and treatment is based on certain moral principles which are implicit but from time to time need to be explicit. Those moral principles include our understanding of what family life generally but not exclusively best includes. That is why I wish to support the amendment standing in the name of the noble Baroness, Lady Deech.
My Lords, I do not think we have heard from the Labour Benches. I am prepared to give way to my noble friend Lord Winston. We are now presented on Report with a veritable banquet of options in terms of amendments to the 1990 Act for safeguarding the welfare of children to be born as a result of IVF. It is worth bearing in mind that none of these amendments changes the idea that the welfare of the child is a significant factor in whether to proceed to IVF treatment. That is still an integral part of this Bill. We are arguing about the extent to which we nuance the term “welfare of children”. We have heard some very powerful speeches. I found the speech by the noble Lord, Lord Carlile, particularly moving.
Before settling down to the exam paper, let me first congratulate the Government on listening to the concern that I and others expressed in Committee about the proposed amendments to the 1990 Act for a father. I am particularly pleased that they have moved away from what I can only describe as the positively Guardian-esque wording for a social network which they were toying with. I congratulate the Minister on his success in moving away from that wording.
I have listened to the arguments and for the reasons I gave at Second Reading I still prefer Amendment No. 109, which leaves matters as they were in the 1990 Act. I shall not detain your Lordships by going through all those reasons again. I have not heard an overwhelmingly telling set of arguments for changing the wording. I have heard some arguments and those who put forward those arguments clearly felt passionate about them. I listened very carefully to what the Minister said about possible challenges under the Human Rights Act. He did not say that the Government’s advice was that there would be challenges; he said, “There may be challenges”. There may be challenges under a lot of legislation. Some of us who have signed quite a lot of certificates on Bills coming to this House recognise that this is not a 100 per cent foolproof certificate. We are giving our opinion, based on the evidence and legal advice presented, that the Bill conforms to the requirements of that Act, but there is no 100 per cent guarantee that there will not be challenges. I would like to see the legal advice which says. “There will be challenges. We are not confident that if you kept to the 1990 Act those challenges would be successful”. However, I am a realist and I recognise—and some of us have been here before—that the Government will want to have their way, particularly after they have moved a good way to respond to some of the concerns expressed.
I am not holding my breath about whether we will get through Amendment No. 109 so I have scanned the other amendments to see which take my fancy. The most effective alternative was that tabled by the noble and learned Baroness, Lady Butler-Sloss, which is Amendment No. 110. I always defer to the noble Lord, Lord Lester, on the European Convention on Human Rights—although it seems but yesterday, it was 10 years ago that I was writing policy papers on this for the Labour Party—but the main thing is that it balances rights and some rights are in conflict with each other. It does not give absolute rights to one person over another, but balances them. I would say—and I am not a lawyer, but I would like to hear the arguments against this—that Amendment No. 110 achieves that kind of balance. It is difficult for me to see, on the evidence so far, that that amendment in particular does not do a rather good job, and indeed does not in some ways improve the wording in the 1990 Act. I thought the noble and learned Baroness, Lady Butler-Sloss, made a powerful speech on that.
There are some options for the Government. I ask my noble friend to pay serious attention to some of these issues, as I am sure he will. I do not want him to think I am churlish in not rushing to accept the Government’s amendment—which, after all, is better than where we were before. At the very least, I ask that wording like that in Amendment No. 110 is reflected in the code of practice. The reason I say that is that the distinguishing feature of that amendment is that it provides a clear and elegant test that clinicians have to pay attention to in deciding on the welfare of the child. It has clarity about what clinicians have to consider in terms of the welfare of the child at the point of determining whether they go ahead with IVF. That is the great attraction of Amendment No. 110. I ask my noble friend at the very least to give us some assurances that that is the kind of clarity we would look for in the code of practice. However, if he really wanted to satisfy me, I would ask him to take away Amendment No. 110 and consider it further for Third Reading.
My Lords, my name is also associated with Amendment No. 110 and I strongly support what the noble Lord, Lord Warner, has just said. We have listened to a number of instances of how there might be incompatibility with the European Convention on Human Rights. Given that in certain other European countries there is no permission for people to get IVF unless they appear as a married couple in the first instance, I admit I find it puzzling that we should be accused of discrimination. I am pleased to be associated with the noble and learned Baroness, Lady Butler-Sloss, on Amendment No. 110. I would have thought that its wording would have met virtually any test of discrimination that one could come up with.
I was moved, as many other noble Lords have been, by the speech of my noble friend Lord Carlile. For the purposes of making my own position quite clear, I should say that I always supported the Civil Partnerships Act. I was strongly in its favour and members of my own family have very much benefited from it. Civil partnerships are not the issue at all; the central issue is whether the welfare of the child comes before that of either parent or both parents, whether they are in a heterosexual or a gay relationship. I remain unsatisfied on that point.
My noble friend Lord Carlile said—and this was the one thing in his brave speech that I was slightly surprised by—that he believed the structure of what one might call traditional heterosexual marriage has more or less disappeared. There is one reason why I would raise a substantial question about that: the clear evidence, most recently emerging from the OECD study and others, of the growing involvement of young men in parenthood. Many of us remember, if we go back a generation or two, that fathers were a very distant member of the family, sometimes not much more than authority, sometimes even an authority that abused itself by its behaviour towards its spouse and its children. That has changed quite radically in my lifetime. I now constantly come across fathers who are sharing in all the basic issues of bringing up a child, from changing nappies to pushing prams to taking a huge share in their child’s upbringing. It has been a striking transformation. Many young men today share far more than their fathers or grandfathers ever did, not only in housework but in raising children and in all domestic responsibilities.
For me, that is the way forward. That is what I always thought equality between men and women was all about: the equality of sharing responsibilities as much as equality before the law. I would therefore be very sad if we began to diminish the importance of fatherhood. Here I agree with the noble Baroness, Lady O’Cathain; that is the message that would go out if we effectively said that a child does not need both a mother and a father, as Amendment No. 110 suggests. Why do I say that? Whether we like it or not, our society is made up of two genders: male and female. It is important that children should be brought up knowing something about the approaches and attitudes of those two genders. They are not the same, and thank God they are not. Women bring to society a set of different attitudes and often different objectives from those of men, and children need to try to understand them both.
When I was Education Secretary, one of our main concerns was the shortage of male teachers in primary schools—a concern that remains. Why did we think that was so important? It was of no concern to us whether the young man was gay or heterosexual; what mattered was that he was a devoted and good teacher. We knew that those children needed male role models; in particular, children from broken or disadvantaged families benefited from a male role model. It did not necessarily have to be a father, but it was important that within the family structure there was someone who was, in a sense, in the role of a father and therefore gave that model to both male and female children.
I would go further than that, however, and say that in our society the way ahead is clearly the sharing of responsibility. That is now extremely important if we are to sustain the concept of family life, whether—I repeat this, although I do not need to—in civil partnerships or in marriages of the more traditional kind. What matters is that the family reflects the contribution of both its male and its female members, and that both should recognise their responsibility to society as a whole.
I was troubled, therefore, by the extent to which I have seen, particularly in education, the way in which boys in particular find themselves at a loss about quite what their role in society is. We know already that boys now attain less than they used to. They attain less, comparatively, than girls do at academic levels from the very beginning of primary school all the way through to A-levels and beyond. We are seeing the demotivation of boys. It is terribly important that we restore to them their motivation, and fatherhood is one of the key ways of doing that. I thought that much of the Government’s legislation indicated that they shared that view, since they have never ceased to iterate the importance of the responsibility of fathers, as well as mothers, towards the children they generate.
I strongly support Amendment No. 110. It is fair and even-handed, and gives the best possible chances to children for their welfare to be considered. I repeat: in every event the welfare of the child must come first. It is the very highest priority.
Sorry, my Lords; I have given way once already. I speak from a rather unique position. In moving the amendment, the noble Baroness, Lady Deech, spoke with the experience of being chairman of the Human Fertilisation and Embryology Authority. The noble and learned Baroness, Lady Butler-Sloss, spoke from her experience on the Bench. I first specialised in infertility care some 35 years ago. My chair, when it was eventually established, was the first in Britain devoted to infertility, and for 35 years of my time professionally, until I retired from the National Health Service, I sat daily in front of infertile women and men—most of the time, listening. My appointments did not last for just five, 10, 15 or 20 minutes. It would be rare for me not to listen to a couple for at least half an hour, and that was true right up to the time of my last clinic. In those consultations, what I saw at first hand, again and again, was something which your Lordships cannot have seen in quite the same way. I saw the pain, the lack of self-esteem, the sense of total failure, the sense of deep bereavement, the anger that these women in particular felt, the despair they showed and the depression they frequently had. Your Lordships, as a House, are asking me, as a doctor, to make a judgment in a situation like that as to who is a suitable parent. You are trying to enforce the unenforceable. This is not a practical proposition.
I am not going to give way, my Lords, I am afraid.
I was very grateful to the noble Lord, Lord Warner, for offering to give way on this occasion, but he said in Committee, just a little sarcastically—uncharacteristically—that he would try to help me as a clinician. Clinicians cannot be helped in this situation—this is a real entity in our clinical practice. To expect doctors ultimately to be policemen is not reasonable. It could be part of the code of practice, but I do not believe it could be a point of law. It simply makes bad law. Nor do I believe these warnings about the dreadful effect on our society. I think that they are simply untrue. The noble Lord, Lord Carlile, made a telling comment. His experience has not in any way damaged his family, and the experience I shall describe in a moment has not damaged the family I want to speak about. I promise that I do not intend to go on too long.
These tears of frustration can be mimicked; they can be synthesised; they can be real. Most of the time, believe me, they are deadly real, and the pain is real enough. But there is no way in the space of a clinic that you can deal with that situation except to listen, try to understand, do your best to empathise and do what you feel is responsible and right. There will be occasions when you clearly have an indication that it would be wrong to treat a couple—perhaps they come from a known family with child abuse problems. But that is extremely uncommon; it is very rare indeed.
Fourteen years ago I saw a lady in my clinic who I came to just in the same way as the noble Baroness, Lady Deech, did, whose view I would unquestionably have shared 30 years ago without the clinical experience I have had. I was determined not to treat this lady. She was HIV positive and it was not clear what her relationship with her partner was. I was sure that it would be wrong to treat her because of the child. But, because I wanted to be open-minded, I gave her another appointment for three weeks’ time. Over the next months, I saw that lady five times in my clinic—I am not exaggerating—and came to the conclusion that she was worthy of treatment. In 1993-94, the diagnosis of HIV was a death sentence, but there was always a possibility that there might be treatment around the corner. It was becoming clear that it might be possible to deliver babies to lower the risk.
I presented the case at our regular meeting in my clinic. When we have a clinic meeting, everybody attends, including the people who clean the clinic, because we want a general view of what everybody feels. Nobody is excluded. Eighty-five members of my clinic turned up for the discussion on this patient, and without a single exception, nobody supported my view that this woman should be treated. They were all prejudiced against the idea because, to them, treating somebody with HIV was abhorrent. I could not treat her single-handedly, and I worked on my team for six months. By the end of that period, it was interesting to see a massive change of view. We treated that lady, whom some of them thought might die or abandon her child. That lady is alive today and the child, who is a teenager, is well.
In her wonderful speech, the noble Baroness, Lady Howarth, made a point about same-sex couples, but this matter goes much wider than that. The biggest single issue in our society is the woman in her late 30s and early 40s. This is increasingly common as women gain skills and education and contribute to society in all sorts of ways. It is not easy for these women to find a partner to live with, but they need treatment because their ovaries are running out of eggs—two or three a day, on average, according to the biological clock. By the age of 40 to 42, they cannot actually conceive. By the age of 42, something like two-thirds of women are seriously infertile. The chance of getting pregnant with IVF by the age of 45 is well under 4 per cent on average. It is not unreasonable, therefore, for these women to present to a clinic without a partner. What are they to do? What is the doctor to do? Of course I agree that the question of the father who gives the sperm is important, but it has nothing whatever to do with this debate. That is about another amendment—the anonymity, or otherwise, is something that we must separate from this argument.
In this amendment, the best we can do is try to find something which at least raises the issue to the clinics and to those counselling in them, and recognises that there is a problem. To my mind, the Government’s amendment does that admirably, and I shall support it.
My Lords, I apologise to the noble Lord, Lord Carlile, for interrupting him from a sedentary position. However, I was deeply concerned that a lawyer, above all, should say that which is not legally correct and which he must know is not legally correct. Civil partnership is not marriage. That was made explicitly clear by the Government during the passage of the Civil Partnership Act. Indeed, if they had declared it to be marriage, it might not have been passed by this House. It is a very great pity that the noble Lord should have said something which, as a lawyer, he ought to have known was not true.
The noble Lord also said that the campaign for responsible fatherhood was lost a couple of generations ago. If that is true, then let us fight the campaign again and win it. Let us not simply say, “It’s gone, it’s lost, forget it, it’s a new world”. The noble Lord also said that science could change ethics. No, my Lords, science cannot change ethics. Ethics are ethics, morals are morals. What is right is right, what is wrong is wrong, and science cannot change that. If that were so, we would be living in a morass, in a world of moral relativism. If there is one thing that is going wrong in the world at the moment, it is that we are losing sight of the immutability of certain rights and wrongs and ethics.
We are all citing personal experience, and none more so than the noble Lord, Lord Winston. I would have been happier about some of what he had said had he not described those of his team who had disagreed with him as prejudiced. It might just have been that they took a different view from him. They might even have considered him prejudiced. It is possible. We have to be careful not to allege that those who take a different view from us are doing so out of prejudice, when they may be doing so from a moral standpoint or from their experience of life. I should say that I have been a single parent—albeit not for very long—after my youngest child was born and my wife was desperately ill. I found myself cast in that role for some months, with a newborn babe, a five year-old and a seven year-old. Do not tell me that single parenting is difficult. I know that well enough.
This legislation—and particularly this part of the Bill—is about those circumstances in which a child is conceived by IVF through the use of technology that has been licensed by the state. Therefore the state has a responsibility of fatherhood. The child would not have been conceived without that. Indeed, those technologists involved in the conception have a responsibility of fatherhood too. We are tending to forget that.
Under those circumstances, there is no doubt in my mind, that, in general—and I emphasise, in general—a child’s life prospects are better if it grows up in a family, with a father and a mother, than if it lacks either of them. In general, these are indisputable facts. Of course, there are exceptions. There are thoroughly bad fathers, thoroughly bad mothers and extraordinarily good single parents. Of course, there are. However, we can only deal with it in general terms.
The noble Baroness, Lady Deech, implied, that this Bill, as drafted, tends to marginalise fathers. That is true, but it is not the worst of it. This Bill concentrates so much on the alleged right of a mother to have a child that it forgets the right of a child to have a pair of parents—a mother and a father.
As for human rights law, do not children have human rights? Does not an unborn child have rights? Indeed, perhaps one could extend it to the concept that a child not yet conceived has a right? I think it does. It has a human right to a father and a mother. We should ensure that we do all we can to see that that is carried through.
Amendment No. 108A rebalances the Bill, not so much in favour of mothers, or of fathers, or of parents, but in favour of the child. Surely, it is to the child that we owe the responsibility, as it is under this legislation that the child will be conceived. Therefore, collectively, we are, in that sense, its parent.
My Lords, like a moth to a flame, I rise to support the Government’s Amendment No. 108 and to set out my opposition to the subsequent amendments. Before doing so, I would like to say what a privilege it has been to read and listen to the debates in this Bill. If or those outside this Chamber or in another place wish to see justification of why we are here, I would ask them to look at the work done on this Bill.
It is easier to create legislation for the kind of world we wish to live in than it is to create laws for the world that we actually live in. The Government have done well in tabling their amendment and have tried to find a way through the issues of the clinic’s obligation to consider a male role model, while keeping the child’s best interest at heart. That means supporting good parents regardless of their sex.
Equality for lesbian and gay people in Britain is a principle now established in law in a range of areas. It is an issue that this House has considered, in detail, in many previous debates and supported time and time again—not least when it approved civil partnership affording same-sex couples equal rights to those of married ones, a move which recognised the long-term commitment made by so many same-sex couples.
Provisions in this Bill would give greater legal recognition to same-sex partners and, more importantly, greater protection to their children. I read the speech made by the noble Baroness, Lady Deech, on Second Reading and have utmost respect for much of what she said. However, on this single point, I disagree with her. In my view, consideration of the potential need for a father should not outweigh the assessment of whether potentially a lesbian gay couple would make good parents or whether a single woman would make a good parent.
No one is trying to substitute the biological father. The Bill is simply trying to allow same-sex couples and single women to have equal access to fertility clinics instead of taking alternative informal routes. We argued that very point in this Chamber when looking at the access to goods and services Bill. It is with some regret that I read some of the claims made during Second Reading about the endurability of same-sex relationships and the suitability of lesbian and gay people as parents.
Let me briefly attempt to put the record straight. Many thousands of couples in long-term, stable relationships have formed civil partnerships but no dissolution figures exist. It is too soon. There is no credible evidence because it is too soon to suggest that they will be disproportionate to the rest of the population.
This Bill will, for the first time, enable two women in a committed relationship to consider starting a family with—and this is the important point—the support of the fertility clinic. That is at the heart of the issue. The Bill would allow the women to start their family with the support of the fertility clinic. The present requirement upon such clinics is to support the potential need for a father before granting the treatment. That can encourage some women to make informal arrangements outside the protection of formal healthcare and that should be avoided.
This is a narrow and specific question, not a broader one of fatherhood. No one is trying to replace the father. It will not deter many of these women from having children. It will simply drive them away from the services they pay for and have a right to expect.
I say to the noble Baroness, Lady Deech, that while I respect her argument in principle and her motives in practice, she may have inadvertently ventured down a dangerous and rocky path. The noble Baroness, Lady O’Cathain, has also put her name to the amendment and has spoken already. I have spent many hours across this Chamber arguing the rights and wrongs of same-sex couples, gay rights, gay men and lesbian relationships—the debate has been well argued. I fear that it is that debate which is contaminating this Bill. The noble Baroness, Lady O’Cathain, is well practised in setting down persuasive arguments as to why equality should be denied to homosexual couples. I fear that the noble Baroness, Lady Deech, is in danger of having some of her arguments hijacked.
The world is changing and will continue to change and I am pleased to say that, on many occasions, this House has changed with it. If we were to adopt the proposals put before us today, we would demonstrate that change in a very pragmatic way. The Government have listened to all that we have said and I hope that this amendment will succeed. We should lead and not always follow.
My Lords, I degrouped my Amendment No. 111A so that we could have a good debate on it and I would have a chance to get back at the Minister, but he has completely undershot me by giving me everything I wanted in his opening speech. I shall therefore now speak to Amendments Nos. 108B and 108C, and Amendment No. 111A will come up in its proper place in the Bill.
In speaking to this group, I would like to step back for a moment, although I will not speak for long because I think your Lordships have probably had enough.
My Lords, every successful human society has some sort of social structure in place and sanctions to ensure, as far as possible, the effective nurture of its children. In some countries, that is done by the village or tribe. In others, it is done by grandparents. In a few, the children are mainly raised by the state. But the communist formula is—and always has been—that both parents should take principal responsibility for the children they bring into the world, sometimes helped by the state.
Over the past 50 years, in the context of what we are talking about in the Bill, we have to realise that important changes have taken place in our own society to which we have not yet fully adapted our parenting pattern. Today, more than a quarter of the nation's children are raised by a single parent and more than 40 per cent can expect their parents’ marriage or partnership to break up before they leave school. Grandparents and kin often live far away, but only a small, yet important, minority of parents are failing their children. I do not suggest for a moment that those are the committed single-sex couples.
This group of amendments is important not because it is about fathers and mothers but because it is about a question of principle. How can we ensure, as far as possible, that children born through IVF get the parenting and family life that they need? The Government have made a good shot at it by adding the words “supportive parenting” and I support government Amendment No. 108 in that connection, but it does not go far enough.
I will first speak to Amendment No. 108C and then to my Amendment No. 108B in this group. I believe in the importance of both a father figure and a mother figure in a child's life. Men and women are equal, as several noble Lords have said, but they are different. There are different talents, skills and qualities that they can bring to the parenting of a child. There is plenty of research to show that children as they grow up benefit from having the love and example of a woman and a man who are both committed to caring for them. For that reason, my Amendment No. 108C and others in this group would ensure that the Bill covers the advantages to the child of having a mother figure and a father figure in their lives.
The noble Lord, Lord Warner, wisely suggested that this matter could be dealt with in guidance and I draw the attention of the House to the fact that the existing guidance, at paragraph G.3.3.3, states:
“Where the child will have no legal father, the centre should assess the prospective mother’s ability to meet the child’s/children’s needs and the ability of other persons within the family or social circle willing to share the responsibility for those needs”.
If no reference to the father is included in the Bill, that will fall. Will the Minister assure us that some comparable guidance in relation to both a father and a mother will be included in the guidance?
I now turn to my Amendment No. 108B, which suggests that the words “and family life” should be added after the words “supportive parenting”. A survey of research carried out by Charles Desforges, which the Government have accepted, has shown that family life has a major influence on the child's educational outcomes and his life chances even after discounting all other factors. The UN Convention on the Rights of the Child lays down that all children have the right to family life. I know that this Government have not signed up to the convention, but it is right to draw attention to the value of family life for a child, not in a restrictive definition of family life—that must depend on the child’s needs and family circumstances—but at least a family life in which the child would have the opportunity to feel safe, have fun, to learn to interact in a secure environment with friends and relatives and to learn from them how to learn. That is why I tabled Amendment No. 108B.
Finally, I recognise that the inability to have a child, to which the noble Lord, Lord Winston, so movingly referred, often causes great pain and is emotionally damaging to the woman concerned. I suggest that in the majority of cases the conditions on which some of us have suggested the centre should make an assessment do not necessarily imply that that woman is denied a child by IVF. They put in place certain sacrifices that women must make for the sake of the child if they are to qualify for IVF treatment. After all, that is no different from the commitment that most of us make when we decide to have a child.
My Lords, I will be very brief. I support government Amendment No. 108 and oppose the other amendments not because I do not believe that a father is important in the life of a child; I very much do. I am familiar and agree with most of the research to that effect, but I gently suggest that it is not relevant. Today's debate is not about the virtues of a particular form of family. We are looking at this legislation and seeking to pass amendments in order to determine the interface between a clinician, as my noble friend Lord Winston said, and a prospective patient seeking treatment.
Let us suppose that amendments other than the Government's amendment are passed today. What will happen? Heterosexual couples remain unaffected. We are obviously not going to prohibit the rights of single women and gay and lesbian couples to have fertility treatment because they already have that treatment and almost everyone has said that they expect and wish that situation to continue. The likelihood of single women or indeed a gay couple re-presenting themselves to the clinician as part of a heterosexual couple is impossible unless they are manipulating the legislation. So what have we achieved should we pass any of the amendments other than the government amendment? Heterosexual couples, single women and gay couples continue as before. However, we were told in several of the contributions today, which I respect, that we would be sending out a signal. What does that mean?
It has come to me in the course of the debate that we do not expect the world to be any different. We do not expect to change anything, but we feel better because we have put our views on the face of the Bill. That could be empty, bad law or rhetoric, but it would also do something else. It would send out a signal, which is what worries me most. The signal that would be received by the children mentioned by the noble Lord, Lord Northbourne—the one child in four currently in a family without a father—is that we believe those families are inferior and those children are second-class children. As a result, we would be stigmatising them in the name of some family form that we wish them to have, but that they do not have, and cannot, as children, choose to have. Is that what we want to do? To stigmatise children with an amendment that will have no practical effect on any presenting client, but will impact on the children that may result. I cannot believe noble Lords want that to happen. I hope, as a result, that noble Lords will support the Government’s amendment, which responds to the feeling of this House in Committee, but reject the other amendments.
My Lords, we know that a father has a special interest in his children. I proposed the clause that is now sought to be deleted from the1990 Act, so I have a certain filial affection for it.
First, on the moving account of the noble Lord, Lord Carlile, I should like to say that his eight-ninths of a grandchild apparently came under the existing law perfectly satisfactorily. Secondly, the noble Baroness, Lady Howarth of Breckland, said that we do not at all underestimate the value of a father. That is what this clause in the 1990 Act does: it just points to the value of a father as a factor to be taken into account in the welfare of the child. Everyone is agreed—government and all the others who have spoken—that the welfare of the child is something that the clinician has to take into account. I know that it is not always easy, but it is something that the clinician has to take into account. All the 1990 Act says, and I think that the noble Baroness’s remark about it in a sense supports this, is that there is a value to the welfare of a child in that child having a father.
The guidance has been referred to. All that the clinician has to do currently is take the guidance into account. This guidance, which has been in existence for some time under the present Administration, seems to me to express that in a very cogent and practical way. Like the noble Lord, Lord Warner, I prefer the amendment that leaves things as they are. In the mean time, I will certainly consider supporting Amendment No. 108A.
My Lords, at this late stage I rise simply to make a few points which have not yet been made in the debate. The only issue that matters is what is in the best interests of children. In determining that, many of us rely not only on our own experience but on the available research. In-so-far as people have quoted it extensively, the fatherhood bibliography produced by Christian Action Research and Education has been a very successful piece of propaganda. It is a very selective document which moulds together peer-reviewed research, grey research and opinion. As a piece of propaganda it has been effective; it has set up precisely the debate that the most reverend Primate the Archbishop of York talked about. It has led us to believe that we are talking about conflicting rights, when we are not.
I do not believe that any heterosexual couples will be denied IVF treatment as a result of the Government’s proposals. I do not believe that there will be fewer children born with fathers as a result of IVF. We are talking about recognising the truth of modern-day life, as my noble friend Lord Carlile said so eloquently. If as the noble Baroness, Lady Deech, said in her opening remarks, her amendment, in its intended simplicity, is taken to mean that treatment will not be given unless there is a father and mother, then, as the noble Baroness, Lady Hollis of Heigham, said, people will be reduced to trying to find a way either of circumventing the law or of presenting themselves in an untrue fashion. What the Government’s amendment attempts to do is recognise a factor that has so far not been mentioned to any great extent—that all children benefit from stability and security in their upbringing. The Government’s amendments attempt to enable people who intend to become parents to become good parents, and to do so from the start by presenting themselves honestly for treatment.
I have to ask those who have presented these amendments two questions which I have asked at every stage of the Bill but to which I have not yet had an answer. They are questions that have to be answered before we consider these amendments any further. We are told that the passage of these amendments is likely to mean that people will seek to go abroad to clinics that exist on the edges of the law, or that they will simply make private arrangements. Each course of action contains within it a degree of risk not only to the mother but to the health of the child. If the proposals would also have the effect of dehumanising the donors, to use the words of the noble Baroness, Lady Deech, then I would ask whether that is the effect that the movers of the amendments wish—or are they seeking to put forward a set of proposals that would be wholly counterproductive, as I believe they would be?
My final point has not been made by anybody else in this debate. The noble Baroness, Lady Deech, quite rightly set us off on our discussions this afternoon by talking about the importance of principle. Part of principle is precedent in law. I ask noble Lords whether they have appreciated the fact that, in trying to establish a principle—which is what the noble Baroness is trying to do, and for good reasons—it is just possible that we may set a precedent of denying a person health treatment? This would not be on the basis of their need, or the way they present themselves as a patient, or even the way they behave, but because they are a member of a minority group within our population. That is a dangerous principle and a dangerous precedent—one that I would not wish this House to set in law.
My Lords, I reflected as I listened to the speech by the most reverend Primate the Archbishop of York, how right he was to say that we seem to live in a world where one set of human rights suddenly comes forward to trump another set of perceived human rights. That will cause us great difficulty, going forward. Equally, in the moving and challenging speech of the noble Lord, Lord Alli, who was, as always, stalwart against discrimination, I reflected that, sometimes, as one becomes more vigorous against discrimination in one direction, one can just see incipient discrimination coming from another quarter. That is the only point I wish to make; I shall not be repeating any of the remarks that I made in Committee—not one jot, nor one iota.
It seems to me that the Government, either by design or well-meaning accident, are now busy deconstructing the meaning of fatherhood. That is where incipient anti-father prejudice could well be creeping in. This flies in the face of the attempts by the Government, which I support and to which I pay tribute, to encourage fathers to pay maintenance, to take paternity leave, and to continue contact with their children after divorce, if that should happen.
This approach also flies in the face of the principle of non-discrimination. Here is where I would like the noble Lord, Lord Alli, to think as deeply about what I am saying as I try to think about what he says. By appearing—and appearances matter to the outside world—to be a bit anti-father, and appearing to fail to give proper respect to both sexes, the principle ultimately fails to hold equality of esteem for parenting between the sexes.
I do not know how much time the right honourable gentleman the Prime Minister, who inherited this Bill, has to give to its wider and longer social implications. He seems to me as a complete outsider to be an exemplary father, yet his own Government’s legislation in this context is likely, whether by design or because of unforeseen and unintended consequences, to lead little by little to the steady deconstruction of the very meaning and importance of the word “father” and thus the reality of fatherhood, and to the incipient devaluation of the role of fatherhood, by the signals that this legislation is giving from this place to the outside world about the meaning of fatherhood.
I simply cannot believe—as I predict will be seen—that the country at large supports the removal of the need for a father. That removal sends a clear signal to men that the Government ultimately do not value the unique role of fathers in a child’s life, let alone the message that the Government wish to promote legislation that might turn out to be seen by later generations as discriminatory against men.
My Lords, I do not intend to regale your Lordships with my study of the parenting of a range of mammals; I simply wish to make a logical suggestion. If we accepted the amendment of the noble Baroness, Lady Deech, who is one of my colleagues on the committee, and added to it “and/or supportive parenting”, we would solve the problem.
My Lords, I rise in the briefest of contributions to support the Government. In many debates we have made a plea for honesty about genetics and what we do. The amendment simply tidies up and makes this legislation compatible with the most honest of today’s practices. If we do not allow that, two things may well happen. The Government are changing the burden of proof on doctors, probably from the criminal standard to the civil. I fear that there will be gold-plating by clinics. They will say, “It’s on the face of the Bill that we cannot treat you if you do not have your one man in tow”. We will go back to the days of men being dragged into clinics—perhaps for money—and pretending that they are in a supportive and loving relationship.
I would also caution your Lordships that it is not honest to transpose the research from broken families and the outcomes for their children on to the outcomes for children who are conceived through an infertility clinic after incredibly careful consideration by people who are desperate to give the very best upbringing possible to those children and who have invested a huge amount even before they conceive. That is completely different from unplanned pregnancies and broken relationships where the father has been abusive or whatever. I therefore make a plea to your Lordships that, if we are to be honest, this is the only amendment that we can pass. Other bits can go in guidance and can be helpful, but the Bill has to reflect what is actually happening today, not turn the clock back and force people to be dishonest.
My Lords, let me say at the outset that the amendment and our proposals are not motivated by any attack on fathers or the concept of fatherhood, as I clearly outlined in Committee. The Government recognise very clearly the extremely important role that fathers can and do play in their children’s lives, and the consequences that can follow when relationships break down. There is no requirement in the law as it stands that there must be a father or any man involved in the upbringing of a child. The outcome intended here is to change the law, as was eloquently described just now. We need to ensure that we have a clear and transparent law. There should, as my noble friend said, be no pressure on clinicians such as me. We may be good at interpreting science within a framework of regulation, not a law which is not transparent and meaningless. That point was eloquently raised by the noble Baroness, Lady Warnock, who said that the law was “ineffective” and “wishy-washy”.
Nor do I support the concept of back-street impregnation which we heard about earlier or perverse incentives in relation to this unclear law. The Government have put huge effort into finding the right words and being as transparent as possible. We strongly believe that it is the quality of parenting and not the gender of parents that counts. The amendment is for supportive parenting. Amendment No. 108A, which would put the words
“a father and a mother”
in the Bill, would place an additional hurdle, as we have heard throughout the debate.
I conclude on Amendment No. 110 on what might go into the code of practice. We would not accept such wording in the guidance for the same reasons that we will not accept it in the legislation. Therefore, it is the Government’s conclusion that they will not support the amendments to the government amendments.
My Lords, I shall respond briefly. I am motivated by the fact, of which I am pretty sure, that the public wish us to put some ethical underpinning to the enormous leap forward in science. As for statements by noble and learned Lords about human rights, I point out that we will be in a minority in Europe if we change the law in the way that the Government wish. I point out also that “private life” and particularly “family life” have been interpreted as something that is already in existence. There is no human right to have a baby. The only body that is in danger of discrimination is the National Health Service.
The Government must regret ever having started along the line of amending Section 13, which works so well, because they have opened up a hornets’ nest. It was allowing more and more single and lesbian women to access treatment with no problem at all. Whichever way the House goes tonight, the decision is likely to upset members of the public and to devalue fathering. Unlicensed sperm donation on the side has been going on and I am sure that it will continue. But we should remember that whichever amendment we go for, it will be only one of the factors that the clinician has to consider.
Every civilised country draws lines about the circumstances in which it is right to reproduce. I have not heard any noble Lord argue today that, for example, it is a breach of human rights to refuse IVF to a 14 year-old or to refuse it to two twins—echoing a case in the newspapers recently. We know that there is an element of discretion and that there are certain underlying values and structures which are largely worthy of consideration. The same applies to the presence of a mother and father. Indeed, in one judgment, the House of Lords took note of the difference between biological and same-sex parenting and preferred to give custody to the biological mother.
The trouble with the amendments is that they are predictive, but we cannot predict good or supportive parenting. There are hundreds of thousands of divorces in this country which all started with two would-be parents promising to live together forever and making commitments to bring up their children. We know that one cannot predict and that breakdown happens. This is not something that clinicians, or anybody else, can lay down rules about and perceive. That being the case, and because I passionately believe that the advances in science need to be acceptable to the public, I would like to test the opinion of the House on this amendment.
Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 108B and 108C, as amendments to Amendment No. 108, not moved.]